Whether “new forms of technology” merit different treatment or not is not further discussed in the order of the Court in Subramaniam Swamy v. Union of India. However, the same court in 2009 had made statements that indicated that defamation on the internet had different effects, and therefore merited harsher consequences. In that case, a 19-year-old blogger was arrested for creating a group (“community”) on social media site Orkut, that was allegedly defamatory to the political party Shiv Sena. The Supreme Court refused to quash the criminal proceedings against the boy and argued that restrictions to free speech on the internet should be higher. The judge noted that “any blogger posting material on the web should be aware of the reach of the internet and hence also be willing to face the consequences of such action.”25 In a 2010 civil defamation suit, Tata Sons Limited. v. Greenpeace International & Anr.,26 the Supreme Court made slightly different observations as to when it would be relevant that the publication of allegedly defamatory statement is made on the internet. In this case, the petitioners moved the Court for a permanent injunction against Greenpeace along with damages for defamation under the civil remedy and trademark infringement. The facts of the case were that Tata Sons Limited was suing Greenpeace International, a not-for-profit organisation, for releasing a videogame through which it sought to publicise the harms that Tata Sons’ business ventures would wreak on endangered olive ridley turtles. The creators of the game defended their actions on the grounds of freedom of speech and exceptions under section 29(4) of the Trade Marks Act, 1999, which allows for the use of a trademark for criticism, fair comment and parody if it is with due cause. The Tata Group prayed for an injunction on the grounds that, as the “publication” happened on the internet, the likelihood of injury was greater if the injunction were refused, and that this should be a consideration for the court as it balanced convenience and irreparable hardship. According to the Tata Group, the damage to its reputation was “continuing and spreading every minute that the game stays online,” and as a result, an injunction should be granted. The Court ruled, however, that the nature of the medium of the internet may only be a consideration in assessment of damages. The Court held that the 25 Liang, L. (2009, 25 February). Bloggers and Defamation. Kafila. http://www.kafila.online/2009/02/25/bloggers-and-defamation 26 CS(OS) 1407/2010. term “publication” encompassed all forms and mediums, including the internet: That an internet publication has wider viewership, or a degree of permanence, and greater accessibility, than other fixed (as opposed to intangible) mediums of expression does not alter the essential part, i.e. that it is a forum or medium. In discussing the Canadian case relied upon by the petitioners, the Court drew attention to the detail that even in that case, a different standard for libel was not mooted for publication on the internet, and “suspected” that such a distinction (between the internet and other forms of publication) is not constitutionally sanctioned: Formulating and adopting any other approach would result in disturbing the balance between free speech and the interest of any individual or corporate body in restraining another from discussing matters of concern, so finely woven in the texture of the Bonnard ruling. Publication and republication in the digital age Another matter to consider in the age of the internet is what constitutes “making or publishing imputations”. According to section 499 of the IPC, the offence of criminal defamation would be committed if one “makes or publishes any imputation concerning any person […] to defame that person.” Union Minister Arun Jaitley filed a criminal defamation complaint in December 2015 against the Chief Minister of Delhi, Arvind Kejriwal, for publishing a tweet that Jaitley alleges to be defamatory. He also arraigned a number of others who retweeted Kejriwal’s original tweet, including the Aam Aadmi Party’s Raghav Chaddha. Chaddha approached the Supreme Court to seek a direction that a retweet cannot form the basis of a criminal prosecution. The Supreme Court has directed the Delhi High Court to look into the matter. As noted by Devika Agarwal,27 republishing a defamatory article constitutes defamation according to interpretation by Indian courts.28 It remains to be seen whether a retweet will be considered as “publishing” by the Delhi High Court. In the case of Khawar Butt v. Asif Nazir Mir,29 the plaintiffs instituted a civil suit for defamation 27 Agarwal, D. (2017, 25 September). Arun Jaitley’s suit against AAP’s Raghav Chadha: Does republishing of defamatory content amount to ‘defamation’? FirstPost. www.firstpost.com/politics/ arun-jaitleys-suit-againt-aaps-raghav-chadha-does-republishingof-defamatory-content-amount-to-defamation-4058989.html 28 Re: EVK Sampath, AIR 1961 Mad 318. 29 CS (OS) 290/2010. INDIA / 55