Does hyperlinking defamatory article lead to fresh defamation case? Delhi High Court answers

The Delhi High Court recently answered the question of whether hyperlinking defamatory content would constitute republication giving rise to a fresh cause of action for instituting a defamation suit [Ruchi Kalra and Ors v. Slowform Media Pvt Ltd and Ors]..The question was being considered in a ₹2 crore defamation suit instituted by Ruchi Kalra, the co-founder of unicorn start-up called OFB Tech Private Limited (OFB), seeking injunction against The Morning Context for publishing an allegedly defamatory article.This is the second defamation suit filed by OFB against The Morning Context seeking takedown of the report titled 'The work culture OfBusiness doesn’t like to talk about’ written by The Morning Context editor Harveen Ahluwalia.The Court also considered the proceedings in the pending case Ashish Mohapatra v. Slowform Media Pvt Ltd & Ors concerning the first article published by The Morning Context titled 'OfBusiness co-founders and management allegedly assaulted an employee, says FIR’ that was hyperlinked in the second story a few times..Justice Purushaindra Kumar Kaurav observed that there can be no straightjacket formula to determine if the hyperlink is only a reference or if it is a republication for the purpose of defamation.The Court held that if the hyperlinking of the defamatory article is done to enable the reach of the defamatory article or publication which could hamper reputation, then it would amount to republication. .The Court further clarified that if hyperlinking is done only for referring to the main defamatory content, then it does not amount to republication.“If the hyperlinking does not merely make a reference to the earlier article, rather, it essentially repeats, redefines, explains, paraphrases or endorses the content of the earlier article, thereby giving a fresh impression and refreshing the memory or otherwise emphasizing to the reader about the defamatory content of the earlier article, thereby having the potentiality to hamper the reputation of the defendant, then it does not amount to a mere reference, rather it amounts to republication,” the Court stated. .The context and manner of hyperlinking is a relevant factor to determine liability, the Court said.“A hyperlinker may or may not be liable as a re-publisher and the determination would eventually depend upon the context in which the previous publication has been hyperlinked, the content and manner in which hyperlink occurs in the publication, any subtle implication or endorsement or repetition having the potential effect of targeting the reputation of a person etc. will be the predominant factors to be considered."If the hyperlinking of a publication is done in a manner in which it refers to the content that conveys defamatory meaning, then it would amount to republication, Court added.In this case, the Court held that the manner and context in which hyperlinks appear in the publication amount to independent expression and not a mere reference.“The defendant not only reinforces its alleged defamatory assertions but also seeks to lend credibility to its allegations by anchoring them to its past reportage, thereby fostering insidious and cumulative reputational harm upon the plaintiff,” the Court noted. .The Court thus agreed with contention of OFB that a fresh cause of action arises upon hyperlinking the defamatory article.“The act of publishing an article dated 07.10.2024 would ultimately reset the clock of limitation and thus the fresh limitation would start from the date of the publication of the article dated 07.10.2024,” the Court stated. .However, regarding the interim injunction plea, the Court rejected OFB’s application.“At this preliminary stage, the issuance of an injunction would be prejudicial to the rights of the parties involved, who must be afforded an adequate opportunity to substantiate their respective claims within the framework of a comprehensive trial. Further, injunctive relief at this stage would amount to taking away the right of the defendants to prove that the content published by it is justified and based on truth,” the Court stated. It added that granting injunction would disturb the balance between freedom of speech and right to reputation.“From a journalistic point of view, the article does not appear to fall in the category of reckless reporting and is claimed to be source-based, context-specific reporting. To injunct a publication of this nature would disturb the equilibrium that this Court must strike between the freedom of speech and the right to reputation, and would unjustifiably tilt the scale in favour of the latter, at the cost of the former,” the Court stated. .It was also noted that OFB’s conduct is contrary to submissions of urgency and irreparable loss made to court. “The plaintiffs have contended that the continued presence of the article in the public domain has resulted in the loss of critical investments and significant financial losses. However, the conduct of the plaintiff contradicts this claim, as they only approached the Court after over a year of the publication of the article on 17.05.2023. The lack of promptness on the part of the plaintiff undermines the urgency they purport to warrant seeking an injunction the removal of the article,” the Court stated..Advocates Tanmaya Mehta, Sanyam Khetarpal and Lisa Sankrit represented Ruchi Kalra and OFB.Senior Advocate Kirtiman Singh with Advocates Kushal Gupta, Akanksha Singh, Maulik Khurana and Rajeev Khatana represented The Morning Context..[Read judgment]