Privacy settings of Facebook posts make no difference: Delhi HC on online abuse

The Delhi High Court yesterday, in a matter pertaining to casteist online posts, held that it would make no difference whether the privacy settings on Facebook are set by the author of the offending post to ‘private’ or ‘public’..The judgment was passed in a writ petition filed by the accused seeking to quash an FIR filed against her under Section 3(1)(x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act. The petitioner was accused of continuously abusing the complainant’s caste on Facebook. The accused and the complainant were co-sisters whose relationship had turned sour..The petitioner had published a series of posts on her Facebook wall mocking the Dhobi community, of which the complainant was a part. Counsel for the petitioner Puneet Mittal contended that the posts were not directed at any member of the community, much less the complainant. He also submitted that the petitioner had blocked the complainant on Facebook..Appearing for the state, Additional Standing Counsel Nandita Rao argued that the petitioner had deliberately changed the status of her posts from ‘private’ to ‘public’ so that everyone could view the posts. Justice Vipin Sanghi, however, held that this fact did not matter..“Even if privacy settings are retained by a facebook member as “private”, making of an offending post by the member – which falls foul of Section under Section 3(1)(x) of the Act, may still be punishable if any of the befriended facebook members do not suffer from the limitations carved out in Daya Bhatnagar case i.e. if any of the befriended facebook members of the author of the offending post is an independent and impartial and not interested in any of the parties, i.e. is not a person having any kind of close relationship or association with the complainant..Therefore, to my mind, it would make no difference whether the privacy settings are set by the author of the offending post to “private” or “public.”.Justice Sanghi also observed that Section 3(1)(x) does not require that the intentional insult or intimidation of a member of the Scheduled Caste or Scheduled Tribe should take place in the presence of the said member..“Even if the victim is not present, and behind his/ her back the offending insult or intimidation with intention to humiliate him/ her – who is a member of the Scheduled Caste or a Scheduled Tribe takes place, the same would be culpable if it takes place within public view.”.The Court, however, concluded that the said posts did not constitute an offence under Section 3(1)(x), as they were not directed at any particular member of the SC/ST community..“To constitute an offence under the said provision, the person making the alleged derogatory utterances must know that the person whom he was intentionally insulting or intimidating with intent to humiliate was a member of the SC/ST. .Secondly, the intentional insult or intimidation to humiliate must be directed against and made to a member of the scheduled caste or scheduled tribe on account of the fact that the said person is a member of the scheduled caste or scheduled tribe.”.Therefore, the Court quashed the FIR and the proceedings initiated against the petitioner under Section 3(1)(x)..Read Judgment: