The Bangalore lower court order suspending the account of hepatologist Cyriac Abby Philips – known on social media as “TheLiverDoc” – on microblogging platform X is legally dubious. It takes the ambit of what can be granted as interim relief in online defamation cases to unprecedented territory.
Additional City Civil and Session Judge DP Kumaraswamy had passed the suspension order on September 23. X blocked Philips’ account on September 28.
The interim order came after pharmaceutical and wellness company Himalaya Wellness filed a defamation suit against Phillips. Himalaya accused Phillips of “posting derogatory statements and materials” against its products due to which its business had “substantially reduced”, as per the court order.
The order also states that as per Himalaya’s counsel, Phillips’ online statements were “per se false and not justified”, and were intended to promote the products of pharmaceutical companies Cipla and Alchem instead.
Kumaraswamy passed the order in an ex parte hearing, that is, without even issuing notice to Philips, let alone give him an opportunity to make his case before court. Philips reportedly found out about the court’s order from X on September 28.
Phillips’ X account, which has 185,000 followers on X, will continue to remain blocked in India till at least January 5, 2024, which is the next date of hearing in the case.
Why the order is problematic
In defamation cases, it is standard practice for the complainant to seek an ad interim injunction – that is, an order immediately blocking the allegedly defamatory speech till the pendency of the suit.
Such orders can be passed by courts on an ex parte basis, but only on the fulfilment of a rather high threshold: that it is immediately evident that the content is defamatory, that the non-removal of the defamatory content would cause irreparable harm to the complainant and that greater inconvenience would be caused to the complainant by not granting the injunction in relation to the inconvenience suffered by the alleged offender due to the injunction.
The order states that it relies on judgments by the Supreme Court and the High Courts of Delhi, Karnataka and Madras to decide that Phillips’ allegedly defamatory content on X needed to be removed “to minimise the damage caused to [Himalaya] in any manner like loss of reputation, loss of income in monitary [sic] terms and disservice to the consumers who are benefited by [Himalaya’s] products”. However, it doesn’t actually name these judgments or their citations, even though it is standard practice for courts to do so when relying on them for a conclusion.
The order does not explain how the threshold for granting ad interim injunction is fulfilled. It merely states that Himalaya has made the case for the urgency of such an order. In the absence of any reasoning offered, it is unclear how the legal threshold is reached in this case.
Even assuming that the threshold was reached, the order goes overboard in ordering the suspension of Phillips’ X account. The need for such broad sweep is not justified in the order either, especially because the operative part of the order states that “in the facts and circumstances [of the case] issue ad-interim exparte temporary injunction order restraining [Phillips] from tweeting, making or publishing, re-tweeting and republishing defamatory remarks against the plaintiff company and / or the products of [Himalaya] till next date of hearing.”
It is unclear why the court did not just prohibit Phillips from making any statements against Himalaya and order the temporary blocking of his tweets about the company till the disposal of the suit, as such ad interim injunctions in defamation cases ordinarily do.
Lower judiciary decisions don’t have binding value on courts like High Court or Supreme Court orders do, so the Bangalore court’s order will not function as precedent for other courts.
Blanket ban unprecedented
There is no precedent for a court ordering the blocking of an entire social media account as part of an interim injunction in a defamation case.
In October 2019, the Delhi High Court had, in a defamation case initiated by yoga guru and businessman Ramdev, opened a different Pandora’s box by holding that injunction orders against allegedly defamatory content were to be implemented wordwide, and not just in India. In other words, the impugned social media posts would be blocked globally, and not just for social media users in India, as was the standard practice.
Since different countries have different legal standards on freedom of speech and defamation, global takedown orders mean that social media users even in foreign countries where such standards are more liberal would not be able to access the content, even during the pendency of the case when it has not been judicially held as defamatory in India itself.
Since then, most court injunctions against social media posts have been global blocks, although in the instant case, Phillips’ account is only blocked in India.
Inspiration may be sought from the Bombay High Court’s judgment in November 2021 on how to balance the right against defamation with the right to freedom of expression online in a defamation case. In a defamation suit filed by the father of bureaucrat Sameer Wankhede against then Maharashtra minister Nawab Malik for his online posts about the religion of Wankhede and his family, the high court had refused to grant an injunction blocking Malik’s tweets, or putting a blanket ban on him on writing anything on social media. However, it directed Malik to conduct due diligence before imputing anything defamatory about Wankhede or his family.