Defamation vs freedom of speech
Builder is spying and demanding takedown of a private WhatsApp chat comprising of customers, to break morale. He is citing defamation and threatening legal recourse against admins. Is that legal? How do you voice collective opinion and protect freedom of speech ? Where do you draw the line between frustration and defamation? what,if any, whistleblower protection is available for customers against private sector?
It would depend what is stated in chat and secondly the impact of chat qua builder on public. In absence of it, where is defamation. Collective Opinion based on facts is no defamation.
For a Defamation action against the Whatsapp Admins, the Builder can either sue for Defamation (Civil) as well as charged for it (criminal), since, it is both civil wrong and a criminal offence. However, the difference is in the remedy sought. In Civil, compensation is sought; while in Criminal, punishment is demanded.
But for the defamation to be proved, it is necessary that the defamatory statement is made in presence of the third person (which is present in the instant matter) because use of defamatory statement in private is no offence.
However, if the statement is a truth then there is no offence of defamation committed. It is irrespective of the fact that the statement is made maliciously or not. Hence, if the comments made are true then there cannot be any legal action against the customers by the builders.
Also, in recent times, Censorship laws in India have now roped in group administrators of chat groups on instant messaging platforms such as Whatsapp (group admin(s)) for allegedly objectionable content that was posted by other users of these chat groups. Several incidents were reported this year where group admins were arrested in different parts of the country for allowing content that was allegedly objectionable under law. A few reports mentioned that these arrests were made under Section 153A read with Section 34 of the Indian Penal Code (IPC) and Section 67 of the Information Technology Act (IT Act).
However, it is interesting to note that the group admins were arrested after a user or someone familiar to a user filed a complaint with the police about content being objectionable or hurtful. Earlier this year, the Supreme Court had ruled in the case of Shreya Singhal v. Union of India that an intermediary (whatsapp admins) needed a court order or a government notification for taking down information.
Also, presently, Whistleblower Protection does not extend to the Private Sector. Hence, there is no scope of preventing the Chat through this medium
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