In a recent judgment1, the Delhi High Court (“Court“) has examined whether hyperlinking to alleged defamatory content would amount to republication and therefore give rise to a fresh action for defamation under Section 499 of the Indian Penal Code, 1860.
Background
A defamation suit was instituted by Ms. Ruchi Kalra, the co-founder of unicorn start-up OFB Tech Private Limited (“OFB“), seeking injunction against an online magazine named ‘The Morning Context’ owned by Slowform Media Private Limited (“Morning Context“) for publication of an allegedly defamatory article. This was the second defamation suit filed by OFB against the Morning Context seeking for an article titled “The work culture Of Business doesn’t like to talk about” published on May 17, 2023 (the “Original Article“) to be taken down/removed. The Original Article was written by the Morning Context’s editor Ms. Harveen Ahluwalia. The Original Article was thereafter hyperlinked in a subsequent article dated October 7, 2024 titled “OFB co-founders and management allegedly assaulted an employee, says FIR” (the “2024 Article“).
In the present case, OFB sought to challenge the Original Article and seek a declaration of the same to be defamatory and for its removal and publication.
Observations of the Court – Chalking down the contours of re-publication in the context of defamation
Publication of the defamatory statement is an essential element of the cause of action in a suit for damages for defamation. The injury caused by a libel arises from the effect produced upon its readers. Publication is the act of making known the defamatory matter, after it has been written, to some person other than the person about whom it is written. Thus, where a libel is published in a newspaper or book, everyone who has taken part in publishing it, or in procuring its publication, or has submitted material published in it, is prima facie liable. It is settled law that publication is an essential requirement for the culmination of defamation.
In common law, an act of republication of defamatory content has been placed at the same pedestal as an act of original publication. A person responsible for the republication of defamatory content cannot take refuge on the pretext of an already existing publication. The courts of India have often held that every republication of a libel is a new libel, and each publisher is answerable for his act to the same extent as if the content was written by him.
The Court extensively examined the nature of hyperlinking to determine whether it constitutes republication, looking beyond established Indian legal principles. It noted that there is no one-size-fits-all approach to distinguish between a mere reference and republication in defamation cases. The Court opined that on one hand, putting every hyperlink under the umbrella of republication would amount to having a chilling effect on the efficiency and fluidity implicit in the nature of the internet, while on the other hand, equating every hyperlink as a mere reference and thus, putting it outside the ambit of republication, would give a blanket cheque in the realm of the digital world to disseminate the defamatory content. Moreover, the Court was of the opinion that a hyperlinker may or may not be liable as a republisher 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.
Analysis
In order to balance the competing interests of the freedom of speech and expression against the laws of defamation in the digital world, the Court held that if the hyperlinking of the defamatory article expands the reach of the defamatory article or publication, then it would amount to republication. Furthermore, 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. If the hyperlinking of a publication is done in a manner wherein it refers to the content that conveys the defamatory meaning, not because a reference was created, but because, if understood in context, it actually expressed something defamatory, then it would amount to republication. The mode, manner and context of hyperlinking must reveal an element of independent expression, even if subtle, in addition to the mere act of hyperlinking, for it to constitute republication.
In relation to the present case, the Court observed that the manner in which the Morning Context embedded hyperlinks—through their placement, strategic positioning, and the use of language to draw the reader’s attention— is neither fortuitous nor benign but is manifestly a deliberate attempt to perpetuate and amplify an allegedly defamatory narrative against OFB. It further noted that the context and presentation of the hyperlinks constituted a distinct form of expression rather than mere referencing. The intentional structuring of the article, when viewed as a whole, showed that the Morning Context aimed to support its claims by linking past publications within the 2024 Article, thereby creating a continuous and sustained defamatory effect on OFB’s reputation. Additionally, since the hyperlinked content originated from the Morning Context itself, the Court held that the publisher was clearly aware of the defamatory nature of the linked material, which prima facie undermines any claim of good faith. The Court additionally noted that “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, in this judgment, sought to plant the sapling of the jurisprudence revolving around hyperlinking in the case of internet publication. The Court throughout emphasized the importance of maintaining a balance between freedom of speech and the right to reputation, both which are deeply intertwined with human dignity and the right to life. It consequently denied OFB an injunction and held that 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.
1Ruchi Kalra and Ors v. Slowform Media Pvt Ltd and Ors, CS(OS) 944/2024
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