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'Whistleblower' in Subodh Gupta #MeToo defamation case makes first statement in Delhi court

The Instagram account @herdsceneand is being sued for posting sexual harassment allegations against the artist

Subodh Gupta © Dia Bhupal

The holders of an Instagram account defended their right to anonymity in the Delhi High Court yesterday, describing themselves as a “whistleblower” that “provides a neutral platform for carrying and sharing incidents of sexual harassment”.

The administrators of the Instagram page @herdsceneand are being sued by the leading Indian artist Subodh Gupta for posting allegations of sexual harassment against him. Speaking via a legal representative, the account holders said their service was necessary “in the absence of [an] internal committee to deal with such instances [of sexual harassment]”.

Gupta filed a defamation case last year against @herdsceneand, requesting for the posts to be taken down and seeking around £500,000 in damages to his reputation and career.

In a statement, @herdsceneand said that they have been part of the “arts fraternity for over ten years, both in India and abroad,” and that their anonymity “would protect them from retaliation [at] the hands of influential members of the arts fraternity”.

In response to the statement, the presiding judge, Rajiv Sahai Endlaw, asked @herdsceneand to decide whether they wanted to reveal the names of the alleged victims so they could be prosecuted individually or if they wished to maintain the anonymity of Gupta’s alleged victims and thereby represent them in court.

Whether @herdsceneand will be allowed to maintain their anonymity will be decided at a later date, the court ruled. The next hearing is scheduled for 4 February.

During yesterday's hearing, two organisations, the Indian Journalists Union and the Culture Worker Support Trust, also filed motions arguing that they should be heard as parties in the case as it is “related to public interest”.

The defamation case against Gupta has garnered significant attention in the international press due to the Delhi High Court’s controversial order for Google and Instagram to remove a number of URLs and posts relating to defamatory content against Gupta, a decision many view as a violation of freedom of speech and information laws.

Speaking on behalf of the Indian Journalists Union, the lawyer Ritin Rai said it was the "qualified privilege" of journalists to report on the court's order that directed Google to "take down" and de-index certain news reports on sexual harassment charges against Gupta, which violated the freedom of speech rights guaranteed under Article 19(1)(a) and Article 19(1)(g) of the Indian constitution, according to Rai.

As reported by the Indian legal news publication LiveLaw, the judge replied saying: "You're supposed to report news, not make news [...] why do you want to report on a matter that has been injuncted by the court? You just want to create a scandal, grab eyeballs."

In response to the Culture Work Support Trust's argument that the matter "affected the entire Indian art world", Endlaw said, "what is the art world according to you? Can one person claim to represent it? This is a suit, not a public interest litigation". He added that the court "can’t start on an impleadment spree", and that "while [the trust's] objective might be right, [their] effort is misguided".

Launched in October 2018, @herdsceneand has posted anonymous allegations against a number of powerful men in the Indian art world, many of whom have since stepped down from their positions. These include the former managing director of Sotheby's India Gaurav Bhatia, the artist and co-founder of the Kochi-Muziris Biennale Riyas Komu as well as the artist Jatin Das.

A timeline of the events

13 December 2018—An anonymous allegation accusing Subodh Gupta of sexual harassment is posted on the Instagram profile @herdsceneand. The alleged victim claims to be a former employee of Gupta.

14 December—Gupta releases a statement in which he denies "the anonymous allegations made on the Instagram account @herdsceneand in their entirety", adding that "the allegations are entirely false and fabricated".

A group of protestors interrupt a Q & A session hosted by the Guerrilla Girls at the Kochi Muziris Biennale, to address the biennial administration's lack of response regarding the allegations made against Gupta and several other men in the Indian art world. The intervention is publicly backed by a number of prominent Indian artists including Dayanita Singh and Sumir Tagra.

15 December—The Serendipity Arts Festival in Goa, for which Gupta served as co-curator, releases an official statement announcing that Gupta has stepped down from his position following the allegations and will not be present at the festival.

20 December—Pooja Sood, the director and founder of Khoj Artists' Association, an influential not-for-profit arts space in New Delhi of which Gupta was then a board member, sent an email to the artist telling him to step down from the board but that this was "not an admission of guilt" and that the "Metoo movement is being misused to target people". Sood further raised the fact that some of Khoj's main benefactors, the Rockefeller Foundation and Ford Foundation, have “very stringent guidelines for a safe space policy”.

Gupta later submits this email as evidence in his court trial, thereby making it publicly accessible.

20 January 2019—Gupta is named in another accusation published by @herdsceneand, this time in regard to alleged behaviour at a public event on 22 September 2018.

No works by Gupta are shown at the 2019 India Art Fair and the artist also cancels a scheduled appearance at the Jaipur Literary Festival that same month.

July 2019—Khoj reportedly receives "multiple communications" from the New Delhi gallery Nature Morte which represents Gupta, stating that the artist has been "exonerated" and suggesting that Gupta should be invited back to Khoj's board of trustees.

1 September—Khoj's trustees meet to discuss Gupta's readmission to the board. They rule against readmitting Gupta.

18 September—Gupta files a civil defamation suit against the administrators of the Instagram handle @herdsceneand for allegedly “publishing false, malicious and defamatory content” and seeks damages worth five crore rupees (around £500,000). Gupta also requests that all online content related to any alleged sexual harassment on his part be removed from the internet.

30 September—The Delhi High Court restrains @herdsceneand from posting any further content pertaining to Gupta, and directs @herdsceneand, Facebook (which owns Instagram) and Google to take down 18 URLs related to alleged defamatory posts pertaining to Gupta.

Google refuses to comply with the request and files for review.

1 October—40 artists and arts professionals sign an open letter condemning the court's "unprecedented ruling", saying that it will "silence the survivors and gag the platform that gave them a voice while protecting their identities”. The letter asserts that the decision “is exactly what survivors have feared when choosing anonymity" and is "an attempt to dissuade others from sharing further experiences of harassment and violence, and to perpetuate a culture of fear.”

9th October—Khoj publicly releases a statement addressing the defamation case after a copy of Pooja Sood’s 2018 email is posted on Twitter by the handle @IndiaMeToo.

It states that Khoj and members of its board "are disturbed by certain actions which undeniably have the effect of discrediting and suppressing conversation around sexual harassment in the art world," adding that Khoj has "initiated legal consultations [...] and is engaged in measures to set up prevention and redressal mechanisms to ensure a safe work space."

The full statement can be found here.

17 November- Facebook files a motion to block the order to reveal the identities behind @hersdceneand. In a statement, Facebook says: “Such a direction would chill lawful speech and expression, dissuading not only sexual harassment victims from sharing their experiences in the future, but also whistleblowers from reporting such unlawful acts.”

18 November- The Delhi High Court grants @herdsceneand temporary anonymity by allowing them to file a case appeal "under sealed cover".