The Issue of Online Defamation

Introduction:

The development and advancement of innovation have acquired a radical change in the world. The Internet has overwhelmed the world. It has brought individuals closer than at any other time and has been perhaps the best instrument of communication. Be that as it may, anything in overabundance is dangerous. Some may say, the internet is yet another abstract world where people have the ability to do some serious damage. One single post can go viral on the internet in a matter of minutes. The damages which injure one’s reputation by sharing false information about them is what is known as ‘Online Defamation’. Recently, the Indian Penal Code 1860 was amended to distinguish online defamation from physical defamation.

Defamation

Under section 499 Indian Penal Code 1860, defamation is defined as;

“Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.”

In simple language, it is understood that if a person intentionally publishes a false statement about someone, it may be in oral or written form, in order to harm his reputation in society. Such a person has committed the crime of defamation. To constitute defamation, certain elements are necessary to be present.

1. The statement must only refer to the plaintiff
2. The statement must be false
3. The statement must be made with the intention to harm the reputation of the plaintiff
4. And most importantly, the statement must be published.

A defamatory statement by itself does not constitute defamation unless it is published. For example, if A writes an email to B calling him a murderer, that by itself is not defamation as A’s reputation is not facing injury. However, if the same statement is published in a newspaper article in the local area, it would cause injury to A’s reputation and B shall be liable for defamation. Defamation can be done against all legal persons such as companies, businesses, deceased persons, etc. The term ‘published’ is not limited to print media.

There are two categories of defamation:

• Libel – A defamatory statement published in a written form.
• Slander – A defamatory statement made in a verbal form (spoken).

Online Defamation

The rapid growth of the internet has brought up a whole different hemisphere where individuals are provided with a stage to communicate their conclusions, contemplations, and sentiments through different types of publications. Being an easily accessible open platform, it also draws the attention of people who tend to misuse its liberty. The ease of availability and publication in this online world has made a few dangers as these digital platforms are inclined to be misused by corrupt internet clients for the sake of the right to freedom of speech and expression.

The defamation that takes place on an electronic platform, such as social media websites, is known as Online Defamation or Cyber Defamation. It may be a new concept but it follows the traditional definition of defamation which is causing harm to a person’s reputation in the eyes of a third person. The communication can be done verbally or through a written medium. The content of the information should intentionally target the plaintiff.

The major difference between online defamation and traditional defamation, which also makes online defamation an alarming concern, is that online defamation happens in a far more efficient way and covers a much larger audience at once. Millions of people can be covered with just a click. The range and non-exhaustive nature of the web make it hard to evaluate the financial damage done in monetary compensation, the damage becomes irreparable and the identity of the culprit can easily be hidden.

Laws Governing Online Defamation

In a case of defamation in India, both civil and criminal liability arise.

Indian Penal Code, 1860

1. Section 499: “Whoever by words either spoken or intended to be read or by signs and visual representations makes or publishes any imputation concerning any person intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person is said, except in the cases hereinafter excepted to defame that person.” This section is the primary law concerning defamation. When a person intends to harm or has a reason to believe that their action may lead to harm to the reputation of such person, by the means of words spoken or meant to be read, or by signs or visible representations made or published, he/she is said to have committed the offense of defamation. Defamation may be made to more than one person, such as a company or a group of persons. With the implementation of the Information Technology Act, 2000, the definition now also includes electronic speech and documents.
2. Section 500: “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.” This section provides for the punishment for the crime of defamation which may be in the form of imprisonment for two years, or fine, or both.
3.  Section 469: “Whoever commits forgery, [intending that the document forged] shall harm the reputation of any party, or knowing that it is likely to be used for that purpose, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.” This section provides that if a person forges a false document which can result in causing harm to a person’s reputation, such a person shall be punished with imprisonment upto 3 years and a fine. With the implementation of the Information Technology Act 2000, the term ‘document’ has been expanded to include electronic documents.
4. Section 503: “Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of anyone in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.” This section provides that whoever threatens a person or someone such person has an interest in with an injury to their person, reputation, or property, with an object of inducing fear into their minds or to cause such a person act illegally or omit to do any act which they are legally entitled to, is guilty of the offense of criminal intimidation. Intimidation can be done by means of electronic communication.

Information Technology Act, 2000

1. Section 66A: This is a provision that was quashed by the Supreme Court in the year 2015^[1]. It provided for the punishment for sending ‘offensive’ messages through electronic means. But due to the ambiguity of the term ‘offensive,’ the Court struck down the whole provision because of the subjectivity of the term which was being used to repress freedom of speech. Now, cyber defamation cases are handled by a cyber investigation cell under the Crime Investigation Department.
2. Section 79: This section provides for the protection of intermediaries. It states that an intermediary is not liable for third party information, data, links hosted on its platform. But, such protection is given if the conditions of the provision are fulfilled. These conditions are that the middle person does not contribute towards providing slander substance, modifies the substance, or directs the substance to specific receivers. Further, the intermediary’s liability can be reduced by complying with certain obligations, such as adopting statutory due diligence or enforcing ‘notice and takedown’ procedures.^[2]

Indian Evidence Act, 1872

Section 65A and 65B provide for the defamatory publications that are admissible by courts. According to them, any electronic record printed on paper or recorded or copied in optical or magnetic media, online chats, and electronic mails are admissible in court. They are not exhaustive in nature so more means can be added to the list with the development of technology.

Judicial Approach

SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra^[3]

This was the first case ever under online defamation before the Indian courts. In this case, a disgruntled employee sent derogatory, defamatory, vulgar, and abusive emails to the company’s fellow employers and its subsidiaries all over the world with an intent to defame the company along with its managing director. The High Court of Delhi granted an ex-parte ad interim injunction restraining the defendant from defaming the Plaintiff in both the physical and in the cyberspace. It is one of the most important cases under online defamation as this is the first instance where the Indian judiciary assumes jurisdiction in online defamation.

Kalandi Charan Lenka v. State of Odisha^[4]

The Petitioner was stalked online and a fake account was created in her name with an intention to defame the Petitioner. The High Court of Odisha held that the said act of the accused falls under the offense of cyber defamation and the accused is liable for his offenses of defamation through the means of fake obscene images and texts.

Suhas Katti v. Tamil Nadu^[5]

The accused spread obscene, vulgar, and defamatory content about a divorcee in a Yahoo message group. He also sent derogatory emails to her asking for information from a fake account. She received annoying phone calls due to his posting of the message, and she lodged a complaint against him. The accused was held guilty of offenses under Section 469, 509 IPC and Section 67 of the IT Act, 2000.

Rajiv Dinesh Gadkari through P.A. Depamala Gadkari vs Smt. Nilangi Rajiv Gadkari^[6]

Upon receiving the notice for divorce, the husband started harassing the wife by uploading derogatory photos of her and defaming her. The offense was registered and maintenance of Rs. 75,000 per month has been claimed by the wife.

Tata Sons v. Turtle International^[7]

The Delhi High Court revised the term ‘publication’ and held that it includes all mediums of communication, including the internet. The Internet is another medium of communication but with varying levels of reach in a determined span of time. Injunctions for cybercrimes should be allowed quickly due to its attributes, for example, its simple availability and an independently publishing nature, which may cause greater harm to the person in question. Henceforth, the laws administering crimes that occur over the net will be appropriately characterized and recognized attributable to its diverse nature as a medium.

Swami Ramdev & Anr. v. Facebook Inc. & Ors.^[8]

The Court ordered to extract all defamatory content against Baba Ramdev which has been uploaded from a computer resource in India. The Court stated that there shall be no territorial limit if the substance is transferred from India or is located on a computer resource in India, at that point The Courts in India ought to have International Jurisdiction to pass Worldwide Injunctions. Facebook, has filed an appeal against the said order in the Delhi High Court.^[9] They claim that despite being aware of the part uploading such content, they have not been made party to the suit. Further, the content has not shown any strong or irreparable loss to the reputation of Baba Ramdev. They also contended that it interferes with the immunity granted to them in other jurisdictions.^[10]

The mentioned cases show the various instances where online defamation has occurred in the past and the legal recourse that was adopted to revolve the same. However, a specific arrangement of constraints wins in the internet that current worldwide laws have not risen above. Although, if a complaint is and at the correct forum then online defamation and its subsequent harm can be diminished.

Conclusion

With the onset of the Internet age, the accommodation in communication has expanded colossally. Notwithstanding, such accommodation accompanies a catch. The easy exchange of information and data over the web has made it a basic hotspot for slander. Cyber laws are being increasingly used to curb freedom of speech and expression guaranteed to people. There is a thread of a difference between what is defamatory and what is not. The law needs to be used, not abused. Even though there are laws set up which disallow individuals from posting such substance on the web, a great many people don’t know about the equivalent or are too careless to even consider realizing if such substance is abusive.  Frivolous cases of slander ought to be discarded and laws ought to be explained so the right to freedom of speech is not hampered. Additionally, defamation laws ought to be adequately adaptable to be applied to all media. As the defamation laws in the period of the Internet, it turns out to be for all intents and purposes difficult to apply the rule of eighteenth and nineteenth-century cases to the issue emerging on the Internet in the 21st century. Social Media is now a way of life, where we can freely write, comment, and post anything.  But as said by Aurbey Peeples, “There are a lot of pros and cons of social media; it’s just how you choose to handle it and how you have to be prepared for the negatives as well.”

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References:

^[1] Shreya Singhal v. Union of India, (2013) 12 S.C.C. 73

^[2] IIC QUARTERLY Winter 2018–Spring 2019, Volume 45, Numbers 3 & 4

^[3] CS(OS) No. 1279/2001 (Delhi High Court, 2001)

^[4] BLAPL No.7596 of 2016

^[5] CC No. 4680 of 2004

^[6] FAMILY COURT APPEAL NO.67 OF 2009

^[7] 178 (2011) DLT 705

^[8] 263 (2019) DLT 689

^[9] Lucy Rana & Merlin Mathey, Facebook Appeals against the Global Injunction Order by Delhi High Court, S.S. Rana & Co., (November 11, 2019),  https://ssrana.in/articles/facebook-appeals-against-the-global-injunction-order-by-delhi-high-court/

^[10] Karan Tripathi, Live Law.in, Facebook Appeals to Delhi HC DB Against single bench order for Global Blocking of Content Against Baba Ramdev, https://www.livelaw.in/news-updates/facebook-appeals-delhi-hc-db-single-bench-order-global-blocking-of-content-baba-ramdev-149354

Other Sources:

1. http://www.legalserviceindia.com/article/l380-Online-Defamation.html#:~:text=Concept%20of%20Online%20Defamation&text=Section%20223%20of%20this%20Act,with%20imprisonment%20or%20with%20fine.
2. https://ssrana.in/articles/trolling-cyber-harassment-and-defamation-know-your-rights/
3. https://blog.ipleaders.in/cyber-defamation-india-issues/
4. https://www.latestlaws.com/articles/cyber-defamation-the-court-of-social-media/
5. https://www.mondaq.com/india/libel-defamation/880758/defamation-on-social-media-what-can-you-do-about-it