By Meril Mathew Joy and Shubham Raj
The accessibility of internet to common man has changed everyone’s lives. The platform provided by the internet has made human interaction easier than ever before. However, such increase in convenience of communication has proportionally increased the inconvenience caused by the abuse of the mediums of communication. Removing barriers to freedom of interaction, has given unfettered capabilities, primarily on social networking sites, to people who post unnecessary and false statements about a person or an entity and thereby harming their goodwill and reputation. Such an act, though colloquially known as “trolls”, actually amounts to cyber defamation.
What is Cyber Defamation and how is it different from Physical Defamation?
Defamation has been defined under Section 499 of the Indian Penal Code (IPC) 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 to defame that person.
Defamation falls into two categories:
Libel – A defamatory statement published in a written form.
Slander – A defamatory statement made in a verbal form (spoken).
However, a mere defamatory statement does not amount to defamation. The publication of such statement is a pre-requisite to establish defamation.
Similarly, any such act taking place on the cyber space leads to cyber defamation or online defamation. Cyber defamation occurs when a computer connected to the internet is used as a tool, or a medium to defame a person or an entity. For example: Publishing of a defamatory statement against a person on a social networking site such as Facebook, Twitter, etc., or sending of emails containing defamatory content about a person with the intention to defame him / her. Further, given the broad coverage of internet and the rate of dissemination of information on this platform, it is difficult to ascertain the extent of damage in any monetary value.
Although, the medium of committing this act in the physical and digital world are different, the law of defamation applies the same. The liability regarding cyber defamation in India can be:
- On the author of the defamatory material online;
- On the service provider or an intermediary. However, it is pertinent to note that as per Section 79 of the Information Technology Act, 2000, an intermediary shall not be liable if it does not initiate or modify such defamatory content but merely acts as a facilitator. Further, this protection is also subject to the condition that the intermediary shall comply with the due diligence and Intermediary Guidelines requirements issued by the Central Government and also remove such unlawful content on being notified by the appropriate Government or its agency or upon receiving actual knowledge.
Law on Cyber Defamation in India
In India, Section 499 of the Indian Penal Code primarily governs the law on defamation, however, it is pertinent to note that the law has been extended to “electronic documents”. Section 469 of the IPC (forgery for purpose of harming reputation) has been amended by the Information Technology Act, 2000 to include ‘electronic record forged’ and now reads as a whole as – whoever commits forgery, intending that the document or electronic record 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.
Section 66A of Information & Technology Act 2000 (IT Act), was quashed by the Supreme Court of India in Shreya Singhal v. Union of India, due to ambiguity in the definition of the word ‘offensive’ in the Section. The section stated that sending any offensive message to a computer or any other communication device would be an offence. Such unfettered power, under section 66A, was misused by the Government in curtailing and suppressing people’s freedom of speech and expression and hence repealed.
Intermediary Liability and Cyber Defamation
Section 79 of the IT Act provides a safe harbor to intermediaries against any act of defamation. Section 79 provides that an intermediary is not liable for third party information, data, links hosted on its platform. However, the safe harbor protection is limited to certain conditions viz. an intermediary shall be liable if it initiates the transmission of such defamatory content, selects the receiver of such content or modifies such content.
In view of the aforesaid, it can be concluded that an intermediary’s liability can be reduced by complying with certain obligations, such as adopting statutory due diligence, or enforcing ‘notice and take down’ procedures.
Defamation v. Free Speech
Freedom of Speech and Expression, as provided by the Constitution under Article 19 (1) (a), provides that all citizens shall have the right to freedom of speech and expression. However, such freedom is subject to reasonable restriction. The protection of reputation of another person falls within the ambit of reasonable restriction and any comment or remark which hampers the reputation of another person (unless the statement is true) would invite liability under the law of defamation.
Judiciary on Cyber Defamation
In its first ever case on Cyber Defamation in SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra, wherein a disgruntled employee sent derogatory, defamatory, vulgar and abusive emails to the company’s fellow employers and to its subsidiaries all over the world with an intent to defame the company along with its managing director, the High Court of Delhi granted ex-parte ad interim injunction restraining the defendant from defaming the Plaintiff in both the physical and in the cyber space.
Further, in the case of Kalandi Charan Lenka v. State of Odisha, the Petitioner was stalked online and a fake account was created in her name. Additionally, obscene messages were sent to the friends by the culprit with an intention to defame the Petitioner. The High Court of Orissa held that the said act of the accused falls under the offence of cyber defamation and the accused is liable for his offences of defamation through the means of fake obscene images and texts.
In another case, M/S Spentex Industries Ltd. & Anr. vs. Pulak Chowdhary, the petitioner had filed for a compulsory and prohibitory injunction along with the recovery of Rs. 50,00,000/ as damages for loss of reputation and business due to defamatory emails sent by the defendant to the International Finance Corporation, World Bank, President of Republic of Uzbekistan and UZEREPORT (a news website portal and publisher of monthly news reports).
The case was filed in the year 2006 and was concluded in 2019 wherein the Hon’ble Delhi District Court decreed that the Plaintiffs be awarded 1/10th of the cost (Rs. 5,00,000/-) as well as the cost of the suit to be borne by the defendants. Further it decreed that the defendant is restrained from making false and defamatory statements, whether written or oral.
Very recently, in the case of Swami Ramdev & Anr. v. Facebook Inc. & Ors., Justice Pratibha Singh had passed an order to remove all defamatory content posted online against yoga guru Baba Ramdev, without any territorial limit, stating that if the content is uploaded from India or such content is located in India on a computer resource, then the Courts in India should have international jurisdiction to pass worldwide injunctions.
Facebook, has filed an appeal against the said order which has been admitted by the Division Bench of the Delhi High Court. The grounds of the said appeal are that in spite of the fact that the Plaintiff was aware of the persons who uploaded the content, they have not been made party to the suit. Further, it has also been contented that Baba Ramdev has not shown any strong prima facie case of irreparable loss. Among other submissions, Facebook in its appeal has also contented that global takedown order is against national sovereignty and international comity, as it interferes with defamation laws of other countries. Additionally, the said order also undermines the immunities granted to them in other jurisdictions.
The above cases point towards the various facets of the instances in which cyber defamation can occur and what legal recourse can be adopted to resolve the same. However, a certain set of limitations prevail in the cyber space that current global laws have not transcended to. Although, if a complaint is timely filed and at the correct forum then cyber defamation and its resulting damage can be curtailed.
Where and when to lodge a complaint
Any person aggrieved of cyber defamation can lodge a complaint to the Cyber Crime Investigation Cell at the National Cyber Crime Reporting Portal. However, it is pertinent to note that lodging a cyber defamation complaint against a person is one of a serious nature, since the act of filing a complaint also brings the reputation of the accused in the line of fire. Further, the onus of proving that he / she has been defamed lies entirely with the complainant and if he / she is unable to do so, the defendant shall have right to sue for defamation, false and frivolous complain, and damages thereto.
“With great power comes great responsibility” a familiar phrase in popular culture from the Spiderman story lines appropriately describes the situation of the use of technology and its potential misuse. With the advent of internet age, the convenience in communication has increased tremendously. However, such convenience comes with a catch. The effortless transfer of data and information over the internet has made it a critical hotspot for defamation. Although, there are laws in place which prohibit people from posting such content online, most people are not aware of the same or are too negligent to realize whether such content is defamatory or not. At times, when free speech runs contradictory to a person’s reputation it becomes pertinent for the State to establish a boundary, lest that free speech becomes a weapon in the hands of certain people. There is a dire need of a system which educates and makes people aware of what to do and what not to do, what is wrong and what is right and what is defamatory and what is not defamatory in the cyber space. Further, the intermediaries which provide such an open platform should monitor the content posted on it and take appropriate actions against such users who post such defamatory content in order to avoid repetition in the future.
 IIC QUARTERLY Winter 2018–Spring 2019, Volume 45, Numbers 3 & 4