Abstract

Tort law, from the very nascent stages, has been proven to be serving mankind. Tort law provides us with the remedy that generally we need the most and that is monetary compensation. Tort arises when a person owes a duty of care and consequently, the person breaches the duty of care and causes a distorted twist. The research article delves into the topic of a tort committed through methods of technology and AI. Presently our legislation, rules and laws are incompetent and incomplete without due additions of defamatory tort committed by AI and technologies. Damaging a person’s reputation and dignity is an intangible form of humiliation.

We need a renovation of defamatory laws under tort law to make technologies and people dealing with technologies accountable.  People behind screens are manipulating the lives of innocent citizens. Defamations caused by technologies are detrimental to the mental well-being of individuals. In tecno-defamations not only the psychologies of both the victims and the accused are altered but also the psychics of spectators of the injury. Our recent legal advancements would take the vehicle of tort law further in order to cater for the needs, rights and liabilities of people. The research article would provide a glimpse of this heated debate.

Keywords

1. Tort law  
2. Technology and AI
3. Defamation
4. The Information Technology Act, 2000
5. Legislations

Introduction

According to the Oxford Learner’s Dictionary,[1] wrong is anything or any act of an individual or group of people that causes problems or difficulties to another individual or group of people. Wrong is an act that is not as it should be. Wrong is not right about something or somebody. A wrong is something that one should not do but does it anyhow.

Classifications under different kinds of wrongs-

1. Legal wrongs, as the name suggests, infringe on an individual’s legal right/(s). A regulation set by law gives a right to one individual and simultaneously sets an obligation to another individual. A legal right for one is a duty of care for another individual. When somebody snatches away a legal right from an individual, it is said to be a legal wrong or legal injury. Any deviance in the enjoyment of a legal right gives rise to legal wrongs which are actionable in nature. Thus, we can move to the legal authorities to get damages and compensation though punishments to the other party can be one form of claiming damages.

Civil wrongs are the wrongs that one commits to another individual. It is private and personal. It has certain limitations namely that only the affected person can move to the authorities to seek damages. Civil wrongs are wrongs committed against a single individual. It follows the basic principle of right in personam. This right is vested with the victim. Suppose, a wrong has been stanched against A by B. Only A can move to the courts to seek damages. C, a third individual cannot move to the courts in place of A. In the right in personam, no third-party involvement is entertained. In civil wrongs, the principle of privity is maintained and the third person’s say is barred. The matter’s intensity or gravity is much lower than the criminal cases. Criminal cases are much more horrifying and tainted. Civil wrongs are mainly compensatory. They do not give more focus on punishments and serious penalties. Moreover, in exceptional cases, even if punishments are given, their relevance is only to the point of adducing said conduct by the wrongdoer. Punishments are given in civil cases to ensure the wrongdoer abides by the compensatory penalties imposed.

Illustration- A enters into the property of B and plucks some berries from B’s Garden that are poisonous, A was neither aware of the fact nor did B put any cautionary note in front of the tree, as a sign of reasonable care.

Breach of contract is any kind/(s) of violation of the pre-determined terms and conditions of a contract. If any of the parties goes against the norms set by the contract, it is termed a breach of contract.

Illustration- A contract regarding the sales of mangoes listed certain conditions namely,

1. Mangoes need to be delivered on the 23^rd of December 2023.  
2. Mangoes have to be delivered on Kanke Road, Ranchi.
3. Half of the price of the mangoes would be paid before the delivery and the other half, after the delivery.  

If any of the parties breaks or fails to perform the above assignments then it would be a breach of contract.

Breach of trust is shattering the trust of a person. If A ascribes a said responsibility to B, and B takes unfair advantage of such an opportunity then he would be liable under breach of trust. Dishonest misappropriation is often called a breach of trust.

Illustration- A entrusted his adult Golden Retriever male to his neighbour, B while A goes on vacation. B, rather than taking care of the dog, takes it to a veterinarian for dog mating and thus earns money.

Research Methodology

The research methodology of the article involves simplification of complex data. Moreover, the technique of critical analysis is adopted for deducing the conclusions. Data is broken down into smaller pieces of information and then each bit of information is compared to the whole.

Tort law

Significance

Tort law acts as a sweet spot between criminal and purely civil liabilities. It is right in rem. A right vested with an individual but is available against everyone in the society. It adds a little more dimension to civil cases. Breach of contract and breach of trust mention liquidated damages. In both such cases, the value of the damages can be ascertained even before the actual occurrence of the civil wrong. What about the cases in which the quantum of damage could not be gauged? All such cases seek their relevance under tort law. We need to understand that in a world that is continuously progressing and evolving, we have to have an organic sphere in which things grow.

Tort law, being accommodative fills the potholes and gives all of us a common ground for harmonisation. Codified laws take an immense amount of energy, time and expense to amend and make suitable rectifications. Tort law is uncodified and thus gives us a lot of room for healthy manoeuvres. Every single legal injury that fails to find a spot in either breach of contract or breach of trust, would be addressed under tort law. Unforeseeable legal damages are tackled under tort law. New, reasonable and unprecedented issues are debated and concluded under tort law which proves to be an essential element of a self-developing society.

A tort:

• is a civil wrong
• and is neither a breach of trust nor a breach of contract
• for which unliquidated damages can be redressed due to such a wrong[2]

Personal wrongs affect the rights of a person, e.g., liable, defamation, assault

Wrongs to possession include the damage caused to the possessions of a person, e.g., trespass

Wrongs to both person and property is an amalgamation of the above two categories.

Illustration- A, uninvitingly enters the property of B, and breaks his fountain. When A comes forward to stop him, B gives tough and hurtful punches to A’s stomach. 

The essentials of tort include

• an act or omission from one party
• and due to such an act or omission there needs to be a legal injury to another party.

There are two types of tort

Defamation

Defamation is made of two words: de- and -fame. Fame is a bundle of attributes due to which we are known. When we devoid someone of his assumed attribute then this event is called defamation. B may have the following qualities-

• Honesty
• Straightforwardness
• Discipline and so on

Illustration- Now if, A calls B a thief. B is more concerned as to what would be the impact of this particular statement on other people. A’s statement would tarnish his reputation as an honest person.

Human beings are hungry for recognition. Our identity consists of the reputation that we carry in society. Reputation is people dependent. We live in a society whereby a major share of our confidence is built upon the anvils of perceptions that people have for us. We do rely on other people’s ideas of us. The concept of defamation emanates from people and ends with people. The psychology of defamation deals with the external thought process of people. Accordingly, defamation needs to have certain elements-

• A statement should be presented
• The statement should be defamatory for one party
• The statement should refer to one of the parties
• The intention of the mental element of the party making such a statement would be considered
• The statement made should be false and fake
• A privileged and secure person should not make the statement. If a person is secured from liability, then he/she cannot be charged for defamation
• The statement should be communicated to a third party. No communication or privacy of the statement would attract defamation.
• The third party should trust the defamatory false statement
• The statement should be causing legal injury to the defamed party.[3]

Defamation requires a person to make some imputation concerning any other person;

• Such imputation must be made either
  • With intention, or
  • Knowledge, or
  • Having a reason to believe

such an imputation will harm the reputation of the person against whom the imputation is made.

•  Imputation could be, by
  • Words, either spoken or written, or
  • By making signs, or
  • Visible representations
•  Imputation could be either made or published.

The difference between making an imputation and publishing the same is:

Illustration- If ‘X’ tells ‘Y’ that ‘Y’ is a criminal–‘ X’ makes an imputation.

If ‘X’ tells ‘Z’ that ‘Y’ is a criminal–‘ X’ publishes the imputation.[4]

Review of literature- Relevant laws and cases

• The Information Technology Act, 2000[5] is concerned, are Sections 66-A and 67 which read as under: —

“66-A. Punishment for sending offensive messages through communication services, etc.:

Any person who sends, utilising a computer resource or a communication device—(a) any information that is grossly offensive or has a menacing character; or

(b) any information which he knows to be false, but to cause annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or

(c) any electronic mail or electronic mail message to cause annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,

shall be punishable with imprisonment for a term which may extend to three years and with a fine.

Explanation: — For this section, the terms “electronic mail” and “electronic mail message” mean a message or information created transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.”

“67. Punishment for publishing or transmitting obscene material in electronic form.:—Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.”

• As per the Information Technology (Amendment) Act, 2008,

“66. Computer-related offences: —

If any person, dishonestly or fraudulently, does any act referred to in section 43, he shall be punishable with imprisonment for a term which may extend to three years or with a fine which may extend to five lakh rupees or with both

The most relevant judgment that can be relied upon for our perusal, is the one of the Ontario Court of Appeals, in Barrick Gold Corp[6]. The Court had observed that:

“Online communication is immediate, seamless, interactive, direct, borderless, and extensive. Additionally, it lacks personality, and the anonymity of such interactions may increase the likelihood that the defamatory words would be taken seriously.”

Method

Such qualities of AI and technology provide difficulties in the context of libel. Traditional tactics geared toward “the real world” may not sufficiently address the realities of the Internet world. How can the law safeguard reputation without unreasonably limiting free and open public debate? This is a question we need to ponder over.

This formal distance is missing in AI and related technologies. Participants in online/virtual debates place a premium on speed since communication may occur nearly instantly. Indeed, in many forums, speed trumps all other considerations, including not just correctness but also grammar, spelling, and punctuation. Exaggeration and hyperbole are widespread, and “venting” is as common as deliberate and reasoned reasoning. The use of online pseudonyms by many Internet users adds to the idea that “anything goes,” and some writers have compared cyberspace to a frontier civilization devoid of the rules and restraints that govern conversation in the real world. While this viewpoint is exaggerated, the Internet’s immediacy and informality may be essential to its enormous appeal.

Although Internet and AI communications may share the transitory aspects of gossip in terms of veracity, they are disseminated through more prevalent media than print, and as a result, they have an enormous capacity to hurt reputation. When a message enters cyberspace, millions of individuals all over the world can read it. Even if the letter is placed in a discussion forum where only a few individuals participate, any of them can republish it by printing it or, more likely, promptly passing it to another discussion forum. If the message is sufficiently controversial, it may be republished several times.

The Internet’s amazing ability to repeat virtually infinitely any defamatory message lends weight to the adage that “the truth rarely catches up with a lie.” The challenge for our current non-AI-driven legislation is to preserve reputation without stifling the Internet’s potential as a medium of public conversation.

These attributes, distinguish the publication of defamatory content through AI or internet publication in more traditional forms of media.

True, in the present day, defamatory content may be disseminated widely and quickly through different means. Newspapers distributed internationally, syndicated wire services, facsimile transmissions, and radio and satellite television broadcasts are only a few examples. Nonetheless, the features described above distinguish Internet and AI defamation from its less prevalent cousins in terms of its potential to harm the reputation of individuals and corporations, particularly its interactive nature, potential for being taken at face value, and absolute and immediate worldwide ubiquity and accessibility. The form and extent of dissemination are thus an especially important factor in determining damages in Internet defamation cases.

Suggestions

      To date, people are being held for making defamatory statements. However, due to the advent of technology, it is becoming an uphill task to get people accountable for their malicious acts by defaming people with artificial technologies/intelligence. In, Aaradhya Bachchan v. Bollywood Time[7],  it was held that any media such as print, audio-visual etc. published or telecasted on Metaverse, blockchain, or any artificial technology defaming a person would infringe right to privacy wielded by a person.

We cannot even measure the harm caused by a person misusing the powers of technology. Artificial technology being so hard to detect can do wonders but if we start disposing of it in an unholy manner then it would cause indelible damage to the reputations of our fellow beings. We can easily tweak the facts, faces, voices and demeanour. Checking the veracity of an untrue truth is difficult while dealing with artificial technology. Technology is so deeply interwoven in our lives that it becomes nearly indetectable.

Defamation is a highly critical topic because in most cases the emotions and sentiments of people are damaged and violated.  Understandably, AI cannot made responsible for its acts, nevertheless, the person illegally using AI can be made answerable. What we need to understand is AI is boundless and does not carry any human or legal tints. The harsh reality of defamation is that the definition of defamation includes only defamation caused by a person. It does not mention the different tools or apparatuses that can be used in defaming somehow. Various contemporary technologies provide encryption of data of its users that can be very problematic for the authorities to reach the culprit.

AI can create derogatory and questionable data harming the social status of a person. Deepfakes can create distorted and manipulated images and videos of people. The right to privacy of an individual is in danger. Personal information is now subjected to public scrutiny. It is toughening work for the authorities to find out the creator of such deepfakes. Objectionable and private images and videos are created of celebrities across the globe defaming the identity of influential people. Knowing the source of defamation is becoming difficult day by day. With unequipped establishments and legal systems, the regularisation of defamation as a civil wrong is a tedious process.

Our legal systems are not duly supported and well-furnished to include AI tools as a cause of defamation. A lot of cases go unreported because of the lack of education and proper funding from the government to the sectors dealing with tech laws.

Defamation is a social and psychological construct. When we talk about defamation, it presumes a blatant defilement of an individual’s right to privacy. As privacy gets in the picture, the security debate also adjoins. To solve the discrepancy, we can study the case of Manohar Lal v. Union of India[8]. According to this case, a law or an act that violates privacy must pass the litmus test of constitutionally authorised limitations on those rights. According to Article 21, an invasion of privacy must be justified by legislation that specifies a fair, just, and reasonable approach. Additionally, the law must be upholdable in terms of Article 21’s restrictions on personal freedom and life. The three conditions of

• legality, which presupposes the existence of law;
• need, defined in terms of a legitimate State goal; and
• proportionality, which ensures a rational nexus between the objects and the means adopted to achieve them, must all be met for an invasion of life or personal liberty.

Daniel Solove states that by seeing the trade-off between these objectives as an all-or-nothing decision, the argument between privacy and security is framed erroneously.  Security measures need not be compromised to safeguard privacy; supervision and regulation are all needed. The argument between privacy and security is faulty, thus we can’t move the discussion further.

There are issues with the law. It aims to strike a compromise between privacy and security, but doing so is plagued by systematic issues.

Often, privacy may be safeguarded without significantly compromising security. When reasonable concessions are not possible, a fair trade-off can be negotiated to benefit both parties. We can strike a better chord between security and privacy. We have to understand that too much is at risk for failure.

The burden of protection of fundamental rights is primarily the duty of the State. Defamation creates infringement of the rights of an individual. Such a violation by an AI technology goes unaccounted for due to the absence of a physical entity.

Conclusion

“It was the best of times, it was the worst of times,

it was the age of wisdom, it was the age of foolishness,

it was the epoch of belief, it was the epoch of incredulity,

it was the season of Light, it was the season of Darkness,

it was the spring of hope, it was the winter of despair,

we had everything before us, we had nothing before us,

we were all going direct to Heaven, we were all going direct the other way—

—Charles Dickens in A Tale of Two Cities[9]

We live in a society where we can neither live with the deprivation of technology nor with incessant offensive usage of technology or AI tools. We need liberation by getting shackled in the chains of technology. The privacy of an individual is a very sensitive topic. Technology, being devoid of senses, cannot understand the boundaries. Defamation can cause serious mental damage to an individual. An irreparable phenomenon may occur. People cannot see their dear ones getting defamed. Although we claim that after defamation we can ‘delete’ the defamatory content from the internet. However, even after deleting, such content may not be deleted from the minds and screenshots and saved galleries of people’s mobile phones/computers.  

The beautification of technology hides the ugly faces of it destroying the lives of innocent people. Technology needs to be dealt with, with a lot of care and caution. Appropriate, adaptable and updated laws ought to be placed in our legal frameworks. We require better systems duly equipped with hi-tech advancements that can prevent and detect such unhappening.

Defamatory content of a student, professional, a married woman can hamper their lives by negatively affecting their working capacity and personal relations with fellow human beings. Defamation can create gaps in a person’s life that cannot be filled using compensation as a retributive tool.

Liberty of technology and security—of an individual—has always been in conflict. Simply put, the decision is whether we require more liberty or security. Although the option appears to be difficult, we must free ourselves from rhetorical platitudes and deliver a real response so that every person has appropriate protection and sufficient liberty.

The preference pendulum should not swing so much in either direction that one desire compromises the other. It is beyond our expertise to say if it is preferable to be free rather than secure or secure rather than free. However, we are merely here to guarantee that individuals have all of their rights and liberties to the greatest extent possible in any given scenario, while also maintaining the current security of personal identity.

Law and technology/AI seldom intertwine together like oil and water. There is a persistent argument that technological advancement is not matched by equal progress in the law. In this setting, the law should incorporate technological advancement and shape its laws properly to meet the requirements of society. The failure to recognize technology inside the legal framework is a disservice to the inevitable.  

Tort law, dealing with defamation has been relevant till the pre-techno advancement period. However, in our present day, laws are outdated. They are not wholesome for making the culprits liable. A quick and guided revival is needed in our tort law that can accommodate torts committed against people by AI and technologies.

Simplifying in a gist, we should understand that it is the need of the hour that our tort law should include defamatory tort committed by AI technologies. The bodily integrity of people is damaged when technologies take up the charge of defaming someone. Tort law rightly appreciates the needs of an individual. However, when the identity of a person comes under question, it becomes a serious topic. In Indian society, we are deeply connected and associated with one another. Here, defamation of a member is considered as defamation of the entire family. The sociological facet of defamation should also be considered. Our cultural background is also very compelling in our society. Defamation is a sheer breach of our autonomy and thus tort law should incorporate AI and technology-driven defamation as a separate sphere. 

With an ever-evolving society, we need a full stop; a full stop to the unashamed illegal use of technology to defame innocent people, a full stop to the mental agony and untouched physical harassment, a full stop to selfishly using a person’s information for one’s unjust gains. We need laws that provide calm, approachable and systematic redressal for such maladjustments created by technologies. We do not want everything that has been provided to us by the internet would lead us to our nothingness. The development provided by technology should not become the cause of mankind’s demise. We need to challenge such uncertainties with adequate laws in hand. Suspension should not be the call. Appropriate legislation is the ultimate answer.

Criminal wrongs are graver and harsher than civil wrongs, attracting more stringent liabilities. Criminal wrongs are wrongs committed against the entire society. It has an umbrella effect. The society, as a whole, condemns the act/wrong. Criminal wrongs have a deep hint of how the morals, ethics and mindset of a society are framed. Criminal wrongs, if not dealt with oppressively would leave an indelible mark on society. It would lead to other people committing similar offences more frequently. Leniency with one would become a benchmark for many.

Illustration- A stabs C on C’s chest.

• Moral wrongs are not actionable. They hold sociological values. Suppose, we cannot make one liable for not respecting one’s parents. Moral wrongs are in contravention of the principles of natural justice and are thus ethically corruptive. Moral wrongs are subjective and debatable and thus cannot be enforced objectively.

***

-Arunima Bali (2^nd year law student, B.A. LL.B.)

National University of Study and Research in Law, Ranchi

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[1] ‘Definition of wrong adjective from the Oxford Advanced Learner’s Dictionary’ (Oxford Dictionary) <https://www.oxfordlearnersdictionaries.com/definition/english/wrong_1> accessed 14 October 2023.

[2] R.K. Bangia’s, The Law of Torts (Twenty-Second Edition, 2010, Published by Allahabad Law Agency).

[3] Defamation – Meaning, Types and Essential Elements (2020)

< https://lawcorner.in/defamation-meaning-types-and-essential elements/#3_The_Statement_must_refer_to_the_plaintiff> accessed on 20 October 2023.

[4]Rahul Gandhi vs. The State of Jharkhand and Ors., [2022] MANU/JH/0433.

[5] Information Technology Act 2000 (India).

[6] Barrick Gold Corp. v. Lopehandia et al., (2004) 187 O.A.C. 238 (CA) <https://ca.vlex.com/vid/barrick-gold-corp-v-681071561> assessed on 21 October 2023.

[7] Aaradhya Bachchan v. Bollywood Time, [2023] SCC OnLine Del 2268 (Del).

[8] Manohar Lal v. Union of India, [2021] SCC OnLine SC 985 (India).

[9] Charles Dickens, ‘A tale of Two Cities’.