ABSTRACT-
The research paper focuses on the study of the increase in incidents of cyber defamation due to the quick development of digital communications and the widespread use of social media platforms. The legal framework for cyber defamation in India is examined in this research paper along with the effects and consequences on the freedom of speech, personal privacy and the social and cultural fabric as a whole. With the increase in the usage of the internet, there is a lot of defamation done in cyberspace which is also known as Cyber Defamation. It is the act of defaming, insulting, offending, or harming a person in cyberspace through false statements.In the contemporary world, cyber defamation is becoming one of the most unfortunate and common issues as the internet has given us the ability to share our views with the world in a fraction of a second. The freedom of the press and media is a right given by the Indian Constitution under Article 19 (1) (a) which encourages independent journalism and promotes democracy by letting people voice their opinions for or against the actions of the government. However, spreading misinformation using an incendiary and baseless hashtag is neither journalistic freedom nor freedom of expression as envisaged1 under Article 19 of the Constitution of India
Keywords: Cyber defamation, Defamation law, Legal framework, Freedom of speech
INTRODUCTION:
Defamation law in India dates to the 19th century. According to Black’s law dictionary, defamation is defined as, “the offence of injuring a person’s character, fame, or reputation by false and malicious statements. The term seems to be comprehensive of both libel and slander”. In India, defamation is defined as any written or verbal communication of a false statement that unfairly harms the character or reputation of a human being. At present, the technological advancement is huge and media’s influence is more widespread and powerful. The use of social networking site, websites, chat groups etc. has increased the access to information and personal life for global human communication. This easy access to such a medium lead to misusing it to make defamatory comments is cyberspace. According to Indian Penal code (IPC) section 499, defamation arises when a person makes or publishes any false statements, allegations or false imputations related to any person by words or in oral or by signs in any form. Injury only to feelings is not defamation, the must be loss of reputation and their character in the society must be harmed intentionally. The defamed person need not to be named but must be recognizable. Which means it is not necessary that the name of the defamed person is mentioned but if we are able to determine who the person is just by the false statement made on the person, it is defamation. In some countries, the law recognizes the printed defamation to be more harmful than verbal defamation where radio defamation is liable and oral defamation is considered to be slander.
The damage recovery in liable and slander are different. Liable lawsuits compensate for the general damages if they involve loss of reputation and special damage if the suffer from economic loss. In a slander action one can only recover special damages which includes economic losses; however, some jurisdictions do not make this kind of distinction. Defamation is criminally punishable under various statutes but in order to invoke that it should be such which directly prejudices the public interest.
With the rapid growth of social media in India, the issue of cyber defamation has become a significant concern in India. With the ease in sharing information on social media, there is also a rapid increase in circulation of false information which may harm many individuals and also have legal consequences. The speed of reach in social media platforms is very high. So, false information is spread rapidly which causes huge irrecoverable damage in a very short amount of time. Therefore, people should understand the effects of social media defamation to avoid legal consequences in future. Any individual who has been defamed on social media platforms can seek legal recourse by filing a complaint with the police or approaching the court. It is advisable to consult legal experts who are specialized in cyber laws to navigate complex legal procedures.
Research methodology and methods
This study was compiled using a doctrinal research methodology, which necessitated the gathering of secondary data from a wide range of print and digital sources, including books, journals, research papers, online legal databases, bare acts, thesis and research carried out by scholars etc. In order to comprehend laws relating to defamation different statutes have been used such as IPC, IT Act, Constitution of India and numerous judgements and cases have been referred in detail. The study also referred to cyber defamation laws to understand the liability and applicability of laws in different countries and also referring to various research papers and articles by renowned experts and research scholars in the legal field.
Review of literature
- S.K. Sarvaria, Universal Law of Defamation and Malicious Prosecution Civil and Criminal, 14th Edn., Universal Law Publishing, Lucknow 2017– This book, author has gone through thirteen printings, making it clear that it is the final work on the topic. As a social being, man is protective of his reputation and honour, and he reacts strongly to any threat to those two things. In truth, a civilised society can’t function without its people being motivated by a sense of honour and reputation in order to fulfil their social duties and responsibilities. Because of its focus on a topic crucial to maintaining human dignity, this book deserves serious consideration for its worth.
- K.M. Sharma & S.P. Mago, Ready Reference on defamation, Kamal Publishers, Lawman Series, Latest Edition 2020: One important factor in defamation cases is determining whether the statement in question is one of fact or opinion. Statements of opinion are generally protected under free speech rights, while statements of fact can be considered defamatory if they are false and harmful.
- Mehrotra’s Commentary on Law of Defamation, Damages, Malicious Prosecution, 8th Edn., Delhi Law House, New Delhi, 2023: in this book, one important aspect of the law of defamation is the calculation of damages. These damages can include both economic and non-economic harm, such as lost profits or emotional distress. Malicious prosecution is also a potential issue in a defamation case, as an individual may be pursued for making false accusations or initiating Black Law Dictionary: Defamation is defined here, along with related concepts. It also includes the explanations of relevant terminology and ideas offered by notable legal scholars.
TYPES:
- The individuals who primarily publishes defamatory sentences on the internet such as social media platforms or any other cyberspace are liable for online defamation or cyber defamation.
- Secondly, there is an increasing number of websites that view various types of information which are established and controlled by ISP (Internet Service Provider). They are responsible for any defamatory statement published on their site because they must review the material before it is made public.
Essentials to prove cyber defamation
The essentials to prove cyber defamation are as follows;
1. The imputation must be published in the internet or any cyberspace.
2. Imputation must be in the form of noticeable representation.
3. Making such imputations should be done with the intent of causing damage or with the understanding that it would harm the person’s goodwill.
As there is no separate law governing Cyber Defamation, a person is liable for cyber defamation if the stated requirements mentioned above are fulfilled.
Practical conduct of cyber defamation:
There are various means through which cyber defamation can be committed. Some of the important means are mentioned below:
- Social networking sites: The medium of social networking websites is widely used for online defamation. People can post, message, and comment on something on many social networking websites. Some of the sites are Facebook, Instagram, Twitter, Linked In, wats app and many such sites. People regularly post or comment on some events which make it more vulnerable to defamation. Many people who are unaware of the law make defamatory statements that damage another person’s reputation. Some people comment defamatory statements which harms the reputation and causes significant damage to the person’s character.
- Forum sites: It is a place where people come together to discuss and talk about various hot topics. During such discussions it is seen that people publish or speak defamatory statements making it highly vulnerable and thus considered to be a medium of cyber defamation. (Example- Talk shows). People sometimes make defamatory statements in the ‘heat of the moment’ in talk shows which later create huge problems and thus, have to deal with many legal consequences.
- Discussion groups of any kind: It is a place where people come online and talk about their issues and experiences and ask for or offer advice or various topics. Sometimes, people use it as a platform for online slander, posting defamatory content to the discussion group.
- E- mail: E-mail popularly known as Electronic mail is also used as a means for Cyber Defamation as people tend to receive vulgar e-mails and defamatory material even from unknown persons.
- Other websites: Some websites become the source of false information. Many people publish articles, research papers, write blogs, etc. but we even find that pornographic materials and contents are also uploaded in such websites making it vulnerable not only for an individual but also for all the viewers over the cyber space/virtual word.
Legal provisions related to cyber defamations:
The Information Technology Act, of 2000 and the Indian Penal Code typically govern online defamation cases in India. In 2015, The Supreme court of India declared that 66A od IT Act (Information Technology Act) which dealt with offensive online interactions or communications to be unconstitutional. However, provisions under section 499 and 500 of the India Penal Code (IPC) which deals with defamation, continues to be relevant in online context.
These important laws are stated below:
- The Indian Penal Code, 1860
According to Section 499 of IPC,1860, “Whoever, by words either spoken or read, or by signs or by any visible representation, 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.”
The law after the introduction of the IT Act, [1]2000 included “Speech” and “Documents” in electronic form.
Section 500 deals with the punishment of the above-mentioned law of defamation. As per Section 500, “Whoever defames another is punishable with an imprisonment for two years, a fine, or both.”
Section 503 deals with offenses committed through the use of computer devices, such as sending emails, posting messages, and leaving comments, to harm someone’s reputation or threaten them. According to Section 503 of the Indian Penal Code,1860, “Whoever, threatens another with any injury to his person, reputation or property, or 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 threats, commits criminal intimidation.”
Section 506 deals with the penalty for criminal intimidation and as per Section 506, whoever commits the above-mentioned offense shall be punished with two years jail term, a fine or both.
- The Information Technology Act, 200:
Section 66A of the Information technology Act of 2000 does not explicitly address cyber defamation but does make the act of sending defamatory material for causing insult, injury, or criminal intimidation punishable. After the case of Shreya Singhal and Ors. Vs Union of India, Section 66 A of the IPC was struck down as it was considered to violate fundamental rights of Indian Constitution.
Section 79 of the Information Act of 2000 exempts the intermediary service provider from liability in certain cases as listed below-
i)The intermediary’s function is limited to providing access of communication system through which third-party information is transmitted, temporarily processed or hosted
ii) If he exercises due diligence as stated in the Act and also follows the guidelines laid down by Central Government.
- The constitution Of India:
According to the Constitution of India, the fundamental right of speech is subject to some reasonable restrictions. These restrictions have been defined in Section 499 of the Indian Penal Code, 1860. However, Section 499 outlines ten legitimate exceptions under which any verbal or written statement would not be considered defamatory. Punishment for defamation is fine or imprisonment, or both which is a bailable offence, non-cognizable and compoundable offence.
Online Defamation Cases in India
The rapid growth of social media and internet has become a big cause of cyber defamation globally, and India is one of the affected countries. The rapid and wide use of social media these days has made it really easy and effortless to share information in the internet but the cases of cyber defamation which are harming individuals and businesses are highly increasing. Here, we delve into the landscape of online defamation cases in India, analysing crucial legal aspects, notable judgements, and the impact of such cases on freedom of speech and expression. Some of the notable online defamation cases in India are-
- Tata Sons v Cyrus Mistry[2]: This well-known case involved defamation claims made by both parties in online media. This case emphasized the challenges in corporate context and the role of social media platforms in spreading defamatory content.
- Subramanian Swamy v Union of India[3]– The Supreme Court held the freedom of expression as a “highly treasured value under the Constitution”. In application of the concept of reasonable restrictions it held that – “Notwithstanding the expansive and sweeping ambit of freedom of speech, as all rights, the right to freedom of speech and expression is not absolute. The court declared that the reputation of a person is an integral part of the right to life granted under Article 21 under The Indian Constitution. “Reputation of one cannot be allowed to be crucified at the altar of the other’s right of free speech. The court differentiated a defamatory attack from criticism, dissent by speaking for tolerance to criticism, dissent and discordance but professed no tolerance to defamatory attack”.
- Shreya Singhal vs Union of India[4]: This landmark case challenged the constitutionality of Section 66A of the Information Technology Act. Section 66A of Information & Technology Act 2000 (IT Act), was quashed by the Supreme Court of India in due to ambiguity in the definition of the word ‘offensive’ in the Section. This section stated that any kind of offensive message sent to a computer or any other kind of communication devices like mobile phone, smart phone, tablet computer, etc. would be considered as a offence. Such power, under 66A, was misused by the government and was declared unconstitutional as it violated freedom of speech guaranteed under Article (1)(a) of the Indian Constitution.
Challenges and Implications in Online Defamation:
Determining jurisdiction in cyber defamation case is really difficult as internet does not have any border or boundary. Courts have to deal with many issues like finding the physical location of the offender, place of publication, targeted audience, etc. in an online defamation case, there is a very thin line between the right to freedom of speech and expression and the right to protect an individual’s reputation. It is the duty of the court to ensure that the freedom of speech is not curtailed while safeguarding these competing interests. Cyber defamation cases in India is also increasing in an increasing rate. Balancing competing rights, clarifying legal frameworks, and promoting responsible online behaviour are key steps towards addressing these challenges and fostering a safer digital environment.
Intermediary liability and cyber defamation:
Section 79 of the IT Act provides a safe harbour to intermediaries against any act of defamation. It also provides that an intermediary is not liable for third party information, data, links, etc. hosted on its platform. However, the safe harbour protection is limited to certain conditions.
Perspective of The Indian Government and The world on defamation laws:
- The government has sought a report from the Law Commission of India (LCI) on the issue.
- In September 2014, LIC published a joint consultation paper which stated “overwhelmingly expressed dissatisfaction with the present state of defamation law.”
- The criminal defamation laws violated international norms and the penalty os imprisonment for two years was not fair. Therefore, the need to repeal section 499 was considered by the government.
- No one shall disturb or interfere on any private, home, family matter or any kind of unlawful attacks on one’s honour and reputation.
- Everyone has the right to the protection of the law against such interference or attacks on one’s personal life and reputation.
Conclusion:
Change in technology over the world changed the way people communicate. But the traditional defamation laws could not keep pace with the advancement in technology. There are no separate cyber defamation laws in India in comparison to other developed countries like the US where the laws regarding cyberspace are very stringent. To rule on cases related to cyber defamation, judges have to interpret various other laws. As the internet has become the predominant medium of communication and public opinion, there is a need to reform the law of defamation to include its applicability in cyberspace. Even the laws related to ISP (Internet Service Provider) are too vague and should be amended to make it more comprehensive and exhaustive. Also, an approach is needed that balances the Right to freedom of speech and Defamation in cyberspace.
The new-age technology changed the usage of the internet from just information providers to running the business online. The amount of information available in the internet with the ease of access makes the internet an important source of defamation. People share their views, ideas, opinions, experiences and even criticism through this platform which leads to character assassination. Hence, a proper balance is need of the hour between Freedom of Speech and Expression and the Right to Reputation. The paper explores the medium of defamation and the liability for cyber defamation in the Indian Constitution. To present a more realistic picture the paper also accounts for case laws related to cyber defamation. After analysing various research papers, it is evident that there is no effective legislation particularly for cyber defamation in India and accordingly there is a need for separate laws dealing with cyber defamation which should be flexible and comprehensive to apply to all media.
Arsha Dutta
Lloyd Law College, Greater Noida
[1] Information technology act https://eprocure.gov.in/cppp/rulesandprocs/kbadqkdlcswfjdelrquehwuxcfmijmuixngudufgbuubgubfugbububjxcgfvsbdihbgfGhdfgFHytyhRtMjk4NzY=
[2] https://indiankanoon.org/doc/150596924/
[3] https://indiankanoon.org/doc/80997184/
[4] https://www.legalserviceindia.com/legal/article-10124-shreya-singhal-v-union-of-india-air-2015-sc-1523.html#:~:text=Shreya%20Singhal%20vs%20Union%20of,a)%20of%20the%20Indian%20Constitution.