Internet is what nowadays turn out to be the wheels of the world. Easy accessibility, capacity to be used anonymously, low connectivity cost and highly interactive interface has catered to the exponential increase in the number of Internet users and telecommunications via e-mail, web blogs, chats, tweets, social media platforms and other ways. Amidst such unparalleled burgeoning of the cyber space, the chances of Cyber defamation have also proliferated. Unaware of the term, people have also found themselves victim to other aspects of cyber defamation such as cyber bullying. On the other hand, users who must be inhibited about the content of their own writings or messages are far away from even distinguishing between the freedom of expression they possess and defamation they most likely commit. Defamation as a criminal and civil wrong has been identified by the law in India. However, for cyber defamation to fix its ground it is all the more necessary to evolve the laws accordingly, both penally and jurisdiction wise to expand its scope incumbent for controlling such defamation. The article seeks to explain the offence of cyber defamation with its ceaselessly growing commission by the users who themselves are completely oblivious to it. The article reveals the loopholes prevalent in the existing laws, proposing amendments and plausible solutions to arrest the jeopardy of right to expression over the right to reputation.
Keywords: Cyber Defamation, Cyber space, Defamation, Right to Expression, Right to Reputation.
The 21st century has brought with it the age of fascinating technology where the quest to cope with such technology has impregnated every vice of the society. The upswing in information technology and communication has been a boon for the entire world but it has also brought with it a chequered scenario. Where internet unifies the entire world, it is a mode of impersonation, anonymity, faking voices and messages, using artificial intelligence in an illegal manner to derogate the propriety of another individual. It is high time to say that we are far deep into the swamp of cyber defamation.
Now, internet has become the medium of sharing one’s opinions, that too globally. With the feature of wide spread access, it is just a matter of few seconds for a single tweet or comment to become viral. This increase in unfettered communication has also increased the chances of its misuse. The readers can relate to the recent Zomato Case which got viral on every forum. A simple delivery man was defamed by a girl on social media that he has injured her just to get free delivery of the food she had ordered. As a consequence, the delivery guy fell victim to the Court of Social Media and was removed from his job. What do we call this, trolling? What seems like trolling is actually Cyber Defamation. Posting comments, tweeting and reposting derogatory or negative content amounts to serious violation of the rights of the other person against whom such content is posted.
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 expected, to defame that person.
Defamation can only be the outcome of a published work that has been read by a third party that is, other than the person defaming and the one being defamed. A person merely writes defamatory content but does not publish or communicate it to others, the offence of defamation may not hold. Such publication can be in verbal form, known as slander or in written form, known as libel.
Defamation as defined in the Indian Penal Code is applicable to Cyber Defamation. Cyber Defamation is nothing but defamation that is done in cyber space by the usage of a computer or any other device that is connected to internet. Such device is the medium by which any defamatory statement has been brought to be published in the virtual world. Online Defamation is covered under the category of libel, online records being designated as documents. Given the wide definition of the words documents and evidence in the amended Section 3 of Evidence Act read with Section 2 (o) & (t) of the IT Act, there can be no doubt that an electronic record is a document. Factually speaking cyber defamation is much more severe as it is difficult to find out the monetary damages suffered by the aggrieved person due to its wide coverage and the high rate of circulation. Internet defamation is distinguished from its less pervasive cousins, in terms of its potential to damage the reputation of individuals and corporations, especially its interactive nature, its potential for being taken at face value, and its absolute and immediate worldwide ubiquity and accessibility.
LEGISLATIVE ASPECT OF CYBER LAWS IN INDIA
The remedy for defamation can be sought both in criminal law as punishment to be given to the offender and in civil law, as the payment of monetary damages by wrongdoer.
Section 499 of the Indian Penal Code, 1860 defines defamation that also applies to defamation in electronic form. The punishment for the commission of such offence is simple imprisonment which may extend to two years or with fine or both. A person commits criminal intimidation if he threatens to harm other person’s reputation of property.
Section 469 of the Indian Penal Code, 1860 states that punishment that may extend to three years and fine shall be given to any person who commits forgery of any document intending to harm the reputation of any person. This Section was amended by the Information Technology Act, 2000 to include “document and electronic record” in its language.
The Information Technology Act, 2000 marks the regulation of the dot com boom in the country. However, due to its highly technical nature there exists a lacuna regarding its laws not only in the layman but also lawyers and the judiciary. The Supreme Court in the landmark case of Shreya Singhal V. Union of India has quashed Section 66A of the Act. The language of the stated that any “offensive” material sent to a computer or any other device shall be an offence. The word “offensive” had a wide scope which served the Government in curtailing the right of speech and expression of the individuals.
The question regarding the liability of the websites serving as an intermediary or it can be said the platform on which such demeaning content is published in cases of cyber defamation, has been answered by Section 79 of the IT Act. These intermediaries are protected under the umbrella of complying with the statutory regulations and take down orders of the Government. However, the intermediary should not also initiate or alter any such content and cannot target the receiver.
The case of SMC Pneumatics Pvt Ltd V. Jogesh Kwatra has heralded the path for cyber defamation in the country. It was for the first time that the Indian Court took cognizance of the offence of cyber defamation and granted ex parte injunctions against the defendant, a company’s employee to stop sending derogatory and unrespectful emails to fellow employees and other subsidiaries of the company. The defendant was found not to be acting in official capacity. Consequently, his employer was not held vicarious liable for the acts of his employee.
The Odhisa High Court in the case of held that stalking and creation of fake accounts of the plaintiff with the intention of defaming her, by the defendant tantamount to the offence of cyber defamation and the defendant is liable to pay for his offence.
The most highlighted case of online defamation in the recent past is Swami Ramdev V. Facebook Inc. The Court in this case has exercised international jurisdiction by passing global injunctions to curtail the posting of any online abusive substance about the book “Godman to Tycoon- The Untold Story of Baba Ramdev” which was the plaintiff’s only support. If the substance is transferred or on the off chance that is situated in India on a computer resource, at that point the Courts in India ought to have International Jurisdiction to pass worldwide injunctions.
While dealing with the quantum of damages to be paid by the wrongdoer, the Court observed that “the mode and extent of publication is therefore a particularly significant consideration in assessing damages in Internet defamation cases.”
If a person receives defamatory information from an anonymous source, and the recipient writes and publishes an article based on that, the author of the article (and not the source of the information) becomes liable. The crux of liability exists in the person ‘making’ or ‘publishing’ the work with an intent to defame the other. Hence, a person reposting the work without the intention of disparaging the other shall not be held liable for cyber defamation.
BALANCING CYBER DEFAMATION AND RIGHT TO SPEECH AND EXPRESSION
Where the nation seeks to secure the tenets of democracy, freedom of speech and expression is the most basic right of the citizens. This right has been guaranteed under Article 19(1)(a) of the Indian Constitution. With increase in the awareness among people about their rights and judicial activism the scope of this freedom has amplified to include right to press, right to advertisement etc over the years. However, this freedom is unconfined. Article 19(2) states the reasonable restrictions attached to this right. ‘Defamation’ is also covered under the ambit of these restrictions. The right to speech and expression cannot be used to defame others. The reasonable restriction on this right by launching criminal defamation cannot be said to fetter, bind public opinion, perception and criticism adversely affecting the health of the democracy.
The nexus between defamation and right to reputation exists inversely. The offence of defamation committed on any platform infringes the right of reputation of the other as guaranteed under Article 21 of the Constitution. The freedom of speech and expression of one cannot crucify other’s right to reputation. Where reasonable verification of the book about Jayalalithaa has not been done, such book amounts to spoilage of her political image and violated her right to reputation and privacy and cannot be published. The unauthorised biography of Baba Ramdev in the book “Godman to Tycoon: The Untold Story of Baba Ramdev” containing negative and disrespectful content violates his right to reputation and privacy under Article 21 of the Constitution and its publication in all spheres must be banned.
The trade of data and messages over the internet has made cyber defamation a polarising issue. Despite the certainty of laws on the offence the users often indulge in cases of trolling, posting comments, videos and other materials about others without even considering the laws that are set to charge them. Mostly, the users are unaware that the content posted by them has amounted to an offence and has seriously abridged the rights of the targeted person.
LACUNA WHICH NEEDS CONSIDERATION
Difficulty in identifying the user
With the rampant usage of the internet and over 3.97 billion users, the biggest problem is to identify and locate the real identity of the person who has committed defamation. Anonymity of the users is an alarming issue that itself has contributed to the rise in the cases of cyber defamation. Users with fake accounts fear no consequences of their derogatory posts. On the other side, there are many websites that allow anonymous usage. Even if they ask for verification of name or email id, it can always be filled falsely. In such a scenario it is tremendously challenging to firstly locate the source, stop the rapid circulation and quantify the damage to the reputation of the defamed.
Censorship of websites
During the process, it is crucial to determine and isolate the website which has to take down the defamatory content. it is just a matter of few seconds for any content on any website to be the copied and posted on other websites. This generates a challenge for the authorities to look out for such websites and deal with their implications. It is also not technically feasible to go through all the comments on such content which often leave such commentors in the safe zone. The migration of the content is so rapid that the Government has to face uncertainty while providing security.
Lack of Technical Expertise
In a country like India, lack of technical expertise is a setback in arresting the menace caused by this offence over a few years. It has resulted in a new paranoid situation where many anti- social and anti-national activities are done behind the curtain of various forms and the technology which is unable to censor it.
Any measure to increase the monitoring even when it is the need of the hour, is vehemently criticised by the authors, writers and other users as hampering their right to freedom of speech and expression. Tracing of blogs, opinions and reviews can also be questioned in this biggest democracy of the world.
Cyber space exists with multinational jurisdiction as there is no bar to the spread of information across the world. This uni-jurisdictional branch often results in difficulty in approaching the Court with appropriate jurisdiction. Which Court has the jurisdiction whether the state or country in which the source is located or in which the victim resides is a debatable question till now.
Quantum of Damages
The sufferer of cyber defamation foresees irreparable damages to his reputation in the society with personal attacks to his propriety. The extent to which such content has gone viral cannot be appropriated in terms of money. Hence, fixing the quantum of compensation is a herculian task for the Court as it cannot even reasonably assemble the circulation of the defamatory content.
THE WAY AHEAD
In the light of the current scenario, where cyber defamation has stooped down to the levels of trolling, posting and commenting on other’s personal setup it is rather a compelling necessity to rectify the situation.
The Government should develop elaborate and strict monitoring measures according to which the contents on cyber space are designated as defamatory or not defamatory. Every case of individual defamation should not be left in the hands of the judiciary to determine whether it amounts to defamation. The standards of what can and cannot be posted should be detailed. The Government should also develop a model to censor any such content posted in the light to preserve and protect the rights of the ones losing their name and fame in the game of cyber defamation and not otherwise. The websites should also develop criterion to unpopularize these activities. For instance, Facebook and Instagram censor the activities of their users and in case of any breach of their guidelines like posting child pornography ban the accounts of the users. The cyber security in India with its framework and implementation still has a long wat to go. Steps should be taken to spread knowledge about cyber security and commence cyber security research.
The legislative background of cyber defamation also lacks effectiveness and needs to evolve according to the swift changes in the cyber environment. The IT Act, 2000 is the guardian of cyber laws in India. However, it fails to provide any stringent law regarding cyber defamation in the country. Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any obscene content 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.The word obscene does not include cyber defamation within its ambit entirely. Amendment of laws with change in technology and people is the way ahead to lessen the pace of this offence.
The Indian Government should seek to end the bifurcated system of government and private lookout to bring cyber security. Unity in command is an essential to develop a countrywide assessment mechanism of cyber crimes including cyber defamation. Pursuant to this, a cybercrime investigation cell should be established under CBI which directly reports to the Central Government. Cyber police station with investigating officers well aware of the cyber laws must be setup in every district. Judiciary cannot lag behind in this aspect. Special cyber courts to hear cybercrime matters must be established to resolve the matters expeditiously and effectively.
The scenario as presented by the legislative framework and the judicial approach shows that the offence of cyber defamation is treated with easiness and there is lack of laws and proper punishment to curb it. The IT revolution has gathered entities and persons from all over the world and has increased the chances of fraud and crimes. The 21st century embarks the freedom of speech and expression which constitutionally protected. But this era has transformed from freedoms to internet slangs. Freedom to post, comment, write anything on social media is not limitless.
Undoubtedly, with the pervasive nature and intricacies of the cyber space there is an urgent need to review the legislative framework and implementation of cyber laws in the country. Where India has still not recognized cyber defamation as one of the major concern in todays scenario, measure to rectify the situation has still a long road to travel.
 Section 499, The Indian Penal Code, 1860 (Act 45 of 1860).
 Rohini Singh V. State of Gujarat SLR 8885 2017.
 Dharambhir V. CBI 148 (2008) DLT 289; P Gopalkrishna V. State of Kerala (2019).
 Tata Sons Limited V. Greenpeace International, 178 (2011) DLT 705.
 Section 500, The Indian Penal Code, 1860 (Act 45 of 1860).
 Section 503, The Indian Penal Code, 1860 (Act 45 of 1860).
 2013 12 SCC 73.
 CS(OS) No. 1279/2001 (Delhi High Court, 2001).
 Kalandi Charan Lenka V. State of Odhisa (2016).
 Supra Note 16.
 Supra Note 9.
 Supra Note 4.
 Pat Sharpe V. Dwijendra Nath Bose (1964 Cri LJ 367).
 Subramaniam Swamy V. Union of India ((2016) 7 SCC 221).
 Selvi J. Jayalalithaa V. Penguin Books India (2012).
 Swami Ramdev vs. Juggernaut Books (MANU/DE/3565/2018).
 Section 67 of The Information Technology Act (Act 21 of 2000).
Author: ARUSHI SRIVASTAV