CYBER DEFAMTION: CHALLENGES AND JUDICIAL INTERVENTION

Reading time : 8 minutes     

Abstract

In the recent time the accessibility of internet has changed life of every individual given its easy human to human interaction and convenience in everything any one can think of. In the recent times there has been massive adaption of online platforms which as said there are two sides of every coin it has even led to rise in the cyber hacks and defamation followed by unfettered capabilities due to removal of barriers especially who are responsible for harming the harmony and goodwill of any institution which may include any personality leading to false assumptions and comments about the reputation who has been the victim of cyber defamation. We know them as ‘troll’.

Introduction

The internet is a cheap and valuable source of information and communication via sound, messages and digital picturization. In present times the freedom and access also require setting up the limit up to which the users is willing to share the data and information which are fruit of their own writing and research. The websites providing all sorts of information are proliferating which are controlled by Internet Service Providers and if related to the company than their specific information technology department and can be easily traced through suitable search engines. The main reason for the users and institution who have gained good base through internet due to its interactive quality leads to application of defamation where data and information can be easily accessed through online portals supporting the format.

Defamation is considered as a wrongful and intentional publication in written or oral form about a person in order to harm his reputation in the society which are referred as defamatory statements. It is infringement of right of good name by giving wrongful witty statements by publication that is set to injure the person concerned their status, good time in the society. A person’s reputation is said to be infringed when the maligning statements are passed from the person responsible to another third party or by publishing the statements open for everyone to read and is believed to true and injures the person’s reputation. It is pertinent to mark what kind of remarks and statements are defamatory and thus span of defenses varies from jurisdiction to jurisdiction with one common agreement that any unpleasant, unflattering, annoying, irksome, embarrassing are not actionable.

Cyber Defamation

The universe adopted online platform for the remarkable growth due to online based dealings and daily transactions. The immense growth of internet all across the globe has given one tap medium to every technology friendly individual a platform to express their opinions and thoughts by writing away from their end which are easily accessible to everyone on the same platform as a publication. This has led to the increase in cyber defamation which causes injury to the reputation of a person in front of third party which is done by verbal or written communication n or through verbal representations.

Cyber Defamation has been a serious crime due to its emerging cases in the recent times due to the overall business through online mode. It includes Widespread Coverage, Instantaneous Communication, Anonymity and Impersonation. The defamation created through audio, video, written in the form of comments, publications through any electronic devices such as Mobiles, computer, laptops, tablets as mentioned under section 2(1) (ha) of the Information Technology Act, 2000 which states[1] ‘any cell phones, personal digital assistance or combination of both or any other device used to communicate, send or transmit any text, video, audio or image.’ This type of defamation is quite rampant with comfort of identity to get spoofed and it quite disturbing for the institution, political parties.

Cyber defamation is one of the types of cybercrime which includes series of events with the target within the cyberspace. In the cyber law the aspect of this defamation is fulfilled with wrongfulness if the credibility of an individual has been damaged and the good name in front of third party has been tarnished. [2]The crime is said to have been executed when the statement has been released is confirmed, the court concludes the intention to harm. The harm caused is irreparable when the defamatory statement is made by publishing on the online space which is readable by any one and causes reputation tarnation which is widespread for gaining commercial edge or competitiveness which is against lawful obeyance and is unpalatable amounting to crime which is being acted through cyber instrumentals with internet, website and other electronic forms and manners.

Elements Responsible-

The burden of proof lies on the defendant. It is required to prove given elements to prove execution of defamation within cyber space to impose liability. The elements are as follows –

  • publication of the defamatory statement.
  • The plaintiff must prove the defamation refers to the plaintiff.
  • The plaintiff must prove the statement is defamatory.
  • Upon proving of publication there are presumptions to be made in favor of the plaintiff that the statement was false, that it was published with malice and that the damage has been suffered by him both in case of cyber defamation.

Socio-Economic Dimensional Offence

Cyber law has been a wider term for all the crimes and work done within the cyber space with internet medium. It encompasses cybercrimes, electronic commerce, freedom of expression, intellectual property rights, jurisdiction issues and privacy rights. It involves activities like fraud in credit card, unauthorized access to cyber personal space of an individual and institution, heinous crimes including child pornography, hindering software piracy and stalking through social media handles. There still no clear picture for cyber crime definition where freedom of expression includes defamation, obscenity issues and censorship while enforcing the rules governing cyber space. Most recently the definition has expanded to include more activities such as forgery, illegal gambling, cyber stalking, cyber defamation. The fact that user is ‘alone’ with his computer and the identity is quite untraceable which creates a sense of fake intimacy and dictated correspondence.

The fact that there is no limits and boundaries to the communication and scale of interaction which is why user’s sense of social norms and etiquettes which gets blurred in big cyber platform. The main reason for the rise in cyber defamation is that least efforts and cost are taken to post any obscene pictures, comments, publications against the victim which are open to be viewed for every person around the globe. It enables the person to have access to data more easily than he could in the real world. [3]The easy method of downloading and forwarding data through mails or retrieving data from the sites used by the institution or individual. Many companies and political parties have their official designated site where all important insights are being posted and there has been section provided where public are most welcome to go through the bulletin and post their views where behind the fake spoofed identity trolls are responsible for framing and posting the negative comments responsible for the defamation. Intranets are exclusively used by the company which are accessed by the company. [4]The cyber presence of every institution has a big threat of their huge amount of data can be transmitted simultaneously to several different destinations; and e-mails can be forwarded to an indefinite number of receipts without the original author having any control over the transmission. The amount of damage granted will depend on the nature of the defamation and the extent of its publication.

Cyber Defamation is not only harms an individual but also the society as a whole. A criminal act is responsible and punishable with the same extent irrespective of how much people and public figures and institutions have been harmed including the health or material welfare of the community or peace keeping. If defamation is done of any corporate house than it can damage the share value along with the country’s economy which shows that it affects and harms the people on a real large scale depicting the blurred picture of the definition and scope of the definition since ages. The main aspects of socio-economic offence are the gravity of the harm caused to the society as a whole and the nature of the offence.

The level of gravity of harm is never apparent also not undeniable. The nature of offence is peculiar by their way of planning and execution with sophisticated means. The detention is undeniable when there is public harm through cyber space who are not in the shape of positive aggressions.

Liabilities and Laws for Defamation 

There has been a blurred definition and scope for the cyber defamation but if someone is caught in online publication of defamatory statements and is published to be accessible to various other third parties than such websites where it has been granted consent to be published are held liable.

The term [5]‘Intermediary’ has been defined in section 2 (1) (w) of the Information Technology Act,2000 where if any particular electronic record, who makes or stores, receives, stores, or transmits that record or provides any service with respect to that record and includes Telecom Service Providers, Network Service Providers, Internet Service Providers, Web Hosting Service Providers, Search Engines, Online Payment Sites, Online Auction Sites, Online Market Places and Cyber Cafes shall be liable for the cyber defamation.

Section 66A of IT Act,2000 states if any person sends or receives any data through any electronic device which are defamatory and are grossly offensive along the menacing character which does not hold any truth but are responsible for creating annoyance or inconvenience and the origin of the sender is not easily detected then such messages shall be punishable with imprisonment for a term of three years along with fine. [6]This act totally punishes the comments, obscene information and grant powers to the police for searching of any premises without any warrant. The latest amendment adds power to block or ban the sites containing any defamatory statements.

The Information Technology Act, 2000 lays emphasis on the internet to remove all the companies’ content after 30 hours of the notifications by the Government of India.

Indian penal Code,1860 section 499 of IPC which states that whoever publishes, intends to speak, sign aur intends to harm the reputation of any person by passing defamatory statements are liable for the same. Section 500 of IPC where a person is punishable for the defamation for two years along with fine. Section 469 deals with forgery where if a person is found creating false documents which do not hold any true or legal value with the intention of harming the person are booked for 3 years imprisonment along with fine included. Section 503 IPC which deals with criminal intimidation through electronic mode in order to harm the dignity and peace by infringing with the reputation of any individual.

In Article 19(2) [7]of the Indian Constitution where defamation is defined as a ground on which constitutional limitation on the freedom of expression can be imposed without infringing the Article19(1)(a) as only reasonable restrictions are imposed in order to reduce the unlawful use of expressions which harms the dignity of human reputation.

Admissible defamatory publications in court of law

As per sections 65A and 65B of the Indian Evidence Act-

  • Any electronic record recorded, printed, copied on a paper or media in the from of a document shall be admissible by court.
  • Mails and online chats, screenshots are also admissible in court.

Comparative analysis between laws of India and United Kingdom

The laws between India and UK hold common threads in some areas and divergence in other regions. The variation is created though there is significant gap in terms of historical access to technology and resources. There has been massive improvement in the cyber security along with policy control and concern. In the recent times there has been need of new amendments in pre-existing laws.

In UK there is comparatively more open multi-stakeholder input which amounts to policies with cyber security maintain the equilibrium between the private and government strategies and planning where India lays special attention on the government policies for the national security and peace concerns. [8]While UK had policy concerns for over a more extended period than India making it more comprehensive. Both nations still require to address to the cyber space security to avoid malice. 

The Indian government has introduced various initiatives for the awareness regarding the cybersecurity while UK has been trying to adopt best security without necessarily mandating strict laws and regulations along with revisiting the possibility of entering into international agreements for coping with the proper investigation of cyber threats.

Case Laws

This was the first case on cyber defamation where a disgruntled employee sent defamatory, vulgar,[9] abusive and derogatory mails to the company’s fellow employers all over the world with the motive to defame company’s name which also included managing director where the High Court of Delhi passed an interim injunction and granted ex-parte thus restraining the defendant for defaming the plaintiff in both the physical and cyber space.

In this case, the petitioner was the victim of online stalking from a fake account which led to spoofed identity.[10] The case involved forwarding of obscene messages were set to the friends under the definition of cyber defamation. The High Court of Odisha held that the act of the accused falls under the offence of cyber crime and is liable for the defamation for the fake messages and obscene images and texts.

In this case, the respondent after receiving the divorce letter from her husband and he harassed her by uploading disturbing photos which were vulgar and abusive thus defamed her. It was concluded and damages[11] of 75000/- per month has been claimed by the wife.

Conclusion

In the current 21st century there has been adaption of cyber technology which has led to the one touch accessible mode of working. Social media has led to the great influence in every one’s life where anyone can write, post and read comments. This even leads to cyber defamation which have reaching effects on the various institutions with their legal personality. There has been various legal organization to deal with the crimes related to cyber crimes and with admissibility of electronic records as evidence things have been eased. The burden of proof always lies upon the defendant and thus there still has been amendments required for the speedy redressal for cybercrimes including defamation.

The interaction with one tap with the help of internet makes way for everyone to send, receive and retrieve documents which also leads to defamation. There still hasn’t been adequate approach towards defamation which applies to crime within the cyber space. The intense volume of information and the simple method of working which makes internet a very critical source of defamation which is electronic based which affects all kinds of commerce and business entities. The revolution due to globalization often comes with cons where trolls and hackers hinder with the personal space of various users with malicious intention to defame the reputation of institutions and individual and the damages depends upon the amount of defamation done.


[1] SECTION 2 OF INFORMATION TECHNOLOGY ACT,2000

https://indiankanoon.org/doc/1752240/

[2]  JEREMY COHEN, Perceived Impact of Defamation

https://www.jstor.org/stable/2749271

[3] ADVOCATE SELVA KUMARI, Dimensions of Cyber Defamation

https://www.legalserviceindia.com/legal/article-1278-dimensions-of-cyber-defamation-critical-study.html

[4] SUBODH ASTHANA, Defamation in the Internet Age

https://cyberpandit.org/?article_post=defamation-in-cyber-space-whether-we-have-effective-remedies

NEERAJ AARORA, Is there effective remedies?

[6] https://cyberpandit.org/?article_post=defamation-in-cyber-space-whether-we-have-effective-remedies

[7] AABHA BARA, The center for internet and society

https://lawlex.org/lex-pedia/what-is-cyber-defamation/25167

[8] ARSHDEEP GHUMAN, Comparative Analysis of Defamation laws

[9] D.K. Malhotra, SMC Pneumatics (India) Pvt. Ltd. V. Jogesh Kwatra,12th February,2014

https://indiankanoon.org/doc/31110930/

[10] Kalandi Charan Lenka v. State of Odisha, 16th January, 2017

https://indiankanoon.org/doc/73866393/

[11]Rajiv Dinesh Gadkari through P.A. Depamala Gadkari v. Nilangi Rajiv Gadkari, 16th October, 2019

Author: PRAVANSHI YADAV, AMITY UNIVERSITY

Editor: Kanishka VaishSenior Editor, LexLife India.

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