Cyber Defamation the Indian Context
“Article 19(1) (a) of the Indian constitution guarantees the right to free expression”. One of the most popular and the most vehemently quoted articles by all and sundry. Today in the age of social media activism, freedom of speech and what lies in its ambit is furiously debated and constantly amended with each passing day both in the physical world as well as cyberspace. Cyberspace is the communication market place created when two or more computers are connected to each other physically or wirelessly, where communication can take place in the form of text, images, pictures, audio and movie files, etc. The World Wide Web has contracted the distance of the world and expanded the reach of the message to the remotest device in the world. As all coins have two sides, the flip side of this powerful medium of communication is the irresponsible usage by the keyboard musketeers who rampantly overstep the fine line of freedom of speech and cause an infringement of other’s rights. Our constitution too provides freedom of speech with reasonable restriction and not as an absolute right. Defamation and the Law related to it falls under the ambit of these reasonable restrictions. The protection of the reputation of another person against any comment which hampers the reputation of that person comes under the expanse of defamation and such an act would be liable under the Defamation law. Cyber defamation is not just limited to libellous statements against an individual it may be directed towards a community or group. As the statement is considered published on the internet medium such defamatory acts fall under the category of “Libel”. The cases of cyber defamation or internet defamation fall under two categories, firstly the cases where the primary publisher of the material or the originator of the statement in question is considered liable for the defamatory statement. Secondly, the cases where the internet service provider is liable as it is their duty to regulate material published on their web pages before they are published after reasonable due diligence.
Defamation and Defamation in cyber space -
Defamation has been defined under Section 499 of the Indian Penal Code (IPC) as an act that is either spoken, written, or published for and which is aimed at pulling down the image or reputation of another person with the clear and known intention to do so, such an act is categorized as defamation. It can be in two forms libel; which is published defamation or Slander; if it is only in verbal form.
It is to be noted that just a statement may not amount to defamation unless it is published, as being published is one of the main ingredients for a conclusive defamation judgment.
Similarly, cyber defamation is any such statement that causes defamation of an individual or a group by using two or more computers connected to each other. Such statements may be made using any tool available on the internet for example Facebook posts, YouTube videos, or even a defamatory statement over messaging sites like Whatsapp or Twitter, etc. It is to be borne in mind that the speed of dissemination and the reach of the statements on the internet are extremely fast and humongous which makes cyber defamation more serious and critical in today’s connected world.
Law related to Cyber Defamation-
Cyber defamation has gained much prominence as the popularity of social media has gained importance as compared to other mediums of communication. More and more people are expressing their views on social media and as a result, more and more sensitive people are finding them hurtful and defamatory. There are many provisions related to cyber defamation which depend on the kind of defamation and the extent to which the statement is considered defamatory. The provisions of cyber defamation originate from the provisions for physical defamation in India. The legal provisions related to cyber defamations are:-
Information Technology Act of 2000, Section 66 A- This legislation regulates any post made by a person that is insulting to another person and that has been posted on the internet with the intent of tarnishing the reputation of the targeted person. This act allows for the punishment or fine of someone who is found guilty of such an act.
“Although, in Shreya Singhal v. Union of India, the Supreme Court of India struck down this provision (Section 66 A). The reason for this was the vagueness in the definition of the word “offensive” in the section and as a result, it was being misused by the governments for suppressing the voice of dissent and was violating freedom of speech”. (Shreya Singhal v. Union of India, 2015)
Section 499 of Indian Penal Code, 1860- This section deals with defamation in the Indian context and has now been extended to cyber defamation as well. This section says that if a person purposefully harms another person’s image by an act either in verbal form, symbols or publishing material is guilty of defamation. With the addition of the word speech and document section 499 has got extended in the Information Technology Act 2000.
Section 500 of Indian Penal Code, 1860- This section defines the punishment with can be awarded for conviction under section 499 of IPC. It indicates that a convicted person can be sentenced to two years in jail, a fine, or both, depending on the circumstances.
Section 503 of Indian Penal Code, 1860- Criminal coercion is the subject of this portion. Under this, if a person uses computers to threaten to harm or to intimidate another person by using a medium like mails, Posts, Photos, or articles on the internet. It is about threatening to harm a person or threatening to harm reputation using Information technology too, as now this section is also applicable to cyber defamation.
Section 506 of Indian Penal Code, 1860- This section defines the punishment which can be awarded for the crimes under section 503 of the code. As threats can be of different types so is the punishment. The punishment for intimidation may extend up to two years or as decided by the court or a fine or both. If the treatment is to cause death or such grievous hurt then the punishment may be increased up to seven years or life imprisonment or fine or both as the case may be.
Section 469 of Indian Penal Code, 1860- “This section deals with forgery, if someone creates a fake account and uses the fake account for harming the reputation of other person, the offense comes under section 469 of IPC. This section describes that if it would be considered as a forgery if an electronic document is forged with the purpose of harming the image of another person or even if it is known that such forged document would be used to tarnish the image of someone such a person would be punished with imprisonment of a term up to three years or a fine or any term as specified”.
Section 124 A of Indian Penal Code, 1860- “This segment discusses the statute of sedition. It applies to any person who uses the internet medium to propagate the feeling of hatred towards a government official or minister. The section says that anybody who uses such words, signs either spoken or written with the intention to express hatred and excite hate and dissatisfaction against the government or its office would be considered liable for life imprisonment or fine or with imprisonment up to three years and fine added to it”.
ISP’s Liability in Deformation- The liability for defamation done on the internet falls under section 79 of the Information Technology Act 2000. It says that the internet service provider (ISP) would not be accountable for third part information, URL made available or information hosted by them as long as they are only acting as a medium to provide communication system, also they cannot be held responsible if they have not initiated the transmission or targeted the transmission to the recipient purposely or have modified the information in the transmission. They would not be held responsible if the ISP has applied reasonable caution and followed the guidelines of the law applicable in the land. However an ISP would be liable for its act if the act is unlawful or it has abetted or has be party to the conspiracy of doing so. An ISP is also responsible to remove any information, link or data which has been notified by the government as unlawful, expeditiously, falling to do so would result in making the ISP liable under section 79 of IT act 2000
Some important cases of Cyber Defamation-
SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra was India's first cyber defamation case. In this case a dis- satisfied ex- employee of the company was sending derogatory fake emails to business associates around the world as well as the managing director of the company defaming the company. The Delhi High Court granted immediate relief, prohibiting the defendant from defaming the Plaintiff in both the online and offline environments. ( SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra, 2014)
The Delhi High Court recently issued global prohibitions against Facebook, Google, YouTube, Twitter, and other online intermediaries in the case of Swami Ramdev v. Facebook Inc 263(2019) DLT 689, the judge mandated them to remove the URLs from their websites that were deemed defamatory to Swami Ramdev, the complainant. In India, he is a well-known yoga teacher and entrepreneur. The Court ruled that the intermediaries had a global obligation to delete and block all illegal material and videos posted from I.P addresses in India.
Kalandi Charan Lenka V. State of Odisha – In this, the petitioner was continuously being stalked, and a fake account of her was later created and obscene messages were sent to the friends by the culprit. A morphed naked picture was also posted on the walls of the hostel where the victim stayed. The court held the culprit liable for his offence. ( Kalandi Charan Lenka V. State of Odisha, 2017)
Rajiv Gandkari through P.A Depamala Godkari V. Smt. Nilangi Rajiv Gadkari- In this case, after receiving a divorce letter from her husband, the respondent filed a suit against the husband for continuously harassing her by uploading vulgar photographs and defaming her on social media websites. The offence has already been registered and maintenance of Rs. 75,000 per month has been claimed by the wife (respondent). (Rajiv Dinesh Gadkari vs Smt. Nilangi Rajiv Gadkari , 2009)
Remedy Available For Alleged Internet Crime- Before taking any action remember, the responsibility to prove that defamation has happened falls on the complainant. Having said that you also have to understand that filing a case of defamation against someone is a serious matter and failing to prove that defamation has really happened may give a right to the accused to sue the complainant for defamation, damages or frivolous complaint.
Any person who feels that his or her reputation has been harmed may lodge a complaint to the cyber Crime Investigation cell at the National Cyber Crime Reporting Portal (Cybercrime). The page has detailed information about various Cyber crimes and the way to file a complaint.
Conclusion- With the social media platforms like YouTube and Face book having penetration up to 75% as a result of low data prices and cheaper devices, the social media active users in India are estimated more than 450 million. With such great power both in the hands of the end users as well as the Internet service providers, the responsibility to act responsibly has grown manifolds in the last few years. The present times and the times to come would see more dependence of the IT users to interact extensively on the social media. With the masses indulging in social media banter the possibility of defamation and present day stray cases becoming more rampant is not just predictable but also inevitable. The whole ecosystem of social media and cyber defamation and particularly all its stakeholders have to tread cautiously and pre-empt possible scenarios where neither free speech is stifled nor it allows the floodgates to open for hateful, horrible and horrendous people take advantage of the situation and violate rights of other people on social media. The Laws to protect the dignity of another on social media in India have to be more clear, convenient and crisp. As users are being conditioned to become less sensitive keen eye has to be kept to nurture appropriate sensibilities. Thus we can conclude that the scope of defamation and Social media in India is growing with each passing day.
By Sukriti Mathur
Course : Ba.ll.b (1st Year)
College name: - Lloyd law college