The growth of social interactions has been unstoppable since the inception of every digital platform. While the social media not only helps the users to reach out to their family and friends and stay up-to-date, it also helps to meet the people of diversified backgrounds and exchange ideas, making our virtual world wider. The rapid advancement in technology has also unfolded new avenues for business and trade. But just as there are two sides to a coin, usage of the electronic medium also has its own risks and disadvantages. The widespread use of cyberspace, electronic medium of a computer network for online communication, has paved the way to the growth of the internet and is not limited to it but also given birth to the crimes involving cyberspace and is coined as ‘cyber-crime’, thus governed by cyber law. While the advent of advanced technology has revolutionized our world and day-to-day lives, effortless transfer of data and information has given rise to a cyber-crime known as ‘CYBER DEFAMATION’.
Broadly speaking, Cyber Defamation is relatively a new concept but it derives its meaning from the traditional definition of the term ‘defamation’. Simply put, when serious harm is caused to the reputation of a person as a result of a deliberately false statement then it amounts to defamation. Defamation, oral or written, can cause mental agony and harassment as well as pecuniary loss. The term ‘Defamation’ is classified as Libel and Slander wherein the former meaning lasting forms of publications such a print, online or broadcasting. A libel claim is actionable where harm is proven or likely to have been caused whereas the latter is more transient forms such as spoken words and gestures. A slander claim requires the person making the claim to show that it has caused tangible damage.
Therefore, a statement to be defamatory, following elements are essential:
- It must be a false and a defamatory statement;
- It must concern to the party aggrieved;
- It must be published to a third party;
Hence, when a ‘defamatory statement’ is published, on the website and/or social media platforms via the internet with the use of a computer, phone, tablet or any such communication device about the aggrieved party, without lawful justification it culminates into ‘cyber defamation’. However, the publication has not occurred if the statement is in an unread email or in unvisited web pages. It is the duty of the aggrieved party (claimant/ plaintiff) to establish that the defamatory statement was published to a third party and publishing party (defendant) is responsible for the published statement. A defamation action is a personal injury so only the aggrieved party that believes that they’ve been defamed can bring a claim.
Laws Governing Cyber Defamation
In India, there is no specific law governing the harm occurred due to defamation. However, defamation can be a civil wrong (tort) and criminal wrong, only the criminal law on defamation is codified under section 499 of the Indian Penal Code (‘IPC’).
Additionally, criminal defamation is often accompanied with offences under section 469 and section 503 of Indian Penal Code dealing with forgery of the electronic document to harm the reputation and criminal intimidation by use of electronic means for threatening with injury to reputation respectively.
Also Read: Prevention of Cyber Crime in Banking Sector
It is pertinent to note that, specifically, the Information Technology Act, 2000 does not cover cyber defamation. However, various sections including section 66E, section 67 and section 67A of the Information Technology Act have been used along with the relevant sections of the Indian Penal Code to deal with cyber defamation. Whilst in 2015, Supreme Court quashed section 66A of Information Technology Act which dealt with the punishment for sending ‘offensive’ messages through any electronic device as there was no clarity given on the word ‘offensive’. The government struck the section on the grounds that every citizen has a right to the freedom of speech.
Liability of the Intermediary
The word ‘intermediary’ in the Information Technology act, 2000 covers everything that aides, facilitates, transmits or acts as a medium for a person to publish defamatory statement in the cyberspace. For instance, social media platforms like Twitter, Facebook, LinkedIn etc., internet service providers etc. The onus is on the publisher publishing the defamatory statement and the provider of the publication i.e. intermediary, to prove otherwise. However, the medium of the publication i.e. intermediary is exempt from liability.
According to Section 79 of the Information Technology Act, the liability for cyber defamation is fixed only on the author and the intermediaries are not liable for any third-party information, data or communication link published or hosted by them on their domain, provided that their function is limited only to providing access to the communication system. Notwithstanding anything relating to the selection of the receiver of the transmission and modifying or altering the information contained in the transmission.
Furthermore, it is imperative on an intermediary to adhere to the guidelines as prescribed and execute due diligence in their duties. However, there are certain exceptions when the intermediaries can be also be held liable:
- If the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act, and
- If the intermediary has failed to expeditiously remove or disable access to the material, which is obscene or irrelevant causing harm to the reputation of the aggrieved party, upon receiving an actual knowledge from a court order or being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) of the Constitution of India are going to be committed.
Remedies For Removal Of A Defamatory/Derogatory Statement
Under the Law of Torts (uncodified law), the remedy for a civil defamation is provided wherein an aggrieved party has a right to move to the civil court by instituting a suit seeking compensation for damage suffered to the reputation and permanent injunction. Although, an interim application can also be instituted to seek interim protection, if it is continuing defamation or if there is a reasonable imminent apprehension of defamation.
In any case, the aggrieved party can directly approach the social media platform for the removal of the defamatory or derogatory content as it may violate their privacy policies.
The aggrieved party also has the remedy of blocking or asking to remove the content through civil as well as the criminal proceeding, using the ‘take-down’ route wherein the government or the court may request the social media platform to remove the notified content. However, the removal of the content is feasible only in cases where the offending website is located in India and in case of a foreign website, the only option is for blocking the content in that country.
Challenges In Overcoming Cyber Defamation
Hurdles faced in cyber defamation is due to accelerated ease and convenience in communication, anonymity, spoofing attacks, impersonation and deep-fakes to name a few. The public domain is so wide-spread that it is baffling to trace the original identity of the offender, to preserve the digital evidence and proving their authenticity. However, the criminal proceeding can be initiated by filing a complaint under Section 200 of Criminal Procedure Code accompanied by an application under Section 202 of Criminal Procedure Code with a request to the Court to direct the police to conduct an inquiry to trace back the identity of a person by IP address or other relevant information from the internet. However, in a civil defamation, it is extremely difficult to measure the pecuniary loss given that there is no way to ascertain the number of people having seen the defamatory statement on the public domain. Imparting education and making people aware of the gruesome impact their negligence and unawareness of spreading wrong information can cause is extremely paramount in today’s digital age. It is not only about the huge monetary loss but it is also about the reputation of years which is built by investing time, energy and effort, getting destroyed by a mere statement on social media and/or television platform.
Notable Judgements on Cyber Defamation
Recently, in JLT India Pvt Ltd. v. Pawan Srivastava & Ors., a suit for damages and permanent injunction was instituted against the defendant, to get back one of the employees of the plaintiff, who had published defamatory, derogatory and vulgar comments against the plaintiff company and its employees. The Hon’ble High Court of Bombay granted an ad-interim relief against defendant amid the pandemic, thereby prohibiting the defendant from publishing defamatory content in print media, social media and/or another medium against the plaintiff and its associated concerns.
In the case of Swami Ramdev & Anr. v. Facebook Inc. & Ors., global takedown order was passed by the Hon’ble Delhi High Court. The suit was filed by Baba Ramdev against various social media intermediaries (inclusive of Facebook, Google and Twitter) alleging that these platforms were being used to circulate defamatory content about him. The Delhi High Court pronounced an order to remove all defamatory and derogatory content posted online against the plaintiff, without any territorial limit, stating that if the content is uploaded from India or is located in India on a computer resource. The Courts in India shall have international jurisdiction to pass worldwide injunctions. Facebook has, therefore, filed an appeal against the order which has been admitted by the Division Bench of the Delhi High Court.
The case of SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra, holds tremendous significance as it has been recognized as the first time an Indian Court assumed jurisdiction w.r.t. cyber defamation. An aggrieved employee, intending to defame the company and its managing director, sent derogatory and defamatory emails to his employer company’s fellow employers and to its subsidiaries all over the world. The company filed a suit seeking permanent injunction restraining the employee from sending these defamatory emails and publishing the defamatory statements. The Hon’ble Delhi High Court granted ex-parte ad interim injunction restraining the employees from defaming the company in both the real as well as the virtual (cyberspace) world.
In 2015, the case of Shreya Singhal v. Union of India, the draconian Section 66A of Information Technology Act was quashed, by the Supreme Court of India, on the grounds that the section virtually gives meaning to any opinion on any subject covered by it and any genuine, honest and serious opinion would also get caught in this net. Section 66A prescribed punishment for sending offensive messages through communication service and was frequently misused by the authorities. The Apex Court also read several provisions of the Information Technology Act to curtail the wide and unfettered powers given therein to the authorities. It was further noted that prohibition against the dissemination of information by means of a computer resource or a communication device intended to cause annoyance, inconvenience or insult did not fall within any reasonable exceptions to the exercise of the right of freedom of speech and expression.
In case of Tata sons Limited v. Greenspace international & Anr., Greenpeace raised concerns about the alleged dangers to the nesting and breeding of Olive Ridley Turtles by the construction of proposed Dharma port and as a protest made an online game by the title ‘Turtle v. Tata’ wherein they not only used the Tata’s trademark but also maligned Tata’s reputation by publishing alleged defamatory remarks. The Hon’ble Delhi High Court also noted that it is not a case of trademark infringement as the use is denominative and it does not entitle temporary injunction. The Delhi High Court applied over a 100- year old Bonnard rule meaning that an interim injunction should not be awarded unless a defence of justification was certain to fall at the trial level and refused to grant an interim application sought by Tata.
To conclude, cyber defamation should not be misused for genuine, honest and unbiased opinions, criticisms and political remarks. Every citizen has a right to express their thoughts and suggestions, however, they should not be defamatory and harm the sentiments, reputation & goodwill of another individual and/or organization. The law for cyber defamation should be allowed to evolve organically rather than legislating it in the present times to avoid or suppress the future remarks and honest thoughts of the individuals. It is important to have stringent laws for those who go beyond the limits and harm others goodwill but at the same time, voice and freedom to express thoughts hold paramount importance for the progress of the country.
