Legal

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This Blog is written by Nisha Patnaik from KIIT School of Law, Odisha. Edited by Srishti Tiwari.

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ABSTRACT

As the utilization of electronic medium like messages, long range interpersonal communication destinations and other conversation bunches is expanding step by step to pass on our contemplations and data in our everyday life; people groups are sharing their perspectives and musings by means of them. Politicians are using them as a way to increase their popularity and propagating their parities as well as these sites is becoming a platform of online defamation. As it is constantly said that there are two appearances of a coin so we can utilize online life in making an adjustment in our public activity likewise it tends to be utilized as a stage to decimate the notoriety of anybody. The sting tasks and posting the animation pictures of somebody can be taken for instance of it. In this venture, I have attempted to cover the online defamation, how they occur and what are its lawful outcomes and have majorly focused in relation to India.

INTRODUCTION

Defamation (sometimes known as calumny, vilification, libel OR slander) is the oral or written communication of a false statement about another that unjustly harms their reputation and usually constitutes a tort or crime. [1]

Online defamation has become increasingly prevalent in the past several years, necessitating legal action in many cases. Social networking and blogging have led to a sharp increase in online defamation, especially since many individuals believe the Internet to be an unregulated frontier. Courts have consistently affirmed that libel regulations apply to online content just as they do to traditional forms of media. Some victims have successfully tried online defamation cases, often citing the Communications Decency Act. In the coming years, it is likely that legislation pertaining directly to online defamation will make cases easier to try. Part of the problem, however, lies in proving who wrote the defamatory content, which is often posted anonymously. [2]

The accessibility of the internet to the common man has changed everyone’s lives. The platform provided by the internet has made human interaction easier than ever before. However, such an increase in the convenience of communication has proportionally increased the inconvenience caused by the abuse of the mediums of communication. Removing barriers to freedom of interaction has given unfettered capabilities, primarily on social networking sites, to people who post unnecessary and false statements about a person or an entity and thereby harming their goodwill and reputation. Such an act, though colloquially known as “trolls”, actually amounts to cyber defamation. [3]

DEVELOPMENTS IN ONLINE DEFAMATION

Online defamation has become more common, allowing people and celebrities to bring suits against publishers and people who take to the Internet to bash them. More recently, courts have begun to consider how the context of social media and online blog platforms may affect whether

(1) A reader believes an allegedly defamatory statement to be a fact or opinion; and

(2) There exists an expectation of truth at all.[4]

However, this is one of several debates courts face when determining how traditional defamation laws should be applied in the online context. [5]

While technology has rapidly advanced, the development of online defamation law has been left far behind, with little to no development. Courts have struggled to decide whether the standards and rules applied in traditional defamation cases apply in an online context. Simply assuming that anything posted on social media amounts to a “nonactionable opinion” is conclusory and blatantly ignores the impact that social media has had on the reporting of news and sharing of information. [6]

Around the world, there are examples of defamation law being used to restrict Internet speech. In some cases, these restrictions involve the application of pre-Internet doctrines. In other instances, courts and legislatures addressing defamation online have singled out speech on the Internet. In a 2004 case, the Ontario Court of Appeal said it was awarding higher damages for a defamatory statement because it was made on the Internet. Dismissing the positive impact of the Internet on democratic participation and the ability it afforded to respond immediately to negative comments, the Court stated that the Internet is “potentially a medium of virtually limitless international defamation. [7] Many national legislatures and courts, as well as regional human rights courts, have curtailed the use of defamation laws to suppress speech, and human rights officials have called for further reforms.

 

PROVISIONS FOR ONLINE DEFAMATION

The Communications Decency Act 1996 (CDA) (United States Enactment). Section 223 of this Act clearly lays down that any person who puts information on the web which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person; will be punished either with imprisonment or with fine. It is thus clear that the ISP will not be held liable.

In India, Section 499 of the Indian Penal Code primarily governs the law on defamation, however, it is pertinent to note that the law has been extended to “electronic documents”. Section 469 of the IPC (forgery for purpose of harming reputation) has been amended by the Information Technology Act, 2000 to include ‘electronic record forged’ and now reads as a whole as – whoever commits forgery, intending that the document or electronic record forged shall harm the reputation of any party, or knowing that it is likely to be used for that purpose, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

Penalties for “cyber defamation” vary from country to country, but the fundamental rights covered in the UN Declaration of Human Rights and European Union Fundamental Human Rights.

Section 66A of Information & Technology Act 2000 (IT Act), was quashed by the Supreme Court of India in Shreya Singhal v. Union of India, [8] due to ambiguity in the definition of the word ‘offensive’ in the Section. The section stated that sending any offensive message to a computer or any other communication device would be an offence. Such unfettered power, under section 66A, was misused by the Government in curtailing and suppressing people’s freedom of speech and expression and hence repealed.

Section 503 of IPC: This section covers the offences done by use of computer devices through emails, posting messaging, commenting etc. for intimidating the reputation and for threatening anyone.

Section 506: This section deals with the punishment for criminal intimidation (section 503 of Indian Penal Code). The section 506 of IPC says that –

1) Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

2) Section 469: This section deals with the forgery, in this if anyone creates false document or fake account by which it harms the reputation of a person then this offence comes under this section.

Section 124A: This section deals with the sedition, in this when anyone ridicules a Minister or Government official in cyberspace or in any other place then this offence come under this section.

JUDICIARY ON CYBER DEFAMATION

In a very recent case, Jacobus v. Trump [9], No. 153252/16, 2017 WL 160316, Cheryl Jacobus, a well-known political commentator, sued Donald Trump and his campaign for defamation Trump tweeted, in response to one of Jacobus’s appearances on CNN, that Jacobus “begged us for a job. We said no and she went hostile. A real dummy!” and later tweeted the following: “Really dumb @CheriJacobus. Begged my people for a job. Turned her down twice and she went hostile. Major loser, zero credibility!” In bringing the cause of action, Jacobus alleged that Trump’s tweets had injured her reputation and resulted in the loss of future professional opportunities. The court, in granting the Defendants’ motion to dismiss, stated that the tweets amounted to “nonactionable opinion.” The court cited to numerous New York cases where courts had concluded—as a matter of law—that statements made on social media, forums, and blogs were less credible than those made in print because “so-called social media, such as Facebook and Twitter, is increasingly deemed to attract ‘less credence to allegedly defamatory remarks’ than other contexts.” While this statement is true, it does not mean that everything posted on social media is an opinion per se, rather than a fact. [1] While this finding is adequately supported by existing law, it is the court’s broad blanket consideration of the culture of social media that is concerning.

In its first ever case on Cyber Defamation in SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra, [10] wherein a disgruntled employee sent derogatory, defamatory, vulgar and abusive emails to the company’s fellow employers and to its subsidiaries all over the world with an intent to defame the company along with its managing director, the High Court of Delhi granted ex-parte ad interim injunction restraining the defendant from defaming the Plaintiff in both the physical and in the cyberspace.

Further, in the case of Kalandi Charan Lenka v. State of Odisha, [11] the Petitioner was stalked online and a fake account was created in her name. Additionally, obscene messages were sent to the friends by the culprit with an intention to defame the Petitioner. The High Court of Orissa held that the said act of the accused falls under the offence of cyber defamation and the accused is liable for his offences of defamation through the means of fake obscene images and texts.

Very recently, in the case of Swami Ramdev & Anr. v. Facebook Inc. & Ors. [12] Justice Pratibha Singh had passed an order to remove all defamatory content posted online against yoga guru Baba Ramdev, without any territorial limit, stating that if the content is uploaded from India or such content is located in India on a computer resource, then the Courts in India should have international jurisdiction to pass worldwide injunctions.

Facebook, has filed an appeal against the said order which has been admitted by the Division Bench of the Delhi High Court. The grounds of the said appeal are that in spite of the fact that the Plaintiff was aware of the persons who uploaded the content, they have not been made a party to the suit. Further, it has also been contended that Baba Ramdev has not shown any strong prima facie case of irreparable loss. Among other submissions, Facebook in its appeal has also contented that global takedown order is against national sovereignty and international comity, as it interferes with defamation laws of other countries. Additionally, the said order also undermines the immunities granted to them in other jurisdictions.

These cases arrow towards the various facets of the instances in which online defamation can occur and what legal recourse can be adopted to resolve the same. However, a certain set of limitations prevail in the cyberspace that current global laws have not transcended to. Although, if a complaint is timely filed and at the correct forum then online defamation and its resulting damage can be curtailed.

Procedure to lodge a complaint for online defamation

A person aggrieved of the offence of cyber defamation can make a complaint to the Cyber Crime Investigation Cell. The Cyber Crime Investigation Cell is a branch of the Criminal Investigation Department (CID). The Cyber Crime investigation Cells deal with offences related to the computer, computer network, computer resource, computer systems, computer devices and the Internet. It also has the power to look into other high-tech crimes.

ANALYSIS AND RECOMMENDATIONS

The cybercrime is a new paranoid scenario to the Indian environment comparatively to developed countries, the lack of expertise-ness and technology in arresting this crime which exploded in various dimensions in India is one aspect which hampers effective implementation and curtailing various anti-social and anti-national activities taking place under the guise of various forms.

Against this prior foundation and encounters improved during the previous decades, the accompanying arrangements would help to an enormous degree in capturing digital wrongdoing and quality observing instrument of Government offices, in guaranteeing to advance, ensuring and protecting crucial rights inserted in our Constitution:

Protection required on person to person communication site to maintain a strategic distance from digital criticism

Systems administration destinations have seen monstrous notoriety in the web world. Locales, for example, Facebook, Instagram, Twitter, and My space have its blast in ubiquity. Long-range interpersonal communication destinations transfer individual information and substance as well as pictures, tunes, recordings, short motion pictures, and so on. Such pictures, recordings, and different things can be labelled. In this way, it is fundamental to secure such substance and its aim in totality by this long-range informal communication to guarantee protection.

Otherwise, illegal act of cybercrime endangers basic preamble of the meaning of privacy and penetrate and perform injury or cause or damage or defame name and fame of the individual or entity

Section 67 of the IT Act 2000 accommodates discipline to whoever transmits or distributes or causes to be distributed or transmitted any material which is vulgar in electronic structure with detainment for a term which may stretch out to two years and with fine which may reach out to twenty 5,000 rupees on first conviction and in case of second may stretch out to five years and furthermore with fine which may reach out to fifty thousand rupees, it doesn’t explicitly talk of online defamation.

Act also needs to evolve with the rapidly changing environment of technology and the development of fraud and crime in new forms and manner.

In online defamation, web or PC is used to distribute any disparaging material to hurt the notoriety of any individual. In the event that somebody sends an email to other individuals which contain slanderous material or distribute anything on-site by which the notoriety of an individual get harmed then this would add up to digital or online maligning numerous Indian case has been referred to in the paper where people groups have to make counterfeit records on Facebook and posted their perspectives and afterwards they got sentenced under the various arrangement of law.

The online statements are accessible to the public who uses online services, so the online defamation may harm the dignity and injure the reputation of the victim. So according to me, there must be a system to make aware the people by which they learn what to do and what not to do in cyberspace.

CONCLUSION

While innovation has quickly propelled, the development of online defamation law has been left far behind, with little to no development. Courts have struggled to decide whether the standards and rules applied in traditional defamation cases apply in an online context.

Basically expecting that anything posted via web-based networking media adds up to a “nonactionable feeling” is conclusory and outrightly overlooks the effect that internet based life has had on the revealing of news and sharing of data. Legal action remains tricky for online defamation, and many individuals turn to other ways of dealing with the problem, such as reputation management and search engine optimization. Through these techniques, individuals can push defamatory comments from the first pages of Google search results, minimizing the impact that such content has on their lives. By providing truthful, accurate information and encouraging others to make positive comments, most individuals can successfully battle online defamation outside of the courtroom.

In today’s social media world, it has become easier and more rewarding than ever for bloggers or online users to share false information about a person or business. Though online content is occasionally moderated for pornographic or legal issues involving other inappropriate elements, most content is unregulated for defamatory elements. It’s important, therefore, that consumers, sharers, and potential victims better understand the landscape of online defamation and defamation law.

REFERENCES

[1] LeRoy Miller, Roger (2011). Business Law Today: The Essentials. United States: South-Western Cengage Learning. pp. 127. ISBN 978-1-133-19135-3.

[2] http://www.suescheffblog.com.

[3] https://www.lexology.com.

[4] Shari Claire Lewis, Online and Social Media Defamation in Today’s Age, N.Y. L.J., (Feb. 17, 2017).

[5] Victoria Cippettini, Modern Difficulties in Resolving Old Problems: Does The Actual Malice Standard Apply to Celebrity Gossip Blogs, 19 Seton Hall J. Sports & Ent. L. 221 (2009).

[6] https://law.fiu.edu/.

[7] Barrick Gold Corp v Lopehandia (2004), 71.

[8] WRIT PETITION (CRIMINAL) NO.167 OF 2012.

[9] Jacobus v. Trump, No. 153252/16, 2017 WL 160316, at *2 (Sup. Ct. N.Y. Cty. Jan. 9, 2017).

[10] Paper on Cyber Law & Information Technology by Talwant Singh Addl. Distt. & Sessions Judge, Delhi.

[11] MANU/OR/0027/2017.

[12] (2019) 263 DLT 689.