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Cyber Defamation

Yash Bhindiya
31 July 2022 3:30 AM GMT
Cyber Defamation
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Defamation is both a civil wrong and a crime. As per black's law dictionary, defamation means, "the offense of injuring a person's character, fame, or reputation by false and malicious statements". In simple words, defamation is an injury to the reputation of another person. There are two forms of defamation:

  1. Libel - It is a written defamation which is in permanent form like in a newspaper, magazine or, even in a television. It is addressed to the eyes and is easy to prove in the court of law.
  2. Slander – It is done by speaking or by expressions and it is not in permanent form and it is addressed to the ears.

Today we are living in the 21st century and there have been many technological developments in the world around the past few decades. Modern technology has created a cyberspace which in contemporary time has become a platform for defamation. It is known as cyber defamation. Internet has given birth to cyber defamation. In cyber defamation the internet is the medium through which defamatory statements are published. People nowadays use cyberspace to make defamatory statements on others. Cyber defamation means injuring the reputation of a person on the internet by using social media email, etc. Generally, a defamatory statement has to be published over the internet to fall under the category of cyber defamation.

The essentials of defamation and cyber defamation are same:

  1. A statement
  2. That statement must be defamatory and should be injurious to the reputation of a person.
  3. That defamatory statement should specifically refer to plaintiff.
  4. The statement must be published (communicated to other people).
  5. It should lower the reputation of plaintiff; it must cause damage to the reputation of plaintiff.
    [1]

Although cyber defamation comes under the umbrella of defamation it is much more prevalent than defamation. Today we see that the courts have more number of cases of cyber defamation than defamation itself. Defamation and cyber defamation are different and have different consequences.

Defamation

Cyber Defamation

1.

Generally, the defamatory statement does not reach to a large number of people and less damage is done to reputation.

On cyberspace, a defamatory statement reaches to many people sometimes to even more than a million people.

2.

It is not hard to find out the defendant.

On cyberspace many people keeps their identity anonymous so it is hard to find out that who made the defamatory remark.

3.

In many cases, plaintiff and defendant know each other personally.

In cyberspace, everyone can defame anyone. It is even possible that a man living in India can make defamatory statements for a man living in the USA without knowing him personally.

4.

It can or cannot be actionable per se.

It is actionable per se as once you make a defamatory statement on the internet and afterward delete it; in the meantime, it had already reached too many people.

5.

The defendant is liable for defamation.

In cyberspace, a man who made a defamatory statement and the people who shared that defamatory statement are liable for cyber defamation. In short, for only one defamatory statement many people can be held liable.


How Trolling & Criticism Is Different From Defamation On Cyberspace?

  • Criticism on cyberspace: People often criticize other people on cyberspace i.e. social media. On social media, you can get criticized literally over anything whether it is your occupation or the way you present yourself on social media. The difference between criticism and defamation is that criticism deals only with such things as invite public attention or call for public comment, and does not follow a man into his private life, or pry into his domestic concerns, and it never attacks the individual but only his work. [2] This clarifies that you can only get criticized for your work and not for your personal life affairs. If people criticize you for your personal life then you can take legal action against them. A very recent incident related to criticism was from Bihar. Earlier this year CM Nitish Kumar ordered the state's economic offenses wing to take action against those who are criticizing him, his party members, his ministers on social media by using inappropriate language and are spreading rumors about them. State police further clarified that only 'constructive criticism' is welcome and the posts spreading rumors and using inappropriate language will be targeted. [3] So it means that we can criticize anyone for their work without using any abusive language or spreading rumors and if you don't follow these while criticizing then legal action can be taken against you.
  • Trolling on cyberspace: People often misunderstood trolling with cyber defamation but trolling comes under the cyberbullying. Many people don't know about this. Cyberbullying is totally different from cyber defamation. A troll can be defined as someone who makes deliberately offensive or provocative online posts, usually with the intention of eliciting reactions from others.[4] There are provisions in the IT Act, 2000 which deal with cyberbullying. The intention behind discussing trolling is that people should not confuse trolling with cyber defamation as they both are different. Trolling is normal on social media nowadays and every social media apps have their own terms & conditions to deal with the trolling. If someone trolls you on social media then you can report him on that social media app or you can sue them for cyberbullying.

Laws Dealing With Cyber Defamation

The internet has become cheap in the last few years (after demonetization) in India and due to its low prices the internet was made available to everyone in India. Today almost everyone can afford the internet and this has increased the rate of cybercrimes. In India, we even have a cybercrime police which especially deals with the crimes committed on the internet. India has many laws under IPC and as well as under the IT Act, 2000 that deals with cyber defamation. Section 499,500,501, and 502 deals with defamation under IPC. Section 499 deals with the definition of defamation and its exceptions. Section 500 deals with the punishment for cyber defamation that can be upto 2 years of imprisonment and fine or both. Section 501 deals with the printing of defamatory material and its punishment is also upto 2 years and fine or both. Section 502 prohibits the sale of defamatory content and if anyone do so then she will be punished with imprisonment of 2 years or fine or with both.

The abovementioned sections are of the Indian Penal Code 1860 and they all deal with defamation. IPC not specifically talks about cyber defamation in any of the abovementioned sections because it was drafted in the 19th century and at that time we had no cyberspace and therefore no cybercrimes. But I believe that now IPC should have sections related to cyber defamation. On the other hand, we also have the IT Act 2000 and it specifically talks about cyber defamation. The section 66A of IT Act 2000 deals with cyber defamation and punishment for it. The punishment for cyber defamation is upto 3 years or fine or both. Comparing the punishment under IPC and IT Act, more punishment will be awarded if you register your complaint under IT Act!

But this section was quashed down by the supreme court of India in 2015in the case of Shreya Singhal vs. UOI because the term 'offensive' was not defined in the section. Justice Nariman has also expressed his views regarding the same stating "what is happening is terrible, dissenting! We will issue the notice soon." He said this in the context that even after declaring section 66A constitutionally invalid, many cases are being registered under this section .Section 66A clearly defined the punishment for the act of cyber defamation which can be extended to three years with a fine. But now the question that arises is, which law deals with the punishment of cyber defamation as IPC only deals with the punishment for defamation and not for cyber defamation and whereas section 66A describes the punishment for cyber defamation has been declared constitutionally invalid in 2015. Now under what law does the victim of cyber defamation have the remedy? Well a victim of cyber defamation can simply register a complaint under section 200 of the CrPC. Apart from the abovementioned statutory laws, the Indian Evidence Act also talks about cyber defamation. It tells us that what type of electronics can be qualified as evidence and can be presented in the courts.

But the question that arises is that, are these laws good enough to stop the crime of cyber defamation?

In my opinion, No, the abovementioned laws are not good enough to stop the crime of cyber defamation. We need some additional laws which talks about the anonymity factor in cyberspace. Government should also make it mandatory for each social media apps (instagram, facebook, twitter, email, etc) to strictly prohibit anonymity on their platforms. By doing this it will become easier for cyber police to track down the wrongdoer. These apps should only be used for the sole purpose of entertainment and no one should feel insecure on these apps. Apart from this, these apps should also have better rules regarding cyber defamation. For instance, when someone is defamed in cyberspace then the victim has the option to report that defamatory statement but the problem is that these apps do not take that defamatory statement down just because of some reports. There have to be massive reports regarding that defamatory statement then only it will be taken down by that particular platform. The main problem here is that not every defamatory statement gets massive reports and therefore it affects the reputation of the victim for a longer period of time. All the cyber apps should take down these defamatory statements with few reports too.

What To Do If You Are The Victim Of Cyber Defamation?

In the internet age, many people get defamed in cyberspace and most of them are youngsters. The youth seems to be more involved in the cyber defamation. Among the people who are defamed in the cyberspace, there are many people who don't do anything legally about it. Instead of taking legal action, some people ignore these defamatory statements, and some of them response to these statements by defaming the wrongdoer. In this way, the victims knowingly or unknowingly get involved in the crime of cyber defamation. The very first thing the victim shouldn't do is that, they should not answer that defamatory statement by defaming the wrongdoer. If victims do this then it is said that they have also committed the crime of cyber defamation and tables can turn against them in the court of law. Despite being the victims they might get in trouble. The correct steps for dealing with the cyber defamation lawfully in India are as follows;

  • Step1 – Firstly, if you are a victim of cyber defamation then you should check few things in the defamatory statement which was published against you in cyberspace. You need to check that whether that statement qualifies for cyber defamation or not. That statement should address you in person and that statement should be defamatory. Your reputation should be affected by that statement and that statement must be published in the cyberspace. If that statement consists of all the conditions then it can come under cyber defamation. But if that statement doesn't harm your reputation but specifically addresses you then you can file a complaint under cyberbullying.
  • Step2 – If that statement qualifies to be a defamatory statement then you can file a complaint in the nearest cyber cell police station. Today almost all the major cities in India have cyber cell police stations. Also, cybercrimes have global jurisdiction which means that you can file a complaint in any city of India irrespective of the place of crime.[5] You need to address the written complaint to the head of the cybercrime cell of the city you are filing a complaint. After filing the written complaint, cyber cell police will start their investigation.
  • Step3 – In case your city has no cyber cells then you can approach the local police station too. Also while filing a complaint you should carry the required documents like the screenshot of that defamatory statement, apart from the defamatory statement, the URL of the profile of the wrongdoer should also be clearly visible. You have to submit all these shreds of evidence in a police station or in a cyber cell. [6]
  • Step4 – After registering your complaint you should register another complaint on that particular platform where defamatory statements were made against you. You can either report that defamatory statement or you can send your complaint through email. You can mail your complaint to the respective platform. In my opinion, complaining through the mail will be more effective as that platform can also take serious action against that wrongdoer for violating their policies.

Apart from the abovementioned steps, you can also file a complaint by sitting at your home through your computer or any other electronic device (mobile, tablet). Ministry of home affairs has issued an online cybercrime portal through which anyone can file a complaint about not only the crime of cyber defamation but for every cybercrime (cyberbullying, cyber harassment, etc). To enter the national cybercrime portal click here. Everyone can easily file a complaint related to cybercrimes on this national cyber cell portal.

The main question that arises while filing a complaint is that, apart from the wrongdoer can you file a complaint against an ISP (internet service provider) and the other users who share that defamatory statement on cyberspace?

The answer to this question varies from nation to nation. Every country has its own laws to deal with cybercrimes. In India, section 79 of the IT ACT, 2000 does provide some immunity to Internet Service Providers. The section 79 of the IT ACT, 2000 states that;

  • Exemption from liability of intermediary in certain cases.–(1) Notwithstanding anything

contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.

(2) The provisions of sub-section (1) shall apply if–

the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or

(b) the intermediary does not–

(i) initiate the transmission,

(ii) select the receiver of the transmission, and

(iii) select or modify the information contained in the transmission;

( c) the intermediary observes due diligence while discharging his duties under this Act and also

observes such other guidelines as the Central Government may prescribe in this behalf.

(3) The provisions of sub-section (1) shall not apply if

(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act;

(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.[7]

It is clear after reading this section that the victim can't file the complaint against an Internet Service Provider. As a matter of fact in the USA also you can't file a complaint against an intermediary. Communications Decency Act, 1996 states all the cyber laws in the United States of America. The section 230 of this act gives total immunity to the Internet Service Providers in the USA.

The second part of this question was whether the victim can file a complaint against those users who share that defamatory statement on cyberspace. Well in India Yes you can file a complaint against those users who shares or reposts that defamatory statement.

How To Avoid Cyber Defamation

I have talked too much about the victims of cyber defamation, now I will talk about the wrongdoer in the cases of cyber defamation. Sometimes wrongdoer without any knowledge of the law and its consequences makes defamatory statements on cyberspace. There are defenses available for him in this crime but in my opinion, don't rely on these defenses because there are some preventive steps through which you can say your statement even if it is defamatory and there will be no case of cyber defamation against you. The following are the steps;

  • Don't address anyone by their name – This is the first rule to avoid defamation on cyberspace. While saying something ill or controversial about anyone never address them by their names instead you can address them by their pronouns i.e. he, she, they, etc. By doing this you will avoid one of the important essential to prove defamation i.e. the statement should specifically refer to that person. If you will address the person by his pronouns then in a way you are not specifically stating something about them, as many people can have the same pronouns and hence it will be almost impossible to conclude that to whom that defamatory statement was referred. You should not only avoid taking the victim's full name but also his first name, his address, his relative's name, and all the other things that might specifically refer to someone.
  • Only facts, No opinions – If you want to avoid any case of cyber defamation then it is better that you only state facts and not your opinions as your opinions can or cannot be true and if your opinion is false then you might have to face a case of cyber defamation. For instance, if someone is a thief and you call them a thief then it won't amount to cyber defamation as it is established that the man was a thief but if a theft has been committed near your house and the culprit has not been found yet and then you start calling someone a thief then it is just your opinion and if it is found out that the men was not a thief then he can bring a case of defamation against you. The same goes with cyber defamation, if you call out someone without any facts just on the basis of your opinions then it will lead to cyber defamation.[8]
  • Don't repost- As I said before, you should not share or repost anything on cyberspace unless it is true and justified. If you share any defamatory statement then you will be equally liable for cyber defamation no matter even if you have not made that defamatory statement. Apart form reposting it you should also not comment or like defamatory statements. Some people on cyberspace only makes defamatory statements for likes and followers but in my opinion, you should not support these type of people as what they do is a crime and just for the sake of some likes and followers they harm the reputation of other people.

The abovementioned steps will help you to avoid cyber defamation but if you have already defamed someone in cyberspace and now facing a case in the court of law then there are some defenses available for the defendant too. The following are the defenses for both defamation and cyber defamation;

  • Truth – It means that whatever the defendant has said against the plaintiff is truth and if he is speaking the truth then the court can't take action against the defendant in a civil suit. But under criminal law, the mere fact that the defamatory statement was the truth is not enough you will also have to prove that it was made for the public good.[9] The 'truth' is a complete defense because no law can stop any person from speaking the truth even if it will be an injury to another man's reputation.
  • Fair Comment – It is a comment on a factual situation. The defendant must prove that those defamatory statements were only opinions and not statements of facts and his statements were for the public good.
  • Privilege – It is of two types i.e. absolute privilege and qualified privilege. In absolute privilege, the plaintiff cannot take any action against the defendant but this privilege is given to a limited number of people. Only people involved in parliamentary and judicial proceedings or in state communication have this privilege. On the other hand, in qualified privilege, the defamatory statement must have been made without any wrongful intention or without any malice then only the defendant can take this privilege or this defense.

Relevant Case Laws

  1. SMC Pneumatics Pvt. Ltd. v. Jogesh Kwatra – This was the first-ever case law of cyber defamation in India and therefore this is an important case law for the subject matter of cyber defamation. In 2000, the plaintiff received some forwarded obscene and defamatory emails. The plaintiff was the managing director of SMC. Those emails were also forwarded to his superiors in Australia and other places of the world. The defendant was an employee in SMC and the plaintiff accused the defendant of cyber defamation in the district court of Delhi. Both the defendant and plaintiff worked in the same company and did not have a good history or relationship. The plaintiff through a private computer expert trace down one of the servers of those defamatory emails which lead them to a cybercafe. The owner of that cybercafe recognized the defendant from a photo shown by the plaintiff. The court, in this case, held that the defendant is not liable for cyber defamation as the defamatory emails were the forwarded ones and the plaintiff failed to trace down the real author of those defamatory emails. And the other reason behind this verdict was that plaintiff didn't come to court with clean hands. He hides some material facts and did not told all the facts. Therefore due to the lack or absence of direct evidence, the defendant was not held guilty.
  2. Kalandi Charan Lenka vs State Of Odisha – In this case, there was an application to release the petitioner on bail who was charged with the offences under the section 354A, 354D, 465, 469, 506, 507 and 509 of the IPC read with section 66C, 66D, 67,67A of the IT Act. The petitioner used to send vulgar and defamatory messages to the victim girl and to her father too through various mobile numbers. Apart from this , the petitioner put pamphlets of the victim in her hostel in order to defame her. In last the petitioner created a fake facebook account of the victim and then he uploaded morphed naked photos of the victim. All this left victim in trauma. So the victim girl did the police complaint and cyber police started investigation and found out the petitioner as the wrongdoer. Cyber police found out that the petitioner was in one sided love with the victim girl but the victim already had a boyfriend Petitioner also proposed the victim for marriage but the victim decline the proposal. All this enraged the petitioner and he started defaming the victim on cyberspace and followed her everywhere. He was charged with stalking and defamation. Now the question before the Orissa High Court was whether to give bail to the petitioner or not. After some hearings, High Court gave bail to the petitioner but with some conditions. These conditions were that he will have to appear before the investigation officer on every Sunday at 10 AM, he will not commit any offense from any means until he is on the bail and he will not threaten the victim woman or her family and he will not visit the city where the victim and her parents live or where the victim is completing her education. The bail was given to the petitioner with these conditions.

Cyber defamation is a rising crime and with more serious repercussions as it has more coverage of derogatory statements. In cyber defamation, one can make anonymous account on cyberspace and can easily defame others. In cyber defamation, police must work more smarter and harder because of anonymity. Libel which is one of the forms of defamation also constitutes to cyber defamation. There are very rare cases where slander has constituted to cyber defamation and therefore mostly libel constitute to cyber defamation. Also we need to differentiate between cyber defamation and online trolling as both may look similar but are different as one is punishable under law and the other is not. In India, we have many laws on both defamation and cyber defamation although I believe that cyberspace is evolving with time and therefore the laws related to cyberspace also needs to get amend. If we compare the cyber laws of the India with the USA then I believe that Indian cyber laws are comparatively better because they left very little chance of ambiguity. Also if defamatory statements are made against you on cyberspace then it is easy to file a complaint. You can file a complaint of cyber defamation by sitting in your house through an online portal Even if you want to make a statement and you think that it can be of defamatory nature than by following certain steps (discussed in chapter 5) you can avoid defamation or if you have already defamed someone than there are certain defenses available for you too in the court of law. We need to make cyberspace a safe place for all and for this we need new cyber laws and internet service providers should also follow some regulations and rules. By making strict cyber laws and spreading awareness regarding the correct use of cyberspace we can make an effort to lower the chances of cyber defamation.

Views are personal

[1] Dr. RK Bhangia, Law of torts, pg. 169

[2] Henry Campbell Black, black law dictionary, Revised fourth edition, pg. 505

[3] Manish Kumar, "Constructive criticism only" : Nitish Kumar damage control on new order, NDTV

[4] Laura, Law guides: Internet trolling and cyberbullying law

[5] How to file a cyber crime complaint in India, IFF

[6] Ibid

[7] IT ACT, 2000

[8] Johns, Flaherty & Collins, Steps to avoid online defamation, SC

[9] Dr. R K Bangia, Law of Torts, pg. 166


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