Summary
The Internet provides a medium to the netizen to communicate at the global level. It not only facilitates but promotes the freedom of speech and expression of even the common man who is using the Internet today. Though the Internet promotes the most important democratic right – the freedom of speech and expression which is guaranteed under our Constitution of India by Article 19(1) (a), it is also being misused.
Objective
The objective of this Article is to explore the present Cyber Defamation in India & deal with the legal provisions to provide suggestions in the findings.
Research Methodology
I handle Doctrinal method of research study has been used. The study on the topic has been extensive, ranging from various cyber law related books, case laws, articles and commentaries on Cyber Defamation in the websites as well.
Prologue
As the use of internet has diversified, many people have started using internet more as a means of communicating their thoughts on various issues. The use of social media has brought a revolution not only in the Indian sphere but all across the world. The politicians and Celebrities are using these mediums to reach out to masse In this society there is no distinction on any basis, internet has provided them a platform to convey their thoughts, get involved in discussions, and review a product, a movie, a song and even a person. Though this platform has provided us with insightful and well read people, it has also provided us with goons who commit cyber defamation.
What is Cyber Defamation?
Cyber defamation can be divided into two parts- Cyber and defamation.
Cyberspace– When two computers are connected together so as to form a space for transmission of information.
Cybercrime-The crimes done over internet or are done through the use of computer comes under cybercrime. Online defamation is a cybercrime.
Defamation– Defamation means harming the reputation of a person in front of a third party. The various means of defamation are through words (spoken or written), signs or visible representation. The basic elements of defamation are-
Harming reputation
In front of a third person
Through words (spoken or written), actions or visible representation
When a person is defamed in the cyberspace, it is known as cyber defamation or online defamation.
In India, the liability of defamation is two folds:
Primary writers– Person who has written the defamatory content and published it on the cyberspace.
Service providers– The ISP or bulletin board service providers who authorised for the publication of such defamatory content.
Various mediums used – Social Networking site, Discussion forums, Websites, Emails.
Reputation (Rights)
The empirical research concerning US deformation law in the 1980s confirmed that the major factor motivating plaintiffs who Sue for deformation is the indication of their reputation. It is difficult to provide a satisfactory definition of reputation. The crucial point is that reputation is regarded as an external assessment of a person’s behaviour and characteristics made by a relevant community for example neighbours, colleagues or public.
It is the projection of the self to society that the law protects, even if it is an illusion. This illustrates that what reputation protects is not ‘character’, which is what a person really is reputation is what he seems to be. The right to reputation has three values property, honour and dignity.
Reputation as Property
If reputation is injured the resulting loss is capable of being priced in monetary terms, the value of reputation is determined by the market in the same way as any property loss is measured. Reputational losses deserve to be compensated because they undermined the results of a person’s labours.
Reputation as Honour
Reputation as honour envisages that an Individual claims a right to reputation by virtue of the regard and estimation that accords with his role in Society.
The European Court of Human rights has been at pains to point out that it may be necessary to protect civil servants from ‘offensive and abusive verbal attacks’.
The Australian High Court has held that the protection of the reputations of those who take part in the Government and Political life of this country is conducive to the public good.
South African case of Payne vs. Republican Press – The High Court held that one must never lose sight of the fact that a man’s reputation is his most prized possession whether he is a barrister, a clerk or a plumber.
Reputation as Dignity
The dignity rationale for reputation is based upon the relationship between the private and public aspects of the self. Post describes the importance of reputation ‘Our own sense of intrinsic Self-worth, stored in the deepest recesses of our ‘private personality’ is perpetually dependent upon the ceremonial observance by those around us of rules of deference and demeanor, thereby protecting the dignity of its members.
Notion about Defamation
Defamation is a serious problem which journalists belonging to all the mass media have to deal within their career. Journalists tend to defame the political leaders, film stars, sports people and other famous people either due to carelessness or because of lack of sufficient knowledge about defamation.
Civil Law on the perspective of defamation issue
In civil law, an action for defamation is claimed in the form of damages for causing injury to the reputation of the plaintiff. The amount of damages differs from case to case and is to be determined by the Judge.
Defences available for an act of civil defamation are –
Justification – The defendant can justify his statement by proving that his statement is substantially true.
Fair comment – The defendant can defend himself by showing that the statement is a comment and not a fact, the comment is on a matter of public interest and the comment is fair in nature.
Privilege – On certain occasions, defamatory statements are permitted by law itself even when the statement is false. Those occasions are called privileged occasions.
Privilege could be absolute or qualified in nature. Absolute Privilege is provided on the ground of Public Policy and without any condition attached to it. Qualified privilege is provided conditionally and in the absence of malice (the intent to harm). The instances of absolute privilege are parliamentary proceedings and judicial proceedings while reports of parliamentary and Judicial proceedings come under Qualified Privilege.
Criminal law on the perspective of defamation punishment and it covers cyber defamation punishment
Section 500 – As per IPC, whoever defames another shall be imposed punishment with simple imprisonment for a term and may extend to 2 years or with fine or with both.
Section 501 – Printing or engraving matter known to be defamatory – Whoever sells or offers for sale any printed or engraved substance containing defamatory matter, knowing it contains such matter, shall be punished with simple imprisonment for a term and may extend to 2 years or fine or with both.
Famous case related on Defamation – R.Nakkheeran Gopal and A.Kamaraj vs. J.Jayalalitha and Mrs.N.Sasikala.
Relevance of Cyber-crime & Information Technology Act 2000
Narrowly defined “Cyber Crime” consists of only those offences provided in the Information Technology Act, 2000. As per the definition cyber-crimes would mainly be restricted to tampering with the computer source code, hacking and cyber pornography, cyber fraud, cyber defamation, harassment, email abuse, and Intellectual Property Rights Thefts etc., would not classify as cyber-crimes. Broadly stated, cyber-crime can be said to be an act of commission or omission, committed on or through or with the help of or connected with, the Internet, whether directly or indirectly, which is prohibited by any law and for which punishment, monetary or corporal, is provided.
Old crimes committed on or through the new medium of the Internet. For example, cheating, fraud, misappropriation, defamation, pornography, threats, etc. committed on or through or with the help of the Internet, would fall under this category. These crimes are old but their place of operation is new, i.e., the Internet. The Internet with its speed and global access has made these crimes much easier, efficient, risk-free, cheap and profitable to commit. There can be called crimes “on” the Internet. New crimes created with the Internet itself, such as hacking, planting viruses and Intellectual Property rights thefts. There can be called crimes “of” the Internet.
Defamation on the Internet
Another gray area is with regard to law of defamation and the Internet. There is a plethora of issues related to Internet defamation. These include questions of Jurisdiction and also questions relating to legal awareness amongst people using the Internet.
ISP’s Liability for Defamatory Material on Websites
The next question, which arises with regard to defamation on the Internet is the liability of Internet service providers (ISPs) Section 501,IPC States that whoever prints any matter, knowing or having good reason to believe that such matter is defamatory of any person would be liable to imprisonment up to 2 years or fine or both. This section makes the printer of defamatory matter punishable as a principal offender. Thus, the publisher of a newspaper in which the defamatory matter is printed is liable under this section 65B of Indian Evidence Act, 1872. The question that arises is whether the ISP, which hosts the webpage, mailing list or email service on which a defamatory statement is posted, is liable under section 501, IPC.
Many ISP’s have argued that they are similar to a telephone company that provides the service but has no control over how it is used. As such, they cannot be held responsible for statements made on sites hosted by them. However, an alternate point of view is that like publishers of books and newspapers, it is the responsibility of ISP’s to ensure that their services are not used to spread defamatory statements. A Third analogy has been drawn to newsstands or bookstores, which have some idea of the material they are disseminating but cannot be expected to know every detail of the same because of the sheer volume of such material.
The liability of an ISP should be determined according to the facts of the case. The ISP’s should be encouraged to develop some kind of supervisory mechanism, but due regard must also be given to the physical difficulties of censoring each and every statement on the Internet. However, he cannot be made liable if his function is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hasted, or he does not initiate the transmission; select the receiver of the transmission; or he observes due diligence while discharging his duties. Such “due diligence” can be exercised or “Knowledge” be gained only if there is a supervisory mechanism in place. There are exciting times ahead in the field of defamation on the net. At the time of writing, the cricket-match-fixing and betting scandal is at its peak. Much of the action has taken place on the net with accusations and allegations flying thick and fast. Many have threatened to take legal action against websites carrying “Unjustified” allegations and it would be interesting to see how the courts deal with these suits when they come up for hearing.
Case laws involving the Defamation by cyberspace
The ugly and criminal abuse of the Internet is coming to light even in India. Some time back, an Engineering and Management graduate who was facing prosecution for harassing his wife for dowry was caught sending obscene e-mails in his wife’s name to name to several of her relatives, friends and others to harass her further and thus was arrested by the Delhi Police. A Modus-Operandi (M.O) allegedly used by him was to create a fake e-mail account in the name of his wife and then send e-mails to people giving a false impression that they were being sent by his wife. These e-mails allegedly contained pornographic material extremely vulgar language and asked people to chat with her on a given chat site. The police have registered a case for defamation, criminal intimidation and insulting the modesty of women For example, a web-site called ‘desibaba.com’ contains conceded nude photographs of many of the Indian Bollywood stars. There are innumerable such web-sites all over the Internet. Defamation and harassment through the Internet is becoming rampant each day and threatens to be a major cyber crime in the future. The problem is not restricted only to film stars and famous people. Even ordinary users of the Internet are using this medium for harassment and defamation of their enemies.
As the Internet population and interaction over the same grows, the law of defamation will have to be frequently invoked. Anonymity on the Internet together with speed and global access at virtually no cost, have provided an opportunity to criminal netizens having violent minds to threaten and intimidate others, which is also punishable under the Indian Penal Code. Even before the IT Act, 2000 came into force, serious cases of harassment and criminal intimidation came to light. Some time back a retired government official complained to the local police station that people were harassing him constantly over the phone with persistent enquiries about the availability to call girls. The caller claimed that a message was displayed on their cell phone which said. “Delhi college girls for Rs. 500/- contact at phone number…” (i.e. of the victim / retired government official). He received at least 4000 humiliating calls over six weeks. The accused, Sunish Kapoor was arrested and has been charged inter-alia with the offences of criminal intimidation (sec. 506 IPC) and transmitting obscene material (sec.292 IPC).
In many cases of e-mail abuse, women are being targeted by criminal netizens to seek revenge or for sheer harassment. Sometime back, the Delhi Police arrested one Manish Kathuria an Engineer and an MBA degree holder, who allegedly posed as the wife of his former boss, posted her telephone number on a chat room and asked netizens to get in touch late in the night. The alleged motive was to seek revenge because the accused apparently believed that the husband of the victim, who was his ex-boss, was responsible for the dismissal of the accused from his previous job. The victim, namely Ritu Kohil, started receiving obscene calls at Delhi from as far as Dubai, Bahrain, Kochi, and Mumbai. The victim smartly found out the name of the chat site and logged on herself and chatted with the accused pretending to be a man. Subsequently, a complaint was lodged with the Crime Branch. The Internet protocol address of the accused was allegedly found to be connected with the telephone.
Current booming issue about sexual harassment and defamation in succession. Minister of State for External Affairs M.J.Akbar Vs Priya Ramani at Chief Metropolitan Magistrate, Delhi – Mr. Akbar filed a criminal defamation complaint against the Journalist Priya for wilfully, deliberately, intentionally and maliciously defaming him. He sought her prosecution under Section 499 (defamation) and punishable under Section 500 of the Indian Penal Code.
Legal Provisions governing online defamation in India
Section 499, Indian Penal Code
This section says that whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.
Section 500, Indian Penal Code
This section provides for punishment. Any person held liable under section 499 will be punishable with imprisonment of two years or fine or both.
Section 469, Indian Penal Code
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. The punishment of this offence can extend up to 3 years and fine.
Section 66A, Information Technology Act,2000
This law has been struck down by the Supreme Court in the year 2015. This section defined punishment for sending ‘offensive’ messages through a computer, mobile or tablet. Since government did not clarify its stand on the word ‘offensive’, the government started using it as a tool to repress freedom of speech. In 2015 the Supreme Court quashed the whole section.
Where to lodge a complaint?
If a person has been defamed in a cyber space he can make a complaint to the Cybercrime investigation cell. It is a unit of Crime Investigation Department (CID). The Cyber Crime investigation cells deal with offences related to the computer, computer network, computer resource, computer systems, computer devices and Internet. It also has power to look into other high-tech crimes.
Findings
The Disposal of the defamation or cyber defamation has pinpointed about the punishments but inversely the person who has aggrieved and filed a suit, may have suffered too much in the public before it is rectified by the Judiciary. The special deadline has to be frame out to deal with this defamation cases. Now a day, the legal provisions are much clearer, the disposal of case without affecting the reputation and privilege of the individual is a question in fact.
The amendment needs to be done in law of defamation by syncing the IT act provisions. Due diligence can be exercised or “Knowledge” be gained only if there is a supervisory mechanism in place. Thus technical collaboration along with the judiciary is matter a lot. The recent days as because of more sexual harassment cases, even the victims who would not fall under the category is being prejudiced on the sight of defamation. Hence, the separate forum and investigation to be setup confidentially to safeguard the interest of the victims. Our Constitution has the privilege for every individual to enjoy the Freedom of Speech and Expression at any point and place. Yet, this right should restrict with certain limitations thus it protects the right of reputation of the victims.
Conclusion
Cyberspace is a wide platform which provides people with the opportunity to express their views. But should people use this opportunity to disrepute someone? There have been many instances where the people have tarnished the reputation of people through their views or abusive comments. These actions are done under the alms of freedom of speech and expression. There should be regulations posed by the Internet service providers. These intermediaries should have strict policies against people who post vulgar or abusive comments. Besides this, people should be aware of their limits. They should refrain themselves from making any personal or abusive comment on a public forum. When we enter the cyberspace there is a basic etiquette everyone needs to follow and maintain sanity in the cyberspace. Moreover, the Individual who was aggrieved and interest to make filing of such instances to be provided a proper platform and indicate in the law as where to direct the individual affected to investigate in detail in a quicker way. The legal awareness in this direction must be given to every citizen to protect their interest.
Keywords-
Cyber defamation, Internet, Cyber-crime, Information Technology Act, Reputation
Bibliography
N.R.Madhava Menon “Law Relating to Computer, Internet and E-Commerce – A Guide to Cyber laws” Nandan Kamath, 4th Edn; Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2009, P.No-226
Samuel C.McQuade, III “Understanding and Managing Cybercrime”
Vivek Sood “Cyber Law Simplified” Tata McGraw Hill Eduction Private Limited., New Delhi
M.Neelamalar “Media Law Ethics”- PHI Learning Private Limited, New Delhi, 2010, P.No – 25 – 33
Dario Milo – “Defamation and freedom of speech”, Oxford University press, US(New York), 2008, P.No-15,17,26-33
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