The rapid advancement of technology has significantly transformed the world. Thanks to the Internet and various social media platforms, things like communication and access to information have become incredibly simple. However, these conveniences can also be misused. Since anyone can share and distribute information online, defamation has become a growing concern. The rising trend of sharing or posting content on social media platforms, along with commenting on it, has heightened the risk of “Cyber Defamation.”
“Cyber Defamation” refers to the act of publishing false statements about someone online, potentially harming or tarnishing that person’s reputation. In India, defamation can be treated as both a civil and criminal offense, and the Indian judicial system offers legal remedies to those who have been victimized by it.
What is Defamation?
Defamation refers to the act of intentionally and unlawfully making a public statement, either written or spoken, about someone with the aim of damaging their reputation in society. To qualify as defamation, the following key elements must be present:
1. Publication of the defamatory statement: The statement must be communicated to a third party, making it public knowledge.
2. Reference to the plaintiff: The statement must specifically relate to the individual who claims to be defamed.
3. Defamatory nature of the statement: The content of the statement must be harmful to the individual’s reputation.
Types of Defamation
Defamation can be divided into two types:
1. Libel: This is when a defamatory statement is published in a written form.
2. Slander: This refers to a defamatory statement that is spoken or verbal in nature.
The key difference between the two is the medium in which they are conveyed: libel is written, while slander is spoken.
Cyber Defamation
Social media has sparked a revolution not only in India but also around the globe. The explosive growth of the Internet has given people a platform to share their opinions, ideas, and emotions through various types of online content. However, the ease of access and publication in this digital realm has also introduced significant risks, as these platforms can be misused by deceitful internet users under the guise of freedom of speech and expression. This has contributed to a rise in cases of “cyber defamation.”
Although cyber defamation is a new concept, the traditional understanding of defamation involves harming a person’s reputation in the eyes of a third party, which can be done through verbal or written communication, signs, or visual representations. To qualify as defamation, the statement must reference the plaintiff and intend to lower their reputation. Cyber defamation, on the other hand, uses modern electronic devices to damage a person’s reputation. It involves publishing defamatory material about someone in cyberspace or using computers or the internet to achieve the same goal. If someone posts defamatory content about another person on a website or sends emails containing defamatory material about that person, it is considered cyber defamation.
Liability in Cyber Defamation
In India, a person can be made liable for defamation both under civil and criminal law
INDIAN PENAL CODE
Section 499 of the Indian Penal Code states that if someone uses spoken words, written words, signs, or visual representations to create or publish an implication about another person with the intention to harm, or with the knowledge or reasonable belief that this implication could harm that person’s reputation, then that individual is said to have defamed the other person. There are specific exceptions to this rule which are mentioned later in the legal code.
Section 500 of the IPC describes the punishment for defamation under Section 499. It stipulates that anyone found guilty under Section 499 can be punished with up to two years of imprisonment, a fine, or both.
Section 469 addresses forgery. It states that if anyone creates a false document or a fake account with the intent to harm another person’s reputation, they can face a punishment of up to three years of imprisonment and a fine.
Section 503 of the IPC addresses the crime of criminal intimidation, focusing on cases where electronic means are used to threaten someone’s reputation within society.
INFORMATION TECHNOLOGY ACT, 2000
Section 66A,Information Technology Act, 2000 – This law has been struck down by Supreme Court in the year 2015. The section defined punishment for sending ‘offensive’ messages through a computer, mobile or tablet. Since the government did not clarify the word ‘offensive’. The government started using it as a tool to repress freedom of speech. In 2015, the whole section was quashed by the Supreme Court. If a person has been defamed in cyberspace, he can make a complaint to the cyber crime investigation cell. It is a unit of the Crime Investigation Department.
Problems and Issues in Cyber Defamation
Our growing reliance on the Internet and social networking sites has created various legal challenges in the country. When it comes to defamation, one of the biggest issues is identifying the person responsible for harming our reputation or figuring out who has seen the defamatory statement. This is especially difficult with web pages like blogs or other media outlets such as newspapers or magazines. Bloggers may choose to remain anonymous or use pseudonyms to protect their identities.
This makes it difficult to determine who published the statement if it appears on someone’s blog. It becomes even harder to trace readers who leave comments on blogs or online news articles, as most sites don’t require users to provide their real names or any personal information like email or location. Even when sites do request this information, people can use false identities. This makes it difficult to track these individuals. Additionally, when defamatory statements are published on platforms like Facebook, they can spread rapidly and reach a large audience, causing significant damage to the person being targeted.
What forms of defamatory publications are admissible by courts in India?
As per section 65A and 65B of the Indian Evidence Act –
- Any electronic record printed on a paper or recorded or copied in optical or magnetic media shall be considered as a document and shall be admissible by court.
- Online chats are also admissible.
- Electronic mails are also admissible.
Employers liability issue
In the case of SMC Ltd. v. Jogesh Kwatra, an employee had sent insulting messages to the employers and other subsidiaries of the company. The Delhi High Court intervened, issuing an order that prohibited the employee from making any kind of communication with the plaintiff. This order was seen as highly significant because it marked the first time that an Indian court had taken jurisdiction in a case of cyber defamation, granting an ex-parte injunction to stop the defendant from defaming the plaintiff. The injunction specifically prevented the defendant from sending any insulting, abusive, or obscene emails to the plaintiff. Moreover, the employer was not held vicariously liable because the defendant was not acting within the scope of his employment but was engaging in independent misconduct.
Suggestions and Recommendations for Improving Cyber Defamation Laws and Mechanisms in India
It is proposed to establish an independent cybercrime investigation cell under the Central Bureau of Investigation, operating directly under the central government, to address cybercrimes, including cyber defamation. Additionally, cybercrime police stations should be set up in every district across India, with investigative officers who are well-versed in cyber laws to ensure effective handling of offenders. The government should also launch awareness programs to educate the public about cybercrimes and the measures they can take to protect themselves.
The judiciary could play a crucial role by setting up special cyber courts, with judges who have specialized technical knowledge to preside over these cases. It is necessary to train judicial officers and police personnel to resolve cybercrime cases quickly and efficiently. As information and communication technology evolves, laws need to be amended to keep pace with technological advancements and prevent cybercrimes from affecting large numbers of people.
Case Laws
– Kalandi Charan Lenka vs. State of Odisha: In this case, the petitioner was continuously stalked, a fake account was created, and obscene messages were sent to friends. The culprit also posted a morphed naked photo on the walls of the hostel where the victim lived. The court found the offender liable for his actions.
– Rajiv Dinesh Gadkari through P.A. Depamala Gadkari vs. Smt. Nilangi Rajiv Gadkari: After receiving a divorce letter, the respondent sued her husband for continuous harassment by uploading vulgar photographs and defaming her. The case resulted in a monthly maintenance of Rs. 75,000 being awarded to the wife (respondent).
Comparative Analysis of Laws between India and the UK
Comparing cyber laws and policies in India and the UK reveals both similarities and differences in certain areas. Despite a historical gap in technology and resources, India has made significant progress in cyber security in recent years, emphasizing it as a policy concern. In contrast, the UK has had a more established cyber security framework for a longer period, and its system is more comprehensive. However, both countries struggle to apply pre-existing laws to new cyber-related situations.
The UK tends to be more open to multi-stakeholder input when shaping its policies, while India’s approach to cyber security is split between private and government initiatives, with a focus on national security. India could learn from the UK’s flexibility in compliance with security best practices without imposing strict regulations. Additionally, India should explore international agreements to enhance cooperation in investigating cyber threats. Meanwhile, the UK needs to balance its national security concerns with civil liberties, particularly regarding privacy and surveillance.
Conclusion
The vast volume of information and the ease of sharing it on the Internet make it a potential source of defamation. After exploring the topic, it is clear that the current Indian legal system does not adequately address cyber defamation cases. Moreover, defamation laws should be flexible enough to apply to all forms of media. Given the Internet’s growth, it is challenging to apply 18th and 19th-century legal principles to 21st-century cyber-related issues.