Cyber Defamation In India

Ever wondered if you could be in trouble because of your opinion, feedback, review, statement, comment and/or post on any social media platform viz. LinkedIn, Facebook, Youtube, etc. By trouble, we mean posting malicious content that can harm the reputation of a person including an entity. This is known and termed as ‘Defamation’, which is an offence under the laws of India and worldwide. The race between technology and law can be termed as a ‘hare and tortoise’ race. As technology gallops, the law tries to keep pace. Publishing of defamatory material against any person in cyberspace or with the help of computers or the Internet tantamount to ‘Cyber Defamation’. The damage done on the internet is so widespread, inexhaustive and beyond geographical boundaries, that makes it difficult to assess the amount of pecuniary harm done to a person.  

Reputation is an integral and important part of the ‘dignity of an individual’ and the right to reputation is inherent amongst the rights guaranteed by Article 21 of the Constitution of India. Defamation in India is both a Civil and a Criminal offence. The remedy for civil defamation is covered under the law of torts and the person defamed can move court to claim damages in the form of monetary compensation from the accused. The remedy under Criminal Law lies under sections 499 and 500 of the Indian penal code, 1860 (“IPC”) whereby person found guilty can be imprisoned for a period of 2 years or punished with fine or both.

Defamation defined under the Indian Law:

Section 499 of the IPC defines defamation as words spoken or written, or signs or visible representations made or published with an intention of damaging the reputation of a person or a group of persons. Defamation may be bifurcated into two, Libel: A defamatory statement made in a writing and Slander: A defamatory statement made orally.

A defamatory statement made does not amount to commission of offence unless it is published and does not fall within one of the exceptions under section 499. However, this does not mean it has to be in print. Further, the imputation made must be with an intent to harm the reputation of a person in the eyes of others and to lower his/her moral and or intellectual character.

Cyber Defamation

The content in the form of audio, video or written text in the digital space i.e. the internet which tends to damage the reputation of a person/s constitutes online/cyber defamation. The provisions and definitions viz. device, computer network, computer resource, computer system and intermediary etc. under the Information Technology Act, 2000 (“Act”) are significant to appreciate and understand the concept of cyber defamation and its legal consequences.

Liability in such cases:

The liability in a case of cyber defamation is primarily that of the author/’originator’ (as defined under the Act) of the defamatory content and in certain circumstances, of the ‘intermediary’ (defined under the Act) which includes telecom service providers, network service providers, internet service providers, search engines, etc.

Section 79 of the Act provides protection and exemption to the intermediary from being liable for any third-party information, data or communication link made available or hosted by him. However, such protection cannot be availed and the intermediary may become liable in the circumstances that i) it has conspired or abetted or aided or induced in the commission of the unlawful act and/or ii) upon receiving actual knowledge, about the unlawful act, the intermediary fails to expeditiously remove or disable access to such material without vitiating the evidence in any manner.

The Hon’ble Supreme Court in the case of Shreya Singhal vs. Union of India[1] held that the intermediaries would be liable if they do not remove the content on being notified by the agency of the government or court and are not under an obligation to remove the defamatory material on mere intimation by the person defamed. This is for the reason that it would be very difficult for intermediaries like Google, Facebook, etc. to act when millions of requests are made to them and the intermediary is made to judge as to which of such requests are legitimate and which are not.

Until the year 2015, under section 66A of the Act a person could be held liable for circulating through computer resource or device any offensive material, which he knew to be false with the object of harming someone’s reputation or for criminal intimidation. However, in the supra case of Shreya Singhal, the Supreme Court held the section as invalid and struck it down for being ambiguous and open-ended, thereby posing threat and going beyond the “reasonable restrictions” to the freedom of speech and expression. The bench observed that, “Something may be grossly offensive and may annoy or be inconvenient to somebody without at all affecting his reputation”.

Relevant Decisions:

In the case of M/s Spentex Industries Ltd. & Anr. vs. Pulak Chowdhary[2], the Plaintiff had filed for a mandatory and prohibitory injunction along with recovery of damages for loss of reputation and business due to the defamatory emails sent by the Defendant to the International Finance Corporation, World Bank, & Ors. The case was filed in the year 2006 and was concluded in 2019 wherein the Hon’ble Delhi District Court observed that the impugned emails tended to lower the image of the company and its Managing Director in the eyes of the employees of the company and were therefore defamatory. The High Court thus passed an order and decree restraining the Defendant from making false and defamatory statements by any means and further awarded 1/10^th of the cost to the Plaintiffs along with the cost of the suit to be borne by the Defendant.

The Hon’ble Delhi High Court in its recent decision in Swami Ramdev & Anr. v. Facebook Inc. & Ors.[3], 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. The Court opined that for an injunction order to be effective, the removal and disablement had to be complete in respect of the cause over which the Court has jurisdiction. It cannot be limited or partial in nature.

At present Facebook, has filed an appeal[4] against the said order before the division bench of the Hon’ble Delhi High Court, inter alia contending that global take down order is against national sovereignty and international comity, as it interferes with defamation laws of other countries. The same is pending before the Hon’ble Division Bench.

Remedy against Cyber Defamation:

As an immediate step one can register a complaint directly with the social media platform where the offence has been committed. Such platforms usually provide for a mode of making complaint in respect of activities against their privacy policies and community guidelines, on their platform. It is preferable that such an activity is reported at the earliest enabling the intermediary to take immediate steps for blocking such activity and dissemination of the same.

Register a cyber-crime FIR and in case of no access to cyber cell, a first information report (“FIR”) at the local police station. In case the same is not accepted, one can approach the Commissioner or Judicial Magistrate under sections 154 & 156 of Criminal Procedure Code, 1973 (“Cr.P.C.”), respectively.

In the present times of spoofing of identity, impersonation and anonymity maintained through fake and/or private profiles online, the biggest challenge faced in the digital space is identifying the person against whom the action should be initiated for defamation. The appropriate steps in such a case are two-fold, first, to initiate the proceeding for tracing the identity under section 200 of Cr.P.C. accompanied by an application under section 202 of Cr.P.C. with a request to court to direct the police to conduct inquiry to trace the identity of a person by locating the IP address or collecting the other relevant evidence from Internet, and thereafter, initiate the proceeding for criminal or civil defamation against the said person.

The first priority for the aggrieved party in such cases is to get the defamatory content removed from the Internet which is possible only through the order of the court. Therefore, recourse to civil remedy can be taken by filing a Suit against such offender/author/originator of the content along with the concerned intermediaries, and seek injunction against dissemination and broadcast of such content online at the interim stage and further, seek perpetual injunction if the content is found defamatory along with compensation for damages suffered due to the same, subject to proving it before the court of law.

Challenges in Seeking Remedy:

As discussed above spoofing of identity and anonymity online is the biggest challenge faced in the digital space. Another big challenge is to collect and preserve the digital evidence and to prove its authenticity. The compliance of conditions of section 65 B of the Indian Evidence Act, 1872 and getting the forensic examination done is necessary to prove the case beyond doubt which may incur time and cost of the aggrieved person. This makes the remedy in case of online defamation difficult and complicated. These remedies may not be effective and sufficient as by the time it could be enforced, the defamatory material in the form of audio, video or text would have achieved the desired impact of the offender(s). Further, the victim may only be able to make out a prima facie case of defamation, however, may not be able to produce all the evidence related to the source of the publication including the details of the publisher to be able to make him/her a party to the proceeding, since the same would require court’s order in this regard.  

Conclusion

In the present tech-savvy world, since most of the population has access to internet and social media, the indiscriminate use of the same for voicing their opinions and views often impinges upon the right(s) of another person. Thus, the effortless transfer of data and information over the internet has made it a critical hot-spot for defamation. Although, there are laws in place prohibiting such activity by people online, however, most people are not aware of the same or are too negligent to realize whether such content is defamatory or not. There is a dire need of a system which educates and makes people aware of the consequences of their indiscriminate actions. Further, the intermediaries have a responsibility to respect the integrity of all persons equally on its platform without the need for court’s order in this regard and without prioritizing their revenue and profits derived from engagement on such controversial content. Appropriate laws and their implementation against such users, is necessary to avoid repetition and frequency of such incidents in the future.

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• [1] AIR 2015 SC 1523
• [2] Hon’ble Addl. District Judge, Dwarka Courts, New Delhi, Judgement dated 01.05.2019, CS No. 219/18
• [3] 263 (2019) DLT 689
• [4] Hon’ble High Court of Delhi, New Delhi, FAO(OS) 212/2019