Cyber Defamation

JAI NARAYAN VYAS UNIVERSITY

Department of Law
B.A. L.L.B. (5 Year)
8th Semester

Cyber Law
Project Subject: Cyber Defamation

Submitted To: Submitted By:

Prateethi Singhvi (Roll No. 34)

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ACKNOWLEDGMENT

I would like to express my deepest appreciation to all those who provided me the
possibility to complete this project. A special gratitude I give to our Professor whose
contribution in stimulating suggestions and encouragement helped me to coordinate my
project especially in making of presentation. Furthermore I would also like to
acknowledge with much appreciation the crucial parents who gave the permission to use
all required equipment and the necessary material to complete the task of making my
project. Last but not least, my friends who have invested his or her full effort in guiding the
team in achieving the goal. I have to appreciate the guidance given by other supervisor as
well as the panels especially in our project presentation that has improved our presentation
skills thanks to their comment and advices.

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INDEX

1. INTRODUCTION

2. DEFAMATION IN GENERAL

3. DEFAMATION ON THE INTERNET: THE RISING ISSUE

4. DISTINCTIVE FEATURES OF CYBER DEFAMATION AND IMPACT

5. INDIAN POSITION

6. IT ACT, 2008

7. SUGGESSTIONS

8. CONCLUSION

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 Cyber Defamation

INTRODUCTION

The Internet promised to make everyone a publisher, subject and reader, simultaneously,
connecting the lonely pamphleteer to the whole world through cyberspace. That new
freedom also brought the liberty to cause harm all over the world, however. The law of
defamation attempts to provide an outlet for individuals to avenge their reputation after it
has been tarnished by the publication of false statements. However, defamation law
involves a clash of two important societal values: freedom of speech and freedom to
protect one's own reputation.

A high proportion of internet cases concern defamation. Part of the reason for this is that
the internet provides the man on the street with a unique opportunity to have his thoughts
published instantaneously throughout the world. Moreover, the internet, particularly in the
early years, encouraged a spirit of unrestrained comment or discussion. This often involved
highly defamatory statements being made against an individual, State, race, religion or
group etc.

The law of defamation in the context of internet requires almost every concept and rule in
the field to be reconsidered in the light of this unique medium of instant worldwide
communication. The issue that relate partly from the nature of defamation as a cause of
action, differences in national laws on defamation and jurisdictional issues. In terms of
traditional forms of publishing, a publisher exerted a great deal of control over where
copies of his publication were made available. Publication on internet is different in that it
is, potentially, publication to entire world.

This project aims at analysing the law of defamation over internet. The project also
discusses jurisdictional issues in such crimes, the problems connected and solutions
thereof.

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 Cyber Defamation

DEFAMATION IN GENERAL

The law gives protection to a man’s reputation, which to some is dearer than life itself.
Love of reputation inspires people to do great things, acquire fame and name which is the
mainspring of life in every walk of life. The aim of law of defamation is to protect one’s
reputation, honour and dignity in society. The law of defamation attempts to provide an
outlet for individuals to avenge their reputation after it has been tarnished by the
publication of false statements. However, defamation law involves a clash of two
important societal values: freedom of speech and freedom to protect one's own reputation.
"The proper balance between these two goals has been vigorously debated over the years,"
and different nations have crafted varying approaches to deal with this tension.

A defamatory statement is one which, when published, tends to lower a person in the
esteem of right thinking members of the society generally; or which tends to make them
shun or avoid that person. The statement does not have to allege some moral turpitude or
wrong doing on the part of the claimant and it can be defamation to allege insanity or being
victim of a crime such as practices of bestiality. The three essentials of Defamation are:

a. The statement must be defamatory.

b. The said statement must refer to the plaintiff.

c. The statement must be published.

Defamation, an injury to a person’s reputation, It may be by means of words, pictures,

visual images, gestures or any other method of signifying meaning. It is both civil and
crime wrong. An aggrieved person may file a criminal complaint for prosecution of
defamer or can sue him for damages.

Withdrawal of a criminal complaint on tender of apology is no bar to a civil action for libel
unless there is a specific agreement barring a civil action.

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The law of civil defamation in India is uncodified, as in other Common law countries, it is
largely based on case laws. The law of criminal defamation is based on the codified in Sec.
499 to 502 of Indian Penal Code. In England the publication of a criminal Libel is
punishable to the extent of 1 year imprisonment and fine; and if the publication is with the
knowledge of its being untruth is 2 years vide section 5 of the Libel Act, 1843.

In a civil action for defamation in tort, truth is a defence, but in a criminal action, the
accused must prove the truth of the matter and that its publication was for the public good.
The defence of truth is not satisfied merely on the ground that the publisher honestly
believed the statement to be true; he must prove that the statement was infact true.

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DEFAMATION ON THE INTERNET: THE RISING ISSUE

It is said that the law develops with the society, as the society develops so develops the
technology, with technology the ways to perform certain task changes. Internet is one such
thing which has opened new opportunities for mankind through which any information in
electronic form can be received at any end of a computer network in the world.

With the establishment of Internet and inception of webpages, e-mail services, chat rooms,
social networking sites etc man have come closer to each other than ever before. Now with
the click of a mouse one can see his loved one’s from a small town of Uttar Pradesh sitting
in say London. But with a good side this very human networking solutions have appalling
shades too.

The placing of defamatory material on webpages or sending such materials in or attached

to e-mails give rise to number of issues that relate to the nature of the Internet. The ease of
publishing information, correct or not, to millions of readers worldwide over the internet
has caused defamation to become an increasing problem.

The part of reason for this is that the internet provides the man on the streets with a unique
opportunity to have his thoughts published instantaneously throughout the world.

Moreover, the Internet, particularly in its early years, encouraged a spirit of unrestrained
comment or discussion. This often involved highly defamatory statements being made.

Different nations place different premiums on free speech and, as a result, have varying
levels of protection for defamatory speech. Until recently, disparities in defamation laws
made little difference as "defamation laws, and their applications, [were] restricted to their
respective counties."

This changed, however, with the advent of the Internet: "As communications technology
advanced, the effect of a statement became more and more widespread, until the Internet
gave communicators the ability to send one line to the entire world instantaneously.

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Cyber defamation claims for material posted on web-pages, in chat-rooms, or in electronic

newspapers, has complicated defamation jurisprudence.

Defamation claims often raise choice of law questions. This is especially true when the
defamatory speech is disseminated in several different nations. Because defamation law
"clearly applies to communications on the Net," the number of claims arising from multi-
national defamation undoubtedly has increased.

Traditional choice of law principles instruct that a tort dispute is governed by the law of the
locale where the harm occurred. "In defamation cases, "the place of the wrong' is the
jurisdiction where the defamatory matter was heard or read by a third person, regardless of
the place of broadcasting or writing." The Internet is "ubiquitous, borderless, global and
ambient" by nature, however. Both the United States and Australia have crafted different
approaches to addressing the complicated choice of law concerns raised by such global
defamation actions.

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 Cyber Defamation

DISTINCTIVE FEATURES OF CYBER DEFAMATION AND

IMPACT

There are a number of features unique to the Internet which distinguishes it from any other
medium. These features have led to the current re-examination of existing libel laws to
allow for their possible evolution and ultimately their application in cyberspace.

1. GLOBAL NATURE
The first feature of the Internet is its truly global nature. Presently, more than 125
countries are linked via the Internet.
a) This feature immediately raises several interesting conflict of law questions for the libel
lawyer, such as:
i) In which jurisdiction did the publication of the defamation occur?
Theoretically, every time a third party accesses a defamatory posting on the
Internet, publication has occurred.

ii) In what jurisdiction should the plaintiff sue?

a. Where the plaintiff resides?
b. Where the defendant resides?
c. Wherever publication has occurred?

Defamation laws vary from country to country and in countries such as the
Canada, Australia and the United States, it can vary from province to province and
state to state. Therefore, plaintiffs may have the luxury of "forum shopping" or
choosing the jurisdiction in which the laws most favourable to him/her.

iii) Whose laws should apply?

For example, should First Amendment protection and the public figure defence
available in the United States of America apply; or should the common law of the
commonwealth or the civil law?

iv) What is the quantum of damages?

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Theoretically, damages could be very large as a publication on the Internet

potentially reaches millions of people. In practice, however, it is unlikely that
millions of people will actually view each particular publication.
In any event, publication on the Internet will generally be larger than in all but the
largest print or broadcast media outlets.

b) The global nature of the Internet also raises some interesting procedural questions for
the libel lawyer. In traditional libel law there are three different types of defamatory
statements:
i) The first is a statement that is defamatory on its face and which is obviously
defamatory.

ii) The second is a statement which contains false innuendo. False innuendo is a
defamatory statement that has an inferential meaning, therefore only persons
with the necessary contextual knowledge appreciate that the statement is
defamatory. Since statements on the Internet are published globally, their
inferential meanings may vary depending on the geographic or cultural location
of the reader or the newsgroups or the use net group involved.

iii) The third category is legal innuendo. While not defamatory on their face, these
statements are defamatory when viewed together with extrinsic circumstances.
Once again, contextual knowledge may render a statement defamatory in one
jurisdiction but not in another.

2. Interactive Nature

Another key feature of the Internet is its highly interactive nature. The ease with which
users of the Internet can access bulletin boards and use nets and communicate with each
other has engendered in its users a false sense of freedom in their communications.

3. Accessability

Accessability is another feature of the Internet which distinguishes it from traditional print
or broadcast media. The relatively low cost of connecting to the Internet and even of
establishing one's own website means that the opportunity for defamation has increased
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exponentially. Now, on the Internet everyone can be a publisher and can be sued as a
publisher.

4. Anonymity

Another key feature of the Internet is that users do not have to reveal their true identity in
order to send e-mail or post messages on bulletin boards. Users are able to communicate
and make such postings anonymously or under assumed names. This feature, coupled with
the ability to access the Internet in the privacy and seclusion of one's own home or office
and the interactive, responsive nature of communications on the Internet, has resulted in
users being far less inhibited about the contents of their messages.

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 Cyber Defamation

INDIAN POSITION

So far Cyber defamation was covered under section 499 of the Indian Penal Code read
with Section 4 of the IPC.

Section 499 of the IPC provides 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 expected, of defame that person.

No specific mention has been made with regard to any electronic publication in the section.
Section 4 of the IT Act however, gives legal recognition to electronic records. It provides
that if the law requires any information or other matter in writing or typewritten or printed
form, such requirement would be deemed to have been satisfied if such information is
rendered or made available in electronic form and accessible so as to be usable for a
subsequent reference. Keeping in mind the legal fiction being created by section 4 of the IT
Act, if any defamatory information is posted on the Internet either through emails or chat
rooms or chat boards, such posting would be covered under section 499 requirement of
‘publication’ and would amount to cyber defamation.

CASE LAW

1. SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra

India’s first case of cyber defamation; was reported when a company’s employee
(defendant) started sending derogatory, defamatory and obscene e-mails about its
Managing Director. The e-mails were anonymous and frequent, and were sent to many of
their business associates to tarnish the image and goodwill of the plaintiff company.

The plaintiff was able to identify the defendant with the help of a private computer expert
and moved the Delhi High Court. The court granted an ad-interim injunction and restrained
the employee from sending, publishing and transmitting e-mails, which are defamatory or
derogatory to the plaintiff.

But the case has been dismissed in the year 2007 after the petitioner was not able to prove
the case beyond doubts of the case.

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2. M.J.Akbar v. Indian Institute of Technology, Madras1

In this Criminal Original Petition fact in issue was that certain articles were published by
the newspaper; Deccan Chronicle in its Bangalore and Hyderabad edition alleging that IIT,
Madras was involved in foul admission procedure which was taken up as defamatory
against IIT. Though the article was not published in Madras or any part of Tamil Nadu, the
Madras High Court exercised its jurisdiction relying upon the argument of the Respondent;
since, the said news item is also available on the publishers Internet edition of the news
paper which can be accessed by any person across India and World and in such cases the
cause of action can arise even in Madras Court where though no newspaper article was
published but the article was available through Internet. The case is under trial in a Madras
Criminal Court.

Other than these two cases many cases have come up before the police which are still sub-
judice like making fake profiles of individual with electronically edited obscene images of
them, publishing of Hate speeches against a class or caste, etc.

1
MANU/TN/1677/2009, decided on 16.07.2009
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IT ACT, 2008

The newly enacted IT Act, 2000 amended in 2008 , which came in force from 26th Nov.
2008, has Sec. 66A which provides for penal measures for mala fide use of electronic
resources to send information detrimental to the receiver. For the section to be attracted the
‘information’ needs to be grossly offensive, menacing, etc. and the sender needs to have
known it to be false.

Section 66A
Any person who sends, by means of a computer resource or a communication device,
(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance,
inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or
ill will, persistently by making use of such computer resource or a communication device,

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or
inconvenience or to deceive or to mislead the addressee or recipient about the origin of
such messages,

shall be punishable with imprisonment for a term which may extend to three years and
with fine.

Explanation: For the purposes of this section, terms "Electronic mail" and "Electronic
Mail Message" means a message or information created or transmitted or received on a
computer, computer system, computer resource or communication device including
attachments in text, image, audio, video and any other electronic record, which may be
transmitted with the message

In my opinion the section also fails on one major issue, it says ‘a person who sends’, it is
hard to interpret whether it is focuses only on directed messages towards a particular
individual or even to published articles through medium like blogs, social networking
websites, etc. Well this will be clear once it will come for judicial interpretation.

Being a penal provision it will be upon the prosecution to prove the mala-fide intention of
the sender beyond doubt.

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SUGGESTIONS

This non- uniformity among Cyber defamation cases around the world and considering its
global presence and cross-border feature it will be fair to suggest the followings:

1. The Governments around the world should try to form a Convention on the
line of TRIPS which should deal with Cyber related laws and crimes. The
existing EU Budapest Convention Cybercrime 2001 has not included Cyber
Defamation in the convention.
2. The Jurisdiction matter in Defamation cases should be settled through such
convention. In my seeing the global nature of such crime the provision
should be such, so, a suit can be filed anywhere around convention
countries.
3. The penal and civil provisions should be uniform around the world.
4. The service provider duty would be to reveal identity of the person so being
called the defamer, when asked by the appropriate law agencies.

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CONCLUSION

In the conclusion it can be said that there is no uniformity around the globe in treating the
cyber defamation cases. The major commonwealth countries follow different practice in
this regard. In English law the Defendant publisher has to establish his innocence whereas
in American law the Plaintiff who has been libelled has to prove that the publisher was not
innocent. Australia taking the extreme approach has gone beyond the national boundaries
to hold the people who cause defamation to its citizens. The Indian Jurisprudence is yet to
develop in this regard, the new IT Act, 2008 is a new ray of hope in this regard which has
some stringent section to tackle the activities of defamation.

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