RESEARCH PAPER

A CRITICAL ANALYSIS ON CYBER DEFAMATION IN INDIA

JAMIA MILLIA ISLAMIA

SUBMITTED BY: SUBMITTED TO:

SADAF ANSARI Dr. MOHD. SALEEM

LL.M (EXECUTIVE) ASSISTANT PROFESSOR

2nd SEMESTER JAMIA MILLIA ISLAMIA

2019-20

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TABLE OF CONTENTS

S.NO TITLE PAGE NO.

1 INTRODUCTION 3

 MEANING AND INTERPRETATION OF THE 4

TERM “CYBER DEFAMATION”

2 STATEMENT OF THE PROBLEM 10

3 OBJECTIVE OF THE STUDY 10

4 SIGNIFICANCE OF STUDY 10

5 HYPOTHESIS 10

6 RESEARCH METHODOLOGY 11

7 REVIEW OF THE LITERATURE 12

8 DESIGH OF THE STUDY 13

9 CHAPTER 2- CONCEPT OF CYBER DEFAMATION 14

10 CHAPTER 3- CHALLENGES TO STATUTORY 17

PROVISIONS REGARDING CYBER DEFAMATION IN
INDIA

11 CHAPTER 4- CYBER DEFAMATION IN CONTEXT OF 21

RIGHT TO PRIVACY AND SECRECY”

12 CHAPTER 5- PROVISIONS REGARDING CYBER 24

DEFAMATION IN OTHER COUNTRIES

13 CHAPTER 6-CONCLUSION AND SUGGESTIONS 28

14 BIBLOGRAPHY 29

2
INTRODUCTION

Once Deacon Jim stated that “the stability of human society depends upon the goodwill that
ought to exist among individuals and that common good can only be realized by truthfulness” 1.It
means that the stability of person in society is determined by his goodwill, reputation or fame.
And if such is the case and damage to this goodwill has the potential to make the person instable.

The word defamation is derived from the Latin word “Diffamare” that means spreading evil
report about someone. Thus defamation is nothing but causing damage to reputation of other.
Thus the question of defamation is primarily linked up to one’s reputation.2

According to Black’s Law Dictionary, “Defamation is an intentional false communication either

published or publicly spoken that injures another’s reputation”.3

Salmond defines the wrong of defamation as a publication of false and defamatory statement
about another person without lawful justification.4

Defamation can be defined as a" publication that intends to lower the reputation of somebody to
the understanding capacity of the society”.5

Winfield argued that the defamation is “the publication of statement which tends to lower a
person in the estimation of right thinking members of the society generally or which tends to
made them shun or avoids that person”. 6

1
http://strangenotions.com/the-ethics-of-lying accessed on 17March 2019
2
Summary of papers of judicial officers on Defamation: It’s a civil and criminal liability (2014)
3
Black’s Law Dictionary,7th Ed.1990
4
Law of Torts,13 1961 edition P.No 361
5
Mawahihojo, C. Law of Torts
6
Weinfield,Tort, 7th Edition1963,P.no 574

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David Baker defines defamation as “the publication of statement which exposes a person to
hatred, ridicule or contempt or causes them to be shunned or avoided by right thinking members
of the society generally”.7

Blackstone and George define defamation as “the tort of publishing a statement which tends to
bring a person into hatred, ridicule or to lower his reputation in the eyes of right thinking
members of the society. There are at least three basic elements of defamation which includes
publication, false statement and the statement must be defamatory byitself.Defences which can
be applied in cases of defamation includes justification of truth, fair comment, privilege and
apology”.8

MEANING OF CYBER DEFAMATION -

Today is the age of internet with flood of various social media platform. As a consequence of
this every aspect of life is entwined with internet and likewise crimes and tortuous acts have also
found new dimensions with the growing usage of internet. Cyber defamation is also a byproduct
of amalgamation of guilty mind and internet. To understand cyber defamation first gets an idea
of cyber space. It is a technical concept used for the electronic medium of computer networks in
which online communication takes place, for this two or more computers are connected and
networked. Cyberspace is a wide term which includes within its ambit computer networks, the
internet,data,softwares etc.Cyber defamation is the publishing of the defamatory material against
another person with the help of computers or other devices via internet and its impact is
widespread as compare to defamation in physical world as the information is available to entire
world. Cyber law is the law that governs the crimes committed within the cyberspace.

Defamation has taken gigantic boundaries with the birth of internet. In this information age, the
offence of defamation gets fertile ground to flourish as it is concerned mainly with the words
(written or spoken) or in electronic form. The offence of cyber defamation is can be committed
by the following mediums-

7
Baker and C.Padfield,Tort Law ,2006.
8
Blackstone and George ,Elements of Law of Torts 1949 edition P.no 167

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 World wide web
 Intranet
 Social networking sites
 Emails

WORLD WIDE WEB

Through WWW, the internet users present their thoughts and ideas online and all the users get
united under one roof. As the District Court found-“The content of internet is as diverse as
human thought”9.As internet has no boundaries so the crimes are flourishing at the same speed as
that of internet. Although defamation is a crime of ancient origin but is being committed in
cyberspace as the World Wide Web is the platform over which emails.social networking sites
survives.

EMAILS

Emails are most widely used medium of communication. Through emails one person can send
the material to any number of persons simultaneously. Thus email becomes a strong medium of
publication which is the essential ingredient of defamation. In Ryan vs. Premchandaran 10, in this
case one parent of school student had send defamatory emails to 14 other parents alleging that
the principle of school was a dishonest, untrustworthy person. The court awarded damages to the
principal and held that sending emails is equivalent to the publication.

SOCIAL NETWORKING SITES

The omnipresent nature of cyberspace has become the playground of the perpetrator. The social
media has grown as one of the most important public communication channel. Social networking
sites brings social group together in one virtual place to interact in real
time.Facebook,Myspace,Twitter are some social networking sites which promote exchange of
ideas, social interaction. These social sites have become a platform for cyber bullying and to
defame by posting false information to discredit the victim.

9
Reno vs American Civil Liberties Union,1997
10
2009 NSWSC 1186

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KEY INGREDIENTS OF CYBER DEFAMATION –

Defamation is an act of portray somebody in a false light and deprive him of his reputation. In
today’s age of internet, the privilege to publish one’s opinion has become accessible to anyone.
The harm caused to a person by publishing a defamatory statement is irreparable as the
information is available and accessible to the entire world.

In India defamation is both civil and criminal wrong. The law of torts covers civil part of
defamation. In tortuous liability the aggrieved is awarded damages in the form of monetary
compensation from the accused. Besides this the Indian Penal Code deals with the offence of
defamation under section 499 and section 500 respectively.

Section 499-“ 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, to defame that person”.

 “Section 499 also cites exceptions. These include “imputation of truth” which is required
for the “public good” and thus has to be published, on the public conduct of government
officials, the conduct of any person touching any public question and merits of the public
performance”.

Section 500, which is on punishment for defamation, reads: “Whoever defames another shall be
punished with simple imprisonment for a term which may extend to two years, or with fine, or
with both.”

There has also been a debate on the issue of freedom of speech and expression contained in Art
19 of the Indian Constitution11 and cyber defamation. It is argued that cyber defamation
provisions are violative of fundamental right of freedom of speech and expression as the
provision does not constitute reasonable restriction on speech and expression. Even an ironical
statement can amount to defamation. It is a tool that can be easily invoked and that allows
allegedly defamed persons to drag anyone tot the court. One the other hand it is argued that

11
The Constitution of India 1950,Art 19

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reputation of one cannot be allowed to be sacrificed at the cost of other’s right of free speech.
There is a need to strike a balance between article 19 and article 21 12.The Indian Supreme Court
in its landmark Judgment in Shreya Singhal vs.UOI13 struck down sec 66A of the IT Act 2000 on
the grounds that the section has chilling effect on the right to freedom of speech and expression
over the internet. This provision has been introduced as amendments into the IT Act with the
view to regulate conduct over the internet. In brief history of its existence ,it had given rise to a
number of unfortunate incidents in which overzealous law enforcement agencies brought
excessive force to bear on ordinary citizens excersing their right to voice an opinion on the
internet. Before dealing with the specifics of sec 66A of the IT Act ,justice Rohington Nariman
spent some time analyzing the concept of freedom of speech and expression with the help of an
excerpt from Shakespeare ;s “Julius Ceasor” he discussed that three basic aspects of speech and
expression were ; discussion ,advocacy and incitement. In court’s opinion, the mere discussion
or advocacy of a particular cause would always be protected by the right to freedom of speech
and expression. It is only when either discussion or advocacy reaches the level of incitement that
restrictions kick in. When the court tested the ingredients of sec 66A, in the context of this
principle it was clear that the section did not differentiate between the mere discussion of a point
of view and the use of that point of view to incite prohibited actions. This failure as per the court
went against the spirit of freedom of speech and expression and hindered the free flow of
opinions and ideas.

ONLINE DEFAMATION V. TRADITIONAL DEFAMATION-

Defamation traditionally requires the proof of publication of a matter intentionally and with
malice ,thus lowering the reputation of a person in the eyes of right thinking people .where as in
the context of internet the proof of these elements acquires new dimensions determining the
place of publication, establishing what constitutes a publication ascertaining which country’s law
will apply and deciding whether an individual can be subjected to the jurisdiction of the court of
another country based on a defamatory statement published on the internet.

12
Ibid
13
AIR 2015 SC 1523

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In the case of Tata Sons Limited vs. Greenpeace International14, the Delhi High Court made
following observation- “It is true that in the modern era defamatory statement or material may be
communicated broadly and rapidly via other media as well. The international distribution of
newspapers, syndicated wire services, facsimile transmissions, radio and satellite, television
broadcasting are but some examples. Nevertheless internet defamation is distinguished from its
less pervasive cousins; in terms of its potential to damage the reputation of individuals and
corporations, by the features describes above, especially its interactive nature, its potential for
being taken at face value and its absolute and immediate worldwide ubiquity and accessibility.”

CONSTRUCTION AND INTERPRETATION OF THE TERM ‘ONLINE

DEFAMATION’-The first point of contact in reputational protection is the determination of
whether the statements published via Internet are defamatory in nature. The ascertained
defamatory meaning not only affects the plaintiff’s prima facie case but also the viability of the
defenses of justification and fair comment, all of which depends upon the constructed meaning
of the words accepted by the courts.

 General societal and segmental community perspective: Internet publications can be seen
and read by geographically dispersed audience comprising multiple communities of
people or user who may have different views and perceptions of the said words .Most of
the times the judges are inclined to view the impugned words through the eyes of the
society generally.
 Natural meaning and innuendo: The plaintiff may plead defamatory meaning based
either on the natural and ordinary meaning of the words and true innuendoes based on
the extrinsic facts known to particular members of the audience or readership.
 Seriousness and credibility of internet publications: One factor to consider for
determining the defamatory meaning is the level of seriousness or credibility attributed
to the statements made via internet. Statements on websites which are light hearted and
jocular in nature may be interpreted in a loose or figurative sense.

14
[CS(OS) J 407/2010]

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 In the case of Chambers vs. Director of Public Prosecutions15, the defendant upon finding
out that an airport from which he was taking flight had closed due to adverse weather ,posted
tweets on twitter including: “Crap! Robin Hood Airport closed. You’ve got a week and a bit
to get your shit together otherwise I’m blowing the airport sky high”. The defendant asserted
that the tweet was a joke or meant to be joke .The Court held that the mens rea was lacking.
But the above general propositions do not imply that statements via the internet cannot be
taking seriously for the purpose of defamation law.

In the case of Applause Store Productions ltd. vs. Raphael 16 held that face book group pages
could have been taken seriously by those who read them.

In the case of Bryce vs. Barber17, the Court ruled that the defendant’s posting indecent
images of children on the claimant’s face book profile along with comment about their
sexual orientation had clearly crossed the line.

Reading interrupts publication as a whole –The case of Charleston vs. Newsgroup

Newspaper ltd18.involves the superimposition of the photographs of faces of well known
television actors upon virtually naked bodies of models who were engaged in pornographic
pictures. There was a headline titled “Porn shockers for neighbors’ stars”. The entire
publication according to court ought to be read and interpreted as a whole together with the
text. And here the text referred to a computer game which could’ve carried out the
superimposition, the publication was held not be defamatory. Although it is very hard to get
a successful result in an online defamation issue, it can be done by carefully establishing
who is making the comment and where they are based. Other key issues are how damaging
the comments are and whether threats might drive the defamer to make further comments.

The case Applause Store Productions ltd. and Mathew First vs. Grant Raphael, is a
successful case of claim for defamation and misuse of private information arising from a

15
[2013] 1 WLR 1833
16
[2008] EWHC 1781
17
[2010(HC)]
18
[1995] 2 AC 65

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 malicious profile of the claimant which the defendant had posted on facebook,the court
awarded exemplary compensation to the claimant and his company. This case provides the
illustration of the type of information that can be obtained from a website operator and how
this can be used in evidence.

STATEMENT OF THE PROBLEM

The anonymity provided by the cyberspace is such that it often becomes difficult to identify the
source of material made available online. There is a tendency to post inappropriate things in
cyber world. The Indian Penal Code and Information Technology Act both contains the
provision for punishment regarding cyber defamation but the ethical value of understanding what
a right person has and what is right thing to do is still lacking.

OBJECTIVE OF THE STUDY

 To understand the cyber crime.

 To study about the cyber defamation in publisher’s liability.
 To trace the origin and development of the cyber crime.
 To find out the international initiatives to curb cyber menace.
 To suggest the reforms and remedial measures for the prevention and control of cyber
defamation.
 To analyise the cyber defamation in context of constitutionality in India.

SIGNIFICANCE OF THE STUDY-

The significance of the study is to decipher the most critical infrastructure which affects the
pulse of any country and further an analysis of cyber law as developed in India as well as to do
critical comparative analysis if cyber laws as developed in other countries relating to cyber
defamation. The study is important both for theoretical and practical point of view. On a

10
theoretical level it reveals the legal and policy appreciation of all important facts regarding cyber
defamation. On the practical level, it clearly shows the extent to which legal and policy approach
meets the requirement of the day by protecting the people against various cyber offences.

HYPOTHESIS

 The Cyber space is affecting the rights of the people.

 The statutory provisions are noT sufficient so as to address the violation of freedom
of speech and expression in a more effective way.

RESEARCH QUESTION-

To analyise the emergence of cyber space with special reference to cyber defamation.

RESEARCH METHODOLOGY

The research methodology applied in order to complete the present research is doctrinal as well
as empirical research based on survey and secondary data available in this regards. Reliance has
been placed on statutory provisions and the various judicial decisions. This study will progress
by taking help of primary sources of law such as statutory provisions of law and will deal with
various laws that protect the victim. The researcher has followed the pattern of Indian Law
Institute for citation. An attempt has been made to express the subjective opinion about the
defamation laws and recent judgments.

The questions included are as follows-

1. Frequency of internet use?

2. Ever your privacy been violated in cyberspace?
3. Do you know the consequences of violation of privacy in cyberspace?
4. Are you familiar with the Information Technology Act 2000?
5. Do you familiar with the term cyberspace and cyber defamation
6. Have you ever experienced defamation in cyber world?

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 7. Sec 66A of IT Act 2000 deals with the offence of cyber defamation and provides for
punishment for a term which may extend to 3 years and fine. Do you think that it is
adequate?
8. The Department of Justice and Information Technology Association of America has
initiated a joint campaign to educate and raise awareness of responsibility among
computer users. Do you think India should have a similar campaign for creating
awareness among the masses?
9. Cyber crimes are committing beyond the international boundaries. Do you think that an
international law would be more beneficial to face the challenges of cyber world as there
is no such thing like physical barrier in the cyber world?
10. Is the IT Act 2000 is sufficient to tackle the cyber crimes including cyber defamation in
India where the concept of freedom of speech and expression is getting new dimensions?

All the questions are followed by three options (a) Yes (b) No (c) May be

The sample I took is among the known person which includes law educate and students with
computer background.

REVIEW OF LITERATURE

The research will be carried out on this topic by considering various legal provisions,
constitutional provisions and judicial decisions on the topic. Special emphasis will be on various
judicial prouncement by the courts in India as well as by foreign courts.

The book “The law of defamation and the Internet” authored by Mathew Collins highlights the
nuances of internet communications, emotions and acronyms. It also describes general and
special knowledge in communications which are defamatory.

The book “Cyber Crimes” authored by Dr.Talat Fatima highlighted the novel problems faced
by the legislature throughout the world in determining the liability related to the cyber crimes
with especial reference to the Information Technology Act 2000.

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The book “A Practical Approach to Cyber Laws” authored by Advocate k.Mani has discussed
the suitable amendments required in our existing law to facilitate the e-commerce in the
information technology age. The author also discussed recent case laws in the book

The book “Cyber Crimes, Electronic Evidence and Investigation: Legal Issues” authored by
Advocate Vivek Sood deals with the challenges and legal issues with respect to cyber crimes
that confronts criminal justice administration throughout the world with the problems
determining jurisdiction, cross-border investigation and finally the prosecution of the offenders.
This book has extensively deals with all these issues with special reference to the Information
Technology Act, 2000 and IT Amended Act, 2008.

CHAPTERIZATION-

The first chapter titled as “Introduction” deals with Meaning and Concept of Defamation. It
analyzes the definition of cyber defamation as given by renowned jurists. The researcher has
explained the nature, scope, characteristics, essential elements and classification of cyber
defamation on global basis.

The second chapter titled as “Concept of Cyber defamation” it analyzes the evolution of cyber
defamation, definition, characteristics, and incidents of cyber defamation and specifically lists
the landmark Indian judgments on cyber defamation.

The third Chapter titled as “Challenges to Statutory provisions regarding cyber defamation in
India” makes a thorough study about the provisions of Information Technology Act 2000.The
researcher highlights the cyber defamation provision under IT Act and their prevention,
adjudication and compensation. The researcher also highlights the objective for which this act
has been enacted by the Government of India.

The fourth chapter titled as “Cyber defamation in context of right to privacy and secrecy”
highlights the controversy of freedom of speech and reasonable restriction.

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The fifth chapter titled as “Provisions regarding cyber defamation in other countries” deals
with defamatory laws in U.K, U.S.A as well as in other countries. The main focus of this chapter
is on the conventions and conferences on cyber defamation.

The sixth chapter titled as “Conclusions and Suggestions” an attempt has been made to point
out the shortcomings of the cyber laws and to suggest remedial measures to ensure effective
prevention and control of cyber crimes. The seeking is the goal and research is the answer.

CHAPTER –2

CONCEPT OF CYBER DEFAMATION

Defamation is a legal term that refers to any statement made by any person, in any form.
Whether it is verbal or printed, that causes harm to another person’s reputation or character.
There are broadly speaking two variations of defamation viz. libel and slander. A defamatory
statement made in writing or “published” it is considered “libel” whereas a statement made
orally which is by nature defamatory is termed as “slander”.
The law relating to defamation tries to balance the freedom of speech and expression keeping in
mind the reputation of a person. As all the constitution the world over promises freedom of
speech, there is often a fine line between exercising this right and making defamatory statements
that harm someone’s reputation. The term “defamation” originated around 1275-1325 AD and is
a refined version of the term “Diffamacioun”.

DEFAMATION IN INTERNATIONAL LAW-

“According to article 17 of the United Nations International covenant on civil and political
rights19, no person may be subjected to unlawful interference with his family, home, privacy,
honor or reputation. It also mentions that every person has the right to be protected against any
such interference.”20

19
https://www.equalityhumanrights.com/en/our-human-rights-work/monitoring-and-promoting-un-
treaties/international-covenant-civil-and accessed on 17th March 2019
20
Ibid

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ELEMENTS OF A DEFAMATORY LAW SUIT
Around the world, defamation laws differ for various nations but there are certain uniformities in
practice that are common in all the defamatory laws of almost all the nations around the world.
 Publication of a Defamatory statements -
A defamatory statement must have been made either in written form or by spoken words or it
may have been expressed to others in some manner.
 Injury caused by a Defamatory statements -
The defamatory statement must have caused some harm or injury to the victim. The injury
caused may be of any types but it can be classified into two groups.
1. Harm to reputation – the loss of job, loss of customers, resulting in social outcast to
the victim etc. is example of defamatory statements resulting in harm to reputation.
2. Financial harm – the aggrieved person loses money because of any such statements
whether personally or as a business owner or if the person incurs expenses in the
attempt to repair his reputation.
 False statement-
Such statements which are classified as libel or slander must be statements that are untrue and
the person making the statement must know that they are not true.

PRIVILEGED STATEMENTS
In order for a statement to be considered defamatory it must be unprivileged. Privilege refers to a
circumstance that justifies the statements made against another person.
1. Absolute privilege – it refers to statement made by a person that cannot be used against
them. For e.g. Evidence or testimony given in court. While false statements made in court
may not come under the defamation. The person may be prosecuted for perjury. Some
other examples of the privileged statements are, statements made by legislators in
parliament, statements made by government official etc.
2. Qualified privilege –Such statements that are considered important for public interest
comes under qualified privilege. For e.g. statements made in official government reports,
published reviews etc.

15
 “With the expansion of social media and public’s heavy reliance on internet, floods of such
instances have occurred in recent times where defamation has been quiet commonly
happening and the opportunity for publishing such statements have grown immensely. With
social media platform such as Face book and twitter, people can reach out to large group in a
just few second. For this reason the laws concerning defamation apply to statements made
online.”

IN THE CONTEXT OF INDIA

Crimes committed on internet are not radically different from conventional crimes. And rightly
so, there is very minor difference between cyber defamation and conventional defamation in
India. In India defamation is both a tort and crime as mentioned and discuss in introduction part.
Like any other crime, defamation also involves men Rea and it is a basic necessity in cyber
defamation cases also. i.e.
- Intension to deceive coupled with knowledge must be there.
- Knowledge that the action would amount to defamation and would be liable to be
punished.

INDIAN LAWS FOR CYBER DEFAMATION

Information technology Act, 2000 is the principal legislation in the area of cyber laws for India.
As internet locks any geographical barriers hence United Nation Commission on international
trade law (UNCITRAL) proposed a certain level of uniformity of laws in all member countries,
as a result model law of electronic commerce was adopted.
Indian department of IT advocated and integrated law in the time of UNCITRAL proposed by
U.N. after it was adopted by UN general assembly.
“Section 67 of the IT Act 2000 deals with publication of obscene material and provides for
punishment up to a term of 10 years with fine which may be as high as Rs. 2 Lakhs” 21.However
the IT Act, 2000 does not specifically cover the crime of cyber defamation. As a consequence to
seek remedy against cyber defamation, the aggrieved will have to initiate proceeding under the
provisions of Indian Panel Code 1860 read with the provision of IT Act 2000.

21
The Information Technology Act 2000,Sec 67

16
LIABILITY, REMEDY AND DAMAGES
 Cyber defamation may or may not necessarily be directed against and individual victim.
On the other hand the Act of defamation is potentially capable of harming a large number
of people and keeping this point in mind the legislature makes panel provisions for the
same.
 Cyber defamation cases unlike other offences are either instituted in the nature of civil or
criminal cases.
 Basis for a civil defamation suit (for damages) related to cyber world would be tort law
while criminal nature of defamation cases would be covered under section 199 of IPC
read with section 67 of the IT Act 200022.An important thing to mention here is that both
types of cases can be instituted simultaneously.
 Jurisdiction of court lies wherever the publication of defamatory content is affected.

LIABILITY OF INTERNET SERVICE PROVIDER (ISP)

Court more often than not analyzes ISP liability under the same standard as applied to the
newspaper and other media. It means if ISP’s exercise a substantial degree of control (editorial
control) over the content which is published, they can be held responsible.
For e.g. – A person published defamatory content on a network and the computer redistributed
that material, the owner of the server will not be liable as they only permitted access to
published content and they did not assist in publishing that content. In this sense facilitation of
distributing the content becomes most crucial aspect in holding ISPs responsible.

CHAPTER-3

CHALLENGES TO PRESENT STATUTORY PROVISIONS REGARDING CYBER

DEFAMATION IN INDIA

There is some inefficiency in the IT Act 2000 relating to the offence of defamation in particular
area. As the area is just more than two decades old, the all comprehensive set of legislation with

22
Ibid

17
precise foresee ability cannot be expected but the statute is quite ambiguous even in certain basic
details.
 Publication is the most important ingredient of defamation defined under Indian Panel
Court 1860. But surprisingly what would constitute is quite vague and unclear becomes
the IT Act, 2000 has nowhere defined the term “publication”.
 The Act only covers, ‘publishing of information which is obscene in electronic form’.
 The Information Technology Act, 2000 omitted any mention of ‘derogatory remarks and
words intended to insult the modesty of women’23. i.e. such a burning issue which needs
redressal given the current situation in the country has not been discuss and there is no
provision what so ever to tackle it online in any manner.
 Liability of intermediary is a halved under the IT Act 2000, which is in contravention of
section 501 of IPC.

ADMISSIBILITY OF ELECTRONIC RECORD

 Section 65A and 65B of Indian Evidence Act-
Electronic record which is printed on a paper, stored, recorded or copied in optical or
magnetic media produced by a computer shall not be deemed to be “document”
 Online chats is admissible in evidence under section 65B of the evidence Act (state of
T.N. V. Suhaskoti)
 Emails are admissible in evidence under section 65B of the evidence Act (SMC V.
JogeshKwatra) 24

INDIAN JUDGMENTS ON CYBER DEFAMATION

SMC Pneumatics (India) Pvt. Ltd. V. Jogesh Kwatra25 (Suit no. 1279/2000 Delhi HC)
This case is often regarded as India’s first case on cyber defamation. In this case, a court of Delhi
assumed jurisdiction on a matter where a corporate fame was being tarnished through emails.
The court passed on important ex-parte injunction.
23
The Indian Penal Code 1860,Sec 509
24
(Suit no. 1279/2000 Delhi HC)

25
Ibid

18
Facts: The defendant Jogesh kwatra being an employee of the plaintiff company started sending
derogatory, defamatory, obscene vulgar, filthy and abusive emails to his employers as also
tweets subsidiaries all over the world with the aim to defame the company and its Managing
Director.
Plaintiff filled a suit for permanent injunction restraining the defendant from sending derogatory
emails to the plaintiff.

Contention of the plaintiff

It was contended that the emails send by the defendant were distinctly obscene, vulgar, abusive,
intimidating and defamatory in nature. The object of sending the said mails was to malign the
high reputation of the plaintiff all over India and around the world.

Judgment
The high court of Delhi passed an ex parte ad interim injunction observing that a prima facie
case had been made out by the plaintiff consequently the court restrained the defendant from
sending such emails. The Hon’ble Court also restrained the defendant from publishing,
transmitting or causing to be published any information in the actual world as also in cyber space
which is derogatory or defamatory in any way. This order of Delhi High Court assumes
importance as this is for the very first since that an Indian Court assumes jurisdiction in a matter
concerning cyber defamation.

Avnish Bajaj V. State (NCT) of Delhi (2005)26 -

In this case, accused was CEO of e-commerce site, Baaze.com, it is used to facilitate the sale of
any property for which it received commission. It also generated revenue from advertisement on
its web page.
“The case involved an IIT Kharagpur student Ravi Raj who placed on baaze.com a listing
offering on obscene MMS clip for sale. Despite the fact that baaze.com have a filter for posting

26
(2005) 3 CompLJ 364 Del

19
any objectionable content, the listing however took place with description, “Item 278777408 –
DPS girl having fun”. The crime branch of Delhi Police took cognizance of the matter and
registered an FIR. Since Ravi Raj absconded, petition was filed by Avnish Bajaj, seeking
quashing of the criminal proceedings. Held, the Delhi court observed that a prime facie care for
the offence u/s 292 (2)(a) and 292 (2)(d) IPC27 is made out against the website both in respect of
listing and video clip respectively. The court held, “by not having appropriate filters that could
have detected the content the website ran a risk having imputed to it the knowledge that such an
object was in fact obscene”. As regards section 67 of the IT Act, 2000 read with section 85 of the
said act, the court observed that a prima facie case was made out against the petitioner. Since the
law recognizes deemed criminal liability of the directors”.

Fatima Rizwana V. State28 -

“The appellant in the case is a prosecution witness and the accused are facing trail for offences
punishable under section 67 of IT Act, 2000 read with certain provisions of Indecent
representation of women Act (prohibition) 1986.The said trails relate to the exploitation of
certain men and women by the accused for the purpose of making of pornographic photos and
videos. The fast track court in Chennai did not act diligently. The High Court erred in
transferring the case to male judge. So the special petition was filed in the Supreme Court of
India, The apex court held that high court ought not have transferred the case to male judge
because before him today witnesses would not be comfortable in deposing the truth out of
embarrassment”.

State of Tamil Nadu V. SuhasKatti-

Facts: This was the first case of India were the accused was convicted for posting of obscene
messages on the internet under section 67 of the IT Act, 2000.

“In this case, a woman complained to the police regarding getting obscene, defamatory and
annoying messages in a yahoo message group. After the victim made complain in 2004
February, the Police managed to nab the accused. The defense argued that offending mails were

27
The Indian Penal Code 1860,sec 292
28
(AIR 2005 712)

20
sent either by victim’s husband or by the victim herself to implicate the accused in a false case.
Charges were framed u/s 67 of the IT Act, 2000, section 469 and 509 of the IPC. The accused
was punished with rigorous imprisoned for two year. u/s 469 of IPC and two years’
imprisonment and fine u/s 67 of the IT Act, 2000.The impact of this particular case was
widespread and for reaching and it set a benchmark for courts and public in general to lodge
cases of such nature. The case also brought out the responsibility of intermediary like cyber café
in maintaining records of people visiting the cafe and its importance as evidence”.

CHAPTER 4

CYBER DEFAMATION IN CONTEXT OF RIGHT TO PRIVACY AND SECRECY

Privacy is concerned with a man’s dignity and liberty. Most of the countries recognize it as
fundamental right. Initially it was having very little meaning and scope as it means only right to
be alone’. Later on, with increasing maturity level of democratic nations, rapid growth of
technology and internet and growing consciousness about one’s right, made it scope wider.
Today its meaning has changed comprehensively and it includes freedom of thought, identity,
and solitude in one’s home, freedom surveillance, protection of one’s fame and reputation etc.

PRIVACY AND DEFAMATION-

Broadly speaking, any set of defamation law including online or cyber defamation is used to
refer to any law with respect to the protection of individuals’ reputation or fame. Almost all the
countries have laws to protect reputation of individual and a range of terms are used to describe
these including libel, slander, insult and so on. The form and content of these laws differs widely
from country to country.
It is said that a good defamation law is one which lays the ground work for striking a proper
balance between the protection of individuals’ reputation and freedom of expression. It means
the defamation law must punish those statements or other publication which are:
- False

21
- be of factual nature
- cause damages to the reputation of a person

Here a distinction has to be made between the concept of defamation and other concepts and
these other concepts include hate speech, blasphemy and privacy laws. Hate Speech laws
prohibit statements incite to dichromatic hostility, or violence against a group with a shared
identity such as nationality, race or religion. Hate speech laws are aimed of protecting the safety
and social equality of vulnerable groups. Blasphemy laws are yet another set of laws which are
distinct from defamation laws and which prohibits mockery and degradation of religions.
Privacy laws are laws which prohibit unauthorized intrusion into or publication of the details of a
fellow citizen’s private life. As compared to laws of defamation, privacy laws are aimed to
prevent the dissemination of truthful facts, For example: genuine photo taken secretly in a
private home. Further, the effect that these facts have on the reputation of a person is immaterial.
Here the determinative factor is the effect of the act on the privacy of an individual. It is
described as a wrongful intrusion in one’s private sphere but sometimes, the law of privacy and
defamation can be overlapping.

RIGHT TO PRIVACY: POSITION IN INDIA

The nine judge of Supreme Court of India last year held in an unanimous judgment in the case
Justice K.S. Puttaswamy (retd.) v. UOI29, that privacy is a constitutionally protected right and it
emerges not only from the guarantee of life and personal liberty in article 21 of the Indian
constitution30, but also can be interpreted from the various other facts of freedom and dignity
recognized and guaranteed by the fundamental rights contained in part III of the Indian
constitution. Earlier privacy was not recognized as a right as can be seen from the past decisions
of the open court. The judgment like M.P. Sharma V. Satish Chandra, District Magistrate, Delhi
(1954) and Kharak Sing V. state of Uttar Pradesh (1962), rendered by the eight judges bench and
six judges bench respectively, contained observations that the Indian constitution does not
specifically protect the right to privacy.

29
Writ Petition (Civil) No. 494 of 2012
30
The Constitution of India 1950,Art 21

22
The Judgment in Puttaswamy case held, “To live is to live with dignity” 31. The draft men of the
constitution defined their vision of the society in which constitutional value would be attained by
emphasizing, among other freedoms, liberty and dignity. Dignity is the core which unites the
fundamental right because the fundamental rights seek to achieve for each individual the dignity
of existence. Privacy with its attendant values assures dignity to the individual and it is only
when life can be enjoyed with dignity can liberty be of true substance.”

CYBER DEFAMATION AND BREACH OF PRIVACY

The objective of protecting reputation of a person from online defamatory contents has been
different aspects and arguments to deal with. The defamation law has been devised to protect
reputation. It is a law that seeks to balance reputation and free speech; where this balance is
concerned in particular with free speech considerations that can attenuate the resource an
aggrieved individual may have in bringing a claim in defamation. The next option is based on
privacy and any action based upon some sort of privacy is likely to be pursued where there may
be a disputable claim of defamation (like, the remarks or the statements are within the growing
ambit of defenses for defamation such as fair comment or responsible publication on a matter of
public interest).
“The nature of the privacy action is nuanced (more than defamation with its elements of libel and
slander). There are various aspects of privacy that are protected. For eg. It is aggrieved believed
that information was wrongfully disclosed, an action in breach of confidence may be initiated as
the information had been disclosed in a confidential setting and it was not meant to be published
or broadcasted to others and it resulted in harm to right to privacy .Another aspect of privacy is
data protection. This is also a matter of disclosure as it deals with the propriety of dissemination
of data and in this way it may include the way in which personal data is processed.
The peculiar connection between defamation, privacy and data protection is often viewed as the
next stage in the development of the law’s engagement with reputation issues. It is understood
that tort of defamation will be limited or confined as a means of redress. “The intersection

31
Ibid

23
between privacy and reputation was identified in a Canadian case [Uill V. Church of Scientology
of Toronto] in which justice Cory held, reputation is intimately related to right to privacy which
has been accords constitutional protection.32”
With development in information technology, freedom of speech has either been interpreted in a
wider manner so as to include freedom of information. “Privacy speaks to a human desire to be
separated from others in home form while people are local; there is a national of limiting the
extent of local interaction. It is a well-accepted fact that we do need privacy just as much as we
need local social interaction”. (John Stuart Mill on liberty and privacy (1859)

CHAPTER-5

PROVISIONS REGARDING CYBER DEFAMATION IN OTHER COUNTRIES

Freedom of speech and expression has been accorded a valuable status in almost all the countries
of the world. However, fast growing internet has led to the misuse of the right of freedom of
freedom of expression with the rapid growth and acceptance of internet worldwide. There is a
clear challenge to reframe various provisions as well as making fresh provisions in order to
tackle the issues arising out of this new age of internet.

STATUTORY PROVISIONS IN U.S.A.

Freedom of speech and expression (in U.S.A.) is one of the fundamental rights. The first
amendment to the U.S. constitution protects this right. This first amendment provides that U.S.
congress shall not curtail the freedom of speech, or of the press 33. The scope of application of
first amendment is limited only to the government conduct and does not reach the private parties
federal courts have power of judicial review under which they can declare the acts of congress
and state legislatures, decision of state or federal courts acts of the president etc. as
unconstitutional. In addition to this the federal courts may also find that legislation passed by the

32
1995 2SCR 1130 [121].
33
U.S Constitution Amendment 1(1791)

24
congress violates the first amendment clause which deals with freedom of speech and
expression34.

U.S. CONSTITUTION AMENDMENT 1 (1791)

In the first amendment special emphasis was put on the prohibition of any prior restraints to the
free speech. Which is a form of censorship by the government before any matter is published.
Among other cases, this sort of restraints is violative of the first amendment unless the speech is
defamatory.
In the case of Evans V. Evans35, a Californian court held that a preliminary injunction
prohibiting a deputy sheriff’s former wife from publishing any “false and defamatory”
statements on the internet was unconstitutional was a prior restraint. The crucial time in
defamation law in the U.S. came with the ruling of the Supreme Court in New York time V.
Sallivan36, which defines that the state court’s power in the defamation cases in subject to the
first amendment. The Sullivan judgment came in 1964 and before this; The U.S.A shared
common law approach to the defamation in such a situation. It was enough for the claimant to
prove publication of the material and its defamatory nature. It was not the plaintiff’s duty to
show that the content was false, damaging the reputation or malicious, If the defendant failed to
prove the truth of the statement. It was assumed that statement was malicious.
But after the Sullivan judgment the position which stood for almost 200 years was completely
changed. As a result court deciding cases even on common law principle, were obliged to follow
the judgment of the Supreme Court. It means that all the content based restriction on speech
violate the first.

CONCEPT OF DEFAMATION (IN THE CONTEXT OF U.S.A.)

In general, “defamation is the act of harming the reputation of another by making a false
statement to a third person”. In common law, “defamation is treated as tort – intentional or
unintentional that injures another” resulting in civic liability, and determines the criteria for the

34
Brain Criag, cyber law: The law of the internet and Information technology (2013)
35
162 Cal. App 4th 11577,76 cal. Rptr
36
376 U.S.254(1961)

25
statement to be considered defamatory. “Under U.S. restatement (2nd) of torts, It is a false
communication, which exposés a person to retreated, content, ridicule, financial injury lowers the
person’s stature in the community37.U.S. in defamation actions plaintiffs are required to prove
damages that are not limited by mere embarrassment, such as loss of income, denial of
employment, suffering from depression, being boycotted by the colleagues. In defamation per
quod cases, plaintiff is required to show the actual damage. Per quod statements are considered
to have limited implications, understandable by small number of public, and accordingly less
injury to the plaintiff is presumed.

COMMUNICATION DECENCY ACT, 1996

Under this act also, internet service providers have been given immunity from any role in
defamation cases. Website owners also enjoy partial immunity from liability for the defamatory
content pasted by others. The act talks about three tests while considering defamation cases. The
test aims to find out:
(a) Whether the online entity uses or provides interactive computer service.
(b) Whether the online entity is providing information content with respect to the disputed
activity or objectionable content.
(c) If the plaintiff seeks to treat it as the publisher or speaker of information originating from
the third party.

LAWS IN UNITED KINGDOM

Common law doctrine is very different from civil law doctrine when it comes to proceedings
defamation cases go for ear. In U.S. under a group libel doctrine, no individual in a group is
considered to be defamed if the group is large enough that there is no possibility that people
would understand the statement as referring to any particular number of groups. On the contrary,
in U.K. however, a member of a group can sue for defamation, if something in the words or other
conditions under which they were published indicates about any certain individual in the group.
Under common law the action for defamation cannot be continued after the death of a party or at

37
(4-Restatement (second) of torts, 1977)

26
the termination of existence of either party. However under civil law death, impossibility to find
a parson etc does not extinguish the court action.
In U.K. the case particular v. coupled38 set the classic test of defamatory statement. It provides
that reputation of the other person is injured he or she is exposed to hatred, contempt or ridicule.
The court examines defamatory statement in its natural and ordinary meaning. It is well
established under the U.K. common law that defamatory statements can only have a single
meaning. This rule was established in the case Slim V. daily telegraph39.

CYBER DEFAMATION LAWS IN U.K

Before adoption of defamation Act 1996, the liability for defamation covered all those
participated in publication; however the degree of liability varied.
U.K. courts did not exclude that ISP may act as a passive transmitter. The real threshold for
drawing a line between mere conduct and liability for defamation is actual knowledge of the
postings for the ISPs which host information. The threshold is lower-knowledge of the process of
publication might be sufficient.
The Defamation Act 1996 has introduced provisions covering all type of media including
electronic and updated the common law subordinate disseminators’ defenses. The most novel
provisions to be introduced with regards to online intermediaries are greater level of protection in
defamation proceedings as provided under section 1 of the defamation Act and regulation 19 of
the E-commerce regulation.

38
Parmiter V. Coupland (151 Eng. Rep. 340, 342 (Ex 1840))
39
Slim vs. daily telegraph 2 CPB.157 (C.A. 1968)

27
 CHAPTER 6

CONCLUSION

We all must remember that the cyber space is a common heritage of ours which we have
inherited in our life time from the benefit of ever growing technologies. This space is a life time
achievement for the entire universe and it is the duty of every netizen to contribute towards
making the said space free of cyber crime. It is very important for the people to understand that
the computer itself does not commit a crime but people do. Cyber defamation is a growing
problem. A balance will always need to be struck between freedom of expression and reputation.
The difficulty is that the defamation laws world over were principally framed at a time when
most defamatory publications were either spoken or the product of unsophisticated printing.
Hence it is not practical to apply the principles derived from 18th and 19th century cases to the
issues that can arise on the internet in the 21st century. The intense volume of information and
the simplicity of its transfer make Internet a very critical source of defamation,

SUGGESTIONS

In my opinion the Law Commission should take up the brave task of analyzing such crimes,
which are at the threshold and come up with recommendations in order to equip the existing
legal machinery against such offences. For the said purpose necessary amendments could be
brought to Section 67 of the Information Technology Act, 2000 and also to Section 499 of the
Indian Penal Code, by expressly bring within their ambit offences such as defamation in cyber
space, which is certainly a socio-economic offence.

28
 BIBLOGRAPHY

STATUTES

 Information Technology Act,2000

 Indian Penal Code,1860
 Indian Evidence Act,1872

BOOKS

 Nandan Kamath “Law Relating to Computer Internet and E-Commerce”(Universal Law

Publication House,2000)
 S.K Bansal “Cyber Millenium,Challenges and Opportunities”(IInd Edition)
 S.R Sharma, “Indian Legislation on Cyber Crime”(Anmol Publication Pvt.Ltd,New
Delhi,2004)
 Raman Mittal and S.K Verma, “Legal Dimensions of Cyber Space(Indian Law
Institute,New Delhi,2004)

TREATIES AND CONVENTIONS

 UNICTRAL MODEL ,law of E-commerce

ARTICLES

 Duggal Pawan,Protecting your reputation in Cyberspace:Brief Cases,The Economic

Times,New Delhi.
 S.K Verma, Controlling the internet crimes”,CBI Bulletin,August 2001.

29
  Talat Fatima, “Privacy on the Web”,January 2005,Jouranl Corporate Law
Cases(AIR,Nagpur)
 T.K. Viswanthan, “Chasing Mirages in the Cyberspacxe”,July 2000,CBI Bulletin.
 Yee Fen Lim, “Cyberspace Law”(Oxford University Press,Sydeney,2002)

ONLINE RESOURCES

 http://www.wired.com/news/privacy/o,1848,64249.oohtml last accessed on 17th March

2019
 Michael Whine, “Cybersoace: A new medium for communication, command and control
by extremists”, <http://www.ict.org,il/ >last accessed on 17th March 2019

WEBSITES

 http://www.cyberlaws.net
 http://cybercrime.com/html
 www.lawnic.com
 www.findlaw.com
 www.google.com
 www.altavista.com
 www.pduggal.com

30
 EMPIRICAL DATA ANALYSIS

In order to answer, i.e., empirically assess, our research question and examine the practical
significance of the Cyber Defamation we chose the qualitative research approach, namely a case
study. To get a sense of public perception on the Cyber Defamation in Indian Context, a survey
was conducted on undergraduate/graduate law students and practicing Advocates.

In this survey, as structural guideline for the interviews, there was a questionnaire consisting of
10 basic questions on the Cyber Defamation and IT Act 2000 were asked and the responses were
recorded.

STATISTICAL ANALYSIS OF CYBER DEFAMATION

S. Question No. of Total No. of Percentage Remarks

No. No. Respondents Respondents (%)

with an

answer as

‘YES’

(i) Q. 1 12 31 93.5

(ii) Q. 2 28 31 87.1

(iii) Q. 3 27 31 22.6

(iv) Q. 4 9 31 90.3

(v) Q. 5 10 31 48.4

31
(vi) Q. 6 17 31 54.8

(vii) Q. 7 31 31 100

(viii) Q.8 29 `31 93.5

(ix) Q.9 16 31 48.4

(x) Q.10 4 31 12.9

FINDINGS AND OBSERVATIONS

The above responses show us a glimpse of the complete picture comprising of empirical data of
responses from the legal fraternity as well as a theoretical and academic research on the various
cases of the Cyber Defamation. This makes this research study much more holistic in nature and
gives us a sense on the future approaches that can be adopted for prevention of cyber offences.

32