AN AUDIT OF CYBER DEFAMATION IN INDIA

By – Isiri Rajaneesh

Introduction:

The expeditious evolution of technology has revolutionized many facets of life, with the internet – a paramount paradigm of information technology –  paving the way for accelerated, effortless communication, quick access to information and so on. However, widespread use of the internet has also brought about various cybercrimes.

Cybercrime refers to a criminal activity committed by either targeting or using a computer, a computer network or a networked device.[1]While some cybercrimes involve targeting computers or networks to either directly damage them or infect them with viruses, other cybercrimes involve the usage of computers or networks to perpetrate crimes like ransomware attacks, frauds, spreading illegal information, etc.

Cyber defamation, which is also a cybercrime, has become a huge quandary, especially during the Covid-19 pandemic. Cyber defamation can be perpetrated through various mediums and can cause a great deal of harm to individuals, companies, organizations, etc. This article is going to analyze the issue of cyber defamation in India

A precis of cyber defamation:

Defamation is an injury to the reputation of a person. If a person injures the reputation of another, he does so at his own risk, as in the case of an interference with the property. A man’s reputation is his property, and if possible, more valuable than other property.[2]Libel (the publication of defamatory statements in forms like writing, printing, etc.) and slander (the publication of defamatory statements through ephemeral forms like gestures, spoken words, etc.) are the two cardinal types of defamation.

A fairly new concept, cyber defamation, also known as online defamation or internet defamation, refers to the publication of defamatory material against an individual, organization, etc. with the help of computers, networked devices, the internet, etc. For example, if an individual posts defamatory remarks about another person on social media platforms like Twitter, Instagram and Facebook, it will amount to cyber defamation. The essential elements of conventional defamation apply to cyber defamation i.e., the statement must be defamatory, the statement must refer to the plaintiff as well as be understood by the right-thinking members of the society that the statement is defamatory and refers to the plaintiff and the statement must be published i.e., the defamatory statement must be known to another person other than the person who is defamed.[3]

Cyber defamation has become a huge quandary, not only in India but also in many countries in the world. With the availability of meteoric and effective mediums like e-mail, blogs, intranet, different social media platforms, mailing lists, etc. and the worldwide, facile accessibility to the internet, cyber defamation can cause tremendous damage to individuals, companies, etc. in a pretty short span of time. For example, if a person posts defamatory remakes about a company on a distinguished commercial blog, it can result in an intangible loss for the company. Likewise, defamatory statements posted online about an individual can cause monetary, psychological, physiological distress to that individual.

Laws dealing with cyber defamation in India:

  1. The Indian Penal Code, 1860-

The definition for defamation is stated under section 499 of the Indian Penal Code, according to which, “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 herein expected, to defame that person”[4]

Section 500 of the Indian Penal Code asseverates that if an individual defames another person, he or she will be liable for a fine or imprisonment for up to two years or both.

Section 469 of the Indian Penal Code states that if an individual commits forgery to harm the reputation of a party or is well aware of the fact that the forged document or electronic record will probably be used for the same purpose, he or she will be liable for a fine as well as imprisonment, which can be extended for up to three years.

Section 503 covers criminal intimidation, which also encompasses the threat to damage one’s reputation.

Section 506 deals with the punishment for criminal intimidation. If a person commits the offence of criminal intimidation, he or she will be liable for a fine or imprisonment which can extend up to two years or both. If one threatens to cause death or grievous hurt to another, he or she will be punished with imprisonment for up to seven years or a fine or both.

Struck down in 2015 by the Apex Court, section 66A of the Information Technology Act dealt with the punishment for sending offensive messages through computer resources or communication devices. While this section did not specifically deal with the offence of cyber defamation, it did state that the act of sending abhorrent material through computer resources or communication devices, to cause annoyance, injury, etc. is punishable. In the case of Shreya Singhal vs Union of India, section 66A was struck down by the Apex Court. The Apex court contended that the law was nebulous and unconstitutional as it was violative of the right to freedom of speech and expression and hence section 66A was struck down.

Section 67 of the Information Technology Act asseverates that if an individual, through an electronic medium, publishes or transmits any indecorous material, he or she, on the first conviction, will be penalized with imprisonment, which can extend up to three years, as well as with a fine which can extend up to five lakh rupees. On the second or successive conviction, an individual will be penalized with imprisonment, which can extend up to five years, and with a fine which can be increased to a sum of ten lakh rupees.

About the liability of intermediaries and internet service providers, section 79 of the Information Technology Act affirms that intermediaries are exempted from liability. Howbeit, if an intermediary has conspired, aided or instigated the commission of any unlawful act or has failed to obliterate or disable access to any information, data or communication link being used to commit an unlawful act, that intermediary will not be exempted from legal action.

  • The Indian Evidence Act, 1872-

Section 65A and section 65B of the Indian Evidence Act deals with the admissibility of defamatory content or publications in courts. The following are admissible as evidence in court:

  • 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. [5]
  • Online chats and;
  • Electronic mails are also admissible by court.[6]

The case of SMC Pneumatics (India) Pvt. Ltd vs Shri Jogesh Kwatra was India’s first cyber defamation case. In this case, an employee of the plaintiff company, to defame the company and its managing director, was sending defamatory, disparaging and obscene emails about the company to all the employers as well as to different subsidiaries of the company across the world. The Delhi High Court took up jurisdiction over the matter and passed an ex-parte Ad-Interim Injunction order and restrained the defendant from sending such defamatory, disparaging emails. This case laid the foundation for subsequent cases of cyber defamation in India.

In Kalandi Charan Lenka vs the State of Odisha, the petitioner was continuously stalked by the accused, who had also created a fake Facebook account in the name of the petitioner. The accused posted morphed, naked photographs of the petitioner on Facebook, pasted printed pamphlets containing obscene remarks about her on the walls of her hostel and sent derogatory messages about the petitioner’s character to her friends. The accused was held liable by the court and sanctioned for his offence.

In the case of Rajiv Dinesh Gadkari vs Smt. Nilangi Rajiv Gadkari, the respondent, upon receiving a divorce letter from her husband, filed a suit asserting that her husband was continuously harassing her by uploading obscene photographs and defamatory remarks about her. The offence was registered and a sum of rupees 75,000 has been claimed by the respondent as maintenance.

Cyber defamation and the Covid-19 pandemic:

The treacherous Covid-19 pandemic has driven life online and the accelerating reliance on computers, networked devices and the internet has exacerbated the problem of cyber defamation. Churlish, derogatory statements about health care workers are being published on many blogs, websites, social media platforms, etc., which have resulted in many health care workers facing discrimination, social exclusion, bullying and abuse. Many front-line workers are facing physiological, psychological and monetary distress courtesy of cyber defamation.

Online publication of false, defamatory content against governments, health authorities, law agencies and cardinal medical organizations and infrastructures has also proliferated and this has caused panic and social instability in the society. Disparaging information against government and health authorities has also resulted in people not trusting the aforementioned agencies and authorities and this has created a perfect environment for anxiety, fear, aggression and also for the dismissal of authentic public health measures, which can result in loss of life.

Courtesy of facile accessibility to the internet, defamatory content or information about government authorities, health agencies, front-line workers etc. can easily be transmitted from one website or blog to several other websites, blogs, intranets, etc. within a very short span of time. This quick transmission of information causes disarray as to which website or blog or online medium needs to be identified and blocked.

Compared to developed counties like the United States of America, the United Kingdom, Switzerland, etc. India’s technological capability is relatively obscure and this technological proficiency is another cause as to why the curtailment of proliferating cases of cyber defamation, especially during the pandemic, is difficult. Another obstacle is the anonymity of the perpetrators. It is very easy for individuals – who publish defamatory, obscene content online – to hide their true identity as well as other relevant information, and as a result, the process of identifying and tracking the offenders becomes gruelling.

The necessity for cyber defamation laws:

Cyber Defamation is one of the most serious forms of cybercrime, inundating people from all walks of life and endangering and damaging the reputation of individuals, organizations and institutions to a greater extent. The easy access to the internet and the seamless, convenient movement of information and data, as well as the offenders’ impeccable anonymity, poses a great threat to the public at large. Cyber defamation laws are needed to provide legal safeguard to those who use the internet, be it individuals, organizations conducting online businesses and so on. Much more important is the need to protect people whose jobs, reputations, fortunes, and health have been harmed as a result of false, derogatory, harmful remarks either posted online or transmitted through online mediums e-mail, blogs, intranet and different social media platforms. India’s current legal framework does not provide a sufficient response to situations of cyber defamation and in an era driven by the internet, the conventional defamation laws are not flexible enough to be applied to all forms of media. To curb proliferating cases of cyber defamation, it is crucial to fabricate bona fide cyber defamation laws in India

Conclusion:

Technology has become an integral part of nearly every person’s life. It is driving change in many significant industries, be it the manufacturing industry, the travel and tourism industry, the mining industry, the food industry or the banking industry; businesses, big and small, can easily expand their customer base with the help of technology; education is also advancing under technology; by and large, it is safe to say that the world today is built on technology. The internet, a pivotal part of information technology has expedited many forms of communication, has given rise to facile transfer of information and data and has revolutionized the lives of many people. Howbeit, it is also safe to say that internet technology cuts both ways. The facile accessibility to the internet and the smooth, convenient transfer of information and data over the same have paved the way for multitudinous cyber crimes like cyber defamation. Cyber defamation, which has become huge adversity, not only in India but in many countries in the world, can cause tremendous damage to individuals, companies, organizations etc. in a pretty short span of time. Albeit there are laws in India that deal with cyber defamation and prescribe legal remedies for the same, many people are either not aware of the laws in place or are not able to distinguish between defamatory content and non-defamatory content. Not to mention that many individuals who publish defamatory content or remarks through various mediums like blogs, social media, etc. can easily disassemble their names and other indispensable identities. As a result, it becomes extremely arduous to track the perpetrators. Cyber defamation creates a precarious situation for numerous people in this digitally driven world and there is a dire need for people to be enlightened about cyberspace, cyber defamation and the laws dealing with cyber defamation.


Isiri Rajaneesh is a second-year law student, pursuing a BA.LLB [Hons]. at PES University, Outer Ring Road Campus in Bengaluru