This article is written by Akshayan K S & Aditya Krishnan B, from Sastra deemed to be University.

Abstract

As well said “Speech is a mirror of the soul: as a man speaks, so is he” is the only way that expresses the speaker along with his character to the whole public. If such a person spreads any offensive content he gets a suitable reward for such an act and such an act is termed as defamation. Defamation generally speaking is the publication of false material with the intention of damaging the reputation of a particular person or a society among the right-thinking people of the society. But when considering cyberspace various people post their comments and expressions in social media, without thinking about the other parties’ thoughts and feelings. This paper clarifies the idea about defamation and discusses the relation between defamation and the growth of technology. Apart from all, it discusses the new child that had its birth in the recent decade and has its position in peak in the field of entertainment, trolls, creating awareness among the public about the current affairs and etc

Defamation: Introduction

The way a person speaks makes him reach a different level of improvement in his life. Not everything a person speaks is full of useful content. Some speak to create awareness, some speak to convey information, and some speak to share their feelings. This speech joins hands with expressions.  The past world believed in a person who motivates them in the best manner and figured them as their leader.  But since the past, the expression in a written format always stays to be in a puzzle form, because the expression and the feelings of the writer cannot be judged accurately by reading his content. A similar situation is prevailing in the present world. People feel comfortable to chat rather than to speak. This chatting creates an interpersonal gap and increases the scope of misunderstanding. This chatting slowly converted into memes. Memes are generally the pictured form of any information. Such pictures comprise of any artistic person etc. People at different stages either assume the content to be violating their personal image among the public when it is published or they assume it as praise. But according to the law when can a meme or any published content be termed as the act of committing defamation.

Online Defamation

The Indian constitution, with its wide arms, granted every citizen the birthright of speech and expression, but at the same time, it makes every citizen duty-bound to protect others rights too. No citizen is entitled to perform his right when such performance violates other citizen’s rights. Similarly, the government allows all publication of facts and any other content until it is found to be non-offensive. Once any publication is found to be objectionable it invites the term defamation. When such defamation is done using technology it is known as online defamation. Online defamation generally speaking is the publication of any false information through cyberspace with the intention of damaging the reputation of a person or society. The Indian constitution with its wide arms had granted the birthright of right to speech and expression. This context has granted every citizen to make or post comments and their views over any public activities. Any content published through online covers a longer area than a content published through just oral communication. Therefore, the impact of defamation over online has a greater impact than any other.

In considering the concept of the meme, it is one of the fastest modes of creating awareness which makes even a child know about the current situation. As mentioned earlier it is just a comparison of a current prevailing situation with any of the cartoons or any film situation. India recognizes certain publications of memes as defamatory. The government recognizes the creation of memes as legal only under certain conditions. Few are:

• Any meme created should not relate to a person’s private affairs.
• It can involve only true facts such that it may not invite defamation

It is further dealt with in detail in the following paper.

Defamation law in India: old or to be updated^[1]?

Any law introduced in the society has to be periodically updated for its sustainability. Only the process of updating helps the nation to bring its people into an organized form. The concept of defamation discussed in IPC mentions the crime and its punishment which was introduced in the era of British India. But those British have their laws updated. Under defamation, the media takes a key role. It is one of the resources which has no boundary.  Due to its vast spread, a defamation claim can be made at any place wherever the false material is available. For example, in M/s Future Gaming and Hotel Services Pvt. Ltd v. Malayala Manorama &Ors^[2], the case was filed in Sikkim where the facts mentioned that a local daily of Kerala had committed defamation against them online. Here the problem of jurisdiction arises, whether the Sikkim court has jurisdiction over Kerala? Another problem faced is the question of the publisher. Due to the vast cyberspace, the publisher stays invisible. Online Media was introduced in the recent era, but the laws relating to the publication of facts were introduced in the pre-Independence period. This vast time period made way for the introduction of more technology but the government failed to recognize the problems to be faced in the future due to such inventions and thus lagged in updating the pre-existing laws related to defamation in certain aspects. The United States followed a test known as the effects test to tackle this situation. In this test, the place which gets affected due to any publication is noted and such place has the jurisdiction. But what if the situation is that if any publication affects every place in the nation? The UK government introduced an act known as the Defamation Act of 2013 which discussed the concept of defamation in an updated term and mentioned the jurisdiction and other terms which lagged in the past. In the present era, the media has a special track known as the meme as discussed above. Apart from all social media, this meme has its arm widespread to make all stages of people understand. The next coming concept deals in detail about the term meme and the present advantages and disadvantages.

Meme Creation

Memes have become the heart of social media nowadays. People not only use social media for texting and posting, but also for a predominant activity called newsfeed scrolling. This news feed contains the posts from the people who he/she follows. It may be their friends or celebrities or facts page or food pages or even meme pages. A meme is a concept or idea which is picturized humorous content that spreads virally from one person to another. The word ‘Meme’ is derived from the Greek word ‘Mimeme^[3]’ which represents ‘Imitated thing’. The platforms of meme creation are the major social media like Twitter, Instagram, WhatsApp, and Facebook. Video graphed meme contents are exhibited on YouTube and shared via WhatsApp. Viewing memes differ from person to person. As memes have different faces, every individual uses it in a unique as well as peculiar way. Some of the main functions of the memes are:

1. Entertainment

The main purpose of meme creation is ‘Entertainment’ and ‘Fun’. To be more specific, meme creation is something that establishes the thoughts and humorous presence of the mind of the creator by relating it with a popular template. Meme creation usually depends on the trending topic which is going all over the state or the nation or the world.

2. Current affairs

It often helps people to know the current affairs. Any important announcement or news will be transformed into memes within a few hours. It becomes a stress buster because of laughter. The updates and news are received instantly in a funny as well as a sarcastic way. Unknown astonishing facts will be displayed in the shade of memes. Information, live updates, current affairs, and official announcements will be within hands.

3. Promotion

Apparently, there is a myth that everything that comes out in memes is true. Thus, some people use the platform as a tool for page, product, and even personal ID promotion. Any person would try to at least take a look over the content which is being promoted constantly, which is a 50% success. The person checking out the content may actually like it and gives his/her support. This credit goes to the promoted page. Generally, people hate the content which is being promoted on a promotion page. But blindly, most of us appreciate the promoted content which comes out from a meme page because of the mere trust.

4. Trolling and abusing

There is an evil happening in every holy happening. Likewise, though memes are created for a very genuine purpose, there are people who turn it to the inappropriate side. According to memes, good things spread very fast but bad things spread as fast as a forest fire. We live in a society where encouraging people is scrolled immediately but making fun of people is shared immediately. 

Level of Troll

Fun is supposed to be taken as fun without being offended. But there is a border of line and limit for everything. If somebody crosses the line, fun no longer continues as fun. There is a difference between joking and abusing. We live in a society where people are easily offended even if the conversation is made in private. These people will never give a chance to defame them in public or on a social media platform. One of the major excuses to cover this is addressing this as freedom of speech and expression. Explaining the scope of freedom of speech and expression Supreme Court has said that the words “freedom of speech and expression” must be broadly constructed to include the freedom to circulate one’s views by words of mouth or in writing or through audio-visual instrumentalities. Freedom of Speech and expression means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures, or any other mode^[4]. But no one gave the right to defame a person as they wish in the name of freedom of speech and expression. Even freedom of speech and expression does not allow a person to establish his thoughts completely. A certain amount of restriction is present in it. Freedom of speech and expression, therefore, may not be recognized as being absolute, and common limitations or boundaries to freedom of speech relate to libel, slander, obscenity, pornography, sedition, incitement, fighting words, classified information, copyright violation, trade secrets, food labeling, non-disclosure agreements, the right to privacy, dignity, the right to be forgotten, public security, and perjury.

One can comment on the positives and negatives of a decision made by someone but making fun of it by insulting them is highly intolerable. Criticizing the achievements of a celebrity or a politician cannot be questioned. Although, criticizing the personal life of an individual can. No one has the right to interfere with one’s personal life. It is so inappropriate to poke their nose into someone’s privacy and it is none of their business.

Though everything is tolerated, body shaming must be taken into action. People get really offended if a sarcastic comment about their body is exposed in a public social media platform. Some sexists criticize or rate a person’s private parts by allotting them marks and scores which is highly unendurable. Yet, there are some people who expose their bodies for some comments regarding them. Such body shaming should not be taken into account and must be treated exceptionally. Because it is implied that they receive such things when he/she crosses the limit and exposes. But, when a fully wrapped body is commented or criticized, it cannot be tolerated as the body shaming happens completely against their will. It’s not their fault to have a curvy shaped body to bear the flirty comments and definitely not their fault if they are not as attractive as everyone to be criticized. Nobody has the power to body shame people, especially on online platforms. Similarly, everybody has the right to question if their personal life or personality details are shared and discussed in a public platform.

We live in an era where people get bullied often for no reason. Most probably, the reason will be jealousy. People do this because they don’t receive the attention as much as the concerned people. They abuse their talents just because they don’t have much talent or are not interested in the art or even not interested in the platform where it is being exposed. These kinds of activities will also come under the online defamation category as people use memes as their abusing tool.

Judicial aspect

Mamata meme case^[5]

The case has its origin in a trial court of West Bengal with a judgment of 14 days of judicial custody. This case is related to the fact of posting a morphed image of Chief Minister Mamata Banerjee on social media. The defendant was the BJP’s Youth Wing leader Priyanka Sharma. In the proceedings of the case, the defendant’s side made a plea that the post that is mentioned above was not created by Sharma; rather it was just shared by her.  A notable fact is that the post shared by Sharma was already in a viral stage.  The case when brought for appeal before the Supreme Court with a plea of bail, the vacation bench, comprising Justice Indira Banerjee and Justice Sanjiv Khanna made clear that no equality shall remain for any wrong activities.  Freedom of speech and expression cannot be denied at any time, but it faces its end when such freedom violates the rights of other people.   Thus, the Court passed an order to Sharma, to apologize for the meme shared at the time of release. 

Thus, Memes are just a picture form of visual communication, from the above case it is well clear that defamation not only includes the creation of interest affecting memes but also sharing of a meme that affects other people’s personal interest. 

All India Bakchod (AIB) case^[6]

It was the case where the FIR was recorded by the cyber police Mumbai, for the reason of publishing a meme which reduces the respect given to a prime minister.  The meme contained a dog filter used in Snapchat superimposed over the prime minister’s image.  Though All India Bakchod (AIB) is generally named as a comedy group, the act done by them affects the P.M along with the party.  Though the government has granted permission for usage of such application “Snapchat”, but when the same privilege is used unnecessarily it invites the term violation.  Thus, this act was filed under section 500 of the IPC and section 67 of the IT act.  From the above case, it is well clear that any person has his full right to create and publish his own ideas and feelings in the form of memes but when such expression tends to affect other person interest it turns over to be a curse against him. 

Conclusion

Insulting or making fun of someone in private can be adjusted and tolerated but exposure in social media is unacceptable and this act comes under online defamation. Here, the medium of communication is not only within 2 people, instead a lot of interference from a third party arises. A person’s ego is badly hurt when he is abused in front of people. People bury their sin in the name of freedom of speech and expression. They are taking advantage of constitutional privilege. One has the right to criticize a person’s career and work-related activities in a healthy way but no one has the right to dig their personals and expose it to the public. The act of criticizing must be in good faith to make the work better and not to insult the person. Even though a controversial fact is published, it must be a true fact and it must be done in good faith to bring the illegal activity to light. The old laws regarding defamation must be updated as technology is gradually growing day by day. As memes play an extraordinary role in the day to day’s life, the defame which travels through memes will be reached as fast as rapid-fire. Thus, the defamation through memes must be regulated with proper laws. The meme creators cannot expect everyone to accept it as fun and keep mum. Online body shaming must also be taken seriously. Describing and discussing the beauty of a woman’s private parts or any other body parts in an open platform such as social media should be considered as outraging the modesty of a woman and body shaming a person must be taken as a physical abuse no matter it is online or in a public place. Society hates some people who are overhyped by others. This probably happens because of the intolerance of one’s growth as well as jealousy. People get irritated if somebody receives a good recognition. They think that it is over for them or they don’t deserve such recognition. As a result of high turbulence, their rage is reflected via memes and online abuse. As mentioned in the Mamata meme case and AIB case, the needful has to be done for the affected. This could result in depression for them. It is concluded that no one has the right to expose or abuse a person in social media or in a public place. If such acts are committed anywhere, the person must be accused of defamation irrespective of the power and status of the people in the society.

References

^[1] https://www.moneycontrol.com/news/trends/legal-trends/india-needs-a-law-on-online-defamation-urgently-4604451.html Last Updated : May 11, 2020 02:09 PM IST

^[2] https://indiankanoon.org/doc/180835342/

^[3] https://www.britannica.com/topic/meme WRITTEN BY: Kara Rogers

^[4] https://www.lawctopus.com/academike/freedom-of-speech-and-expression/ On  Sep t e mber 2, 2014

^[5] https://www.dnaindia.com/india/photo-gallery-mamata-meme-case-sc-asks-priyanka-s harma-to-apologise-says-it-will-not-operate-as-precedent-2749237/priyanka-sharma-s-counsel-s-argument-2749239 May 14, 2019, 06:14 PM IST

^[6] https://www.indiatoday.in/pti-feed/story/aib-faces-defamation-case-for-tweeting-obs c ene-picture-of-pm-998045-2017-07-14 PTIJuly 14, 2017UPDATED: July 14, 2017 18:40 IST

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