This article is written by Anshika Gubrele, BA LLB second-year student of Bharati Vidyapeeth New Law College, Pune & Pulatsya Pandey, a student at HNLU, Raipur. In this article, the authors discuss Cyber Defamation as a concern in India and the laws related to it. The authors have also emphasized the emerging issues related to cyber laws in India and suggested ways to improve the same. Further, a comparative analysis between the cyber laws of India and the UK has also been done.
The growth and development of technology have brought a drastic change in the world. The Internet has made many things far easier for all of us through various social networking sites. Whether it is communication or access to information, these things have become a piece of cake for all of us. But these facilities may sometimes lead to misuse also. As users can publish and disseminate information through these social networking sites, Defamation has become a subject of concern. With the rise of so-called trends of sharing or posting information or pictures on certain social networking sites and commenting on them have increased the risk of ‘Cyber Defamation’.
The term ‘Cyber Defamation’ basically means publishing of false statement about an individual in cyberspace that can injure or demean the reputation of that individual. In India, defamation can be contemplated as both civil and criminal offence, and thus legal remedies are provided to the victims by the Indian judiciary system.
What do we understand by the term “Defamation”?
Defamation can be understood as the wrongful and intentional publication of something either in the written or oral form about a person to harm his reputation in the society. For a statement to be considered as defamatory, the following essential elements must be fulfilled.
- There must be the publication of the defamatory statement, which means coming to the knowledge of a third party.
- The statement must refer only to the plaintiff
- The statement must be defamatory in nature.
Types of Defamation
Defamation can be bifurcated into two categories that are –
- Libel – A statement that is defamatory and is published in a written form.
- Slander – A defamatory statement spoken that means a verbal form of defamation.
Thus, the fundamental distinction between both the types is the medium in which they are expressed that is, one is expressed in a written form while the other in oral form.
The widely used social media brought a revolution not only in the Indian sphere but also all across the world. The remarkable growth of the Internet has provided people with a platform to express their opinions, thoughts, and feelings through various forms of publications. Nonetheless, the ease of accessibility and publication in this online world has created several risks as these digital platforms are prone to be exploited by unscrupulous Internet users in the name of freedom of speech and expression. Thus this has led to numerous cases of “Cyber Defamation”.
Cyber defamation is a new concept but the traditional definition of defamation is injury caused to the reputation of a person in the eyes of a third person, and this injury can be done by verbal or written communication or through signs and visible representations. The statement must refer to the plaintiff, and the intention must be to lower the reputation of the person against whom the statement has been made. On the other hand, Cyber defamation involves defaming a person through a new and far more effective method such as the use of modern Electronic devices. It refers to the publishing of defamatory material against any person in cyberspace or with the help of computers or the Internet. If a person publishes any kind of defamatory statement against any other person on a website or sends E-mails containing defamatory material to that person to whom the statement has been made would tantamount to Cyber defamation.
Liability in Cyber Defamation
In India, a person can be made liable for defamation both under civil and criminal law.
Section 499 of Indian Penal Code says that “Whoever by words either spoken or intended to be read or by signs and visual 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 excepted to defame that person.”
Section 500 of IPC provides for punishment wherein “any person held liable under section 499 will be punishable with imprisonment of two years or fine or both.”
Section 469 deals with forgery. If anyone creates a false document or fake account by which it harms the reputation of a person. The punishment of this offence can extend up to 3 years and fine.
Section 503 of IPC deals with the offence of criminal intimidation by use of electronic means to damage one’s reputation in society.
Section 66A, Information Technology Act,2000 – This law has been struck down by Supreme Court in the year 2015. The section defined punishment for sending ‘offensive’ messages through a computer, mobile or tablet. Since the government did not clarify the word ‘offensive’. The government started using it as a tool to repress freedom of speech. In 2015, the whole section was quashed by the Supreme Court.
If a person has been defamed in cyberspace, he can make a complaint to the cyber crime investigation cell. It is a unit of the Crime Investigation Department.
Problems and issues in Cyber Defamation
Our tremendously increasing dependency on the Internet for the use of social networking sites have created several legal issues in the country. In the context of defamation, the biggest issue can be figuring out the person who has intended to harm our reputation or the third party who has read the defamatory statement as to when it comes to web pages such as blogs or other media sites including newspapers or magazines. This is because bloggers may be transparent or may choose to keep their names or identities nameless to protect themselves.
Thus this may be very hard to determine the person who has published the statement if it appears on someone’s blog. It gets even more challenging to determine the readers who leave comments on blogs or online news articles as most sites do not require people to use their real names or provide any necessary information including name, location or e-mail address. Even if they do, people could give false information. Thus it becomes difficult to track these people. Once a defamatory statement is published on sites such as Facebook, it quickly gets circulated and also read by a large number of people causing damage to a person against whom the statement is made.
What forms of defamatory publications are admissible by courts in India?
- 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.
- Online chats are also admissible.
- Electronic mails are also admissible.
Employers liability issue
In the case of SMC Ltd. V. Jogesh Kwatra, derogatory remarks were sent by the employee to the employers and other subsidiaries of the company, and they have been restrained by Delhi High Court from carrying any kind of communication to the plaintiff. This order of Delhi High Court was presumed to be of great significance as it was the first time that an Indian court assumes the jurisdiction in a case of cyber defamation and grants an ex-parte injunction restraining the defendant from defaming the plaintiff by disallowing him to send any derogatory, abusive and obscene emails to the plaintiff. Further, the employer was not held vicariously liable as the defendant was not acting as a part of his employment and was off on a frolic of his own.
Suggestions and recommendations to improve the laws and mechanism related to Cyber Defamation in India
It is recommended to have an independent cyber crime investigation cell which is under the Central Bureau of Investigation and it needs to be set up on its own so that it comes directly under the central government and also specifically deal with cyber crimes including cyber defamation. There should be cyber cell police stations in every district of every part of India headed by Investigation officers who are well versed with cyber laws so that it will help them to handle the offenders promptly. Awareness programs should be initiated by the government to enlighten people about cyber crimes and also about the precautions that should be taken to protect themselves.
Judiciary can also play a significant role if special cyber courts are established and judges with specialized technical knowledge may preside over these courts. So, there is a need to train judicial officers, police personnel to settle cases of cyber crime expeditiously and more effectively. Information and communication technology keeps on changing, and people need to get updated with its development. So we need to amend existing laws to keep pace with technology and prevent such offences happening and affecting people at large.
- Kalandi Charan Lenka Vs. State of Odisha – In this, the petitioner was continuously being stalked, and a fake account of her was later created and obscene messages were sent to the friends by the culprit. A morphed naked picture was also posted on the walls of the hostel where the victim stayed. The court held the culprit liable for his offence.
- Rajiv Dinesh Gadkari through P.A. Depamala Gadkari vs Smt. Nilangi Rajiv Gadkari – In this case, after receiving a divorce letter from her husband, the respondent filed a suit against the husband for continuously harassing her by uploading vulgar photographs and defaming her. The offence has already been registered and maintenance of Rs. 75,000 per month has been claimed by the wife(respondent).
Comparative analysis of laws between India and UK
A comparison of Cyber laws and policies across India and the UK reflect several common threads in some of the areas and divergence in other regions. The differences in approaches can mostly create variations. However, despite a significant gap in terms of historical access to technology and resources, India over the last two decades tremendously increased emphasis on cyber security as an essential policy concern. The UK has relatively developed processes, systems and also cyber security has been a policy concern for a more extended period than in India. The cyber security framework in the UK is more comprehensive than in India. However, India and the UK both are not able to apply pre-existing laws to address new situations in Cyberspace.
Also, the UK is considerably more open to multi-stakeholder input is moulding its policies while cyber security in India remains bifurcated between private and government initiatives which tend to focus on national security concerns. The Indian government here can do a lot of work in terms of spreading awareness about cybersecurity and can also employ the flexible approaches taken by the UK to comply with security best practices without necessarily mandating strict laws and regulations. It also needs to revisit the possibility of entering into international agreements giving a significant degree of cooperation required for investigating cyber threats. The UK also needs to balance its national security concerns with civil liberties concerned around privacy and surveillance.
The intense volume of information and an easy way of transferring it on the Internet makes it a critical source of defamation. After researching on the aforesaid topic, it can be said that the present scenario of India regarding laws do not have an adequate approach towards cases of cyber defamation. Also, defamation laws should be sufficiently flexible to be applied to all media. As the defamation laws in the era of the Internet, it becomes practically impossible to apply the principle of 18th and 19th-century cases to the issue arising on the Internet in the 21st century.