This article has been written by Divyansh Sharma.

Introduction

Defamation means loss of repute of a person due to the oral words (slander) or written words (libel) of another person or entity. There are a few things that need to be established in this regard. Firstly, these words that have caused the loss of repute must be published somewhere for proving libel or spoken orally for proving slander. Secondly, the defamatory material should refer to the plaintiff directly or indirectly and thirdly, the defamatory material should be made known to a third party. 

Defamation in India is a civil as well as a criminal offence, criminal being dealt with under Section 499 and 500 of the Indian Penal Code and civil defamation being dealt under the law of torts.

This article is concerned with cyberspace defamation and currently in India, cyberspace defamation laws are the same as the normal civil and criminal defamation laws. Section 66A of the Information Technology Act was often used to charge people in instances related to cyber defamation. It said that “Any person who sends by any means of a computer resource any information that is grossly offensive or has a menacing character; or any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult shall be punishable with imprisonment for a term which may extend to three years and with fine.”

But it was struck down to be unconstitutional as it interfered grossly with our right to free speech. This was because most of the terms used in this section were vague and could have a very wide interpretation so much so that almost any activity could be brought under its ambit. This essentially produced a chilling effect on free speech and hence was against Article 19 of our Constitution. This was held in the case of Shreya Singhal v Union of India. 

So currently, there are no specific laws to deal with cyber defamation but any act of cyber defamation can be brought before the court on the basis of the normal defamation laws. 

Relevant laws

Section 179 of Code of Criminal Procedure and Section 19 of Code of Civil Procedure essentially say that when an offence, either civil or criminal, has been committed, it has to be inquired into or tried in that court which is within the territorial jurisdiction of the place of the offence committed.

This applies to cases of defamation as well. It is very easy to determine the territorial jurisdiction in cases where there has been only one publication of the defamatory material, but in cases where there have been several instances of publication of the defamatory material, for example where there has been defamatory material published in a newspaper which has been circulated all over the country, it becomes difficult to determine where the suit for defamation has to be instituted.

There was a case that dealt with similar facts called Lankesh v Shivappa and in this case it was decided that the act of defamation does not come to an end with the first instance of the printing of the newspaper. That is just the first instance of the offence and if the defamatory material is published at more than one place, then the offence is committed in all these places.

So, essentially, if there has been a wide publication of defamatory material throughout the Indian subcontinent, a suit against it can be brought about in any court that lies within the territorial jurisdiction of where it was published. 

The first case that dealt with cyber defamation in India was SMC Pneumatics v. Jogesh Kwatra. Here the court recognised cyber defamation and ruled the respondent guilty of defamation because of sending defamatory content via emails to people. 

The laws for online defamation are also quite the same as observed in the case of  Lankesh v Shivappa. The Supreme Court has as recently as in a case decided two years ago held that “territorial jurisdiction does not remain confined to the place of actual defamation…the jurisdiction would be at both the places i.e.at the place where the actual defamation takes place and the place where such defamatory material is transmitted through website, telecast, etc.”

Chilling effect on free speech

There are a few problems that are there with this current position of the law. 

Firstly, there is a problem with respect to the effective execution and trial of such cases without the harassment of the respondent. There is a lack of safeguards in the Civil Procedure Code for protection of the interest of the respondent in cases of cyber defamation. For example, there is no cap on the number of suits that can be introduced against the respondent, and secondly, the defences that actually exempt the respondent from the offence can only be heard after the commencement of the trial which in itself is a really long and tedious procedure. And the most problematic issue, in this case, is the fact that all civil courts where the defamatory material has been published enjoy territorial jurisdiction. This is often misused by people whose main intention is to file suits for the harassment of the other individual, and not for obtaining justice. They often file the suit in a remote location, somewhere that is not easily accessible for the respondent which makes it very difficult for the respondent to appear in person and take care of his side of the proceedings. 

Secondly, the main result of these procedures and provisions is the chilling effect on free speech. Chilling effect, in this context, essentially means people “self-censoring” their speech and freedom of expression in order to avoid legal repercussions. As soon as people begin to realise the problems attached with a suit for such wide publication of potential defamatory material being filed, they think that censoring their work to avoid such problems is better than rather facing trial. This creates problems as it essentially gets rid of the concept of constructive criticism of the policies of the government and other organisations which in turn gives these bodies more power to make more such policies that favour them over the welfare of the general public. 

This concept of chilling effect has also been recognised by the Supreme Court on several instances the most notable being when the court decided to repeal Section 66 of the Information Technology Act. In the case of Shreya Singhal v Union of India, the government recognised the chilling effect that this section had on free speech and thus rendered it unconstitutional as virtually any act could come within the ambit of the section and could be punishable. The Supreme Court also recognised the disadvantages of chilling effect in the case of R. Rajagopal v. State of Tamil Nadu where the court recognised the problems of setting a “no-fault liability” standard had on free speech. 

Position of the law in other countries

We can see that the problems that our country faces with respect to the chilling effect on free speech can be dealt with to a huge extent if we observe the position of law that is observed in certain countries like the U.S or the U.K with respect to cyber defamation. 

In the US, the burden of establishing defamation is relatively high and hence not a lot of people get burdened with frivolous suits instigated against them. There are various stages of a complaint and not all cases go for trial as some “privileges” can be given by the respondent before the start of the trial such defences being the statement being one of opinion and not of fact and secondly, the statement being “fair comment or criticism”. 

Moreover, if the statement appears defamatory but does not actually harm the repute of the plaintiff it is not presumed to be defamatory. In proving defamation, the “actual malice” standard is taken into account i.e. if a statement was made in “reckless disregard” of the truth, it is then considered to be defamatory. 

Now, with the enactment of the Telecommunications Act, the cyber defamation laws have been even more simplified as this act distinguishes between a “distributor” and a “publisher” and it makes the publisher liable and not the distributor except for some rare cases. So, we see that the standard for establishing defamation in the US is very high and this serves as a good example for us as this protects their freedom of speech more effectively. 

With respect to the territorial jurisdiction, the position is different from what is followed in our country. Any kind of defamatory material on any website that is accessible everywhere does not mean that suits with respect to that material will be entertained in all or any of those areas. They have two tests for determining the jurisdiction of the court. Firstly, it is the “effects test” which says that a suit for defamation can be entertained if it can be seen that the effects of that material was intended to be directed at someone in that state or actually affected someone in that state. Secondly, it is also dependent on the nature of the website, for example, the places where the website is active can potentially be places of jurisdiction but not places where the website is not. 

Reforms that can be made to the existing law 

Thus, we can see from the laws that have been enacted in countries like the US and UK that our laws with respect to cyber defamation are outdated and need to be reformed for the effective functioning of justice. 

A new test with respect to the territorial jurisdiction in matters of cyber defamation needs to be devised which suits the needs of the people while protecting our freedom of free speech. This can be done if we adopt an approach similar to the “effects test” that is, a court can entertain suits only if it is in the state where the effects of such publication were intended to be directed at or where it was affected. So essentially, any person affected by such publication could file a suit in a state where he or she resides. In addition, the suit can also be allowed to be filed in such states where the accessibility of the said website or publication was the maximum, limited to the first five states that viewed the publication the most. With the advancement in technology, it can very easily be known from which state the top views on a website or post was received. 

The implementation of this test will be fairly easy and less hassle-free than the current position of the law which can enable courts to entertain suits virtually anywhere in the country where there is an internet connection.

In addition to this, the threshold of the defamation law should also be raised to account for “opinion in good faith” and “constructive criticism” with respect to public bodies so as to keep their policies under check. And with respect to private individuals, the standard should account for “actual loss of reputation” and not merely casual insults or snide remarks. Currently, there is no such differentiation making the threshold for such laws very low and hence curbing free speech to a great extent. Once such differences are made and properly defined, this problem will be solved to a great extent.

Conclusion

Once the existing law is amended to have a higher threshold for proving defamation, the freedom of speech of the people of India will be substantially more protected. The number of frivolous suits will also be substantially reduced once there is a proper test developed to check the territorial jurisdiction of civil courts with respect to cyber defamation. 

The laws in our country are somewhat regressive when it comes to free speech and the freedom of speech and although the reasons for this are justifiable taking into account the volatile nature of the political and religious scenario of the county, and also the sentiments of the people, it needs to be understood for any government or policy to prosper, there needs to be some amount of breathing space given to free speech for it to survive and effectively control the powers of the government and other organisations. This is well effective in personal scenarios as well.

There needs to be a proverbial environment for facilitation of discussion and debate and then only can a country prosper in the true sense of the word.

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