Laws and Legal Procedure for Reporting Online Defamation in India
What is Online Defamation
Defamation is defined under section 499 of the Indian Penal Code, 1860 as whoever by words either spoken or written publishes any misinformation intending to harm someone’s reputation is guilty of defamation. The offense of Defamation is punished under section 500 of the Indian Penal Code, 1860.
Defamation has the following essentials:
i. The statement must be false.
ii. The statement must refer to the plaintiff. It means that the plaintiff must prove without any reasonable doubt that the statement referred to him. A definite pointer is not necessary.
iii. Defendant must have a malice intention to harm his/her reputation.
iv. The statement must be published. This means that the statement must reach a third person.
v. The statement must be unprivileged. That means it should not be under circumstances under which one cannot sue for defamation.
Libel and Slander in Online Defamation:
Defamation falls under two categories:
- Libel: False statement is published in the written form.
- Slander: False statement is spoken/verbal.
The difference between a physical deformation and online defamation is that the defamatory statement is published via the internet on any social media which has permanent damage. For example, sending an email to false information to someone to defame him, publishing false posts or comments on social networking sites, etc amount to cyber defamation. As the audience on these sites is numerous, the damage is huge and thus the compensation is huge in the monetary value.
Laws against Online Defamation in India
Even though the act committed in the physical world or the digital world, the laws on defamation applies the same. Here the medium through which the act was committed was online thus, according to cyber laws the liability can be:
- On the author who published/wrote the false statement, and
- On the Intermediary (service provider).
Note: An exception to intermediaries as provided under section 79 of the Information Technology Act, 2000 if they merely act as a facilitator (eg: Twitter, Facebook, Instagram, etc). the pre-requisite to non-liability is that the intermediary shall comply with guidelines issued by the central government. Also, such unlawful content shall be removed upon receiving the knowledge.
i. However, the law is extended to section 469 of the Indian Penal code, 1860 by the virtue of amendment and punishes whomsoever forging any electronic document intending to harm the reputation of others.
ii. Section 503 of the Indian Penal code, 1860 penalizes whomsoever trying to criminally intimidate anyone by the use of electronics intending to harm the reputation.
iii. Section 79 of the Information Technology Act, 2000 reduces the liability of intermediaries if they comply with the guidelines issued by the central government, performing due diligence, and following ‘notice and takedown’ procedures.
iv. Section 66A of the Information Technology Act, 2000 recognized sending an offensive message to a computer or any other communication device as an offense. The word ‘offensive’ was misused by the government officials in suppressing individual’s right to freedom of speech and expression under Article 19(1)A of the Indian Constitution. This section was quashed by the Supreme Court in Shreya Singhal v. Union of India 1982 2 SCR 272.
Procedure to report Cyber Defamation
Cyber defamation is a serious crime. If you are aggrieved of cyber/online defamation you can follow the following procedures to lodge your complaint:
- Register a written Compliant with the Cyber Crime Investigation Cell: One can lodge a complaint with the Cyber Crime Investigation Cell at the National Cyber Crime Reporting Portal (https://cybercrime.gov.in/). You can either log it online or you can visit the crime branch with addresses provided in the portal itself or you can email your complaint. The complaint is addressed to the head of the cyber cell of the particular city where the complaint is made. The complaint shall contain your details, contact information, and Email address.
- Register a formal Complaint with the local Police Station: In case you do not have the access to a Cybercrime cell in your city, you can approach the nearest police station and lodge a Complaint. It is mandatory for the police to lodge the Complaint of an offense, irrespective of the Jurisdiction according to section 154 of the Code of Criminal Procedure, 1973. The offenses of cybercrime covered under the Indian Penal Code are cognizable and do not require warrants. If you are denied being allowed to file the complaint at the local police station, you can approach the Judicial Magistrate of your city.
- Report to the particular Social Media Portal where the defamation took place: Every social media platform such as Twitter, Instagram, Facebook, Youtube, etc have has outlined a procedure to report any abuse or offenses. One must report cyber defamation at the very initial stage. This would help the platform to take immediate steps in blocking the user and its further activity, hence protecting the victim’s privacy (personal information).
- Report to Computer Emergency Response Team (CERT-IN): The Indian Computer Emergency Response Team is designated as the Nodal agency to tackle issues involving cyber threats and security. Their main objective is to issue guidelines and procedures on prevention, reporting, and responding to complaints revolving around cyber threats.
The victim can file a complaint regarding the offense CERT-In by filling up the Incident reporting form on the website, or through an email, or telephone, or by Fax (https://www.cert-in.org.in/).
Further, the burden of proof falls on the complainant to prove that he/she has been defamed. It is to be noted that if the complainant is unable to do so, the defendant shall have the right to file a suit defamation, frivolous complaints, and demand damages.
For these, you can take the help of section 65A and section 65B of the Indian Evidence Act, 1872. It states that:
i. Any electronic record printed, recorded, copied in optical or magnetic media shall be considered as a document and is accepted by the court.
ii. Online chats on any social networking sites are also admissible in court.
iii. Emails are also admissible in court.
Judgments where offenders of Online Defamation were condemned
- Kalandi Charan Lenka v. State of Odisha BLAPL No. 7596 of 2016 The petitioner was being stalked online. Obscene messages were sent from a fake account created by her name by the offender with the intention to defame her. The High Court of Orissa held that this said act amounts to cyber defamation.
- SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra [C.S.(OS) No. 1279 of 2001] The defendant sent defamatory, abusive, and vulgar emails to the company’s fellow employees all over the world Intending to defame the company. The High Court of Delhi granted an interim injunction restraining the defendant from defaming the company physically or digitally.
- State of Tamil Nadu v. Suhas Katti (C.C. No. 4680 of 2004) The offender posted obscene, defamatory about the complainant in a Yahoo messaging group. Due to this, the victim received annoying phone calls in the belief that she was a sex worker. The victim filed a complaint with the police in February 2004 and the police traced the accused in the next few days. This case is notable because the conviction was achieved within the period of 7 months from the date of the Complaint filed.
- Swami Ramdev & Anr. v. Facebook Inc. & Ors [CS (OS) 27 of 2019] Very recently in October 2019, an interim order was announced by Justice Pratibha Singh ordering Facebook to remove all the defamatory content, without any territorial limit, posted on the Facebook site against Baba Ramdev based on the Book “Godman to Tycoon – the Untold story of Baba Ramdev”.
Authored By: Adv. Anant Sharma & Pratiksha Dwivedi