Laws on Cyber or Online Defamation in India: Lawyers Advice
The growth and development of technology has brought substantial changes in the world. With the advent of the internet and social media platforms such as Facebook and Whatsapp, the number of criminals and miscreants in the world has increased. Internet gives the users freedom to publish and disseminate their opinions and thoughts in a much simpler and effective manner. However, this right has been exploited by various Internet users to defame an individual in the name of freedom of speech and expression.
The term ‘online defamation’ means publishing of defamatory statement about an individual on Internet which can hurt the reputation of that individual. An online defamation happens when an electronic device such as computer or mobile which is connected to internet is used as a medium to defame an individual or firm.
Defamation can be divided in two heads which are libel (written) and slander (oral). Online defamation falls into the category of libel because all the electronic data whether written texts, audio or video is considered as documents. This was observed by Delhi High Court specifically in the case of Dharambir v. Central Bureau of Investigation [48 (2008) DLT 289] wherein it was held that “given the wide definition of the words documents and evidence in the amended section 3 of evidence act read section 2 (o) & (t) Information Technology Act, there can be no doubt that an electronic record is a document”.
Prevailing laws regarding Online Defamation or Cyber Defamation in India
In India, a person can be held liable for committing the offence of defamation under both civil and criminal law. Section 499 of Indian penal code, 1860 (IPC) provides for the offence of defamation and states that “whoever by words either spoken or intended to be read or by signs and visual representations makes or publishes any accusation concerning an individual in order to harm or knowing or having reason to believe that such accusation will harm the reputation of such person.” Section 469 of IPC provides for the offence of forgery and states that “whoever commits forgery, intending that the document or electronic record forged shall harm the reputation of any party, or knowing that it’s likely to be used for that purpose shall be punished with imprisonment of either description for a term which can extent to three years and will be liable to pay fine also.” Section 503 of IPC deals with the offence of criminal intimidation and punishes the crime of injuring a person’s reputation within the society by use of electronic devices.
Liability in Online Defamation or Cyber Defamation in India
The liability in case of Cyber defamation would lie on the individual or entity publishing the defamatory statement and the provider of the medium through which it is published. However the internet service providers are free from any liability arising out of online defamation under Section 79 of the Information Technology Act, 2000 (IT) which is often termed as “safe harbour for intermediaries”. Under this provision, the intermediaries as defined under section 2(1)(w), of the IT Act (such as internet service providers, social networking sites, web hosts) are conditionally immune to liability arising from any illegal content posted by third parties; where the intermediary acts only as a mediator and not as a modifier or a creator of the said content. In case of a website which is not acting as an intermediary then such websites or its owners could be held liable for defamation.
Defamation v. Free Speech
Article 19 of the Indian Constitution provides a right to freedom of speech and expression to all the citizens and this right is subject to certain reasonable restrictions. The protection of person’s reputation is one such restriction where if any false statement or comment is formed against an individual then that might make the offender responsible for defamation under IPC.
Case Laws on Online Defamation or Cyber Defamation
The first case which dealt with cyber defamation was SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra [CS (OS) No. 1279 of 2001 (Delhi High Court, 2001)] wherein for the first time Indian courts assumed jurisdiction over cyber defamation and also granted an ex-parte injunction. In this case it was alleged that a company’s reputation was injured as various abusive and degrading comments were sent through emails by an employee to the employer and subsidiaries of the company all around the world. It was alleged that the emails were sent with intent to defame the company and its employers. The Delhi High Court constrained the defendant from defaming the plaintiff through both online and offline mode.
In another case, Kalandi Charan Lenka v. State of Odisha [2017 (I) OLR 543], the plaintiff was regularly stalked online and a fake account was created which was used by the offender to send vulgar messages to friends of the victim. The High Court of Odisha held the offender liable for the offence of cyber defamation through the means of fake vulgar texts and images.
In the recent past, in the case of Swami Ramdev v. Facebook Inc. & Ors [2019 (178) DRJ 151], all defamatory statements that were posted online against yoga guru Baba Ramdev was removed by the court stating that if the statements were uploaded from India or if such content is present in any computer device which is located in India, then the Indian courts should have International Jurisdiction to order worldwide injunctions. Then facebook had preferred an appeal against this order which has been admitted by division bench of Delhi High Court. The grounds of the said appeal are that despite the very fact that the plaintiff knew about the one that uploaded the content, they need not been made a party to the suit. Further, it’s additionally been contended that Baba Ramdev has not indicated any prima facie case of irreparable loss.
The cases mentioned above, point towards the varied facets of the instances during which cyber defamation can occur and what legal recourse are often adopted to resolve the same. If the complaint is timely filed in the right forum then the cyber defamation can be curtailed in an effective and efficient manner.
Legal Remedies Available against Online Defamation or Cyber Defamation
One of the major challenges in cyber defamation is identifying the person against whom defamation action shall be taken. In such a scenario, the proper step is to trigger the identity tracing proceeding. In order to trace the Identity, the criminal proceeding can be started for cyber defamation by lodging a complaint under Section 200 of Criminal Procedure Code, 1973.
The foremost concern for the aggrieved party is to get the material removed from the site which can be possible done only through the court except in the case of Obscenity. Getting the remedy in an online defamation is an onerous task but if one follows procedure appropriately by using forensic and technical procedure then it might be easy to prosecute the offender and obtain remedy or damages.
Procedure to lodge a Complaint against Online Defamation or Cyber Defamation
At first, the aggrieved person has to lodge a complaint of cyber defamation to the Cyber Crime Investigation Cell at National Cyber Crime Reporting Portal. The complaint to these cells can be lodged from both offline and online method. Thereafter, the complainant/victim has to provide personal details such as name, mail address and phone number along with an application which is addressed to the head of the cell.
The complainant has to also provide certain documents so as to register a complaint. Since cyber defamation comes under IPC, one can also file a FIR at the local police station.
Filing a cyber defamation suit is a serious issue as it puts the reputation of the accused at stake. Therefore, the burden of proof lies on the complainant and if he/she fails to prove the case then the defendant has the right to file a case of defamation and false complaint.
Technological advancement has immensely increased the convenience in communication. However, such convenience comes along with exploitation. The users have used this efficient method of communication to defame other individual or entity. Even though there are laws which prohibit the transfer of such content but the users are either not aware of the same or they are too negligent to find out whether the content is defamatory or not. Freedom of speech and expression comes with reasonable restriction so that it does not become a weapon in the hands of certain people to defame another individual. Our education system need to educate people the difference between free speech and what all content, words or expression could be regarded as defamatory under our prevailing laws.
Moreover, the remedies available were introduced for the defamation that happens in physical space instead of online medium as the characteristics of online defamation differs from an offline medium. Therefore, India urgently needs to amend the law to bring remedy for online defamation which caters to the technological advancement of the country.
Authored By: Adv. Anant Sharma & Riddhi Khandelwal