The article is written by Iqra Sayed from Team Vakalat Today.
Abstract
Cyber defamation is emerging as a big legal issue in the new world; especially in the Indian context, as the internet steadily gains the position of a primary source of communication. Hereunder, the author seeks to discuss about cyber defamation specifically and with respect to the Indian legal system, the author is set to expound on the challenges and peculiarities of the case when defamation occurs online. In the context of the present analysis, the discussion encompasses a brief examination of legal provisions under the codes of the Bhartiya Nyaya Sanhita,2023 and the Information Technology Act, 2000. This article also discusses some issues concerning jurisdiction and anonymity, the speed at which information circulates, and freedom of speech and the right to personal reputation. Possible prevention and possible legal changes as solutions to these challenges are discussed. Thus, this paper brings an additional viewpoint and proposes directions on how cyber defamation can be prevented in India and makes suggestions to shift the social media space towards a more polite environment.
Keywords: Cyber defamation, online defamation, Bhartiya Nyaya Sanhita, Information Technology Act, free speech, reputation rights, intermediary liability, Indian legal system, jurisdiction, anonymity, digital age.
INTRODUCTION
Due to the increased growth in the use of the internet communication has become more timely, non-territorial and accessible to millions of customers. This technological advancement as has been seen comes with a lot of benefits, but has also brought about new type of legal problems especially concerning defamation. Cyber defamation or online defamation or internet defamation is one of the legal challenges that Indian legal jurisprudence has encountered. It means the process of defamation of a certain person or an organization, business, etc., in the Internet resources, for example, in blogs, social networks, etc. This article focuses on the cyber defamation from the Indian context discussing its legal position, important judicial pronouncements and potential problem arising out of use of information technology more particularly use of internet.
UNDERSTANDING DEFAMATION
In its classical meaning, it describes any statement that a person makes knowing that it is false and which has a tendency to harm the reputation of another person. In India, defamation can be classified into two types:
1. Libel – slander in writing or other media; it is the action or Freedman of writing or publishing a false statement of fact that injures to person or his/her business reputation.
2. Slander – A defamatory utterance, spoken words.
The Bhartiya Nyaya Sanhita, 2023 under section 356 explains the offence of defamation in detail and in simple language tells what is or is not considered defamatory speech. As provided by this section, defamation arises where a person makes or publishes any statement about another person with a view to causing him/her injury, or where the person making or publishing the statement knew or ought to have known that such a statement would cause injury to the person being referred to. The section also contains several exclusions where some statements are considered defamatory but are allowed.
CYBER DEFAMATION: THE EMERGENCE
Cyber defamation is a form of defamation that has transited from the traditional analogue defamation and adopted computer technology. Now that social media companies, forums, blogs, and other digital methods of communication have become prevalent, statements which were previously only spoken or written into print media are considered defamatory. They can now be spread in a span of time all over the world with the help of a few clicks, to the extent that cannot be reached by traditional media.
For the purpose of this paper, cyber defamation must be looked at from the lens of civil and criminal laws in India. The two primary legislations governing cyber defamation are: The two primary legislations governing cyber defamation are:
1. Bhartiya Nyaya Sanhita, 2023
2. The act which is officially known as the Information Technology Act, 2000 is amended by the IT Amendment Act.
EMERGING LEGAL REGIME IN CYBER DEFAMATION
1. Bhartiya Nyaya Sanhita, 2023
Section 356 of the B. N. S as discussed earlier is the general section on defamation. If the above is taken into the digital platform, then defamation means libel.
2. The legislation referred to as the Information Technology Act, 2000
The legislation that deals with legal issues associated with cyberspace in India is the Information Technology Act, 2000 otherwise known as the IT Act. As much as there is no clear and direct definition of cyber defamation, the provisions of the IT Act offer an implied path on how the content displayed in cyberspace may be controlled and how the intermediaries used will be made to answer for such content.
Section 66A of the IT Act which was valid till the judgement of Shreya Singhal v. Union of India in 2015 was employed to handle situations where offensive or defamatory messages were posted on social platforms. But Section 66A was also stated broadly and vaguely, which led to its abuse; it was struck down by the Supreme Court as unconstitutional.
The IT Act also contains a provision relating to cyber defamation in section 79 of the IT Act. It concerns the issues of holding responsible the parties through which the content is spread, like social nets. Section 79 offers immunity to intermediaries with reference to any third-party information, content, information or communication link, subject to compliance with such rules and if such intermediary host or hosts any such third-party information, website, communication link etc. which contains any such defamatory material.
INDIAN SUPREME COURT AND HIGH COURT JUDGEMENTS ON CYBER DEFAMATION
1. Shreya Singhal v. Union of India[1]
Looking at this precedent, the Supreme Court has declared Section 66A of the IT Act as unconstitutional and null and void in this landmark judgment that prohibited sending of offensive messages through communication services. The court thus ruled that the said provision was unconstitutional to the extent that it clipped the wings of Article 19(1)(a) of the Indian Constitution, which guarantees freedom of speech and expression. This aspect was due to the fact that the provision was badly worded and its vague language was frequently abused to stifle freedom of speech. This case has been very central in setting the tone on how issues with speech on the World Wide Web including cyber defamation will be handled.
2. Sujata Mukherjee v. State of W.B.[2]
While handling primarily the conventional defamation this decision laid down principles that are common with cyber defamation as well. The Supreme Court pointed out that defamation law should promote both freedom of speech and the freedom of reputation. The court also an also emphasized the aspect of intention and malice in a defamation claim which are critical in any cyber defamation.
3. Swami Ramdev v. Juggernaut Books[3]
In this case, the Delhi High Court ordered a temporary restraining order against the publication and sale of a book entitled ‘Godman to Tycoon, ’ which it claimed portrayed Swami Ramdev in bad light. This included the determination that the right to free speech is not absolute but has to be balanced against the right to one’s reputation. This case has proved historical debate on freedom of speech and defamation especially with the increased use of internet in sharing of content.
4. Dharamraj Bhanushankar Dave v. State of Gujarat[4]
In this case, the petitioner was alleged to have published defamatory content against the respondent on social media platforms. In rendering its decision, the Gujarat High Court stated that the acts committed by the petitioner were immature and constituted what could be referred to as cyber defamation. The importance of section 79 of the IT Act was also underscored by the court and this speaks of intermediaries which have to act responsibly to remove the defamatory material.
5. Karti Chidambaram v. Althaf Hussain[5]
In this case, Karti Chidambaram a young man and son of the eminence and former Union Minister P Chidambaram sued Twitter user with a defamation case for posting defamatory content against Karti on Twitter. Recently the Madras High Court spoke about the influence of such social networking sites for dissemination of incorrect information and held that they must face action for having posted defaming information against another person. The court awarded an ex-parte interlocutory injunction to the effect that the respondent should refrain from further defamation.
CHALLENGES IN ADDRESSING CYBER DEFAMATION
1. Jurisdictional Issues
A major problem associated with cyber defamation is the issue of which jurisdiction of the courts to approach. Since the internet is international, the defamatory information that is posted in a certain country can be viewed from the other. This also results in several juridical questions, which in turn complicates the implementation of legal measures.
2. Anonymity and Pseudonymity
Another difficulty in preventing cyber defamation is the opportunity that the internet gives to post comments anonymously. Since many people do not use their real names while sharing sad or painful defamatory content, it can be very challenging to identify them and bring them to the book. There are of course legal ways of tracking a user through his/her IP address but they are not always effective and the procedure is often time-consuming.
3. Rapid Dissemination
The ability with which defamation can now go viral is another concern. As soon as a defamatory statement is published on the Internet it spreads across the information space within several minutes. This is especially the case when sometimes the content which has been published has to be pulled down later, by the time this is done, many people have already developed a particular perception about the victim and it’s hard to reverse this.
4. A discussion on liberty and reputation: The freedom of speech and its regulation
Blending the freedom of speech and the freedom of one’s reputation is however a complex affair. However, it is now claimed that the general right to free speech is a sacrosanct and inviolable commodity but this is not borne out of reality as everything good comes with its limitations in the exercise. These rights are very valuable and Indian courts have always stressed that this interest must be accommodated, but the question is how far?
5. Intermediary Liability
Another issue that can be an area of concern is where social media platforms, Internet Service Providers and various intermediaries come in the picture as far as cyber defamation cases are concerned. Section 79 of the IT Act does extend protection to intermediaries but the same mandates that such intermediaries must act expeditiously to block/remove explicitly defamatory content when notified. However, the realization of this provision has not been very efficient, and the intermediaries face difficulties in defining certain content as defamatory.
MEASURES OF PRECAUTION AND CIVIL ACTIONS
1. Awareness and Education
The only known method of prevention of cyber defamation is to acquaint users particularly those who access the internet with the proper conduct expected from them online. The people should be informed of the legal repercussions of posting defamatory posts and services of others’ reputations.
2. Stricter Regulation of Content
Although freedom of speech is relevant, there should be a specific crackdown on the content shared on such platforms to avoid the circulation of the defamation content. This comprises of even tightening standards of review on what is allowed on the sites and also making sure that the intermediaries take adequate action in matters concerning the removal of defamation.
3. Effective Legal Remedies
The legal action taken by the victims of cyber defamation should be effective, or in other words, there should be proper legal recourse available to them. This encompasses the capacity to lodge a complaint to law enforcement agencies and seek a remedy through civil as well as criminal courts. This kind of legal process should not be prolonged and take much time to be finalized because it is very important for the victims to get their justice on time.
4. Strengthening the Legal Framework
As it has been seen, there is a dire need to enhance the legal provisions dealing with cyber defamation in India. This includes even looking at laws, like the Bhartiya Nyaya Sanhita, 2023 and IT Act both are enforced to deal with new and emerging problems caused due to advancement in Information technology. Further, new laws may be needed in regard to specific areas of cyber defamation including jurisdictional questions and that of the intermediaries.
CONCLUSION
Cyber defamation is a growing concern in India, given the increasing reliance on digital platforms for communication. The legal framework governing cyber defamation, while robust, faces several challenges, including jurisdictional issues, anonymity, and the rapid dissemination of content. The landmark cases namely Shreya Singhal v. Union of India and Karthi Chidambaram v. Althaf Hussain brought significant changes in the legal regime of cyber defamation in India. Still, there is a need for additional reform to fit the new problems that are arising as a result of the digital age.
Since India is slowly transiting to becoming a digital society, it is very essential that the legal regime does not lag behind in terms of technology. This entails not only the improvement of the existing legislation but also the creation of a culture of appropriate conduct in cyberspace. India has an opportunity to achieve the correct balance between freedom of speech and the right to reputation so that the Internet remains safe and sparing for everyone.
[1] Shreya Singhal v. Union of India, AIR 2015 SC 1523.
[2] Sujata Mukherjee v. State of W.B., (1997) 5 SCC 201.
[3] Swami Ramdev v. Juggernaut Books, Delhi High Court, 2018.
[4] Dharamraj Bhanushankar Dave v. State of Gujarat, 2015.
[5] Karti Chidambaram v. Althaf Hussain, Madras High Court, 2017.
