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Explain the Cyber Defamation and Online Defamation in India

Introduction

Many people have discovered (to their dismay) that the internet makes it almost too easy for people to speak their minds. The internet is full of fascinating websites where a potentially defamatory message or article may be purposely or unintentionally left by someone. The Internet being a mammoth space for ideas, each one of us is just a comment under a Reddit post or a confession story uploaded with a filtered background by one of your followers away from being slapped with defamation. The idea of “Mean World Syndrome” put forward by George Gerbner has been seeping through this crack of online hateful and defamatory content for quite some time now.

Definition of Defamation

To begin with, Sec. 499 of IPC provides what is defamation as “Whoever, by words either spoken or intended to be read, or by signs or by visible 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.” coupled with the example of the aforesaid section wherein it discusses on the tendency to lower the moral or intellectual character of that person in his caste or association. A hint can also be taken from keywords associated under Sec. 469 IPC (harm reputation) or Sec. 503 IPC (injury to reputation). These can be clubbed under the genus of ‘defamation’ under the Indian Penal Code.

Libel vs Slander

Since the prerequisite is ‘publish’ we need to point out a distinction to better conceptualize the minds of the readers. The distinction relates to the concept of Slander and Libel:

  • Slander: Anything defamatory which is through the medium of spoken words. Hence verbal defamation. Think of it in terms of derivation of the word ‘slang’; our very own daily short encoded messages/jargon.
  • Libel: Google defines it as written defamation or “a published false statement that is damaging to a person’s reputation”

Ingredients 

Since we have established what defamation means the ingredients can be defined as:

  • Statement
  • Published irrespective of the realm i.e cyber/digital or written
  • Harm to reputation or intention to harm

○ The tendency to lower the moral/intellectual reputation of the individual

  • Among his peers or in society at large

○ It should refer to the plaintiff solely, generalised statements are not brought under this.

Cyber Defamation

With the push into the 4th industrial revolution of digitization, we have carried on our backs the hate of defaming and demeaning other individuals. A digital world where one can reach the masses without putting in many efforts allows tons of trolls and defamation to pass through the safety net. If casually put in, online defamation is defamation + computer or processor = Cyber Defamation. The definition of cyber defamation is nothing out of ordinary, the crime is the same, the intent is the same only the medium of delivery has been altered alongside the no. of eyes watching.

To look more into cyber defamation one can glance through the history attached to Sec. 66A of the IT Act and its fall in the landmark judgment of Shreya Singhal (2015) 5 SCC1. Wherein the brutal and overreach by administration categorizing certain tweets against political leaders as defamatory. The Apex court brought down the tyrannical power bestowed upon the investigative agencies to arrest and punish any alleged individual.

Cyber defamation can be called out as cybercrime because one individual with the intent to defame someone he is acquainted with or to a stranger via the digital medium publishes certain statements or visuals. “Cyber defamation being characterized by its fast propagation speed, a higher level of attention, strong occult, and low cost of the law, makes crimes easier to implement and more difficult to reduce”

Closing the argument on defamation ‘published’ in the cyber realm one can look over Sec. 65A[1] and Sec. 65B[2] under the IEA. Where printed cover emails, chats, electronic records, blogs, visuals, etc that almost touch upon every kind of ‘published’ content are considered admissible in the Indian court system.

Penalty:

Recently the LDF government in Kerala tried to introduce an ordinance in November of 2020. The ordinance talked about amending the current Kerala Police Act of 2011 by amending Sec. 118A. The said ordinance was brought in to provide extra teeth to the powers of the police by allowing a penalty of 5 years or INR 10,000 fine for defamatory content posted by individuals over the internet. But after a huge hue and cry, the ordinance was rolled back. The need for such an ordinance was felt because after the Shreya Singhal judgment there hasn’t been any specific piece of legislation that deals with cases of online defamation with gravitas.

But what we have in hand is punishment under Sec. 500 which awards 2 years of imprisonment or fine or both, Sec. 469 punishment up to 3 years or fine or both, Sec. 506 punishment up to 7 years or fine or both. With no spec legislation meant to deal with cyber defamation, the court has to salvage from these aforesaid provisions.

Onus of Proof 

Once the matter reaches court the plaintiff has to just ignite the allegation of defamatory content and prove that it indeed was defamatory. As soon as the plaintiff discharges this duty court presumes that:

  • The statement is false
  • It was published with malice
  • The plaintiff has suffered damage due to the defamatory content

The onus is majorly shifted on the defendant to prove innocence or take the cover of any of the defenses discussed below.

Defenses against cyber defamation:

“No offense, please” One might use this slang too often in a group of friends but unfortunately it does not qualify as a valid form of defense for any defamatory comment made online. There are only certain prescribed immunity provided in case of defamation suits namely:

  • Truth: If the defendant can prove that the statement made is nothing less than absolute truth.
  • Fair comment: The defendant is allowed to comment on facts truly stated. Only if it captures the substance, gist, or sting of the proceeding. The report need not track verbatim the underlying proceeding, but should not deviate so far as to produce a different effect on the read.
  • Opinion: Court in Prof. Imtiaz Ahmad v. Durdana Zamir observed that under the law of defamation, the test of defamatory nature of a statement is its tendency to incite an adverse opinion or feeling of other persons towards the plaintiff.
  • Privilege: Can be further categorized into Absolute & Qualified privilege for eg: privilege bestowed upon parliament members during parliamentary proceedings.
  • Sec. 79 IT act read with rule 3 of IT rules of 2011: ISP is not held liable if they are only acting as a conduit and do not have the right to modify or alter the content hosted by them.

Emerging trends in online defamation:

  • Insurance claim for defamation: It is rightly pointed out that in the age of Twitter trolls and online brawls it is not just the journalists who need lawyers and insurance. One might have laughed at the ludicrous idea of having a defamation insurance policy back in the 90s but in the digital age companies like The Authors Guild are already equipped with media insurance and defamation claims to go forward in carrying the torch of truth.
  • Administrative overreach: With great powers and hegemonic ideologies comes a fragile ego and astringent take on dissent. Since cases similar to Prashant Kanojia, Prashant Bhushan and Arnab Goswami are on the rise the government’s hot take on defamation laws against administration will surely see a paradigm change.

Conclusion

Pandit Nehru has been seen quoting “words can never capture the magic of the human spirit” but in the times we survive in, words can transgress some boundaries and infringe on an individual’s right to reputation.

Cyber Defamation is covered under the umbrella of cybercrimes by various international institutions and does not suffer from any blatant unconformity across the globe. In Online defamation, people choose to use the internet as a medium for libel acts as the internet is a place with low entry barriers and almost zero tickets to play and blame. Almost anything can be said out loud with the potential to reach millions of other internet users online all over the world.

With emerging practices like umbrella insurance policy & fragile government ego, we can see a lot of shift towards consumers being actively aware of their rights and duties attached to their mighty pen and ever running tongue. As India prepares itself to introduce Data Protection Bill, 5G spectrum, Green Tech, Electronic cars, and expansion of its solar energy farms there also is a need for national legislation which in cybercrime centric.

 

[1]Sec. 65A: Special provisions as to evidence relating to electronic record.—The contents of electronic records may be proved in accordance with the provisions of section 65B.

[2] Sec. 65B: Admissibility of electronic records.— (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded, or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or any fact stated therein of which direct evidence would be admissible.

This Article is Authored by Kartikey Kapoor, 5th Year BBA LLB Student at GGSIPU.

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