Anupama Sharma, Advocate, Rajasthan
“Speech has consequences. Lies, implicit or actual, can inflict real monetary and emotional harms”[i]
Defamation: A Cyber Crime.
Information Technology came up as a boom to the society and increased its expanse at an explosive speed. But with every bane comes a bane. Soon, we all were aware of the term, ‘cyber crimes’ i.e. crimes prevailing in the cyber world.[ii]Defamation is one such cyber crime. It is well recognized under the Law of Torts and is penalized under section 499[iii] of the Indian Penal Code, 1860. In the year 2000, an attempt to regulate the cyber world was made in the form of the Information Technology Act. However, till date, we do not have any concise definition of ‘cyber/ E/ Internet defamation’ under the Information Technology Act. Does it mean that the Freedom of Speech and Expression guaranteed under Article 19(1) of the Indian Constitution stands unregulated in the context of defamation on the internet? For deep understanding, we need to first mention the main constituents[iv] of defamation; i.e.
- the content must be defamatory, which is likely to harm the reputation of the person concerned; which can be made through speech (spoken or written), signs or representations and;
- most importantly it must be published. By ‘published’, what is meant is that the defamatory content must have come to the knowledge of a third person other than the one defaming and the one defamed. The test of defamation can be such that on reading the published material, it should give a wrong impression to the reader about the person being spoken or written of
The next question that arises is: can there at all be an ‘e-defamation’? In this age, internet has touched human lives in a manner that it has become one of the fastest and most widely used mediums. It has promoted[v] freedom of speech and expression through effective ways of communication, exchange of information, ideas and opinions.[vi]
In such circumstances, chances of defamation cannot be ruled out. There can be defamation on the internet through various means[vii] since it provides a user friendly interface[viii] which facilitates freedom of articulation and information. Publication can be made through mailing lists, newsgroups where discussions are held, World Wide Web, blogs, etc. But is our law equipped to deal with such ‘e- defamation’?
How our law deals with Defamation?
Since the Information Technology Act does not specifically deal with cyber defamation, can the ambit of section 499 of the IPC be extended to cover cyber/e-defamation? The Indian Penal Code can certainly be used since the ambit of section 499 seems to be broad enough to cover cyber defamation and is internet-neutral. A major setback in terms of dealing with e-defamation is that the Information Technology Act, 2000 which has been specifically designed to regulate Information Technology does not in clear terms cater to such e-defamation; which consequentially reduces the deterrence or control over the internet users. However, defamation can be read under Section 66A(b)[ix] of the Information Technology Act. But it is a matter of interpretation and when there is a specific law catering to the cyber world, provisions that specifically cater to acts of defamation must also be drafted to fill the vacuum.
Difficulty of holding liable!
When analyzed practically, it can be argued that internet service providers (ISPs) must be held responsible for any publication of defamatory content since they provide the platform and hence must keep a check on the possible misuse of it. The Indian Penal Code, under section 501[x] does hold them liable. On similar grounds, Section 79[xi] of the Information Technology Act, 2000 puts liability upon ISPs in case they conspire, abet, aid or induce in publication of defamatory material. However, he won’t be held liable if he is merely providing access to the communication forum. Due to this proviso, it becomes extremely convenient for the ISPs to take the defense of merely providing access and their inability to keep a check due to the wide usage of internet.
Amending the act and adding a provision which criminalizes defamation will not serve the purpose. When looked from the mirror of practicality, it is a far complex problem.
The very fact that internet has become a global phenomenon and has spread its reach at an alarming rate, controlling it is becoming a mammoth task. When a person posts a defamatory content about another person, it becomes highly difficult to trace the origin (place of occurrence) since a person might have posted it from a fake profile and from a public computer which renders it impossible to track the offender. Moreover, even if the offender can be identified, the issue of jurisdiction creeps in. If the offender posted the defamatory material from place ‘X’ and he is a citizen of place ‘Y’ and the person who has been defamed belongs to place ‘Z’; in such cases ascertaining jurisdiction over the matter and the applicability of the laws becomes the moot question.
Conclusion and a proposed solution:
What can feasibly be done is that every service provider must have a supervisory panel which designs the communication interface in a manner that it screens the material that is being posted before it comes to the public domain. But in the process of screening, it needs to be taken care of that the thin line between defamation and freedom of speech and expression is not crossed. The thin line can be maintained if the text which has the potential of being defamatory and is otherwise not important to be shared as a public opinion is discarded; for example ‘XYZ is not a good politician and doesn’t know how to take his own decision’; might seem defamatory but it is fair to be shared in public as an opinion because it relates to his competence in his ruling abilities. But at the same time a statement such as ‘XYZ has an extra marital affair’ is not an ‘important’ opinion which needs to be shared and at the same time seems to be defamatory hence could be discarded.
To tackle the two possible problems with this test i.e., (1) handling the increasing internet traffic and (2) understanding of a statement to be ‘defamatory’ might vary as per perceptions. What possibly can be done is separate domains must be allocated to supervisory panels and their code of functions must be framed according to which each department/panel should keep a check on its respective domain. It can further be decentralized on the level of various ISPs who provide such communication forums. The ones who are benefiting the most from this lacuna of proper regulation are the Reputation Defence Services[xii], who are minting profits for destroying the defamatory material from the internet.
But one thing must be remembered, we are the creators of the cyber world and we must operate and let it grow in a manner that it remains within our reach.
[i] Ann Bartow,Internet Defamation As Profit Center: The Monetization Of Online Harassment, Harvard Journal of Law and Gender Seq 1 ; June 2009;Pg 133: http://ssrn.com/abstract=1447472
[ii] Bhakta Batsal Patnaik; Deeptakirti Verma, Quelling the CyberCrime challenge: Law relating to Computers, Internet and E-Commerce-A guide to Cyber law
[iii] “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.”
[iv] Section 499 IPC
[v] Farzad Damania, The Internet: Equalizer Of Freedom Of Speech? A Discussion On Freedom Of Speech On The Internet In The United States And India,12 Ind. Int’l & Comp. L. Rev. 243 2001-2002
[vi] Kamini Dashora, Journal of Alternative Perspectives in the Social Sciences: Cyber Crime in the Society: Problems and Preventions, ( 2011) Vol 3, No 1, 240-259
[vii] Bhakta Batsal Patnaik; Deeptakirti Verma, Quelling the CyberCrime challenge:: Law relating to Computers, Internet and E-Commerce-A guide to Cyber law
[viii] Bhakta Batsal Patnaik; Deeptakirti Verma, Quelling the CyberCrime challenge:: Law relating to Computers, Internet and E-Commerce-A guide to Cyber law
[ix] Any person who sends, by means of a computer resource or a communication device ; any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device, shall be punishable with imprisonment for a term which may extend to three years and
[x] Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
[xi] Network service providers not to be liable in certain cases.- For the removal of doubts, it is hereby declared that no person providing any service as a network service provider shall be liable under this information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.
[xii] Ann Bartow,Internet Defamation As Profit Center: The Monetization Of Online Harassment, Harvard Journal of Law and Gender Seq 1 ; June 2009;Pg 133: http://ssrn.com/abstract=1447472