LAW AND INFORMATION TECHNOLOGY

CYBER DEFAMATION IN INDIA: JUDICIAL TRENDS IN INDIA

Submitted by: Submitted to

Adeeba Hussain. Dr. GHULAM YAZDANI

9th Semester. ( PROFESSOR)

Regular

1
 ACKNOWLEDGEMENT

I would like to express my heartful gratitude to my Health Law professor Sudharipta Sarkar for giving
me this golden opportunity to explore on this topic. I would like to thank him for his able guidance
and support in completing of this assignment.

I also want to thank my family for their moral support and constant inspiration and for providing me
with all the facilities required and for sponsoring all the materials and also to my friends for constant
support and cooperation and also to.

Last but not the least I would like to thank THE ALMIGHTY for showering his choicest blessings
upon us.

THANKS TO ONE AND ALL!

Adeeba Hussain

2
INDEX

Introduction. 4

Defamation and it’s essentials. 5

Cyber defamation. 6

Difference between defamation and cyber defamation. 7

Indian laws on Cyber Defamation. 10

Section 66 A of IT Act 2000. 11

Defamation v. Free Speech. 13

Liability of Internet Service Providers. 14

Exceptions of defamation. 15

Suggestions. 16

Conclusion. 17

Bibliography. 18

3
Introduction

In today’s world of technological advancement, media’s influence seems to be

ubiquitous and profound. This era of the internet is known as the "Information Age".
The use of e-mail, social networking sites, chat groups, websites, and many more have
increased access to information. It has changed the way we live our lives and is a one-of-
akind tool for global human communication. This simple access to such a medium can
often lead to people misusing it to make defamatory comments in cyberspace.

With the emergence of the internet, there is a need to define the defamation done in
cyberspace, better known as Cyber Defamation. In India, Cyber defamation is defined
as “the act of defaming, insulting, offending, or otherwise harming a person in
cyberspace through false statements." Unfortunately, cyber defamation is becoming
more common these days. It is because Internet has given us the ability to share our
views with the rest of the world. We can quickly share anything and it will go viral in a
fraction of seconds.

4
Defamation is both a civil wrong and a crime. As per black's law dictionary, defamation
means, "the offense of injuring a person's character, fame, or reputation by false and
malicious statements". In simple words, defamation is an injury to the reputation of another
person. There are two forms of defamation:

1. Libel - It is a written defamation which is in permanent form like in a newspaper,

magazine or, even in a television. It is addressed to the eyes and is easy to prove in the
court of law.

2. Slander – It is done by speaking or by expressions and it is not in permanent form and

it is addressed to the ears.

Today we are living in the 21st century and there have been many technological developments
in the world around the past few decades. Modern technology has created a cyberspace which
in contemporary time has become a platform for defamation. It is known as cyber
defamation. Internet has given birth to cyber defamation. In cyber defamation the internet is
the medium through which defamatory statements are published. People nowadays use
cyberspace to make defamatory statements on others. Cyber defamation means injuring the
reputation of a person on the internet by using social media email, etc. Generally, a
defamatory statement has to be published over the internet to fall under the category of cyber
defamation.

The essentials of defamation and cyber defamation are same:

1. A statement

2. That statement must be defamatory and should be injurious to the reputation of a

person.

3. That defamatory statement should specifically refer to plaintiff.

4. The statement must be published (communicated to other people).

5
 5. It should lower the reputation of plaintiff; it must cause damage to the reputation of
plaintiff.

6. Although cyber defamation comes under the umbrella of defamation it is much more
prevalent than defamation. Today we see that the courts have more number of cases
of cyber defamation than defamation itself. Defamation and cyber defamation are
different and have different consequences.1

Cyber Defamation
The widely used social media brought a revolution not only in the Indian sphere but also
all across the world. The remarkable growth of the Internet has provided people with a
platform to express their opinions, thoughts, and feelings through various forms of
publications. Nonetheless, the ease of accessibility and publication in this online world has
created several risks as these digital platforms are prone to be exploited by unscrupulous
Internet users in the name of freedom of speech and expression. Thus this has led to
numerous cases of “Cyber Defamation”.

Cyber defamation is a new concept but the traditional definition of defamation is injury
caused to the reputation of a person in the eyes of a third person, and this injury can be done
by verbal or written communication or through signs and visible representations. The
statement must refer to the plaintiff, and the intention must be to lower the reputation of the
person against whom the statement has been made. On the other hand, Cyber defamation
involves defaming a person through a new and far more effective method such as the use of
modern Electronic devices. It refers to the publishing of defamatory material against any
person in cyberspace or with the help of computers or the Internet. If a person publishes any
kind of defamatory statement against any other person on a website or sends E-mails
containing defamatory material to that person to whom the statement has been made would
tantamount to Cyber defamation.

1
R.K Bangia , Law of Torts Central Law Publications 2018 8th edition page no. 34-38

6
Differences between defamation and cyber defamation

Defamation Cyber Defamation

1. Generally, the On cyberspace, a

defamatory defamatory
statement does not statement reaches
reach to a large to many people
number of people sometimes to even
and less damage is more than a
done to reputation. million people.

2. It is not hard to On cyberspace

find out the many people
defendant. keeps their
identity
anonymous so it is
hard to find out
that who made the
defamatory
remark.

3. In many cases, In cyberspace,

plaintiff and everyone can
defendant know defame anyone. It
each other is even possible
personally. that a man living
in India can make
defamatory
statements for a
man living in the

7
 USA without
knowing him
personally.

4. It can or cannot be It is actionable per

actionable per se. se as once you
make a
defamatory
statement on the
internet and
afterward delete it;
in the meantime, it
had already
reached too many
people.

5. The defendant is In cyberspace, a

liable for man who made a
defamation. defamatory
statement and the
people who shared
that defamatory
statement are
liable for cyber
defamation. In
short, for only one
defamatory
statement many
people can be held
liable.2

2
Cyber Defamation available at www.iblog.pleaders.com

8
What forms of defamatory publications are admissible by courts in India?
As per section 65A and 65B of the Indian Evidence Act –

1. Any electronic record printed on a paper or recorded or copied in optical or magnetic

media shall be considered as a document and shall be admissible by court.

2. Online chats are also admissible.

3. Electronic mails are also admissible.3

How Trolling & Criticism Is Different From Defamation On Cyberspace?

 Criticism on cyberspace: People often criticize other people on cyberspace i.e. social
media. On social media, you can get criticized literally over anything whether it is
your occupation or the way you present yourself on social media. The difference
between criticism and defamation is that criticism deals only with such things as
invite public attention or call for public comment, and does not follow a man into his
private life, or pry into his domestic concerns, and it never attacks the individual but
only his work. [2] This clarifies that you can only get criticized for your work and not
for your personal life affairs. If people criticize you for your personal life then you
can take legal action against them. A very recent incident related to criticism was
from Bihar. Earlier this year CM Nitish Kumar ordered the state's economic offenses
wing to take action against those who are criticizing him, his party members, his
ministers on social media by using inappropriate language and are spreading rumors
about them. State police further clarified that only 'constructive criticism' is welcome
and the posts spreading rumours and using inappropriate language will be
targeted. [3] So it means that we can criticize anyone for their work without using any
abusive language or spreading rumours and if you don't follow these while criticizing
then legal action can be taken against you.

 Trolling on cyberspace: People often misunderstood trolling with cyber defamation

but trolling comes under the cyberbullying. Many people don't know about this.
Cyberbullying is totally different from cyber defamation. A troll

3
Indian Evidence Act, 1872

9
Indian laws on online defamation
Section 499, IPC: Definition of defamation
This Section defines defamation. When a person intends to harm or has a reason to believe
that their action may lead to harm to the reputation of such person, by the means of words
spoken or meant to be read, or by signs or visible representations made or published, he/she is
said to have committed the offence of defamation. Defamation may be made to more than
one person, such as a company or a group of persons.

With the introduction of the Information Technology Act, 2000, the definition of defamation
was broadened in scope to accommodate “speech” and “documents” in electronic form as
well.

Section 500, IPC: Punishment for defamation

This section prescribes simple punishment which may extend to two years, or fine or both for
the offence of defamation.

Section 469, IPC: Forgery when intended to harm someone’s reputation

Anyone who forges a document or an electronic record with an attempt to harm the
reputation of a person shall be punished with imprisonment which may extend up to three
years, and shall also be liable to fine.

Earlier, the phrase “intending the document forged” was present. However, the introduction
of the IT Act amended it to accommodate electronic records as well.

Section 503, IPC: Criminal intimidation

Whoever threatens a person or someone such person has an interest in with an injury to their
person, reputation or property, with an object of inducing fear into their minds or to cause
such a person act illegally or omit to do any act which they are legally entitled to, is guilty of
the offence of criminal intimidation. It extends to a threat to hamper the reputation of a
deceased person as well. Emails and other electronic means of communication for harming
reputation may be used as a means to damage reputation and are well within the ambit of this
section.4

4
Indian Penal Code, 1860

10
The Controversial Section 66A of IT Act, 2000
Object of Section 66A
Section 66A of the IT Act, 2000, does not specifically deal with online defamation. However,
it makes the sending of offensive material for the object of harming someone’s reputation or
for criminal intimidation a punishable offence. According to it, if a person uses a computer
resource or device to circulate content which is menacing and offensive, or information
which he/she knows to be false but still sends it across the internet for some ulterior motive,
or sends an email with an aim to deceive the recipient about its origin, he/she shall be
punishable with imprisonment which may extend to three years, along with fine.

Controversy
In Shreya Singhal v. Union of India, two girls from Maharashtra filed the first petition against
this Section in Thane Police following their arrest due to their comments on a post talking
about a lockdown due to Shiv Sena chief Bal Thackeray’s funeral. Their arrest invoked
widespread anger and debate as to how the Cyber Law was being used in the nation. More
such arrests kept on happening, including arrest due to forwarding caricatures on Mamata
Banerjee on Facebook.

Issue
The wording of the section mentions spreading false content for “causing annoyance,
inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill
will”. The scope of this section is very wide. It strives to include any and everything under
the Sun. Every serious opinion dissenting shall be liable to fall prey to it. It was contended
that most of the terms in the section were not defined in the Act and posed a serious threat to
freedom of speech and expression.

Striking down of the Section

In Shreya Singhal v. Union of India, 5the Supreme Court held the section invalid and struck it
down for being ambiguous and open-ended in 2015. They made a note of the wide scope of

5
WRIT PETITION No.1092 of 2012

11
the section and agreed that it posed a threat and went beyond acting as a “reasonable
restriction” to the freedom of speech and expression.

Employers liability issue

In the case of SMC Ltd. V. Jogesh Kwatra,6 derogatory remarks were sent by the employee to
the employers and other subsidiaries of the company, and they have been restrained by Delhi
High Court from carrying any kind of communication to the plaintiff. This order of Delhi
High Court was presumed to be of great significance as it was the first time that an Indian
court assumes the jurisdiction in a case of cyber defamation and grants an ex-parte injunction
restraining the defendant from defaming the plaintiff by disallowing him to send any
derogatory, abusive and obscene emails to the plaintiff. Further, the employer was not held
vicariously liable as the defendant was not acting as a part of his employment and was off on
a frolic of his own.

In the Suhas Katti v. Tamil Nadu, the accused spread obscene, vulgar, and defamatory content
about a divorcee in a Yahoo message group. He also sent derogatory emails to her asking for
information from a fake account. She received annoying phone calls due to his posting of the
message, and she lodged a complaint against him. The accused was held guilty of offences
under Section 469. 509 IPC and Section 67 of the IT Act, 2000,

In another case, Tata Sons v.Greenpeace International7, the Delhi High Court reiterated the
meaning of the word “publication” in the context of defamation and held that it embraces all
mediums, including the Internet. Just because publication on the internet varies due to its
mass reach in a short span of time does not alter that it is, after all, a medium of
communication. Injunctions for cybercrimes ought to be granted immediately because of its
characteristics such as its easy accessibility and a self-publishing nature, which might cause
6
Original Suit No. 1279 of 2001New Suit No. 65/14

7
(2011) 45 PTC 275

12
greater harm to the victim. Hence, the laws governing crimes that happen over the net shall
be properly defined and distinguished owing to its different nature as a medium.

More recently, in Swami Ramdev & Anr. v. Facebook Inc. & Ors 8., Justice Pratibha Singh
gave an order to remove all defamatory content against Baba Ramdev which has been
uploaded from a computer or computer resource in India. The decision was given without any
territorial limit, and if as asked wasn’t heeded to, then Indian Courts would have international
jurisdiction to pass injunctions. Facebook filed an appeal against this decision in the Delhi
High Court, stating that even though they knew who the author of the content was, they were
not liable to be made a party to the suit. Also, this content had not shown any strong or
irreparable loss to the image of Baba Ramdev. They also contended that it interferes with the
immunity granted to them in other jurisdictions.

Defamation v. Free Speech

Taking the same example, say, if A had written, “I think B is cheating on his wife”. In this
case, it appears as if A is merely stating an opinion. However, the statement of opinion may
be regarded as a statement of fact depending on the graveness of the defamation in the case.
Simply paraphrasing opinions with an “in my opinion” clause does not help camouflage it
from the offence of online defamation.

The Constitution of India in its Article 19(1)(a) guarantees the freedom of speech and
expression to its citizens. However, this is subject to reasonable restrictions. There’s a
considerable difference between freedom to express one’s opinion and making statements
with a mala fide intent. Protection from harm to one’s reputation falls under a reasonable
restriction.

3. Free Speech and Journalism With the increasing use of social media, there has been a rise
in defamation cases. This limits the Fundamental right of free speech and expression given to
citizens of the country. Supreme Court in Subramanian Swamy vs Union of India9 ruled that
the laws of defamation have a chilling effect. In a legal sense, the word "chilling effect"
refers to a situation in which a speech or behaviour is silenced by fear of being punished in
8
CS (OS) 27/2019
9
WRIT PETITION (CRIMINAL) NO. 184 OF 2014

13
the interests of a person or community. Censorship or limitations on internet access that are
arbitrary or indiscriminate are claimed to be incompatible with a state's foreign commitments
and are thus undesirable.

Liability of Internet Service Providers

The Internet Service Providers are the information intermediaries. They obtain information
from third parties when they do not produce it themselves, and then they disseminate it to
others. There are 2 types of publishers Primary and Secondary. As they are intermediaries,
they are not liable for the information published by a third party, subject to some conditions
stated in Section 79 of IT Act, 2000.

• Firstly, if his actions are limited to providing access to communication system only to the
third party •

Secondly, they are not liable as long as they do not (a) initiate transmission; (b) select the
transmission's receiver; or (c) select or alter the transmission's information.

Thirdly, they perform their duties with utmost care and abide by any rules that may be
established. If the internet provider fails to follow the abovementioned requirements, they
are guilty of Cyber Defamation. Apart from this, they are also liable if they conspired, aided,
or caused the event. When an intermediary act solely as a carrier and transporter of
information rather than as controller of information, he cannot be held liable. However, when
an information publisher's job description includes not only publishing and transmitting
information but also exercising reasonable control concerning that publication, his liability
can be determined. Here, the publisher is bound to prove that, "he had no reason to believe
the statement was defamatory in nature and he took reasonable care concerning the
publication"

14
The ease of communication has greatly improved with the introduction of the internet age.
However, there are always pros and cons of such conveniences. Due to the ease of
transferring data and information through the internet, it has become a significant hotspot for
defamation. Despite the fact that there are laws prohibiting people from publishing
defamatory information online, most people are unaware of these regulations or are too
careless to recognize whether such content is defamatory or not. Apart from the strong data
protection laws, the Government shall also institute cyber cells with experts who can tackle
the new age of cybercrimes. In this digital era, when free speech disrupts a person's
reputation, it is necessary for the legal system to create a limit, preventing it to become a
weapon in the hands of offenders.

Legislation that teaches and informs users on what to do and what not to do, what is wrong
and what is right, and what is defamatory and what is not defamatory in cyberspace is
urgently needed. Furthermore, the intermediaries responsible for the open platforms should
monitor the content on their social media and take necessary action against the offenders,
thus creating awareness amongst the netizens.10

Exception which won’t be considered as defamation

10
Rishita Nadari Critical Analysis of Cyber Defamation , IJIRIT , Volume 8 Issue 1

15
Generally, a harmful statement will not amount to libel, if one of the following defences
applies:
1. Made only to the person it is about. If it was only made to the person mentioned in the
statement, and not to anyone else;

2. True statements. If it is actually true, and the person making the statement makes
the statement honestly and not maliciously;

3. Absolute privilege applies to statements made in court (as evidence in a trial) or in

parliament;

4. Qualified privilege protects statements made non-maliciously and for well-meaning

reasons. For example, if an employer is requested to give a reference for an
employee, and they give a statement that is their honest opinion;

5. Fair comment. The defence of fair comment may apply in situations where
statements made were about issues of public interest, as long the comments were
honest statements of opinion, based on fact. If your statements were malicious, this
defence will not apply; and

6. Responsible communication of matters of public interest. This defence is available

in libel cases. It allows journalists the ability to report statements and allegations, in
cases where there is a public interest in distributing the information to a wide
audience. However, this defence only applies where the news was urgent, serious
and of public importance, and the journalist used reliable sources and tried to report
both sides of the issue.11

11
Cyber Defamation available at www.livelaw.com

16
Suggestions and recommendations to improve the laws and mechanism related to Cyber
Defamation in India
It is recommended to have an independent cyber crime investigation cell which is under
the Central Bureau of Investigation and it needs to be set up on its own so that it comes
directly under the central government and also specifically deal with cyber crimes including
cyber defamation. There should be cyber cell police stations in every district of every part of
India headed by Investigation officers who are well versed with cyber laws so that it will help
them to handle the offenders promptly. Awareness programs should be initiated by the
government to enlighten people about cyber crimes and also about the precautions that should
be taken to protect themselves.

Judiciary can also play a significant role if special cyber courts are established and judges
with specialized technical knowledge may preside over these courts. So, there is a need to
train judicial officers, police personnel to settle cases of cyber crime expeditiously and more
effectively. Information and communication technology keeps on changing, and people need
to get updated with its development. So we need to amend existing laws to keep pace with
technology and prevent such offences happening and affecting people at large.12

12
Avantika Nandy , Defamation in Cyberspace, FIMT ,Volume 10 May 2020

17
Conclusion

The intense volume of information and an easy way of transferring it on the Internet makes it
a critical source of defamation. After researching on the aforesaid topic, it can be said that the
present scenario of India regarding laws do not have an adequate approach towards cases of
cyber defamation. Also, defamation laws should be sufficiently flexible to be applied to all
media. As the defamation laws in the era of the Internet, it becomes practically impossible to
apply the principle of 18th and 19th-century cases to the issue arising on the Internet in the
21st century.

18
Bibliography

Books

1. R.K Bangia, LAW OF TORTS ,Central Law Publications, Allahabad

Journals

1. Avantika Nandy , Defamation in Cyberspace, FIMT ,Volume 10 May 2020

2. Rishita Nadari Critical Analysis of Cyber Defamation , IJIRIT , Volume 8 Issue 1

Websites

1. Livelaw
2. SCC OnLine

19