As the use of internet has diversified, many people have started using internet as means of communication, interacting with each other. The use of internet and social media has brought a revolution not only in India but in all over the world also. The ease of sharing information has provided the users with the freedom to interact without any barriers. The Politicians, Actors and the other renowned personalities also use internet stuffs to promote their propaganda work and to gain more and more fame on internet and get more and more fans and followers. Today, the social media sites like Facebook, Twitter, Instagram, WhatsApp etc. are becoming the part and parcel of almost every personality and star. The new era of society has came up which is virtual/ internet society where everyone is trying to give their views publicly through social media polls and discussions. However, this freedom is sometimes misused by commonly called ‘Trolls’ who post unnecessary/ false statements about someone, harming their reputation and Using internet for defamation them and the open discussions about some issues sometimes might end up into controversies and heated arguments and this may lead to insult of that particular person or a group of persons.
In this report, we are going to cover the detailed analysis of the definition of cyber defamation during internet age, what is that issue concerning about i.e. What type of issue is this ( Social/Economic/Legal)? What is the statement of problem (Current Situation and Scenario)? What are the Legislative Responses since the problem has began i.e. What Acts or Laws have been introduced since then? What is the Judicial Outlook regarding Defamation through internet (How the Court has tried to cope with this problem)? And at the end, obviously the aim of this research is to provide some suggestions that how this problem should be dealt?
What is Cyber Defamation?
Cyber Defamation is a totally new/recent phenomena in the Cyber Space (Cyber Space is a technical term used for the electronic medium of computer networks in which online communication takes place).
To understand the meaning of cyber defamation, firstly we need to know both the terms “Cyber” and “Defamation” separately.
“Cyber” is relating to or characteristic of the computer World, IT (Information Technology) and Virtual World.
And “Defamation” means hurting someone’s reputation in public by using some derogatory words or statement.
Now, as we have already discussed that what is “Cyber” and what is “Defamation”, so by combining the explanation of both these terms, we come to know that what does it actually mean.
Cyber Defamation is wrongfully and intentionally publishing words about a person which may tarnish that person’s status/ reputation and fame. To put someone’s reputation at a stake by using computer as an instrument through networks, internet data etc., in the cyber space, is known as cyber defamation. Cyber Defamation is also known as Internet Defamation/ Online Defamation. Cyber defamation or Internet Defamation is the new concept being introduced among the various kinds of Cyber Tort. It merely involves defaming a person i.e. publishing a defamatory material against a person through virtual/electronic medium. If someone publishes an insulting statement about someone on a website or any social media platform or send some defamatory mails to some persons with an intention to hurt reputation of other person about whom the statement has been made will amount to cyber defamation. So these are the general meanings and definitions used all over the world for internet/ cyber defamation. But as per the Indian Legal System, the term ‘Cyber Defamation’ is elaborated as follows.
The Indian Penal Code, 1860 defines 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 expected, to defame that person.”
Essentials of Cyber Defamation or Internet Defamation-
- The statement must be defamatory i.e. the statement must cause harm to the respect/ status of the person in the group/ society.
- The statement should refer to the plaintiff i.e. the plaintiff must prove that the statement given by the defendant was pointing towards him, only then the person can be made liable.
- It should happen in front of a person/group of persons i.e. there shouldn’t be existence of any private conversation/ talk, otherwise the statement will not be considered as defamatory.
- It should be published on internet(whether libel or slander), actions or visible presentation i.e. the publication is necessary either in the form of text, visual representation, clip, audio or a video.
Identification of the Problem of Internet Defamation-
Also Read: Defence to Defamation
Cyber Defamation is a Socio-Legal offence. It is a Social Offence because this type of offence highly affects the society. Obviously, Cyber or Internet defamation affects the reputation of the victim as well as it affects the other members of the society as well. Internet Defamation is a social offence when it creates a sense of ill will among the other members i.e. they may also be invoked to do such type of things like insulting other people and also it can cause the lack of moral code and values among the other people of the society.
As it is general human nature that man learns the evil things early so these offences not only creates hurdles for one or two people but for the whole of the society. As a result, these malicious things affects the overall civilization and hinders the growth of whole state.
Also the member who is defamed, if that member is related with some group then the defamation of that particular person may lead to the defamation of whole group.
This type of situation mostly occurs with the Political parties that if a leader or any famous member of the party is defamed/insulted, then the whole party’s reputation will be put at a stake.
For example people troll Rahul Gandhi, Arvind Kejriwal, Narendra Modi, Smriti Irani and many other political leaders and it doesn’t only leads to their defamation but also their party’s defamation also.
It can lead to the breakdown of confidence and loss of faith in the eyes of the people about that party.
Internet defamation is not properly recognised as a particular offence under law. It can be any of the civil as well as criminal offence. The victim can file either civil or criminal suit or both against the person who commits defamation.
How Civil offence is different from Criminal offence?
They both are generally different from each other in terms of punishment. Civil cases include compensation which can be both un-liquidated/ liquidated sum of money (subject to the facts and issue of a case) like they only result in monetary damages, but in the criminal cases, imprisonment is the potential punishment which may or may not accompany with the fine also which completely depends upon the issue of the case. So, how to determine that whether the defamation is of civil or criminal nature depends upon the intensity of damages which the plaintiff suffered e.g. if the nature of derogatory statement was not that serious, then in this case the victim may go for the civil case but if the nature of statement is much serious that it caused the plaintiff heavy mental as well as monetary harm also i.e. in business, then he may file a criminal case.
The choice depends upon the fact that whether the defamation is of grievous nature or it is minute in nature. If the defamation is filed under criminal offence, then under Section 499 of IPC (Indian Penal Code), the imprisonment up to 2 years or fine or both can be given to the accused if proven guilty. And, if the defamation is filed as a civil suit then it will come under the concept of Cyber Torts and an un-liquidated sum of money will be paid as damages to the plaintiff.
Understanding problem of Internet Defamation-
In present world internet is men’s first seek and need, mostly he can’t live a moment without it. But in this era of cyber world and there is massive expansion in the growth of technology.
As Information Technology evolved it gave birth to the cyber space where internet provides unrestricted access and opportunities to any people to have access to any information, data storage at any time with the help of high technology.
Cyber crimes are neither bound by time nor by the boundaries for example, a person sitting in one corner of the world can at any time cause damage to the dignity of the other person who’s sitting in another corner of the world. So this vulnerability of internet is the main statement of problem leading to expansion of Cyber Defamation.
This led to the inevitable misuse of technology in the cyber world and as a result giving rise to various “cybercrimes” at the domestic as well as in the international level.
Now through this research we are particularly targeting the issue of ‘cyber defamation’ and will briefly review the efficacy of the statutory provisions governing the offence of cyber defamation in India, the
liabilities wherein the primary publishers as well as the internet service providers can be held responsible, and the remedies and damage, along with the judicial pronouncements.
The main question we are seeking to get and give answer through this research paper is that whether Laws of Internet Defamation in India are adequate ? And, how to resolve and address the legal issues involved in the interpretation of these laws?
The prime concern is, internet is not a country that has national boundaries which implies anyone can anonymously from any place can defame anyone, so how this issue can be resolved by law and who will be in jurisdiction of that law?
So through this research paper we will be focusing on these all issues, thereupon giving our suggestion and legal remedies to the emerging problems in India.
While Rights to Freedom of Speech and Expression are guaranteed by Article 19 (1) (a) of the Constitution of India, still the people are mis-using the provisions as provided to them by the Constitution and are committing the cyber defamation thinking that they have the right to do so. However, this right is not absolute right as it doesn’t gives us full authority to say anything about anyone. This very provision has came up with some reasonable restrictions with respect to exercising of these rights keeping in mind the interest of state, security, friendly relations, public order, morality etc.
But the problem is this provision of Constitution is violated when people maliciously defame the other people with offensive words where as Article 19 only provides us with speaking anything for public good and it should be a fair comment only.
Legislations Governing Cyber Defamation or Internet Defamation In India–
Indian Penal Code, 1860–
As the use of internet is increasing day by day especially the social networking sites like Facebook, Twitter , Instagram and many more . People now a days like to be active on internet so all this lead to more cases of cyber defamation not only in India but all across the world .
In India defamation is both a civil and criminal wrong . The person can file case both in criminal and civil proceedings .
Under the civil it is cover under tort and compensation is given to the person . And under Criminal we have some provisions which we are going to discuss .
As The Indian Penal Code ,1860 contains provisions to deal with the menace of cyber defamation. In India, Cyber or Internet Defamation results in Civil as well as Criminal proceedings against the accused.
Some the Acts and rules that deals with Cyber Defamation are The Indian Penal Code, 1960, The Information Technology Act, 2000, The Code of Criminal Procedure, 1973 and The Indian Evidence Act, 1872. The Charging Act for prevention of Cyber Crimes in India is the Information Technology Act, 2000.
Some of the sections of Indian Penal Code, 1960 that deal with Internet defamation are Section 499, 469, 500 and 503.
- Section 469 of IPC–
Section 469 of IPC says that whoever commits forgery (Making of False ,derogatory statement (s) in private or public about a person’s business practices ,character ,financial status ,morals ,or reputation intended that the document or electronic record forged shall harm the reputation of any party ,or knowing that it is likely to be used for defaming purpose shall be punished with imprisonment of either description for a term which may extended to three years and shall also be liable to fine.
The phrase “intending that the document forged ” under Section 469 was replaced by the phrase “ intending that the document or electronic record forged ” vide the Information and Technology Act ,2000.
- Section 499 of IPC –
Section 499 of IPC says that whoever (he/she), by words either spoken or intended to be read ,or by signs or by visible representations ,makes or publishes (here publishing does not mean publishing in newspaper or somewhere else it simply means that making third party aware) any imputation concerning any person intended to harm his or her reputation in society or knowing or having reason to believe that such imputation will harm the reputation of such person is said, excepted in the cases hereinafter excepted ,to defame that particular person in the society .
The offence of hurting someone reputation (defamation) is offence under section 500 of IPC and it is punishable under this . The person who have defame the other person can get simple imprisonment up to 2 years or fine or both . It entirely depend on the facts of the case that how much the case is serious in nature .
The law of defamation under Section 499 got extended to “speech ” and Documents in electronic form with the enactment of the Information Technology Act ,2000.
Exceptions– It includes “imputation of truth” which is done by a person in “public good” i.e. the statement will not be considered as a defamatory when it is spoken for public welfare, a fair comment for awareness of people about something wrong even if the statement depicts any insulting utterance. This type of publication is mainly published on the account of public conduct of Government Officials, the conduct of any person which raises a public question. Following statements can’t be considered as defamation.
- Section 500 of IPC–
The section 500 of Indian Penal Code generally talks about the punishment for defamation, which states as:
“Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years or fine or both.”
In India, Cyber Defamation is of both Civil and Criminal Offence and it merely depends upon the victim that whether he has to file a civil case or a criminal case.
The remedy for Civil defamation is considered under Law of Torts which is un-liquidated sum of damages in monetary form and he can file his case in a High Court or any subordinate courts where as the remedy for Criminal Defamation is imprisonment in jail of duration of minimum 2 years .
- Section 503 of IPC–
Section 503 of IPC Defines that whoever commits the offence of criminal intimidation (is intentional behaviour that “would cause a person of ordinary sensibilities ” to fear injury or harm ) . Shall be punished with imprisonment of either description for a term which may extend to 2 years , or with fine , or with both.
If threat be to cause death or grievous heart shock etc. and if the threat be to cause death or grievous heart to a person , or to cause the destruction of any property example his house etc. by fire or to cause an offence punishable with death or imprisonment for life , of with imprisonment for a term which may extend to 7 years , or to impute un-chastity to a women , shall be punished with imprisonment of either description for a term which may extend to seven years , or with fine or with both.
INFORMATION TECHNOLOGY ACT, 2000
The Section 66A of the information Act, 2000 does not specifically deal with the offence of cyber defamation but it makes punishable the act of sending grossly offensive material for causing insult , injury or criminal intimidation .
SECTION 66A OF THE INFORMATION TECHNOLOGY ACT, 2000 PROVIDES FOR THE PUNISHMENT OF CYBER DEFAMATION IN INDIA-
Section 66A of the IT Act says that any person who sends , by means of a computer resource or a communication device.
Any information that is grossly offensive or has menacing character ; or Any content information which he knows to be false but for the purpose of causing annoyance, inconvenience or to deceive or to mislead the addresses or recipient about the origin of such messages shall be punishable with imprisonment for a term which may extend to three years and with fine .
However the Constitutional validity of the Section 66A was challenged in the case Shreya Singhal v. Union of India claiming that this very section has given rise to new forms of crime which is incorrect.
The issue started with the arrest of two women who posted allegedly offensive and objectionable comments on shutting down the city Mumbai after the death of Bal Thakre, a Political leader. The Police made the arrest under Section 66A of the Information Technology Act, 2000 which lays down the punishment procedure for any person who sends any offensive information through a computer resource for causing inconvenience. The women then filed a petition, challenging the constitutional validity of Section 66A that it violates the Right of Freedom of Speech and Expression as stated under Article 19 of the Indian Constitution.
The Supreme Court invalidated and struck down the Section 66A of the IT Act, 2000 because it violated the right to freedom of expression guaranteed under Article 19 (1) (a) of the Constitution of India and relied upon the issue stated by the petitioner considering it to be valid and issued an interim measure in Singhal v. Union of India (2013) 12 SCC 73, prohibiting any arrest under Section 66A unless/ until such arrest is being approved by any senior police officer. The Hon’ble Supreme Court made the following observations in this regard:
“ Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.”
“ We therefore, hold that the Section is unconstitutional also on the ground that it takes within its protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of over breadth.”
Frequently Asked Questions on Internet or cyber defamation-
- Whether Cyber Defamation is categorized specifically as Civil or Criminal offence in India?
- Is there any specific provision that is only dealing with the Cyber Defamation in India?
- Whether the struck down of Section 66A of Information Technology Act, 2000 by the Hon’ble Supreme Court of India was valid?
- Whether the evil exposure of Cyber Defamation is affecting the society at large or not?
ANSWERS TO THESE QUESTIONS-
Ans 1. There is no specialized/ specific category of offence which we can conclude for the cyber defamation. Also, in India, the concept of Internet defamation is not well categorized with any rigidity. In India, the choice merely depends upon the victim that whether he want to go for a civil case or he want to file for a criminal one or also, he can go for both of them in sequence. So, Indian Judiciary has given full autonomy in the hands of the victim/ sufferer to go to the court and acquire justice accordingly and equally to the proportion of loss/ harm suffered by him.
A person can go for civil case in case if the defamation caused him monetary damages along with the loss of respect or only loss of honour. Then the person who is defamed can move either the high court or trial court and could seek damages in the form of monetary compensation. These types of cases comes under the concept of Cyber Tort.
But if a person, due to the result of cyber defamation, suffers any kind of mental shock, attack, sudden death due to mental shock, any chronic illness or any serious harms caused to him or his/ her family rather than monetary damages, then surely, a criminal offence can be registered against the accused.
Also, the person defamed must prove that the accused intended to defame him. That he had the full knowledge that the publication was likely to defame the person.
In case of both the losses, then both the civil and criminal cases can be filed.
The choice completely depends upon the victim. There is no such recognition given to this offence.
Ans 2. No, there is no such legal enactment/ act passed by our legislature which is solely giving recognition to Cyber Defamation. The acts are giving partial recognition to cyber defamation along with other defamatory offences. But no such act is made which could signify the whole concept of Cyber Defamation only. The acts can also be applied to libel/spoken defamation also and not only and wholly to cyber defamation. So, such initiation for making of such legislative acts for the same is needed in order to avoid any discrepancies in the judicial system as this offence is no longer remained in narrow area, it has been widely spread now.
Ans 3. Yes, the striking down of Section 66A of the Information Technology Act, 2000 was totally valid as this very act was unconstitutional. The Supreme Court struck down this ‘Draconian’ act because it was going ultra vires i.e. it was violating the provisions as stated under Article 19 of the Indian Constitution which was ensuring the freedom of speech & expression to its citizens. Because that provision has led to the arrests of many people for posting content deemed to be “allegedly objectionable” on the internet.
From the provisions of this act, it was very clear that the act was excessively and disproportionately invades the right of free speech as stated above and upsets the balance between such rights and reasonable restrictions that may be imposed on such rights. As these types of restrictions can cause public disorder and liberty of people is, thus, curtailed down. One more fact was submitted that what may be offensive to one may not be offensive to another, what may cause annoyance or inconvenience to one may not cause inconvenience to another. So, only on the behalf of a single person, no one shall be knocked down.
On the basis of all these facts and submitted valid arguments, the Supreme Court of India gave valid decision on that issue in the case of Shreya Singhal v. Union of India relying on the same facts. So, there is no discrepancy for the same. This is the valid verdict given by the apex court
Ans 4. It is quite obvious that the evil exposure of Cyber Defamation is affecting the society at a very large extent because we know that today, everyone is somehow connected with the internet world, even the children of very small age use social media and internet in one or other ways, so when the people see these things happening directly or indirectly on the websites or any other social media platforms, they grab bad things very quickly as it is normal human tendency that we catch up bad things quite fast in spite of good things. As a result, it can cause bad thinking, arousal in evil intentions, motivation to further commit cyber defamation, low self-esteem to discover their hidden potentials and show their hidden qualities and talents to everyone because of the fear that they might face the same and it may cause hurt to their respect, diffident feeling to express their genuine opinions openly and many other drawbacks are there which are directly/ indirectly affecting the entire society. As the wastrel nature of human beings is growing day by day, so as this issue is also increasing at its peak. We can’t even avoid the use of internet to remain aloof from these things. Although the concept of cyber defamation is new to our society, still its hard to believe that it has expanded its roots in each and every corner of the world. Hence, it affects the whole society and people of every age group. This hauberk is spoiling the whole civilized society to a large extent.
JUDICIAL OUTLOOK ON CYBER OR INTERNET DEFAMATION-
Albeit the cyber defamation has started spreading its influence not in the world, but in India also, but our Indian Judiciary is trying at its best to remove this malpractice from the rootlet of our well civilized Indian society and is also undertaking various measures in this regard. Our judiciary has and is playing a marvelous role in depicting this problem and is working on it by interpreting and applying the acts passed by the legislature on the different issues and cases of cyber defamation. Some of those landmark cases are described as follows:
- SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra–
(India’s first case of Cyber Defamation)
INTRODUCTION– This is the most epochal case in the Indian concept of Cyber Defamation, this case was filed in the High Court of Judicature, Delhi. In that case, The High Court of Delhi approved the jurisdiction over the matter of Corporate Sector. The case was depicting the issue of corporate’s reputation which was being defamed by an employee of their own company through emails. The court passed an important ex-parte injunction in this issue.
FACTS & ISSUE- In this case , the defendant named Jogesh Kwatra who was an employee of the plaintiff’s company (SMC Pneumatics Pvt. Ltd. India), started sending derogatory, defamatory, filthy, obscene, vulgar and abusive mails to his employers and also to the other subsidiary companies all over the world with the name of the plaintiff company with an evil intention to defame the name and reputation of the said company and the managing director of the company R.K. Malhotra. With that, when the plaintiff came to know the happenings of this then he filed a suit in the High Court of Delhi for the permanent injunction against all this and to restrain the defendant from further continuing these illegal acts of sending derogatory emails to plaintiff as well as the other employers and subsidiaries also.
The plaintiff claimed that the defendant intended to defame their reputation by sending distinctly obscene, vulgar, abusive intimidating, humiliating emails. Counsel further argued that the aim of sending these offensive mails was to malign the high reputation of the plaintiff’s company all over the India and the world also. He further added that this very act of sending those mails to the company were invading the legal rights of the plaintiff. Also, the defendant, as he was the employee of the aforesaid company, so he was under the duty to maintain the reputation of his employer company as he was under the course of employment, it was his duty to not to send these types of mails to anyone. It was quite reasonable to note that when the plaintiff company discovered the master mind (defendant employee) involving and conducting all these activities, who indulged in the matter of sending abusive emails, the plaintiff company terminated the services of the defendant Jogesh Kwatra.
Court Held- On hearing the detailed arguments of plaintiff’s counsel, Hon’ble Judge of High Court of Delhi passed an ex-parte ad interim injunction by making observations that the prima facie case had been made by the plaintiff. Here of, the Delhi High Court restrained the defendant from sending obscene, vulgar, derogatory, defamatory, abusive and humiliating emails either to the plaintiff or to its subsidiary companies all over the world including their Managing Directors and their Sales and Marketing Departments. Further, the Court also restrained the defendant from publishing or transmitting or causing to be published any information in the actual world i.e. in libel (written) or slander (spoken) form other than the virtual world which is of defamatory or abusive nature.
Thus, this order of Delhi High Court assumed tremendous significance as this was for the first time when Indian Judiciary assumed jurisdiction over the matter concerning cyber defamation and brilliantly performed its jurisdiction over that issue by putting/ granting an ex-parte permanent injunction restraining the defendant from defaming his company’s employers and employees and of other companies also.
- Google India Pvt. Lmt. Vs Visaka Industries Ltd.
INTRODUCTION- Criminal Petition No.7207of 2009. This case was decided on ;19.04.2011. In 2009 defamation case was filed by Visaka Industries Ltd. against a group called Ban Asbestos Network India, its coordinator Mr. Gopal Krishna and Google India .The is involved in the manufacturing and selling of asbestos cement sheets and allied products. The Company had alleged that some of the blog post written by Mr. Gopal Krishna which were posted on the blog owned by BANI were defamatory in nature .
FACTS & ISSUE- The blog posts was containing scathing criticism of the Company for allegedly enjoying political patronage and making profits from products manufactured from asbestos .The Company has also arraigned Google India as a party since the blog was hosted on the blog-publishing service of Google called Blogger .
In this petition before the metropolitan magistrate, the Company accused that Google India is guilty of the following offences under the Indian Penal Code 1860 (IPC): Criminal Conspiracy (Section 120-B IPC), Defamation (Section 501 read with section 34 IPC). It was further alleged that Google India failed to remove the alleged defamatory content despite being brought to its notice.
While the case was pending before the metropolitan magistrate, Google India approached Andhra Pradesh High Court under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing of all the criminal charges levied against it . Google India contented that it cannot be held liable for criminal
defamation under IPC as it is not the publisher of the alleged defamatory content . Google India or Google Inc. are only intermediaries and service providers that act as a platform for end users to upload their content. Consequently, intermediaries like Google Inc .cannot be held liable in view of Section 79 of the Information Technology Act, 2000 for defamation since they are neither authors nor publisher of such content .
JUDICIAL OUTLOOK– The High Court , however ,dismissed Google India ‘s petition through its order dated April 19, 2014. The High court while referring to Section 79(3)(b) of the IT Act, 2000 held that Google India failed to take any action either to block or stop such dissemination of objectionable material despite the Company issuing a notice and bringing the defamatory material to the knowledge of Google India. Therefore High Court Refused to grant exemptions available to intermediaries under the IT Act to Google India either under the un-amended or the amended Section 79 of the IT act which amendment took effect from Oct. 27, 2009. The Court further refused to drop the defamation charges against Google India .
Being aggrieved by the order of the High Court, Google India filed an appeal before the Supreme Court of India in 2011. Since then, the matter has been adjourned on several instances and was recently heard by a SC bench .The latest date of hearing being on November 24, 2016.
Hearing on November 24, 2016-
The hearing commenced with Mr. Tushar Mehta, Additional Solicitor General of India mentioning the matter before a two-judge bench of the Supreme Court comprising Hon’ble Justice Dipak Mishra and Justice Amitava Roy. Mr. Mehta mentioned that on the last date of hearing i.e. November 10, 2016, the Court had passed an order seeking the Attorney General assistance in the matter . However since the Attorney General had a conflict of interest in the matter having appeared for one of the parties previously , Mr. Mehta started that he would be appearing on behalf of the Attorney General .
- Avinash Bajaj v. State (DPS MMS Scandal Case)–
INTRODUCTION– CEO of Bazee.com was arrested in December 2004 because a CD which was carrying an objectionable material was being sold in the markets of Delhi. The Mumbai city police and Delhi police got into action. The CEO was later released on bail.
This case raised the question for the first time that what kind of distinction can be drawn between the Internet Service Provider (ISP) and the content provider. The burden was resting on the accused that he was the service provider and not the content provider. It also raised the question on the working of police departments that how they are coping with the cyber crime cases.
FACTS & ISSUE– The case was involving an IIT Kharagpur student Ravi Raj, who was placed on a position in the office of Bazee.com a listing offering an obscene MMS video clip for sale with the username- Alice-Elec.
Despite the fact that the site Bazee.com was having a filter for posting objectionable content, the listing took place with the description, “Item 27877408- DPS Girls having fun!!! Full video+ Bazee points.”
The video was published online on bazee.com around 8:30 pm in the evening of 27th November, 2004 and it was deactivated on 29th November, 2004 in the morning around 10 am. The Delhi Police looked into the matter and registered an FIR. During the investigation process, a charge sheet was filed against the owners of the website- Ravi Raj and Avinash Bajaj, as the responsible accused persons for handling the content. Since, Ravi Raj was eloped, the petition was filed by Avinash Bajaj seeking the dismissal of criminal proceedings.
JUDICIAL OUTLOOK- The High Court of Delhi observed that the prima facie case for the offence under Section 292 (2) (a) & (d) of Indian Penal Code (IPC) were raised against the website in both listing as well as publishing of video clip.
The Court made following observations in this regard:
“by not having appropriate filters that could have detected the words in the listing or the pornographic content of what was being offered for sale, the website ran a risk of having imputed to it the knowledge that such an object was in fact obscene.”
The Strict Liability was being imposed on the company as per the provisions of Section 292 of IPC in case of imputing of listing by the company.
However, Avinash Bajaj cannot be made direct liable for the issue. The court held that the Indian Penal Code didn’t recognize the concept of automatic criminal liability attaching to the director of the company. Hence, the petitioner can be discharged under Sections 292 and 294 of IPC, as he is not directly pointed as main accused, but the other accused can not be released. The judgement did not declared Avinash Bajaj as guilty.
NASSCOM VS. AJAY SOOD & ORS. (2003)–
INTRODUCTION-This landmark case said as Nasscom vs Ajay Sood and others, delivered on march 5, 2003 by Delhi High court have given a highlighting judgement on the matter of cyber defamation where Court declared `phishing’ on the internet to be an illegal act, imparting an injunction and recovery of damages.
To elaborate the concept of phishing and keep it as a precedent for future use delhi HC described phishing as a form of internet fraud where a person pretends to be a legitimate association, such as a bank or an insurance company in order to extract personal data from a customer such as access codes, passwords, etc. Personal data so collected by misrepresenting the identity of the legitimate party is commonly used for the collecting party’s advantage. court also stated, by way of an example, that typical phishing scams involve persons who pretend to represent online banks and siphon cash from e-banking accounts after asking consumers their confidential banking details.
FACTS & ISSUES -In this case the plaintiff was the National Association of Software and Service Companies (Nasscom), India’s premier software association. And, the defendant Ajay sood run a placement agency involved in headhunting and recruitment. In order to obtain personal data, which they could use for purposes of head-hunting, the defendants composed and sent emails to third parties in the name of Nasscom.
The high court recognised the trademark rights of the plaintiff and passed an ex-parte ad-interim injunction restraining the defendants from using the trade name or any other name deceptively similar to Nasscom. The court further restrained the defendants from holding themselves out as being associates or a part of Nasscom.
Later it was found that the defendant by illegally using the repotated name of NASSCOM degraded their Name and dignity into public which can be somehow said as defamation. During the progress of the case, it became clear that the defendants using their trademark name and the offending e-mails were sent were fictitious identities created by an employee on defendants’ instructions, to avoid recognition and legal action.
On discovery of this fraudulent act, the fictitious names were deleted from the array of parties as defendants in the case. Subsequently, the defendants admitted their illegal acts and the parties settled the matter through the recording of a compromise in the suit proceedings.
According to the terms of compromise, the defendants agreed to pay a sum of Rs1.6 million to the plaintiff as damages for violation of the plaintiff’s trademark rights. The court also ordered the hard disks seized from the defendant’s’ premises to be handed over to the plaintiff who would be the owner of the hard disks.
The Delhi HC stated that even though there is no specific legislation in India to penalise phishing, it held phishing to be an illegal act by defining it under Indian law as “a misrepresentation made in the course of trade leading to confusion as to the source and origin of the email causing immense harm not only to the consumer but even to the person whose name, identity or password is misused.” The court held the act of phishing as passing off and tarnishing the plaintiff’s image.
This case achieves clear milestones: It brings the act of “phishing” into the ambit of Indian laws even in the absence of specific legislation; It clears the misconception that there is no “damages culture” in India for violation of IP rights; This case reaffirms IP owners’ faith in the Indian judicial system’s ability and willingness to protect intangible property rights and send a strong message to IP owners that they can do business in India without sacrificing their IP rights.
Also Read: Defence to Defamation
CONCLUSION & SUGGESTIONS–
he worm of Cyber Defamation in the virtual/ internet world is menacing the social media and all the other internet platforms since its inception. It can be manifested in the form of texting, publishing obscene texts/ images/ other media files, visual representation etc.
Even though Indian has passed effective laws to deal with this malice, but the conviction rate is negligible. Its very much tough to control all these kinds of activities as the internet world is infinite world so its quite tough to impose the rules onto it in order to reduce the crime rate. But the legal authorities of all the countries are doing at their best to remove this menace for world. Cyber Forensics is a growing area in this field. It must be promoted to determine the methods to detect the Cyber Evidence in order to detect the accused.
Further, it is a necessity for Indian Legal Authorities to make some essential amendments for laws inclined to Cyber or internet Defamation in order to control Cyber Crimes, e.g. there are few drawbacks in the legislative acts passed by Indian Legislature which are needed to be amended in order to potentialize the Cyber Laws governing cyber defamation in India.
Some of these drawbacks are:
- The Information Technology Act doesn’t provide for the definition of ‘Publication’- which is the most important element of defamation.
- The IT Act provides the legal remedy only for the publication of the obscene material and thus limiting the scope of an unlimited issue.
- The liability of Intermediary Internet Service Provider (ISP) is liberated under IT Act, which is an infringement of Section 501 of Indian Penal Code.
These are some demerits in the Indian Legal system which are needed to be removed by passing required amendments.
Further, there is a need to make separate provisions for the scope of cyber or internet defamation only.
Cyberspace is a wide platform which provides the people with the opportunity to express their views to the public openly. But is it right that the people should use this opportunity to disrepute someone?
There have been many instances where the people have used this facility to tarnish the reputation of the other people through their bullshit views and abusive comments. These actions are being done in the benefaction of Freedom of Speech & Expression as provided under Article 19 of the Indian Constitution.
They misuse the provisions of this article. So, some regulations should be posed by the service providers or bulletin board providers. They must have strict policies against the people who misuse the rights and facilities and post vulgar or abusive things on internet which ultimately defame the other person in one or the other way.
Apart from that, the people should also think soundly and they should be aware of their limits and should also follow some moral values. They should refrain themselves and avoid placing their personal opinions or other things in the form of abusive comments on the public forums. When we enter into the cyber space, then it is our duty that we should act with maturity and maintain the courtesy of cyber space.
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 Information Technology (IT) Act, 2000, available at: https://www.tutorialspoint.com/information_security_cyber_law/information_technology_act.htm (Visited on October 6, 2018).
 Section 66A of IT Act, 2000, available at: https://cis-india.org/internet-governance/resources/section-66A-information-technology-act (Visited on October 7, 2018).
 Shreya Singhal v. Union of India, available at: http://www.legalservicesindia.com/article/2473/Shreya-Singhal-v-U.O.I.html (Visited on October 11, 2018).
 Article 19 (1) (a) of the Indian Constitution, available at: http://lawyerslaw.org/tutorials/article-19-1a-of-indian-constitution-and-right-to-information-act-2005/ (Visited on October 11, 2018).
 ex-parte ad-interim injunction, available at: https://sc-ip.in/2016/06/30/using-ex-parte-and-ad-interim-injunctions-to-enforce-trademark-rights-in-india/ (Visited on October 20, 2018).
 Section 79 of IT Act, 2000, available at: http://www.rna-cs.com/liability-of-intermediaries-under-information-technology-act-2000/ (Visited on October 25, 2018).
 Prima facie, available at: https://dictionary.cambridge.org/dictionary/english/prima-facie (Visited on October 28, 2018).
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