Introduction:

India has evolved into a digital nation. While digital working has aided individuals in digitizing their labour, it has also given a new face to crime, which now embraces a variety of methods to conduct crime throughout the world. One of the most hazardous weapons for attempting a crime on the internet is “Cyber-crime”.  It tarnishes an individual’s reputation and draws attention to them on the internet, resulting in defamation. While virtual workplaces have been beneficial to businesses and sectors, the scope of this platform has grown in the last year as a result of the pandemic, which drove many conventional workplaces to adapt to the new normal of using the internet. Acts of Cyber defamation through virtual means have become the new normal, making it dangerous to continue working through such channels without the protection of the law.

What is Cyber Defamation?

The act of purposely disparaging, defaming, or offending another person or party using a virtual medium is known as cyber defamation. It can be written or oral.^[1] It is a new concept which has not been defined anywhere in the statute books and the definition is still being developed. In the realm of the internet and its users, cyber defamation is also known as “internet defamation” or “online defamation”. Defamation can be considered both a civil and a criminal offence, and as a result, the Indian justice system provides legal remedies to victims. One can sue for defamation if someone harms someone’s reputation by “slander” or “libel.” Defamation through written words, photographs, or any other visual symbols in a print or electronic (online or Internet-based) media is referred to as libel. Slander is spoken defamation.^[2]

Essentials to prove cyber defamation^[3]:

• The defamatory statement must be published, which means it must come to the attention of a third party.
• The statement must refer to the plaintiff.
• The statement should be defamatory in nature.

Because there is no distinct legislation governing Cyber Defamation, a person can be found accountable for Cyber Defamation if all of the above-mentioned standards are met, keeping in mind that all of the publishing takes place in cyberspace.

The first ever cyber defamation of Asia has been filed in India in the matter of SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra^[4]. The Delhi High Court took jurisdiction over a case in which a company’s reputation was being slandered through emails and issued a significant ex-parte injunction.^[5] This case is significant in the history of defamation tort law because it was the first time a court decided on a case involving cyber defamation. Defamation on the internet is covered by a number of laws. They differ based on the sort of offence the offender has committed. Many laws have provisions for cyber-defamation. These regulations are outlined below:

The Information Technology Act, 2000

Section 66

The section outlined the consequences of transmitting ‘offensive’ communications by computer, mobile phone, or tablet. Although, Section 66A of the Information Act of 2000 does not specifically mention internet defamation, it should be noted that it does make it illegal to communicate defamatory material for the purpose of inflicting insult, harm, or criminal intimidation. The Supreme Court struck down the whole clause in 2015. This provision of the IT Act, 2000 was struck down after the case of Shreya Singhal and Others v. Union of India^[6], as it was found to be in violation of the Fundamental Rights enshrined under the Indian Constitution.^[7]

Section 79

It releases the intermediate service provider from obligation in certain circumstances.^[8] These are listed below:

• The intermediary’s role is restricted to granting access to a communication system that allows third-party data to be sent, temporarily processed, or hosted.
• If he performs due diligence in accordance with the Act and follows the rules established by the Central Government.

Indian Penal Code, 1860

Section 499

The legislation on defamation is governed by Section 499 of the Indian Penal Code. According to the said section, “Whoever by words either spoken or intended to be read or by signs and visual 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.”^[9] After the adoption of the IT Act in 2000, electronic “Speech” and “Documents” were incorporated in the legislation^[10].

Section 500

The punishment for the above-mentioned defamation statute is dealt with under this section of the IPC. In accordance with this section, “any person held liable under section 499 will be punishable with imprisonment of two years or fine or both”^[11].

Section 503

This section addresses acts committed through using computer equipment to hurt or endanger someone’s reputation, such as sending emails, publishing messages, and writing comments. According to this section, “Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intim­idation.”^[12]

Section 506

This section discusses the penalty for criminal intimidation. Anyone who commits the above-mentioned violation faces a two-year prison sentence, a fine, or both.

Provision for filing a Complaint:

A person can file a complaint with the cyber crime investigation cell if he or she has been defamed in cyberspace. It is a division of the Department of Criminal Investigation^[13]. These Cyber Crime Investigation Cells have been formed in a number of cities, including Delhi, Mumbai, Chandigarh, Hyderabad, Bangalore, Tamil Nadu, Gurgaon, Pune, Madhya Pradesh, Lucknow, and others.

Defamation cases have increased as a result of the increased usage of social media. An accused individual must have made or published defamatory information in order for an offence to be proven. Courts have regarded the phrases “making” and “publishing” as complementary^[14]. In the case of Rohini Singh v. State of Gujarat^[15], the Court said that the charge of defamation may not be established if a person just writes defamatory information but does not publish or share it to others. As a result, a person claiming defamation must prove that the defamatory material was intended for an audience specifically.^[16]

International Actors:

Cyber-security is significantly more sophisticated in countries like the United Kingdom and the United States. The United Kingdom has developed norms and processes, and cybersecurity has been a strategic priority in the United Kingdom for considerably longer than in India. India has a distinct IT legislation, the IT Act of 2000, which was modified in 2008^[17]. This safeguards individuals from cybercrime in the realm of E-commerce. However, there are no regulations in the nation that specifically address internet defamation. The current system of defamation law in the United States may be traced back to a series of now-famous Supreme Court decisions, beginning with New York Times v. Sullivan^[18], that together set the constitutional criteria for defamation. The historic judgment in Sullivan by the United States Supreme Court in 1964 constitutionalized defamation law, radically changing the face of the country’s defamation jurisprudence.^[19] Defamation law in Canada is fairly similar to the state of defamation law in the United States prior to the transition that began with Sullivan in 1964^[20]. In Hill v. Church of Scientology of Toronto (1995)^[21], the Supreme Court of Canada examined the link between common law libel and the Canadian Charter of Rights and Freedoms. This ruling expressly rejects the actual malice standard in New York Times Co. v. Sullivan, noting criticism of it not just in the United States, but also in other nations.^[22]

Problems and issues in Cyber Defamation

The tremendous increase in dependency on the Internet for the use of social networking sites has created several legal issues in the country. In the context of defamation, the biggest issue is to figure out the person who has intended to harm our reputation or the third party who has read the defamatory statement when it comes to web pages such as blogs or other media sites including newspapers or magazines. This is because bloggers may be transparent or may choose to keep their names or identities nameless to protect themselves.

 

Thus, this may be very hard to determine the person who has published the statement if it appears on someone’s blog. It gets even more challenging to determine the readers who leave comments on blogs or online news articles as most sites do not require people to use their real names or provide any necessary information including name, location, or e-mail address. Even if they do, people could give false information. Thus, it becomes difficult to track these people. Once a defamatory statement is published on sites such as Facebook, it quickly gets circulated and also read by a large number of people causing damage to the person against whom the statement is made.

Conclusion:

Because of the vast amount of material available and the ease with which it can be transferred over the Internet, it is a key source of defamation. After conducting study on the aforementioned problem, it can be said that the current legal environment in India does not have an effective response to cases of cyber defamation. There will always be a need to strike a balance between freedom of expression and reputation. As a result, a review of present legal measures is required to guarantee that the network environment is appropriately secured against illicit activity. Because there is no definition of damages under present legislation, it is impossible to enforce the current increased penalties.

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^[1] Cyber Defamation: The Court of Social Media, LATEST LAWS (Dec. 09, 2021)

https://www.latestlaws.com/articles/cyber-defamation-the-court-of-social-media/

^[2] The Editors of Encyclopedia Britannica, Defamation, BRITANNICA (Dec. 09, 2021) https://www.britannica.com/topic/defamation

^[3] Subodh Asthana, Defamation in the Internet Age: Laws and Issues in India, IPLEADERS (Dec. 09, 2021)  https://blog.ipleaders.in/cyber-defamation-india-issues/

^[4] Original Suit No. 1279 of 2001, New Suit No. 65/14.

^[5] SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra, INDIAN CYBER SECURITY (Dec. 09, 2021)

 http://www.indiancybersecurity.com/case_study_smc_vs_jogesh_kwatra.php

^[6] WRIT PETITION (CRIMINAL) NO.196 OF 2014.

^[7] Explained: The Shreya Singhal case that struck down Section 66A of IT Act, THE INDIAN EXPRESS (Dec. 09, 2021) https://indianexpress.com/article/explained/explained-the-shreya-singhal-case-that-struck-down-section-66a-of-it-act-7408366/ .

^[8] Liability of Intermediaries under Information Technology Act, 2000, R & A ASSOCIATES (Dec. 10, 2021) https://www.rna-cs.com/liability-of-intermediaries-under-information-technology-act-2000/

^[9] Section 499 of Indian Penal Code (45 of 1860).

^[10] Digandh Raj Sehgal, Online defamation- Laws to prevent it, IPLEADERS (Dec. 10, 2021) https://blog.ipleaders.in/online-defamation-laws-prevent/

^[11] Section 500 of Indian Penal Code (45 of 1860).

^[12] Section 503 of Indian Penal Code (45 of 1860).

^[13] Supra note 3.

^[14] Ashima Obhan & Sumathi Chandrashekaran, Balancing Defamation And Free Speech Notes For The Publishing Industry, MONDAQ (Dec. 10, 2021) https://www.mondaq.com/india/libel-defamation/793372/balancing-defamation-and-free-speech-notes-for-the-publishing-industry

^[15] R/SCR.A/8885/2017  

^[16] Debika Mukherjee, An Analysis on Cyber Defamation in India: Problems and Challenges, Volume 2 Issue2,  IJLRA, ISSN: 2582-6433 (July 2021).

^[17] Act No. 10 of 2009

^[18] 376 U.S. 254 (1964).

^[19] A closer look at New York Times v. Sullivan, NEWS @ THE U (Dec. 10, 2021) https://news.miami.edu/stories/2019/02/a-closer-look-at-new-york-times-v-sullivan.html.

^[20] Mitchell Drucker, Canadian v. American Defamation Law: What Can We Learn from Hyperlinks, Volume 38 Issue 1, 38 Can.- U.S. L.J. 141 (2013).   

^[21] [1995] 2 S.C.R. 1130.

^[22] Thomas A. Hughes, The actual malice rule: Why Canada rejected the American approach to libel, TAYLOR AND FRANCIS ONLINE (Dec. 10, 2021)  https://www.tandfonline.com/doi/abs/10.1080/10811689809368641?journalCode=hclw20.