An individual’s access to the internet has a major impact on day-to-day life. Human interaction has never been simpler because of the platform given by the internet. The Internet is a low-cost, high-speed medium of communication all over the world. However, as communication has become more convenient, the inconvenience caused by the misuse of communication channels has grown accordingly. People who publish deceiving facts about a person or an entity, damaging their goodwill and reputation in society, have unrestricted powers to a greater extent on social media because limitations to freedom of engagement have been removed. Popularly referred to as "trolls" informally, such behavior constitutes cyber defamation.
What is Cyber Defamation and how it is different from Physical Defamation?
Section 499 of the Indian Penal Code 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 to defame that person.
Defamation can be categorized into two categories, namely, "slander" and "libel." Slander is defined as "destroying someone's reputation through a false spoken statement”, whereas "Libel" is defined as "false published or written statement causing harm to someone's reputation."
However, a mere criticized statement does not amount to defamation. If it does not hold any constructive comment then the publication of such a statement is a prerequisite to establishing defamation.
Similarly, any act of defamation that occurs in cyberspace is referred to as cyber defamation or online defamation. When an internet device is used as a tool or medium to deceive or misguide an individual or organization's public image on social networking sites such as Facebook, Twitter, etc, then it is known as cyber defamation. Due to widespread of the reach of these social media sites, the level of harm can be vigorous.
Defamation is both a civil and a criminal offense in India, where due to lack of specific data protection act, the related provisions are mentioned in the Information Technology Act, 2000. According to the Information Technology Act, 2000, such an offense must include the usage of electronic equipment. The defamation through online medium falls into the category of libel as the electronic records are designated as documents whether it may be in the form of written text, audio, or video files.
The Delhi High Court observed in the case of Dharambir v. CBI (2011) that "given the wide definition of the words documents and evidence in the amended section 3 of the Evidence Act, 1872 to be read with section 2 (o) & (t) IT Act 2000, there can be no doubt that an electronic record is a document," and the Supreme Court in 2019 stated in the case of P. Gopalkrishnan v. State of Kerala that "there can be no doubt that an electronic record is a document" In such a case, the appropriate step is twofold: first, to initiate a proceeding for tracing the identity, and second, to initiate a proceeding for criminal or civil defamation, they can be done separately or concurrently, implying that the appropriate step is to locate the identity first, and then to initiate the criminal or civil proceeding.
Asia’s First Case of Cyber Defamation:
SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra
Asia’s first case of cyber defamation was filed in India where the Delhi High Court took jurisdiction the case in which a company's reputation was being slandered through emails and issued a significant ex-parte injunction.
In this case, the defendant Jogesh Kwatra, who worked for the plaintiff company, began sending derogatory, defamatory, obscene, vulgar, filthy, and abusive emails to his employers as well as to various subsidiaries of the said company around the world in order to defame the company and its Managing Director Mr. R K Malhotra. The plaintiff company filed a lawsuit seeking a permanent injunction to prevent the defendant from sending insulting emails to the employees of the plaintiff.
It was argued on behalf of the plaintiffs that the defendant's emails were clearly obscene, vulgar, abusive, frightening, humiliating, and defamatory.
Plaintiff’s counsel stated that the purpose of sending the emails was to defame the plaintiffs' reputation in the market both nationally and internationally. The defendant's actions invoked the plaintiffs' legal rights. Furthermore, the defendant had a legal obligation towards the plaintiff not to transmit the aforementioned communications. The plaintiff company terminated the defendant's employment after discovering the abusive emails sent by the defendant.
After hearing the plaintiff's extensive arguments, the Hon'ble Judge of the Delhi High Court issued an ex-parte ad interim injunction, stating that the plaintiff had shown a prima facie case. As a result, the Delhi High Court barred the defendant from sending defamatory, obscene, vulgar, humiliating, or abusive emails to the plaintiff’s company or it’s subsidiaries outside the country. Furthermore, the defendant was barred from publishing, sending, or causing to be published any material that is disparaging, defamatory, or abusive to the plaintiffs, both in the real world and in cyberspace.
Comparative analysis on cyber laws from an international perspective:
Developing countries like India are progressing in many sectors, but have a slow growth rate in the cyber sector.
Developed countries such as the United Kingdom and the United States, on the other hand, are significantly more advanced in the cyber domain. The United Kingdom has strong cybercrime legislation under the Computer Misuse Act, 1990, consisting of strategic legal protection for their netizens, whereas the United States check cyber crimes under the Computer Fraud and Abuse Act, 1986.
India has the Information Technology Act, 2000, which was last amended in 2008, protects individuals from cyber-related offenses. Technological advancements have reached a high peak but still, India is lacking to create specific legislation aligned with international standards of data protection against cybercrimes. Lack of data protection provisions also hampers the multinational businesses as the partners hesitate to share their trade secrets with no strong guarantee of protection.
The United Kingdom is more feasible to multi-partner contributions to limit its policies, but India's cybersecurity is still divided between private and government activities, with an emphasis on national security challenges.
One significant distinction is observed that the developing nations consider each defamation publication to be filed in a separate lawsuit, allowing defamation on the internet to be punished in the country where it was read particularly, although American law only permits one claim for the main publication.
In India, if someone has defamed you on the internet, you have several legal options available to you. These include:
- Filing a complaint with the cybercrime cell of the police
- Sending a legal notice to the person responsible for the defamatory statement, demanding an apology and retraction
- Filing a civil lawsuit for damages in a competent court
- Seeking an injunction to prevent further publication of the defamatory statement
It is recommended to consult a lawyer to understand the specific laws and procedures that apply in your case.
To file a complaint with the cybercrime cell of the police in India, you can follow these steps:
Gather evidence: Collect all relevant evidence of the defamatory statement, including screenshots, URLs, and any other supporting documents.
Visit the nearest police station: Go to the nearest police station and inform the duty officer about the incident. They will direct you to the cybercrime cell.
File a complaint: Fill out a written complaint and provide all relevant information and evidence.
Provide identification: Present a government-issued photo ID, such as a passport or Aadhaar card, for identification purposes.
File an FIR: The police will register an FIR (First Information Report) based on your complaint.
Follow up: After filing the complaint, follow up with the police regularly to inquire about the status of the case.
Note: The specific procedures and requirements for filing a complaint with the cybercrime cell may vary depending on local laws and regulations. It is advisable to consult a lawyer for legal guidance.
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.
BA LLB (Hons), 2nd year
NMIMS, School of Law, Mumbai