With the proliferation of social networking websites ("SNW") and their widespread use, especially amongst the youth, one observes certain legal loopholes in their operation and use. On the one hand, while such SNWs provide an easy to use, convenient and cost effective way of networking (whether at a personal level or for commercial reasons), however the flip side present the drawback of such SNWs. One such glaring drawback is the opportunity they provide for "cyber-defamation" or "virtual defamation" to mushroom. This brief article seeks to highlight the said aspect of SNWs and also attempts to analyse
- the liabilities that may arise in respect of such "cyber-defamation"; and
- the remedies available under current Indian law and their effectiveness or the lack thereof.
In general, defamation is an act to portray somebody in a false light and deprive him of his reputation. Thus, defamation is a wrong done by a person to another's reputation. From time immemorial the bedrock of most social and economic activity has been mutual trust and reputation. In India, both civil and criminal remedies are available in case of defamation. The Indian Penal Code provides for criminal liability and civil actions lies under the Tort. This article attempts to analyse the tortuous remedies.
Law of Defamation
Defamation in the Oxford English Dictionary is defined as " lang="EN">the offence of bringing a person into undeserved disrepute by making false statements (whether written or spoken)"
According to the Black's law dictionary defamation is lang="EN">"the act of harming the reputation of another by making a false statement to a third person."
Defamation under civil law in India is governed by English common law rules. For any defamation action under civil law of torts to be successful, four essentials elements are to be proved before the adjudicating authority–
- The statement must be defamatory;
- It should refer to the plaintiff;
- Publication of it by defendant; and
- The statement must be substantially untrue.
However, there are some exceptions and defences available to the defendant.
Recently in the case of Prof. Imtiaz Ahmad v. Durdana Zamir1, the Delhi High Court observed that "Under the law of defamation, the test of defamatory nature of a statement is its tendency to incite an adverse opinion or feeling of other persons towards the plaintiff. A statement is to be judged by the standard of the ordinary, right thinking members of the society at the relevant time. The words must have resulted in the plaintiff to be shunned or evaded or regarded with the feeling of hatred, contempt, ridicule, fear, dislike or disrespect or to convey an imputation to him or disparaging him or his office, profession, calling, trade or business."
Defamation can either be Libel or Slander. lang="EN">A false and defamatory statement in writing, film, or other permanent form is libel. An oral statement which is false and defamatory is termed as slander. Defamation traditionally requires the proof of publication of a matter intentionally and with malice. In the context of this article, it is important to note that any person, who intentionally and maliciously publishes or distributes such defamatory statement, is also liable as if he had made such statement himself. However, if the defendant proves that the statement is true then he will not be liable for such defamation, meaning thereby that truth is a defence to an allegation of defamation. In India and most other common law countries, the burden of proof is on the defendant to show that the statement is true or the publication was not intentional.
Liability of intermediaries and the author under Indian law
The Internet has made it easier than ever before to spread a huge amount and variety of information worldwide. As mentioned earlier, SNWs are, at a grass root level, a medium for exchanging information between people. SNWs allow any person to write any statement, including the defamatory one, on their own or a third person's virtual profile. In this scenario, the question which naturally arises is: who can be sued by the person against whom such defamatory statement has been made?
Under the operative Indian law, the person who made such statement as well as its distributor and publishers can be sued. Apart from the author of such statement, intermediaries such as the concerned SNW, the website holder, the internet service providers, as well as the other users of such SNW on whose profiles defamatory statements have been written by the author, can be sued in their capacity as a publisher of defamatory statements and can be held liable for such statements. It is to be noted that such intermediaries or other users of SNWs may not be aware of such defamatory statements by the author on their own virtual profile.
Section 79 of the Information Technology Act, 2000 (the "Act") gives immunity to network service providers. According to Section 79 of the Act, a 'network service provider' (defined as a person who on behalf of another person receives, stores or transmits the electronic messages) shall not be liable under the Act, or Rules or Regulations made thereunder, for any third party 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.
The Information Technology Amendment Act, 2008
The Information Technology Amendment Act, 2008 was passed by the Indian Parliament on December 22, 2008 and following Presidential assent it has become a law from February 5, 2009. The amendment bears a certain degree of similarity to the prevailing law in the United States of America ("USA"). In USA, intermediaries such as SNWs, internet service providers and other interactive web service providers are exempted from liability under defamation if (i) they prove that they have no control over the statement or content and (ii) they remove such statement or content from their website or network immediately upon receiving the notice from the plaintiff.
The amended Section 79 of this Amendment Act provides the mechanism equivalent to the law of USA. Following are the relevant provisions of the Information Technology Act (after the said amendment comes into force).
(1) Notwithstanding anything contained in any other law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available by him.
(2) The provisions of sub-section (1) shall apply if—
(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored; or
(b) the intermediary does not—
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission.
(3) The provisions of sub-section (1) shall not apply if—
(a) the intermediary has conspired or abetted in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.
(4) Intermediary shall observe such other guidelines as the Central Government may prescribe in this behalf.
Explanation.—For the purpose of this section, the expression "third party information" means any information dealt with by an intermediary in his capacity as an intermediary.
Section 2(w) –
"intermediary", with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes, but does not include body corporate referred to in section 43A."
After the Information Technology Amendment Act 2008 become effective from October 27, 2009, intermediaries such as SNWs are immune from any defamation liability provided such intermediaries have acted bonafide or come within the purview of the exemptions envisaged under the amendment. The initial presumption is that intermediaries are not liable provided they satisfy the conditions of sub-clause (2) of Section 79. Though the new law does not shift the burden of proof from defendant (to prove that the statement is true) to plaintiff (to prove that the statement is false and intermediary had knowledge and control over the content), but the new law definitely makes it easier for the defendants to prove their innocence in the event they have acted bonafide.
One of the major loopholes was that other users of the SNWs could be made defending parties to the defamation suit, whether or not they were aware of such defamatory statements. However, the new law provides a certain line of defence to them provided they satisfy the abovementioned conditions under the new Section 79. Now that the Information Technology Amendment Act, 2008 is enforced, intermediaries such as SNW are somewhat immure from the risk of being sued as well as having judgments passed in India against them to pay damages to the plaintiff for defamatory statements of others.
1. 2009 INDLAW DEL 119
The copyright owner for this article is Vishal Vora Fox Mandal & Associate, Bangalore (A part of FoxMandal Little Group)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.