Social media and networking websites have occupied an insurmountable space in our lives. In the current age of lightening fast communication channels and the fast growing Social Networking Websites (SNWs), majority of the people suffer from an urge to put up their thoughts and opinions about different matters and incidents on these SNWs as soon as possible.
But the stark difference between Print media and SNWs is that the information on SNWs travels way faster than on print media, more like a Wildfire. With the proliferation of social networking websites and their widespread use, especially amongst the youth, one observes certain legal loopholes in their operation and use. On 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 other hand presents the drawback of such SNWs. One such glaring drawback is the opportunity they provide for "cyber-defamation" or "virtual defamation" to mushroom.
LAW OF DEFAMATION
Defamation is defined as the offence of bringing a person into undeserved disrepute by making false statements (whether written or spoken)2 or as the act of harming the reputation of another by making a false statement to a third person.3
Defamation is both a Crime under the Indian Penal Code4 and a civil tort. Defamation under Indian Civil Law is governed by English Common Law Rules. For any defamation action under civil law of torts or criminal law, to be successful, fundamentally 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 defenses are available to the defendant both under civil law and criminal law. Under section 499 of IPC the defendant has 10 exceptions to his/her rescue.
Defamation can be in the written/permanent form or verbal or transient form. The permanent/written form is known as Libel and the Verbal form is known as Slander.
Since the form in which information is published on the SNWs is permanent the defamation on the SNWs would be of the nature of Libel. It is important to note here that the same rules of defamation for Libel apply on Social Media as the ones for Defamation in Print Media.
At this juncture the question that arises is as to which publication rule must be adopted by the courts in case of Defamation on Social Media, Single Publication Rule or Multiple Publication Rule?
SINGLE PUBLICATION RULE V. MULTIPLE PUBLICATION RULE
An important ingredient of the offense of Defamation is the requirement of 'publication' i.e. the communication of the defamatory matter to third persons. Therefore, the cause of action for defamation arises on the 'date of publication'. The limitation period for defamation is one year, which also begins to run from the date the libel was published.5
Single Publication Rule
Under this rule, "any form of mass communication or aggregate publication is a single communication and can give rise to only one action for libel." The rule applies "where communication is simultaneously available to multiple persons." Under the single-publication rule, the statement is considered published and "the statute of limitations runs as soon as the communication enters the stream of commerce."
Multiple Publication Rule
Under this rule, a fresh cause of action arises for every moment the offending matter is left on a webpage. So, the 'date of publication' and the limitation period for the offense of libel lose significance.
Therefore, the question that arises here is which date should the cause of action be related to?
VIEW OF THE COURTS OF UNITED KINGDOM
For many years the courts in the U.K. followed the Multiple Publication Rule which was first propounded in the case of Duke of Brunswick v. Harmer, [(1849) 14 QB 185]. In this case, the Duke was given a copy of a newspaper that contained material that defamed him but had been published 17 years earlier. While upholding the claim for damages as being within limitation, the Court held that the limitation period of 6 years re-started when Duke viewed the publication. But in this Internet age each 'hit' on a webpage containing the offending material will constitute a new publication and hence a new cause of action which will allow the person defamed to bring about an action of defamation even after several years of the publishing of the article online.
On 1 January 2014, the Defamation Act 2013 (the "Act") of the UK, which received Royal Assent on 25 April 2013, entered into force. Prior to the Act, the law on defamation was made up of common law supported by the 1952 and 1996 Defamation Acts. The recent Act has updated and codified this area of law, and in particular the way that defamatory material published online is treated. The Act's effect is largely limited to England and Wales, though certain parts of the Act affect Scotland also.
Section 8 of this legislation has done away with the long prevailing Multiple Publication Rule laid down in Duke of Brunswick v. Harmer and has upheld the legally sound Single Publication rule. The section reads as follows:
"Section 8: Single publication. Section 8 of the Act provides that, where a person publishes a statement to the public, the publication will be deemed to include any subsequent publications of substantially the same statement (unless the manner of publication is materially different). This 'single publication' rule aims to protect defendants from claims made long after the initial publication, and replaces the previous 'multiple publication' rule which stated that each publication restarted the limitation period. The primary reason for the single publication rule is that, until now, each time defamatory material was accessed via a website it would be deemed to be re-published and the one year limitation period would re-start. Section 8 of the Act will not however affect the court's discretion to allow a claim to continue outside the limitation period (pursuant to s.32A of the Limitation Act 1980)."
VIEW OF THE COURTS OF THE UNITED STATES OF AMERICA
The Courts in US have followed the Single Publication Rule since long in regard of defamation which was developed in 1938 in respect of newspapers, in Wolfson v Syracuse Newspapers Inc.6 The court in this case rejected the Multiple Publication Rule as it observed that if this rule was used the period of limitation would never expire so long as a copy of the published material remained in stock and this would render the statutorily prescribed period of limitation useless.
The same Single Publication rule has been adopted for Defamation in the Cyber Space as well. New York being one of the first states to uphold the single publication rule in the cyber space In the case of Firth v. State.7 In this case the court held that "a multiple publication rule would implicate an even greater potential for endless retriggering of the statute of limitations, multiplicity of suits and harassment of defendants."
VIEW OF THE INDIAN COURTS
Law in India had entered the cyber foray with the IT Act, 2000, but the act did not talk about Torts like defamation in the cyber space. So since defamation online is considered in the form of Libel, Indian courts were following the common law rule of Multiple publication as far as Cyber Defamation was considered. Though there would have been only a handful of cases in this regard.
The Limitation Act, 1963 fixes the limitation period for Libel at 1 year8, so that would mean with each hit to the webpage with the defamatory content, the limitation period of one year got renewed, thus providing a longer limitation period to the Libel that could last years.
The Delhi High Court recently ruled in the case Khawar Butt vs Asif Nazir Mir, Nov, 2013, Justice Vipin Sanghi9 on defamation on the Internet. In this far reaching Judgment the Delhi High Court rejected the Multiple Publication rule and adopted the Single Publication Rule for Libel on the Internet.
Facts and Ruling in Khawar Butt vs Asif Nazir Mir Case
The plaintiff instituted a suit for damages of Rs. 1 crore and for a mandatory injunction against the defendants for defaming the plaintiff on a SNW- facebook. The posts were published in 2008 but the plaintiff instituted the suit only in 2010.
Counsel for the plaintiff submitted that,
"the publication of the posting on the Facebook gives right to a continuous cause of action, since it tantamount to a fresh publication every moment the offending material remains on the website. He seeks to distinguish publication in a printed journal or a book, from publication on a website on the ground that a publication on a website can voluntarily be withdrawn by the publisher, unlike publication in print media, which, once published cannot be withdrawn. Learned counsel, therefore, submits that the suit cannot be said to be barred by limitation."
Rejecting the Plaintiff's submission, the court followed the Single Publication Rule and held that the plaintiff's claim was barred by limitation (beyond one year from the publication of libel). The High Court relied on various foreign legislations and cases to reach the well researched and far reaching judgment.
LIABILITY OF INTERMEDIARIES
Under the operative Indian law, the person who makes a defamatory (written) 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.
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 Information Technology Act (Amendment), 2008 bears a certain degree of similarity to the prevailing law in the United States of America ("USA"). Amended section 79 of this Amendment Act provides the mechanism equivalent to the law of USA.
According to the sub section (1) of this amended section 79 "an intermediary10 shall not be liable for any third party information11, data, or communication link made available by him." Given that,
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—
- initiate the transmission,
- select the receiver of the transmission, and
- Select or modify the information contained in the transmission.
With the rejection of multiple publication rule in the judgment of the Delhi High Court in Khawar Butt vs Asif Nazir Mir , law regarding the single publication rule in internet defamation has been settled and brought in consonance with the international norms as well.
Also with the Information Technology Act, 2008 (Amendment) coming into force in February 2009, the law regarding the Liability of Intermediaries in internet defamation has been settled by the amended section 79. With this One of the major loopholes, 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 has been covered and settled with the conditions prescribed in section 79 of the above Act.
1. Written with the assistance of Shashi Pratap Singh, Intern; Amity Law College, 3rd Year
2.Oxford English Dictionary
3.Black's law dictionary
5.Entry75, Limitation Act.
6.Inc. 254 App. Div. 211 (4th Dept. 1938))
7.98 N.Y.2d 365
10. 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.
11. 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.
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.