Information Technology Law

Legal Consequences Of Online Defamation

By

Manish Sati

Symbiosis Law School NOIDA.

RESEARCH METHODOLOGY

The methodology used in the present project relates to the usage of secondary data. Secondary data being used shall be in the form of databases though the World Wide Web and books written and published by author’s experts in this area of Law.

INTRODUCTION

Cyberspace is a term used for computer network where two or more computers are connected together and where communication takes place through electronic medium which creates space for communication which is known as cyber space. Cyber-crime is a generic term that refers to all criminal activities done using the medium of computers, the Internet, cyber space and the worldwide web.

A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers and lowers him in the estimation of right-thinking members of society generally. Further, it can cause him to be regarded with “feeling of hatred, contempt, ridicule, fear, dislike or disesteem”.[1]

 Defamation may be a criminal or civil charge. Defamation can be defined as an offense of intentional false communication, either written or spoken, that harms a person’s reputation or character; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.

Defamation done in cyber world is known as cyber defamation it is a new concept, in cyber defamation the defamation is done through new medium or we can say virtual medium but the definition of traditional defamation is also applicable to cyber defamation. Cyber defamation is also known as online defamation & there has been amendment in IT law which leads to more conviction as more offence has been added in IT law.

 

CATEGORIES OF ONLINE DEFAMATION

The cases falling under the online defamation have two main categories, these are –

  1. The person who publishes the defamatory material in cyber space is liable for online defamation like authors of Email and content provider of website. They are the primary publisher who create the defamatory material and publish it on cyber world for the purpose of online defamation.
  2. The internet service provider is will not be liable for online defamation cases if the service provider 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.

MEDIUMS OF ONLINE DEFAMATION

There are various medium by which the online defamation is committed these are –

  • Social Networking website
  • Email
  • Any Website
  • Forum sites
  • Any discussion group

OFFENCES OF ONLINE DEFAMATION

There are many types of offences which come under the online defamation these are –

Violation of Privacy: when any person, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, for the purpose of harming the reputation of someone. Violating privacy of anyone could be illegal under the following laws:

  • Punishment for violation of privacy- section 66 E of Information technology act
  • Defamation – Section 499 of the Indian Penal Code.

A youth was sentenced to 3 years in prison and was levied with a fine of Rs. 20,000 for posting obscene and defamatory pictures of a woman on Facebook. He was punished for publishing obscene material on electronic media.[2]

A 22 year old girl was arrested for creating 8 fake profiles on Facebook for posting sexually explicit pictures of other girls. She was held for misrepresentation and publishing obscene material on electronic media.[3]

Ridicule any person on cyberspace: When a person ridicule another person or group by message, post, comment etc. and even like and share such post on any social networking website then he done very serious offence and could get in trouble. Ridiculing anyone could be illegal under the following laws:

  • Defamation – Section 499 of the Indian Penal Code
  • Sending offensive electronic messages – Section 66A of the Information Technology Act

Atul Mehta, a property dealer, was arrested for circulating jokes on Sikhs. He was booked for “hurting religious sentiments” and for sending “offensive electronic messages”.

Tagging on obscene photo: When any person tagged his friend or anyone on an obscene photo with or without wrong intension by which the person who is tagged on that photo losing his reputation can file the case against the person who tagged him. Tagging on that offensive photo is equal to sending offensive message on web. This comes under –

  • Sending offensive electronic messages – Section 66A of the Information Technology Act.
  • Defamation – Section 499 of the Indian Penal Code

Using abusive words: The use of abusive language on cyberspace is serious offence and even uses of asterisk marks in place of abusive words in any post, message or in comment is also a crime the person losing his reputation because of the abusive words used by other person on cyberspace. This offence is punishable under the following law:

  • Sending offensive electronic messages – Section 66A of the Information Technology Act.
  • Defamation – Section 499 of the Indian Penal Code

Referring corrupt: When a person refers a politician corrupt any social networking website then it is an offence unless he is not finding guilty on corruption by the court of law. This is serious offence and the punishment on it comes under the following law:

  • Defamation – Section 499 of the Indian Penal Code
  • Sending offensive electronic messages – Section 66A of the Information Technology Act

Jaya Vindyala, a lawyer and president of the Andhra Pradesh unit of People’s Union for Civil Liberties, was arrested for her comments against A Krishnamohan, a Congress MLA from Chirala in Prakasam district. Ms Vindyala had accused the MLA of being involved in child trafficking, ganja mafia, sand mafia and land mafia.

Ambikesh Mahapatra, a Chemistry professor at Jadavpur University, was arrested for forwarding a cartoon featuring the West Bengal CM MamataBanerjee.

Sending threatening message: When any person sends a threatening message to anyone on any social networking website or through email by which that person have to lose his reputation in the eyes of public it is also a serious offence under following law:

  • Threatening message comes under sending offensive electronic messages – Section 66A of the Information Technology Act
  • Criminal intimidation – Section 503 of Indian Penal Code

Rajeesh Kumar, a local politician was arrested for posting offensive photos on Facebook, of Prime Minister of India, Mr. Narendra Modi. He was charged with sending offensive messages through communication devices and sending obscene material through communication devices.

Creating false document: When any false document or fake account is creating for the purpose of harming the reputation of someone then this offence is punishable under:

  • Forgery for purpose of harming reputation – Section 469 of Indian Penal Code

Yogesh Kumar was arrested for publishing photos on Facebook, which were religiously offensive, with an account with a different name than his own. He was charged with misrepresentation and sending offensive messages through communication devices.

PROVISIONS FOR ONLINE DEFAMATION

There are many provisions for online defamation it depends on offence that what type of offence is done by the offender.

In India there are various provisions for online defamation, the statutory provisions governing online defamation in India are as follows –

Section 66A of IT Act[4]: This section is not particularly deals with online defamation but it deals with the punishment of sending offensive messages on cyberspace. The section 66A of IT Act says that –

  • 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, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device,
  • Any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee 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.

Section 499 of IPC[5]: This section purely deals with defamation in real world and with menace of cyber defamation. The section 499 of IPC says that –

  • 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 excepted, to defame that person.
  • The law of defamation under Section 499 got extended to “Speech” and “Documents” in electronic form with the enactment of the Information Technology Act.

Section 500 of IPC[6]: This section deals with the punishment of defamation, whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

Section 503 of IPC[7]: This section covers the offences done by use of computer devices through emails, posting messaging, commenting etc. for intimidating the reputation and for threatening anyone. The section 503 of Indian Penal Code says that –

  • 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 threats, commits criminal intimidation.

Section 506[8]: This section deals with the punishment for criminal intimidation (section 503 of Indian Penal Code). The section 506 of IPC says that –

  • Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Section 469[9]: This section deals with the forgery, in this if anyone creates false document or fake account by which it harms the reputation of a person then this offence comes under this section. Section 469 of Indian Penal code says that –

  • Whoever commits forgery, intending that the document or electronic record forged shall harm the reputation of any party, or knowing that it is likely to be used for that purpose shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine

Section 124A[10]: This section deals with the sedition, in this when anyone ridicules a Minister or Government official in cyberspace or in any other place then this offence come under this section. This section says that –

  • Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India shall be punished with imprisonment for life to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

IS DEFAMATION RELATED LAW VIOLATING THE CONSTITUTION OF INDIA?

Article 19 deals with the right of freedom in different facets guaranteed in Indian Constitution. Article 19 (1) (a) provides that “All citizens shall have the right to freedom of speech and expression”.

But Article 19 (2) however provides for imposition of reasonable restrictions in the enjoyment of fundamental rights guaranteed for freedom of speech and expression in Article 19 (1) (a), following are the grounds on which restrictions can be imposed:

  • In the interests of the sovereignty and integrity of India,
  • In the interests of the security of the State,
  • In the interests of friendly relations with foreign States,
  • In the interests of public order,
  • In the interests of decency,
  • In the interests of morality,
  • In relation to contempt of court,
  • In relation to defamation or
  • In relation to incitement to an offence

In India freedom of expression is guaranteed by Art.19 (1) (a) of the Constitution & Since freedom of expression includes the freedom to propagate one’s own views as well as others and communicate to others.

In Maneka Gandhi vs. Union of India: The Supreme Court held that the freedom of speech and expression has no geographical limitation and it carries with it the right of a citizen to gather information and to exchange thought with others not only in India but abroad also.

The constitution of India gives every citizen a right to propagate/ share his own views. Every individual  has a right to post his/her comments on Facebook or on any of the websites but also restricts every person not to post any matter which defames any person this restriction is given in article 19(2) of the constitution.

CONCLUSION

In online defamation internet or computer is use to publish any defamatory material to harm the reputation of any person. If someone sends an email to other person which contain defamatory material or publish anything on website by which the reputation of a person get injured then this would amount to cyber or online defamation many Indian case has been cited in the paper in which peoples have make fake accounts on Facebook and posted their views and after wards they got convicted under different provision of law.

The online statements are accessible to public who uses online services, so the online defamation may harm the dignity and injure the reputation of the victim.

Online defamation comes under cybercrime. There are many laws for this type of offence which is mentioned in Indian penal code and Information technology Law and there has been a development in the field of IT act as there as been amendment in the act and the last amendment is dine in 2008 but people have to know these laws and think twice for what they are posting, there post may not be a defamatory material for someone which harms reputation of others in the eye of general public. So according to me there must be a system to make aware the people by which they learn what to do and what not to do in cyberspace.

REFERENCING

Online Database

India, l. (2015). Defamation in Cyber Space – Author – Neha Rai and Reuben George Chacko. Legalservicesindia.com. Retrieved 15 March 2015, from http://www.legalservicesindia.com/articles/defcy.htm

Facebooklaw.in, (2015). Facebook cases | Facebook Law (India). Retrieved 15 March 2015, from http://www.facebooklaw.in/facebook-crime-cases/

BOOKS

Pandey, J. N. Constitutional Law of India. Allahabad: Central Law Agency, 1982. Print.

Viswanathan, S. (2015). Bharat’s the Indian cyber laws with cyber glossary. New Delhi: Bharat Law House.

[1] Sim v. Stretch, (1936) 52 T.L.R. 669, 671

[2] Bhopal, India, 29th April 2014

[3] Cyber Cell Goa, India, 26th Sep 2014

[4] Information Technology Act, 2000

[5]Indian Penal Code, 1860

[6]Indian Penal Code, 1860

[7]Indian Penal Code, 1860

[8] Indian Penal Code, 1860

[9] Indian Penal Code, 1860

[10] Indian Penal Code, 1860

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