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CYBER DEFAMATION IN INDIA: IT’S GROWTH AND IT’S EFFECTS BY: AISHWARYA SRIVASTAVA & PROF. SHIVANGI SINHA
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Article Details
CYBER DEFAMATION IN INDIA: IT’S GROWTH
AND IT’S EFFECTS
AUTHORED
BY: AISHWARYA SRIVASTAVA & PROF. SHIVANGI SINHA
Student of
BBA LL.B. 3rd Year
Bharati
Vidyapeeth (Deemed to be University), New Law College, Pune, India
Abstract
Technology is evolving at an extreme
rate and it has
led to a great development in the networking of computers
i.
e,
Cyberspace. The development in Cyberspace or Internet and it been easily
accessible has been a major factor in committing of criminal activities through
internet. The committing of crime through or by using internet is called
Cybercrime. Cyber crime like global warming is a problem which the entire world
is facing. Cybercrime is of various types ranging from hacking to cyber
terrorism and many more other crimes. One of the most prevalent type of
cybercrime is Cyber Defamation. Whenever some person’s or some entity's
reputation is harmed by the use of internet it amounts to cyber defamation.
Cyber defamation results in damage of the image of a person or entity and also
in harassment of that person or entity. Cyber defamation is a serious threat
for our country.
Introduction
In
India the Internet
service was started
by Videsh Sanchar
Nigam Limited on 15th August
1995 and it was accessible to very few people and with the development of the technology it became easier to access and a decent amount of people
started to access it. But the real growth
of Internet took place on September 5, 2016 when
Reliance group launched Jio and
started to provide internet for free on every new mobile phone purchased. This
thing not only increased the usage of
internet but also its reach within the hands of ordinary people. However, this wave of free internet created by Jio
produced an effect which is and will
be affecting India in long run. After Jio other telecom players also started to
provide 4G internet.
Now in current scenario
people can get to use internet for a month after paying
a small amount
which is to paid as a recharge fee every
month. [i, ii]
The
effect created by this increase
of internet usage
was the increase in cybercrimes in India. This type
of crime which was only affecting a limited number of people was now reaching
to every section of society as the
people took the bait of unlimited internet. There was a surge in the happening of cybercrime cases in India.
One the cybercrimes which is exponentially growing is Cyber Defamation. Defamation in layman’s language
stands for false statements published or spoken
against a person which is going to harm his reputation in the eyes of right
thinking members of the society.
Defamation is of two types mainly
1)
Slander
– It means publication of a
defamatory statement in a non–permanent form . For example, words which may be
spoken but not written.
2)
Libel – It stands for publication of defamatory statement
against someone in the written
format or permanent format i.e, printing or writing etc..
Keeping the meaning of defamation as the core Cyber Defamation can be understood as “an act of insulting, offending or defaming a person
by publishing or sharing or posting or liking or re- tweeting any false statements about him. ” We can share anything
defamatory about any person over the
internet and it will go from reach of one person to millions of people within a
matter of seconds. Twitter can be taken as a prime example
where cyber defamation is committed every minute
as it is a platform which provides for its users to post comments regarding
anyone and people without realizing
what they are posting can not only harm the reputation of that person to a large extent but it can also have severe
consequences for the persons posting these comments. Example can be taken of the defamation and harassment of child
Actress Riva Arrora over social media
platforms where a large number of users are commenting and putting baseless
allegations like how she is using
steroids to look more mature then her actual age . This all started to happen after
Riva Arora appeared
on a Music video with singer Mika Singh . The comments
did not stop here only it went to even sexual comments
being posted against
her . There are multiple
cases like this which are happening everyday on these platforms or cyberspace which
are requiring stern measures to be taken
for dealing with them. [iii]
Cyber
Defamation And It’s Growth
Defamation which is both a civil and
criminal wrong is punishable under section 499 & 500 of Indian Penal Code, 1860 which provides a
punishment for simple imprisonment for a term which may extend to a imprisonment for two years with or without the
fine. This also covers within its ambit
Cyber Defamation. There is also Information Technology Act, 2000 and Information Technology (Intermediary Guidelines) Rules, 2011 for dealing with Cyber Crimes like hacking, phishing, cyber defamation etc.. However
even after having these provisions there is still regular growth
in cybercrimes being
committed.
According to a report by the Pune
Cyber Police “there has been an increase of a little over 100 percent in the defamation and fraud cases
on social media platforms from 2,174 in 2020 to 4,357 in 2021.” Also it was told by Pune Cyber Police that creating
fake profiles, posting and sharing defamatory
and vulgar contents, anti-religious comments are quite common on social media platforms. [iv]
The cases of cyber defamation are not
only committed only against normal citizens but they are especially committed against people who hold fame for example
actors, cricketers, social media influencers
etc.
Recently there was a FIR lodged
against at least six social media accounts which were operating on Twitter and were making lewd comments
against minor daughters of cricketers Virat Kohli and
M.
S. Dhoni. [v]
There are three conditions which are essential
for constituting the wrong of Cyber defamation:-
1.
The defamatory material must be published on a platform
in the internet.
2.
The defamatory material published must be in such a form that it can be easily
noticed.
3.
This defamatory material should be
published or posted
in the cyberspace with the intention to harm a person's reputation or with the
knowledge that the material posted in the cyberspace can harm
that person’s image or reputation.
After these three conditions are
fulfilled the person who posted this defamatory material can be held liable for cyber
defamation.[vi]
Provisions for dealing with Cyber Defamation
Following provisions have been provided by the legislature for dealing with the cyber defamation cases :-
1. Section 499 of Indian
Penal Code, 1860
According to this section whenever a person with the intention of harming
another person’s reputation or knowing that whatever imputation he is
making against that person, by words either
spoken or intended to be read , or by signs or by visible representations ,
will harm, the reputation of
such person is said to defame that person.
After the enactment in Information Technology Act, 2000 the definition of
Defamation under section 499 of IPC
now also included within its ambit
“speeches ” and “documents” in electronic form.
2. Section
469 of Indian Penal Code, 1860
This section says that whenever a person commits forgery ,with the
intention that the document or
electronic record forged shall harm the reputation of any party or with the knowledge
that such forgery
is likely to be used the
purpose of harming reputation of any party, shall be given a punishment of
imprisonment of either description for a term which may extend to three years and
shall also be liable to fine.
3. Section
503 of Indian Penal Code, 1860
It means when one person threatens another person by giving threat of
causing any injury to his person,
reputation or property, or to the person, reputation or property of any one in whom that person is interested , with
the intention to cause that person to
do something which he is not legally
bound to do, or to omit something which he was legally bound to do, as the means of avoiding to do the
execution of such threats by himself, commits the offence of criminal intimidation.
4. Section
66A of Information Technology Act, 2000
Whoever through the use of any communication device or through
the use of any computer
resources:-
·
Disseminates any information which has a menacing
character or is grossly offensive; or
·
By persistently making use of such computer resources
or devices of communication for dissemination of information which he already
knows is false but still performs such dissemination of false information just
for the purpose of causing insult, injury, annoyance, criminal intimidation,
enimity, hatred, danger etc..
·
Sends any e-mail or electronic mail message only with
the purpose of causing annoyance or to mislead any recipient about the origin
of the message.
If someone
commits any of the above that person shall be punished with imprisonment for a
term which may extend to 3 years and with fine.
However this section 66A brought down
or repealed after Shreya Singhal's Case[vii]
in which it was decided
that the provisions of this section
does not fall under the exceptions of Article 19(1)(a)
ii.
e, freedom
of speech and expression which are given under Article
19(2).This was done because this section does not defined what kind
of information would be offensive and would cause annoyance or injury so because of this there was vagueness
because of which this section was being used arbitrarily and so it was
violative of Article 19(1) (a) of Indian
Constitution. 1
5.
Section 79
of Information Technology Act, 2000
This section deals with the obligations or liabilities of the Internet
Service Providers (ISPs) and the Internet Intermediaries in India.
This section states that it is not the liability
of the ISPs if there is any third party information or data or communication link made available by them so long as
–
1. The
function performed by them is limited only to the providing of access to
communication system;
2. They do not
:-
·
Start the transmission
·
Choose who will be the receiver of the transmission
·
Choose or modify the information involved in the
transmission
3. Due
diligence is being exercised by them in their duties and they are adhering to
any guidelines which may be prescribed.
However ISPs can still be held
responsible in following situations –
1. If in any
unlawful acts they have conspired, abetted or induced
2. If after
receiving information from an appropriate government agency regarding any
information, data, communication link being used to commit unlawful acts
without interfering with evidence and they fail to remove or disable access any
such data, communication link, information.
In the
case of Swami Ramdev v.
Facebook[ viii ] following
directions regarding ISPs and intermediaries were issued
which are as follows –
·
Any
URL/Links to any defamatory material which are uploaded from outside India
the Intermediaries like google &
Facebook are directed
to remove access
and disable them from being in Indian territory and to ensure
that Indian users are unable
to access them.
·
The defamed
person on discovering any further URL/Link
containing defamatory material
shall inform that platform or intermediaries which shall take down that information globally or only in Indian domain
depending from where the content has been
uploaded.
·
If
platforms after receiving the information about defamatory material are of opinion
that such material
is not defamatory or offensive
then they shall inform that to the person who complained about this and then he would seek remedies in accordance with law.
6.
Section 65A
and 65B of Indian Evidence Act
These
sections states about what forms of defamatory materials are admissible as
evidence by courts in India.
Following points states regarding what are those materials which admissible as evidence-
·
Any electronic record which is
printed on paper or recorded
or Copied in a magnetic
or optical media shall be treated as a document and shall be admissible
in court of law.
·
Online chats are also admissible
as evidence.
·
Electronic
mails as evidence are also admissible in court of law.
Famous Cases of
Cyber Defamation
1.
Bois Locker Room case– This is a very famous case in which
teens in Delhi created a group on Instagram and started sharing
obscene and morphed
photos of minor girls. In this group the participants used to pass on lewd comments
on the girls and the conversation in this group even went up to discussing how they will rape the girls whom photos they were sharing. But the screenshots of these
conversations were reported to the police and after this Delhi Commission for Women and Delhi Police took swift
actions and made arrests. [ix]
2. SMC Pneumatics
India Pvt. Ltd v. Jogesh Kwatra[ x ] – This was the first cyber defamation
case filed in India. This case was all about the defendant employee who was sending defamatory or offensive e-mails to
the plaintiff’s company fellow employers and
also these offensive
e-mails were sent to various
subsidiaries of the plaintiff's company
all over the world in order
to tarnish the company’s reputation. The plaintiff then filed a suit demanding a permanent injunction for
restraining of posting of such defamatory remarks by the defendant. The Delhi High Court after observing that
after the submissions of the parties
a prima facie case was made out by the plaintiff it passed an order restraining
the defendant from defaming the plaintiff both in physical
world and also in the internet.
3. Kalandi Charan Lenka v. State of Odisha[xi]– In this case the victim started to
receive vulgar and obscene messages
on her mobile phone and also these messages about victim were sent to victim’s family and friends. After this in
2015-2016 victim started to receive letters
which contained vulgar and abusive language and these letters contained fake information which was only meant for
damaging the reputation of the victim. Finally a fake Facebook account of the victim was made through which the
morphed naked photos of the victim
were shared with the purpose of outraging her modesty. After this Victim filed a complaint to police in writing.
Investigations were conducted and the culprit was found. A suit was filed which went on to High Court of Odisha
which held the culprit liable
for cyber defamation of the victim
through use of fake accounts, obscene images and texts. However the culprit was still given the
permission to be released on bail after imposing strict conditions.
4. M/s Spentex Industries Ltd. & Anr. v. Pulak Chowdhary[xii]
– This case was
filed by the petitioner with a demand for permanent and prohibitory injunction
along with ?50,00,000 as compensation for loss caused
to the petitioner firm's reputation and business because of the defamatory and offensive
e-mails sent by the respondent to International Financial Corporation, World Bank, UZREPORT, President of Uzbekistan. It was decided in this case only ?5, 00,00 would
be given to the plaintiff and the respondent was ordered to refrain from making any false or misleading statements either in written
or oral format.
5. Dow Jones & Co Inc. v. Gutnick[xiii] -
In this case the an Australian Businessman brought a suit for libel against the Appellant
for an article published by Appellant in a weekly financial magazine called Barron’s. In which it was alleged that
the businessman was the biggest
customer of a convicted money launderer . The same article was also published
in the website of the Appellant. The businessman brought
the suit for damages in the court at Victoria. The Appellant argued that the
suit should be dealt at New Jersey from where the article was uploaded
in the website. It was held that the publication of the information takes in internet
takes place at the place where it is downloaded and it was also decided that Businessman claiming for compensation for
the damage to his reputation in Victoria only
then the Court
of Victoria cannot be said to inappropriate forum for this.
Causes for the spread
of Cyber Defamation
There are a large number of reasons which are causing
increase in cyber defamation across
India and the entire
world. Some major reasons are mentioned
as follows –
1. Trolling – Trolling is the display of disruptive online
behaviour which is visible when someone
posts malicious content With the intention of causing some altercation or disturbance or for upsetting someone. Trolling is rising day by
day in the Indian subcontinent as
people who are using the Internet especially the social media are generally
ignorant about the repercussions they would be facing if someone complaint
against them. In India trolling is also rising exponentially because the
people are generally not aware about the laws prevailing in the
country and also they need proper education about to behave online.
[xiv]
2. Rise of Roasting Culture – Roasting means an event where the participants makes sarcasms against each other. But in India
roasting has taken a new turn people on various platforms are using abusive
language for telling
their opinion about
something or someone
so that they can garner
more views and likes to earn fame. Example can be taken of YouTube from where the roasting
culture has began. YouTube from time to time in India
has even removed famous account from its platform.
3. Increasing the count of viewership – cyber defamation causes disturbance in the internet
for a time. However
if the issue of cyber defamation of the person
turns out be controversial or is gaining a large
number of views from the internet users then the intermediaries does not even consider to do something about it
as that following issue as if
something done regarding in it that following intermediaries would be loosing some profit.
4. Problem of Identification - Fake accounts on social media are
everywhere and they are the most
common means of spreading abusive, offensive, defamatory content regarding someone. In the Case of Bois
Locker room the main accused who was a girl
was caught after months of investigation. She was using a fake account
with the name “Siddharth” for
instigating other group members for committing criminal activities. This fake account
culture has caused a lot of confusion all around the globe as it makes quite difficult for the police to identify the culprit. [xv]
5. Location issue – It means that any person from any corner of the world can defame another
person within a matter of seconds. However
in many cases it is discovered that the person whose against
whom the action
has been taken is not even the citizen of our country because of which the courts does
not have any jurisdiction to deal with them.
This thing is known to many people so they are taking advantage of this
and are defaming other persons without any fear of law.
Means of Combating Cyber defamation
Some of the means of dealing with or
reducing cyber defamation are mentioned here
as follows–
1. Awareness – It
means the persons who are using the internet should be given education
about what should be their behaviour in an online platform like Facebook,
twitter etc.. They should be taught about
the consequences they may face for
defaming someone and also there should be stern measures taken against someone
who uses abusive language over social media platforms so that it might be set as an
example for other
users to think regarding how should they behave.
2. Stricter punishments – The
persons who are committing cyber defamation or any other cyber crime should be dealt with
strictly and with a little harsh punishments
so that people starts to refrain from using abusive
language against any person over the cyber space.
3. Stricter guidelines – Social media platforms like Facebook and twitter should be given order by the government for
regularly Identifying fake accounts and those
users which using lewd, offensive or abusive languages on these
platforms against other users of these
platforms. After identifying these fake accounts
these accounts shall be reported to the cyber police
immediately and these accounts should be blocked
or freezed by the platform with an
immediate effect. We can take here example of laws
for cyber defamation in US where the laws are quite stringent
and there enforcement and
execution is also very quick.
4. CERT-IN – It
stands for Indian Computer Emergency Response Team. It is designated by
Information Technology Act, 2000 as a national Nodal agency for dealing
with the disturbances and other related
matters taking place in relation
with threats to computer security.
5. Cyber Crime Investigation Cell – Currently these cells are opened in Mumbai, Hyderabad, Delhi, Chandigarh, Madhya
Pradesh, Lucknow, Pune, Banglore etc.. These
cells are part of Crime Investigation Department (CID). These cells can be contacted for help through written complaint
to Head of the Cyber Crime Cell of that
city. If there is no Cyber Crime Cell in a city than in that case a FIR can be filed at a local Police
Station for reporting of the cyber
crime.
Conclusion & Recommendation
In India development of cyberspace is
taking place at an exponential rate and because
of this people around the country are able to connect and communicate with each other very easily and quickly.
People now can also voice their opinions and
views in front of the world through the help of internet. But there has been a tussle
between freedom of speech and expression and a person’s
right to reputation. This tussle has caused vagueness in laws which is seen in
various cases especially in Shreya
Singhal's case where section 66A of Information Technology Act was struck down because it was against Article
19(1)(a) of the Constitution and was also
having a vague meaning. With the development of social media and the controversy culture there has been an increase in the responsibility of Internet service
Providers (ISPs) and the intermediaries but instead of focusing on their responsibilities they are more interested in the profits
they reap from the controversies and conflicts over the
cyberspace like in case of Swami Ramdev v. Facebook
or Bois Locker Room case etc.. There are various means through which cyber defamation and other forms of crimes like through posting defamatory comments
or sharing morphed
photos or using
vulgar language etc… But
there are also various ways and various provisions
which are made or are being devised for combating
these cyber crimes.
However cyberspace is a very
unpredictable place where there are plenty of ways to commit crimes so because of this there is a need for
establishing a separate department for dealing with the crimes
related to social media. Also there is
a need for bringing specific changes with time within the laws related
to cyber space and also for
legislation of a separate law or provision dedicated towards dealing with cyber defamation.
i News18, The story of how Internet
came to India:An Insider’s Account,(last visited Jan. 20,2023,8:30 PM),
https://www.news18.com
ii ETTelecom, It’s confirmed! Reliance Jio 4G
launch on Dec 27, (last visited Jan. 20 2023,9:29 p.m.) , http://telecom.economictimes.indiatimes.com
iii Garima Satija, Who Is Riva Arora? 12-Year-Old
Child Actor Whose Parents Are Being Bashed For Sexualising Her, (last visited
Jan.21, 2023,5:00 p. m.), https://www.indiatimes.com
iv Times of India,Defamation, fraud cases on
social media recorded 100% rise last year,(last visited Jan. 18,2023, 6:30 p.
m.), https://www.timesofindia.com
v Express News Service, FIR against social
media accounts over lewd comments on daughters of Virat Kohli, Dhoni, (last
visited Jan. 22,2023, 6:00 p. m.), https://indianexpress.com
vi
vii Shreya Singhal v. Union of India, AIR 2015 SC
1523
viii Swami
Ramdev and Ors. V. Facebook Inc. and Ors., MANU/DE/3436/2019
ix India Today, Bois Locker Room: 10 things you
need to know about scandal that has rocked Indian social media, (last visited
Jan. 24,2023, 7:30 p. m.), http://IndiaToday.in
x SMC Pneumatics India Pvt. Ltd. V. Jogesh
Kwatra, CS(OS) No. 1279/2001 (Delhi High Court, 2001)
xi Kalandi Charan Lenka v. State of Odisha,
MANU/OR/0027/2017
xii M/s Spentex Industries Ltd. & Anr. Vs.
Pulak Chowdhary, Delhi District Court, CS No. 219/18
xiii
Gutnick v Dow Jones & Co Inc, [2002] HCA 56
xiv SS Rana
& Co., Trolling cyber harassment and defamation know your rights, (last
visited Jan. 24,2023, 9:30 p. m.), http://ssrana.in
xv Zee Media Bureau, Bois Locker Room: 26
students grilled so far, girl masterminded gangrape chat – Here`s what we know
about the scandal, (last visited Jan. 27,2023, 10:15 a. m.), http://www.zeenews.india.com
Article Information
CYBER DEFAMATION IN INDIA: IT’S GROWTH AND IT’S EFFECTS BY: AISHWARYA SRIVASTAVA & PROF. SHIVANGI SINHA
Authors: AISHWARYA SRIVASTAVA, PROF. SHIVANGI SINHA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/29
- Issue 7
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International Journal for Legal Research and Analysis
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