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TOPIC: CYBER DEFAMATION

COURSE :LAW OF TORTS, CONSUMER

PROTECTION ACT AND MOTOR VEHICLES ACT

COURSE CODE: 2BL211

SEMESTER II

COURSE COORDINATOR: DR. VIKAS TRIVEDI

CO-COORDINATOR: ANUBHUTI DUNGDUNG

SUBMITTED BY:
DEVANSH DUBEY (16BAL073)
PRATUL PRATAP SINGH (16BAL094)
SAARANSH MISHRA (16BAL104)
SIDDHARTH SHARMA (16BAL114)
VARUN AKAR (16BAL121)
VISHAKHA SHARMA (16BAL122)
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Acknowledgement

We are really thankful to the various authorities of Institute of Law, Nirma University, who
have been working really hard for the betterment of we students, we thank the ILNU library
staff were always there to help us with the material, we needed for our research, we thank
Director & Dean of Institute of law, Prof. (Dr.) PurviPokhariyal, and our course co-
ordinators Ms. AnubhutiDungdung and Dr.VikasTrivedi, for their continuous efforts to
make students learn as much as possible. This project was a golden opportunity for us to
know about cyber defamation, also this project would not have been possible without the
support and guidance of our peers and our seniors, and we thank each and every one of them
who helped us whenever we asked them for it.

PRESENTED BY:

16BAL073- DEVANSH DUBEY

16BAL094 - PRATUL PRATAP SINGH
16BAL104 - SAARANSH MISHRA
16BAL114 - SIDDHARTH SHARMA
16BAL121 - VARUN AKAR
16BAL122 - VISHAKHA SHARMA
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Research Methodology

The research method for this project was doctrinal legal research.

Various case laws, commentaries on statues, acts and judgements were referred to

arrive at the things, which are explained in this project.

Critical analysis of various articles and studies was made to reach to certain

conclusions and to develop a deeper understanding of the topic.

Assistance in the review and feedback after completion was taken from a few seniors

and peers.

Also took the help of some books and literature to reinforce the basic understanding

of the concept.
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Objectives

The objective of this project was to understand various aspects of cyber defamation.

To explore as to how cyber defamation takes place.

How do judges deliver judgements in such cases of cyber defamation?

To do an analysis in respect to the changing times and development of new laws as

well as obsolete laws.

The ulterior motive was to develop a concrete understanding of the subject for any
future reference and develop clarity regarding the pragmatic applicability of the same.
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TABLE OF CONTENTS

Sr. No Particulars Page No.

1. Cover Page 1

2. Acknowledgement 2

3. Research Methodology 3

4. Objectives 4

5. Table of Contents 5-6

6. Introduction 7

7. Cyber Defamation Meaning 8

8. First Case Law Dealing with Cyber Defamation 8

9. Provisions governing online defamation in India 9-10

10. Where to lodge a complaint 9

11. Landmark Cases 11-14

12. Cyber defamation in the corporate world 14-16

13. How much damages can be claimed? 17

15. Cyber defamation in other countries 18

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16. Precautionary measures 19

17. Internet defamation defenses 20

18. Conclusion 21
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INTRODUCTION

The invention of internet has provided us with a medium to interact with the people world-
wide. It has brought the whole world closer to every man who has access to the hub of
enormous information. It has also given new dimensions to every spheres of life, i.e.
business, shopping, jib, social networking etc. . The widespread use of internet has also given
a new face to the crime and a new medium to commit crime. Cyberspace is a technical term
used for the electronic medium of computer networks, in which online communication takes
place. The crimes that are committed by using the computer as an instrument are called cyber
crime. Cyber Defamation is also a cyber crime, i.e. to defame a person using
internet/computer as a medium.

What is defamation?

According to Section 499 of I.P.C., whosoever by words either written or spoken or by signs
or visible representations, makes or publishes anything concerning any person, intending to
harm the reputation of such person, is said to have defame a person.

What is Cyber?

It means anything which is related to the culture of computers, virtual reality or information
technology.

The following are mediums by which offense of cyber defamation can be committed:
World Wide Web
Discussion groups
Intranets
Mailing lists and bulletin boards
E-mail

The liability of defamation is two folds:

1. Primary writers-Person who has written the defamatory content and published it on
the cyberspace.
2. Service providers- The ISP or bulletin board service providers who authorised for the
publication of such defamatory content.
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WHERE TO LODGE A COMPLAINT

A person aggrieved of the offence of offence of cyber defamation can make a complaint to
the Cyber Crime Investigation Cell. The Cyber Crime Investigation Cell is a branch of the
Criminal Investigation Department (CID). Cyber Crime Investigation Cells have opened up
in many cities like Delhi, Mumbai, Chandigarh, Hyderabad, Bangalore, Tamil-Nadu,
Gurgaon, Pune, Madhya-Pradesh, Lucknow, etc. The Cyber Crime investigation Cells deal
with offences related to the computer, computer network, computer resource, computer
systems, computer devices and Internet. It also has power to look into other high-tech crimes.

One last thing to be noted is that harm caused to a person's reputation through cyber
defamation is widespread & irreparable as the information is available to the entire world, i.e.
it is Permanent.

FIRST CASE LAW DEALING WITH CYBER DEFAMATION

The first case of cyber defamation in India arose in the year of 2001 when a company named
SMC Pneumatics (India) Pvt. Ltd. filed a case against one of its own employees named
JogeshKwatra.

In this case, SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra, the reputation of a
corporate was being defamed by an employee of the plaintiff company by sending
derogatory, defamatory, and obscene, emails obscene, vulgar, filthy and abusive emails to its
employers and also to different subsidiaries of the said company all over the world with the
aim to defame the company and its Managing Director.

The Hon'ble Judge of the Delhi High Court passed an ex-parte ad interim injunction
observing that a prima facie case had been made out by the plaintiff.

Consequently, the Delhi High Court restrained the defendant from sending derogatory,
defamatory, obscene, vulgar, humiliating and abusive emails either to the plaintiffs or to its
sister subsidiaries all over the world including their Managing Directors and their Sales &
Marketing departments. Further, Hon'ble Judge also restrained the defendant from publishing,
transmitting or causing to be published any information in the actual world as also in
cyberspace which is derogatory or defamatory or abusive of the plaintiffs.
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PROVISIONS GOVERNING ONLINE DEFAMATION IN INDIA

In India, the liability of defamation is two folds:

1. Primary writers: Person who has written the defamatory content and published it on the
cyberspace.
2. Service providers: The ISP or bulletin board service providers who authorised for the
publication of such defamatory content.
There are two broad category of case falling under cyber defamation:
The first category involves the cases in which the liability is of the primary publishers of
the defamatory material, e.g. web site content providers, e-mail authors etc;
The second category involves the cases involving the liability of the internet service
providers or bulletin board operators.
There are no separate laws dealing with the act of Cyber Defamation as this concept is still
in the development phase and concrete laws will eventually develop as more and more cases
arise in the courts. The laws of defamation also apply to cyber defamation and these are:

1. Section 499, Indian Penal Code

Defines what is Defamation

This section 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.

2. Section 500, Indian Penal Code

Provides with the punishment

This section provides for the punishment of defamation. Any person held liable under section
499 will be punishable with imprisonment of two years or fine or both.

3. Section 469, Indian Penal Code

This section deals with the forgery

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This section stated that if anyone creates false document or fake account by which it harms
the reputation of a person. The punishment of this offence can extend up to 3 years and the
appropriate fine considering the gravity of the harm.

4. Section 66A, Information Technology Act, 2000

This section defined punishment for sending offensive messages through a computer,
mobile or tablet.
This law has been struck down by the Supreme Court in the year 2015. Since government did
not clarify its stand on the word offensive, the government started using it as a tool to
repress freedom of speech. In 2015 the Supreme Court quashed the whole section.
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LANDMARK CASES

Shreya Singhal vs U.O.I

INTRODUCTION

Supreme Court in a landmark judgement struck down section 66A of the I T Act1, 2000
which provided provisions for the arrest of those who posted allegedly offensive content on
the internet upholding freedom of expression. Section 66A defines

the punishment for sending offensive messages through a computer or

any other communication device like a mobile phone or tablet and a
conviction of it can fetch a maximum three years of jail and a fine.

Over the last couple of years there has been many cases in which police has arrested the
broadcasting of any information through a computer resource or a communication device,
which was grossly offensive or menacing in character, or which, among other things as
much as cause annoyance, inconvenience, or obstruction. In a judgment authored by
Justice R. F. Nariman, on behalf of a bench comprising himself and Justice J. Chelameswar,
the Court has now declared that Section 66A is not only vague and arbitrary, but that it also
disproportionately invades the right of free speech. The vagueness about what is
offensive. The word has a very wide connotation, and is open to distinctive, varied
interpretations. It is subjective, and what may be innocuous for one person, may lead to a
complaint from someone else and, consequently, an arrest under Section 66A if the police
prima facie accepts the latter persons view.

FACTS :

Two girls-Shaheen Dhada and Rinu Srinivasan, were arrested by the Mumbai police in 2012
for expressing their displeasure at a bandh called in the wake of Shiv Sena chief Bal
Thackerys death. The women posted their comments on the Facebook. The arrested women
were released later on and it was decided to close the criminal cases against them yet the
arrests attracted widespread public protest. It was felt that the police has misused its power by
invoking Section 66A inter alia contending that it violates the freedom of speech and
expression. In 2013, the apex court had come out with an advisory under which a person
cannot be arrested without the police receiving permission from senior officers. The apex
court judgment came on a batch of petitions challenging the constitutional validity of Section

1
Information technology Act,2000.
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66A2 of the IT Act on the grounds of its vague and ambiguous and was being misused by the
law enforcing authorities. The arrests triggered outrage from all quarters over the manner in
which the cyber law was used. Most cases of arrest were reported in 2012. Jadavpur
University professor Ambikesh Mahapatra was arrested for forwarding caricatures on
Trinamool Congress chief Mamata Banerjee on Facebook. Activist AseemTrivedi was
arrested for drawing cartoons lampooning Parliament and the Constitution to depict their
ineffectiveness. Air India employee Mayank Sharma and K V Rao from Mumbai were
arrested for allegedly posting offensive comments against politicians on their Facebook
group. Businessman Ravi Srinivasan was booked by Pondicherry police for an allegedly
offensive tweet against the son of a former cabinet minister.

NO LEGITIMATE DEFENCES

The Supreme Court agreed with the petitioners that none of the grounds contained in Article
19(2) were capable of being invoked as legitimate defences to the validity of Section 66A of
the IT Act. Any law seeking to impose a restriction on the freedom of speech can only pass
muster, wrote Justice Nariman, if it is proximately related to any of the eight subject
matters set out in Article 19(2).

There were two tests that were put to the Section 66A- clear and present danger and the
probability of inciting hatred. Section 66A has failed those tests because the posts that people
were jailed for did not incite public hatred or disrupted law and order.

CONCLUSION

In quashing Section 66A, in Shreya Singhal, the Supreme Court has not only given afresh
lease of life to free speech in India, but has also performed its role as a constitutional court
for Indians. The Court has provided the jurisprudence of free speech with an enhanced and
rare clarity. Various provisions of IPC and Sections 66B and 67C of the IT Act are good
enough to deal with all these crimes and it is incorrect to say that Section 66A has given rise
to new forms of crimes. It is clear that Section 66A arbitrarily, excessively and
disproportionately invades the right of free speech and upsets the balance between such right
and the reasonable restrictions that may be imposed on such right, said a Bench of Justices J.
Chelameswar and Rohinton F. Nariman. The definition of offences under the provision was
open-ended and undefined, it said.

2
Shreya Singhal v. Union of India, (2013) 12 SCC 73
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VYAKTI VIKAS KENDRA, INDIA PUBLIC CHARITABLE TRUSTEE MAHESH

GUPTA & ORS VS. JITENDER BAGGA & ANR.

More popularly known as Art of Living case3 the case is a typical example of how
vulnerable public figures in India are to cyber defamation. The four plaintiffs namely, Vyakti
Vikas Kendra, India Public Charitable Trust, Mr GautamVig, Mrs.BhanumatiNarsimhan and
Mrs.SharmilaMurarka in this case filed a suit against the defendants for damages and
permanent injunction, mainly on the ground that they are aggrieved and hurt because of
certain highly defamatory materials posted on www.blogger.com, owned by Google
(defendant No.2) by Mr.JitenderBagga (defendant No.1). As per the plaintiff, the defendant
No.1 was indiscriminately sending emails and publishing a large number of blog posts, which
according to them was making highly vulgar, disgusting and abusive references towards His
Holiness Sri Sri. Ravi Shankar, owner of Art of Living Foundation, and other persons
associated with the Art of Living. Delhi High Court in this case first held Google to be an
intermediary within the definition of Section 2(1)(w) and Section 79 of the Information
Technology Act, 2000.

The Court accordingly pointed out that under Section 79(3)(b)4 of the IT Act, 2000, Google
is under an obligation to remove unlawful content if it receives actual notice from the

3
Vyakti Vikas Kendra, India Public Charitable Trust Trustee Mahesh Gupta Vs. Jitender Bagga & Anr. Cs(OS)
No.1340/2012
4
Intermediaries not to be liable in certain cases-
(1) Notwithstanding anything contained in any 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 or hasted 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 hasted; 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;
(c) the intermediary observes due diligence while discharging his duties under this Act and also
observes such other guidelines as the Central Government may prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if
(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or
otherwise 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
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affected party of any illegal content being circulated/published through its service. Google is
also bound to comply with Information Technology (Intermediaries Guidelines) Rules 2011.
The Court observed that Rule 3(3) of the IT Rules read with Rule 3(2) requires an
intermediary to observe due diligence or publish any information that is grossly harmful,
defamatory, libelous, disparaging or otherwise unlawful. Rule 3(4) of the Rules creates
obligation on an intermediary to remove such defamatory content within 36 hours from
receipt of actual knowledge. Thus, in the present case, Google was directed to remove all
defamatory contents about the plaintiffs posted by the defendant No.1 from its website
www.blogger.com as well as all the links containing defamatory content within 36 hours
from the date of knowledge of the order passed by this Court. Defendant No.1 was restrained
from sending any such e-mails or posting any material over the internet having a direct or
indirect reference to the plaintiffs or the Art of Living Foundation or any member of the Art
of Living Foundation, or His Holiness Sri Sri Ravi Shankar.

CYBER DEFAMATION IN THE CORPORATE WORLD

What does corporate world refer to?

The simple definition of a corporate world is a place where business; ethics and law are
applied and must be followed, with certain other specific behaviours that must be met in
order to get ahead in such a world. It is labelled as corporate world because it is very difficult
from the real world.

Why does cyber defamation take place in the corporate world? Some examples of cyber
defamation in the corporate world:

Defamation of a company by an employee who is unsatisfied with his job. Let us assume for
example that the employee feels that he is underpaid, has no job satisfaction and also feels
that he is not subject to the dignified behaviour that he should be. Due to the aggregation of
all these reasons, he holds a massive grudge against the company. In this case, he might want
to use the cyber space in order to defame the company for giving vent to all his grudges.

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.
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Companies using the cyber space to defame rival companies in order to gain an undue
advantage over them.

Why cyber space and why not the real world?

There are a few specific reasons for using the cyber space. They are:

1) Access to the internet is extremely easy in the contemporary world.

2) Using the internet is extremely cheap. In fact, even setting up a website costs a meagre
amount.
3) Users do not have to reveal their true identity while posting on the internet.
4) Lastly, because it is easy to spread stuff on the internet as people are well connected on
the internet and thus, it take much lesser effort than in person.

What does one do in case defamatory content is posted on the cyber space?

1) Try to contact the cyber security cell for information on how to get the stuff deleted.
2) Try to contact the website owner/administrator and negotiate.
3) Try to approach the search engine regulators to remove the links or push down the links.
4) Issue legal notice to website owner / administrator and even the search engine companies.
5) With the help of the cyber cell, get an FIR registered.
6) Initiate legal proceedings against the culprits claiming compensation for the damages
caused.
7) Approach court for injunction orders so that such content may not be posted again.

HOW MUCH DAMAGES CAN BE CLAIMED?

The amount of damages that can be claimed depends upon the companys status, good name,
good will, reputation in society along with assumed loss of income and the hardships caused
by such defamatory cause.
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CASE STUDY

AVNISH BAJAJ V/S STATE -

FACTS:
In the present case of Avnish bajaj v. State5 (DPS MMS scandal case) invoved an IIT
Kharagpur student Ravi Raj, who placed on the baazee.com a listing offering an obscene
MMS video clip for sale with the username alice-elec. Despite the fact that baazee.com have
a filter for posting of objectionable content, the listing nevertheless took place with the
description, Item 27877408 DPS Girls having fun!!! full video + Baazee points.
The item was listed online around 8.30 pm in the evening of November 27th 2004 and was
deactivated, around 10 am on 29th November 2004. The Crime Branch of Delhi police took
cognizance of the matter and registered an FIR. Upon investigation, a charge sheet was filed
showing Ravi Raj, Avnish Bajaj, the owner of the website and SharatDigumarti, the person
responsible for handling the content, as accused. Since, Ravi Raj absconded; the petition was
filed by Avnish Bajaj, seeking the quashing of the criminal proceedings.

HELD (Delhi High Court)

The court observed that a prima facie case for the offence under Section 292 (2) (a) and 292
(2) (d) IPC is made out against the website both in respect of the listing and the video clip
respectively. The court observed that [b]y not having appropriate filters that could have
detected the words in the listing or the pornographic content of what was being offered for
sale, the website ran a risk of having imputed to it the knowledge that such an object was in
fact obscene, and thus it held that as per the strict liability imposed by Section 292,
knowledge of the listing can be imputed to the company.
However, as far as Avnish Bajaj is concerned, the court held that since the Indian Penal Code
does not recognize the concept of an automatic criminal liability attaching to the director
where the company is an accused, the petitioner can be discharged under Sections 292 and
294 of IPC, but not the other accused.As regards S. 67, read with Section 85 of the IT Act,
the Court however, observed that a prima facie case was made out against the petitioner
Avnish Bajaj, since the law recognizes the deemed criminal liability of the directors even
where the company is not arraigned as an accused. The judgment however did not declare
Avnish Bajaj guilty.

5
Avnish bajaj v. State 116 (2005) DLT 427
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CYBER DEFAMATION IN OTHER COUNTRIES

Since in general defamation, generally there are two parties involved, one who defamed the
other and the deceased. But when we talk of cyber defamation, there can be multiple parties
involved, below are the two debatable aspects which come in question at the time of cyber
defamation-

1. Service Provider The third party who is generally questioned in cyber defamation is
the internet service provider. A case in US, PayamTamiz v. Google Inc.6, Google was the
provider of a platform for bloggers named Blogger.com, there some blogger created a
blog, London Muslim, and there that blogger started posting articles and comments.
Mr.Tamiz, the appellant finds some 8 comments of the blog, defamatory to him.
Appellant mails Google asking them to remove those comments as the comments were
defamatory to him. Google immediately forwards that mail to the blogger asking him to
remove those comments within two days of time. The blogger then voluntarily removes
those comments. Mr.Tamiz after some weeks, files a defamation suit against Google.

Honble court, on the basis of common law, says that Google was not authorised to
decide whether the comments were defamatory to the appellant or not and court also
stated that Google took reasonable care as it forwarded the mails immediately to the
blogger asking him to remove the comments. Also court said that Google cant be held
liable as it also provides people with the option of reporting abuse, if any. Court after
examining all the comments held that 3 out of those 8 comments were actually
defamatory to the appellant. The question that arose in the case is that, can the service
provide be held liable?. The act concerned here was, section 230 of Telecommunication
Act, 19967. Google satisfied all the three conditions and gained immunity under section
230 of above mentioned act.

6
[2013] EWCA Civ 68.
7
Section 230 of the telecommunication act reads-
No service provider or user of an interactive computer service shall be treated as the publisher or the speaker
of any information provided by another information content provider.
The defendant must satisfy each of the 3 conditions to gain immunity under section 230-
1. The defendant must be a provider of an interactive computer service.
2. The cause of action asserted by the plaintiff must treat the defendant as the publisher or speaker of harmful
information issued.
3. The information must be provided by another information content provider.
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2. Intermediary- Another issue which is a very important aspect, when it comes to cyber
defamation, i.e. what is the liability of an intermediary. In a landmark case, Barrett v.
Rosenthal8, where a publicist, Tom Bolen writes a public article criticising Mr. Barrett
and some others. One of the people who came across Bolen's letter was Ilena Rosenthal,
who runs an Internet-based support group for women who have medical problems which
they believe to be caused by breast implants. Rosenthal reposted Bolen's letter on two
alternative newsgroups. Barrett contacted her, claiming that the letter was libellous and
threatening a lawsuit if she did not remove it. Rosenthal subsequently re-posted Bolen's
letter, with a copy of Barrett's threat.
Mr. Barrett then filed a defamation suit against Rosenthal in district court of California.
The district court on the basis of sec. 230 decides the case in favour of Rosenthal and asks
Barrett to pay the fees of the attorney of Rosenthal. Later Mr. Barrett files an appeal in
the supreme court of California saying that Rosenthal maliciously reposted that article.

After further examination, Honble court held that Rosenthal had no malice while
reposting that article, she just acted as an intermediary. Further court clearly established
that, in such cases, only the originator of the information can be held liable, no
intermediary shall be held liable

8
40 Cal.4th 33.
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PRECAUTIONARY MEASURES

Prevention is always better than cure. A citizen should take certain precautions while operating the
internet and should follow certain preventive measures for cyber-crimes which can be defined as:

Identification of exposures through education will assist responsible companies and firms to
meet these challenges.

One should avoid disclosing any personal information to strangers via e-mail or while chatting.

One must avoid sending any photograph to strangers by online as misusing of photograph
incidents increasing day by day.

IT department should also pass certain guidelines and notifications for the protection of
computer system and should also bring out with some more strict laws to breakdown the
criminal activities relating to cyberspace.

A complete justice must be provided to the victims of cyber-crimes by way of

compensatory remedy and offenders to be punished with highest type of punishment so
that it will anticipate the criminals of cyber-crime.
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INTERNET DEFAMATION DEFENSES

1) Truth is always a defense for defamation. Parties can also use other torts, like false light
or intentional infliction of emotional distress.

2) Many bloggers are amateur pundits without access to professional fact checking tools. And
sometimes, they rely on questionable sources, which can land them a defamation ring. In the
majority of these types of blogger defamation cases, defendants regularly rely on Fair
comment and criticism arguments.

3) Reasonableness plays a significant role in U.S. defamation cases. If a statement is

blatantly outrageous, a judge or jury may deem it too unbelievable to be defamatory.

This standard, in part, explains why satire and parody arent defamatory.

4) If defendants can prove that their statements didnt cause harm, a judge or jury may rule
in their favor, defamation only exists in the presence of material damage. For example, if
people never saw the content in question, it couldnt have caused harm, and therefore not
defamatory. Likewise, if a defendant can show that nobody accessed a webpage
containing contested content, proving harm would be near impossible. Social media and
user-generated content is the norm, and most websites are interactive.

5) Officials amended the Communications Decency Act with Section 230, to protect sites
from assuming responsibility for user content. Section 230 ultimately stops ISPs from being
sued over users content. Its the reason why Facebook doesnt get sued every time Joe
Loudmouth litters the platform with libelous nonsense.
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CONCLUSION

Since users of computer system and internet are increasing worldwide, where it is easy to
access any information easily within a few seconds by using internet which is the medium for
huge information and a large base of communications around the world. Certain
precautionary measures should be taken by natives while using the internet which will assist
in challenging this major threat of any kind of cyber offence.