Cyber Defamation

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Posted on February 3rd, 2014

According to Wikipedia, Cyber defamation is a crime conducted in Cyber Space, usually through the Internet, with the intention of defaming others. Sending defamatory email, writing derogatory comments on facebook, orkut or other social networking sites also constitute cyber defamation. The Internet can be used to spread misinformation, just as easily as information. Websites can present false or defamatory information, especially in forums and chat rooms, where users post messages without verification by moderators. Minors are increasingly using web forums and social networking sites where such information can be p[posted as well. Criminal behavior can include for example the publication of intimate photographs or false information about sexual behaviors.

In most cases offenders take advantage of the fact that providers offering cheap or free publication do not usually require identification of authors or May not verify ID. This makes the identification of offenders very difficult. Furthermore,   there may be little or no regulation of content by forum moderators. These advantages have not prevented the development of valuable projects such as the online user generated encyclopedia,
Wikipedia, where strict procedures exist for the regulation of content. However, the same technology can also be used by offenders to

  • Publish false information(e.g. about competitors);
  • Lib el(e.g. leaving slanderous or libelous messages)
  • Disclose secret information (e.g. the publication of State secrets or sensitive business information).

Defamation can seriously injure the reputation and dignity of victims to a considerable degree, as online statements are accessible to a worldwide audience. The moment information is published over the internet; the author5s often loses control of this information. Even if the information is corrected or deleted shortly after publication, it5 may already have been duplicated (mirroring) and made available by people that Are unwilling to rescind or remove it. In this case, information may still be available in the internet, even if it has been removed or corrected by the original source. Examples include cases or runaway emails, where millions of people or organizations. Where the damage to reputations may never be restored, regardless of the truth or otherwise of the original email. Therefore the freedom of speech and protection of the potential victims of libel needs to be well balanced.

Law as applicable and illustration: Under the amended IT Act 2008, Section 66-A is applicable and Sections 500 &509 of IPC 1860, is applicable. The victims can file complaint in the nearest police Station where the above crime has been committed.

IT (Amendment) Act, 2008 states:

66A. Punishment for sending offensive messages through communication service, etc.,
Any person who sends, by means of a computer resource or a communication device,—
(a) any information that is grossly offensive or has menacing character;
(b) any 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 by making use of such computer resource or a communication device,
(c) 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.

Explanation: For the purposes of this section, terms “electronic mail” and “electronic mail message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.

Section 77 B of IT act 2000: Notwithstanding anything contained in Criminal Procedure Code 1973, the offence punishable with imprisonment of three years years and above shall be cognizable and bailable  If crime is proved accused shall be punishable with imprisonment for a term which may extend to three years or with fine.

Category of Crime: As per Section 77-B  of IT Act 2000, the above offence shall be cognizable and bailable while if section 500 IPC is applied for the said offence where a public servant is involved  the above offence is cognizable, bailable, compoundable with permission of the court before which any prosecution of such offence is pending and friable by a court of Session and section 509 of IPC is cognizable le, bailable, compoundable by women whom it was intended to insult or whose privacy was intruded upon or triable by any magistrate.

Illustration 1:

Abhishek, a teenaged student was arrested by the Thane police in India following a girl’s complaint about tarnishing her image in the social networking site Orkut. Abhishek had allegedly created a fake account in the name of the girl with her mobile number posted on the profile.

The profile had been sketched in such a way that it drew lewd comments from many who visited her profile. The Thane Cyber Cell tracked down Abhishek from the false email id that he had created to open up the account.

Illustration 2: India’s first case of cyber defamation was reported when a company’s employee started sending derogatory, defamatory and obscene emails about its Managing Director. The emails were anonymous and frequent, and were sent to many of their business associates to tarnish the image and goodwill of the company.

The company was able to identify the employee with the help of a private computer expert and moved the Delhi High Court. The court grated an ad-interim injunction and restrained the employee from sending, publishing and transmitting emails, which are defamatory or derogatory to the plaintiffs.

Illustration 3: The Aurangabad bench of the Bombay High Court issued a notice to following a Public interest litigation initiated by a young lawyer. The lawyer took exception to a community called ‘We hate India’, Owned by someone who identified himself as Miroslav Stankovit. The community featured a picture of the Indian flag being burnt. This act constitutes cyber defamation of the country.

Illustration 4: A son of a Cola Company CEO studying in 9th standard of a convent school made a fake facebook profile and hosted his juvenile girlfriend’s photograph. He also wrote a foot note “I am a call girl” along with her mobile number. This juvenile girl got hundreds of unsolicited & abusive calls. This act of the juvenile boy constitutes cyber defamation of the girl.

Important Case Law: Gremach Infrastructure Equipments & Projects Limited & Ors v. Google India Private Limited 508/2008 Bombay HC, Order passed by Justice Dr. D.Y Chandrachud. Google Inc is the owner of the popular blogging platform Blogppost. Blogppost hosted a blog by one toxicwriter (a pseudonym chosen by the blogger to mask his/her identity). The writer had allegedly written certain defamatory comments about and Indian Mining company. The Bombay High Court found the postings primafacie defamatory and ordered Google to reveal toxic writer’s identity. This is only the interim order. It is unclear as to whether the company has asked for damages against Google(and whether safe harbors will come into play)

Google sought  to comply with the order as not only the blog which was available but also its cache is available on Google. A few snapshots though were available on another website. Free Speech and Privacy issues notwithstanding Google may give the identifying information of the blogger. The reason for this is its own privacy policy. It stated that, “we have a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary to satisfy any applicable law, regulation, legal process or enforceable government request”.

Lalit Modi Case:

In Chris Lance Cairns v. Lalit Modi (2010) EWHC 2859 (QB) the London High Court Queens Bench Division has allowed a former cricketer accused of match fixing over twitter to continue with the libel action to trial in order to protect and vindicate his reputation.

Moore v. Allen:

Statements at issue were truthful and therefore not defamatory. However the case was deci9ded in favor of the plaintiff under a claim of tortuous interference with employment contracts. “The plaintiff was awarded $60,000 in damages against a blogger who posted truthful information about him that contributed to his losing his job.

Conclusion:  Since as mentioned above grossly offensive, derogatory and abusive messages over the Social networking sites through Internet may sometimes lead to the suicide of girl/women victims, the above criminal derogatory disinformation campaigns should be made strictly non bailable and cognizable triable in a Court of Session with increase in Punishment from the current 3 years to 7 years along with fine to an amount ranging from Rs. 50,000 to 10 lakhs so as to act as real deterrence. And in case of repeated offences of the above kind the imprisonment should be extended to a few more years along with double the amount of fine than what is being currently available to victims. The IT Act 2000 and IPC Laws should be amended to this effect.

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