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The internet is a vast space where one can access complete information about a particular subject. It also provides access to social media sites like Twitter, Face book, Discord etc., where one can express their own opinion on any subject of their liking and communicate with any person in the world who has access to that site. However, some users also use these platforms to post an opinion about other people in a negative way to malign the image of that person, which is referred to as Cyber Defamation.
Cyber defamation can be defined as statements that are not true and whose intention is to harm the reputation or status of a person in society. There has been a rise in such incidents because of easy access to social media sites. Several remedies are present with the law, but we need to understand what constitutes defamation before that.
The term defamation means whoever uses words, either written or spoken or by visual representation, makes those gestures or publishes those words with an intent to harm that person’s reputation, then it may come under the definition of defamation. For such a statement to be termed as defamation, there is the condition that needs to be fulfilled, namely that such statement should
- Be published and must be in knowledge of any third party
- Be indicate directly to the plaintiff
- Be defamatory
Cyber defamation is a new type of defamation that has surfaced. Due to easy access to the internet and a broad reach, it has become easier to commit such types of crime. This type of defamation is done by using electronic means. An act will amount to cyber defamation if anyone posts any content to malign the image of any other person and which may cause injury to the person’s reputation. Another aspect of cyber defamation is that this defamatory content should be known to a third party; meaning that this content must be in knowledge of persons other than the accused and victim.
Liability of the Cyber Defamation
If a person commits any defamation, he/she can be held liable under civil and criminal law.
Indian Penal Code 1860
- Under the Indian Penal Code, section 499 defines defamation as an act of speaking words or writing words or visual representation of those words or publishing those words to harm the person’s image.
- Section 500 provides a punishment for defamation which include imprisonment for two years, or fine or both.
- Section 469 talks about forgery. It states that if any person makes a false document or record which is intended to malign the image of a person will constitute forgery, and it can be punished with imprisonment up to 3 years or a fine.
- Section 503 talks about criminal intimidation; if any person uses electronic means to threaten someone or use it to malign the reputation of that person, it will be called criminal intimidation.
Information Technology Act 2000
- Section 66A talked about if a person sends an “offensive” message through a computer, then he/she may be liable to be charged under this section. However, since the word “offensive” was ambiguous in the act, which resulted in the government charging people under this act in a bid to suppress freedom of speech, the Supreme Court struck down this section in 2015.
- Since Cyber Defamation happens by making defamatory statements on the internet, particularly on social media sites, section 79 of the Information technology Act protects social media sites. This section states that the platform on which the defamatory content was posted will not be liable for cyber defamation if one person defames another using that platform. However, they can be held liable if it is proved that the platform has begun transmitting the content or if they transform it to make it defamatory.
- If any defamatory content is posted against a person, he/she can file a complaint in the Cyber Crime Investigation Cell.
Indian Evidence Act 1872
Section 65A and 65B of the Evidence Act talk about the electronic act’s admissibility, including electronic mail, online chats, and any electronic record printed on paper or recorded on a magnetic drive.
- In Kalandi Charan Lenka v. State of Odisha, the accused was stalking the petitioner online and had also created a fake profile in her name. The accused also circulate obscene messages to his friends to defame the petitioner. After the arguments, the High Court of Odisha held the accused guilty of Cyber Defamation by circulating obscene messages of the petitioner.
- The case of SMC Ltd. V. Jogesh Kwatra was one of the first cases of cyber defamation. In this case, an employee of the company made an abusive and insulting remark against the employer and the other subsidiaries of the company to malign the image of the employer and the company. The Delhi High Court held passed ex-parte order and restricted the employee to make such remarks against the employer and the company. The Court also observed that the employer could not be held vicariously liable for defamation as the employee acted independently.
This new type of defamation is emerging in India very quickly. Due to how easy creating a profile on social media sites is and being an open platform makes committing these crimes easy. One of the significant issues is that fake accounts can be made without much effort, making it harder to trace down the person responsible for the defamatory content. There is also no specific court that deals with these cases, leading to the pendency of the cases and burden on courts. There should be a particular crime unit that can track down the person responsible for such crimes. Awareness seminars should be conducted which can help users to protect themselves. Lastly, amendments must be made in the existing laws which can deal with cases of cyber defamation efficiently and expeditiously.