The wide usage of the internet began in the late ’90s. It has been greatly helpful to all sects of people. The Internet is considered to be a valuable asset in the present world. A large number of social interactions take place through social media and the internet in the present days. This has resulted in an increase of cybercrimes or crimes that take place through. There arose a need to curb existing crimes. Lawmakers were under the pressure to frame laws that would punish such offenders and these laws must be consistent with the present laws and should not turn derogatory.
The Information Technology Act, 2000 was framed in such a way that it would resolve the existing cyber crimes and regulates the type of contents that needed to be published on the internet.
Cyber defamation is the act of publishing material against any person with the help of computers and the internet. There is no clear definition for the term Cyber defamation. One can understand from the language of the Indian Penal Code that any false statement that has been made with the intention to impute the reputation of any person through the means of the internet and social media can be termed as cyber defamation.
The essential elements of defamation under Section 499 apply to cyber defamation as well. Any defamatory statement must be:
1. False imputation must be made against the person.
2. Such imputation must affect the reputation of the person
3. Such defamatory statements must be published. The defamatory statement must be known to other parties as well i.e.) to the public. Posting offensive comments in social media comes under the purview of publication.
Defamation can be of two types:
- Libel – Defamatory content that has been written or published
- Slander– Defamatory content that has been spoken or in oral form.
Defamatory statements can be considered to be libel in nature as it is published for the public watch. However, in Indian laws, there is no such distinction in between libel and slander. Defamation of any kind is punishable under the Indian Penal Code, 1860.
ISP’s and their liability for defamation in India:
ISP stands for Internet Service Provider. Internet Service Provider is a company that provides internet access to the consumers. Data can be transmitted in different forms like dial-up, DSL, cable modem or through high speed interconnects. They provide their customers with the ability to communicate with one another through internet email accounts.
Under general circumstances, ISP cannot be held liable for any third party information that has been transmitted through the service provider under Section 79 of the Information Technology Act, 2000.
- As long as their function is limited to the providing access to communication system
- They do not initiate any transmission, select the receiver of the transmission or they do not select or modify the information that has been contained in the transmission.
- They adhere to the guidelines prescribed to them.
Section 79 provides with certain exceptions under which the ISP’s can be held liable:
- If they have conspired, abetted or induced in the unlawful Act
- If they fail to remove or disable access to any information, data or communication link upon receiving the knowledge or notified by the Central Government, when such information is used to perform any such unlawful activities.
- The first case in the Indian courts for cyber defamation was the case of SMC Pneumatics India Pvt.Ltd V. Jogesh Kwatral. In this case, the defendant was an employee of the plaintiff’s company and he started sending defamatory messages through mails to different employers. The plaintiff filed a suit for permanent injunction for restraining the defendant from sending such defamatory mails. The court found a prima case made by the plaintiff and restrained the defendant from sending those mails.
- In Anvish Bajaj v. Statewhich is commonly known as DPS MMS Scandal Case, obscene MMS video was posted in a website with a express title “ DPS Girls having fun” video. The crime branch of Delhi filed an FIR in the issue. The owner of the website and the person responsible for uploading the obscene content was held liable under Section 292 (2) (a) and section 292 (2) (d) as it made a prima facie case in that section.
- One of the most important cases in the cyber laws is the Shreya Singhal case. The case lead to scrapping off the Section 66 A of the Information Technology Act[i].
- The court struck down the Section 66 A of the Information Technology Act on the ground that it violates the freedom of speech and expression as guaranteed under Article 19(1) (a) of the Indian Constitution and the restrictions does not find any place in the reasonable restrictions as placed under Article 19 (2) of the Constitution.
- In that case, the petitioners contended that the Section suffers from unreasonableness. For example in the case of defamation, the safeguards that have been mentioned under Section 199 of the Crpc would not be available for offenses as mentioned under Section 66 A of the Information Technology Act, 2000.[ii]
IT act and Criminal laws- Which will prevail?
There may arise certain conditions wherein in a particular case both the provisions of Information Technology Act and Indian Penal Code may apply. In this scenario the Supreme Court has held that when the offences are completely covered in the Information Technology Act then the provisions of the IPC need not be applied. This view has been established in the Sharat Babu Digumarti V Govt of NCT, Delhi.[iii]
In that particular case the accused was punishable with offences under Section 67 of the IT Act and Section 292 of the IPC. The main question which was raised in the case was whether the person discharged under the IT act could be prosecuted under Section 292 of the IPC. The court held that the prosecution under IPC could not survive by placing reliance on the provisions of the Sections 81, 67 A and 67 B of the IT Act.[iv]
Punishments for cyber defamation:
1. Under section 500 of the Indian penal code gives punishment for defamation with the simple imprisonment for a term which may extent up to two years or with fine or with both.[v]
2. Under section 67 of the Information Technology Act, transmitting or publishing any obscene material in electronic form is punishable with the imprisonment for a term in the first conviction for a imprisonment for a term which may extend upto three years and fine of five lakh and during second term with imprisonment for a term which may extent to five years and with fine that may extent upto 10 lakhs.[vi]
Procedure for filing complaint for cyber defamation:
1. The person who has been the victim of the cyber defamation can file a complaint in the Cyber crime investigation cell. Such a complaint could be filed in the online portal of the investigation cell as well.
2. A criminal case can be filed for defamation under Section 499 – 502 of the IPC.[vii]
The internet and cyber space has become the platform for greater social interactions. However people use that platform to express their anger and pain which tends to affect the reputation of certain individuals. Laws have to be framed in such a way that it takes stringent measures against those wrongdoers as each and every person reputation is needed to be safeguarded.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
[i] Section 66 A dealt with the offences relating to sending of offensive messages through any communication device.
[v] Section 500 of the Indian Penal Code, 1860
[vi] Section 67 of the Information Technology Act, 2000