Cyber Defamation

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

2014-15

LAW OF TORTS (Final Draft)

“CYBER DEFAMATION”

Submitted To:                                          Submitted By:

Dr. Rajneesh Yadav Shobhit S. Awasthi Asstt. Prof. ( Law) Roll No. 130

Dr. RMLNLU Lucknow Semester 1st Section- B

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ACKNOWLEDGMENT

Firstly, I would like to thank respected Dr. Rajneesh Yadav Sir for giving me such a golden opportunity

to show my skills and capability through this project. This project is the result of the extensive ultrapure

study, hard work and labour, put into to make it worth reading. It is my pleasure to be indebted to various

people, who directly or indirectly contributed in the development of this work and who influenced my

thinking, behaviour, and acts during the course of study. Lastly, I would like to thank the almighty and my

parents for their moral support and my friends with whom I shared my day-to-day experience and

received lots of suggestions that improved my quality of work.

SHOBHIT SAINESH AWASTHI

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HYPOTHESIS OF THE PROJECT

Cyber Defamation is not particular to the place of its origin and can cast a wide effect anywhere all over

globe as per its content. The present practice of law are insufficient to curb it.

PROJECT METHODOLOGY

The project follows Doctrinal research methodology. For this i went through books on Defamation over

internet from UK and US publishers, articles from lexis-nexis, other internet sources, Case laws from USA,

Australia, UK and India. Since in India the law on defamation over internet is not much developed and

authors have really not commented on this, so, the internet sources and case laws are important source for

the Indian position.

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INDEX.

1. INTRODUCTION

2. DEFAMATION IN GENERAL

3. DEFAMATION ON THE INTERNET: THE RISING ISSUE

4. DISTINCTIVE FEATURES OF CYBER DEFAMATION AND IMPACT

5. LAW OF CYBER DEFAMATION IN VARIOUS COMMONWEALTH COUNTRIES.

6. IT ACT, 2008: THE ROAD AHEAD

7. DISSCUSSION

8. SUGGESSTIONS

9. CONCLUSION

10. BIBLIOGRAPHY

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1.INTRODUCTION

The Internet promised to make everyone a publisher, subject and reader, simultaneously, connecting the

lonely pamphleteer to the whole world through cyberspace. That new freedom also brought the liberty to

cause harm all over the world, however. When that happens, where can a victim seek redress? “The law of

defamation attempts to provide an outlet for individuals to avenge their reputation after it has been tarnished

by the publication of false statements. However, defamation law involves a clash of two important societal

values: freedom of speech and freedom to protect one's own reputation. ... "

A high proportion of internet cases concern defamation. Part of the reason for this is that the internet

provides the man on the street with a unique opportunity to have his thoughts published instantaneously

throughout the world. Moreover, the internet, particularly in the early years, encouraged a spirit of

unrestrained comment or discussion. This often involved highly defamatory statements being made against

an individual, State, race, religion or group etc.

The law of defamation in the context of internet requires almost every concept and rule in the field ....to be

reconsidered in the light of this unique medium of instant worldwide communication. The issue that relate

partly from the nature of defamation as a cause of action, differences in national laws on defamation and

jurisdictional issues. In terms of traditional forms of publishing, a publisher exerted a great deal of control

over where copies of his publication were made available. Publication on internet is different in that it is,

potentially, publication to entire world.

This research project aims at analysing the law of defamation over internet by doing a comparison between

the ‘law in practice’ in different commonwealth countries like UK, USA, India and Australia in both

national and international aspect. The project also discusses jurisdictional issues in such crimes, the

problems connected and solutions thereof.

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The law gives protection to a man’s reputation, which to some is dearer than life itself. Love of reputation

inspires people to do great things, acquire fame and name which is the mainspring of life in every walk of

life. The aim of law of defamation is to protect one’s reputation, honour and dignity in society. 1 The law of

defamation attempts to provide an outlet for individuals to avenge their reputation after it has been tarnished

by the publication of false statements. However, defamation law involves a clash of two important societal

values: freedom of speech and freedom to protect one's own reputation. "The proper balance between these

two goals has been vigorously debated over the years," and different nations have crafted varying

approaches to deal with this tension.2

A defamatory statement is one which, when published, tends to lower a person in the esteem of right

thinking members of the society generally; or which tends to make them shun or avoid that person. 3 The

statement does not have to allege some moral turpitude or wrong doing on the part of the claimant and it can

be defamation to allege insanity or being victim of a crime such as practices of bestiality. The three

essentials of Defamation are:

a. The statement must be defamatory.

b. The said statement must refer to the plaintiff.

c. The statement must be published.

Defamation, an injury to a person’s reputation, It may be by means of words, pictures, visual images,

gestures or any other method of signifying meaning.4 It is both civil and crime wrong. An aggrieved person

may file a criminal complaint for prosecution of defamer or can sue him for damages. Withdrawal of a

criminal complaint on tender of apology is no bar to a civil action for libel unless there is a specific

agreement barring a civil action.5

The law of civil defamation in India is uncodified, as in English and in other Common law countries, it is

largely based on case laws. The law of criminal defamation is based on the codified in Sec. 499 to 502 of

Indian Penal Code. In England the publication of a criminal Libel is punishable to the extent of 1 year

imprisonment and fine; and if the publication is with the knowledge of its being untruth is 2 years vide

section 5 of the Libel Act, 1843.6

1 K.D.Gaur, A Text Book on the Indian Penal Code, 3rd ed. updtd rep. 2008, pg 7442 Abbey L. Mansfield, Cyber-Libeling the Glitterati: Protecting the First Amendment for Internet Speech, 9 Vand. J. Ent. & Tech. L. 8973 David Bainbridge, Introduction to Computer Law, 5th ed. 2004, pg. 3294 Ibid5 Govinda Charyulu v Sheshgiri Rao, AIR 1941 Mad 860 (861)6 Supra note 1

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In a civil action for defamation in tort, truth is a defence, but in a criminal action, the accused must prove the

truth of the matter and that its publication was for the public good. The defence of truth is not satisfied

merely on the ground that the publisher honestly believed the statement to be true, he must prove that the

statement was infact true.7

3.DEFAMATION ON THE INTERNET: THE RISING ISSUE

It is said that the law develops with the society, as the society develops so develops the technology, with

technology the ways to perform certain task changes. Internet is one such thing which have opened new

opportunities for mankind through which any information in electronic form can be received at any end of a

computer network in the world. With the establishment of Internet and inception of webpages, e-mail

services, chat rooms, social networking sites etc man have come closer to each other than ever before. Now

with the click of a mouse one can see his loved one’s from a small town of Uttar Pradesh sitting in say

London. But with a good side this very human networking solutions have appalling shades too.

The placing of defamatory material on webpages or sending such materials in or attached to e-mails give

rise to number of issues that relate to the nature of the Internet. The ease of publishing information, correct

or not, to millions of readers worldwide over the internet has caused defamation to become an increasing

problem. 8 The part of reason for this is that the internet provides the man on the streets with a unique

opportunity to have his thoughts published instantaneously throughout the world. Moreover, the Internet,

particularly in its early years, encouraged a spirit of unrestrained comment or discussion. This often

involved highly defamatory statements being made.9

Different nations place different premiums on free speech and, as a result, have varying levels of protection

for defamatory speech. Until recently, disparities in defamation laws made little difference as "defamation

laws, and their applications, [were] restricted to their respective counties." n This changed, however, with the

advent of the Internet: "As communications technology advanced, the effect of a statement became more

and more widespread, until the Internet gave communicators the ability to send one line to the entire world

instantaneously. Cyber defamation claims for material posted on web-pages, in chat-rooms, or in electronic

newspapers, has complicated defamation jurisprudence.10 Defamation claims often raise choice of law

questions. This is especially true when the defamatory speech is disseminated in several different nations.

7 Ibid8 Sharon K. Black, Telecommunication Law in the Internet Age, 1st ed. 2002, pg. 4189 Clive Gringras, The Laws of Internet, 2003, pg. 12310 Abbey L. Mansfield, Cyber-Libeling the Glitterati: Protecting the First Amendment for Internet Speech, 9 Vand. J. Ent. & Tech. L. 897

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Because defamation law "clearly applies to communications on the Net," the number of claims arising from

multi-national defamation undoubtedly has increased. Traditional choice of law principles instruct that a tort

dispute is governed by the law of the locale where the harm occurred. "In [typical] defamation cases, "the

place of the wrong' is the jurisdiction where the    defamatory matter was heard or read by a third person,

regardless of the place of broadcasting or writing." The Internet is "ubiquitous, borderless, global and

ambient" by nature, however. Both the United States and Australia have crafted different approaches to

addressing the complicated choice of law concerns raised by such global defamation actions.

4.DISTINCTIVE FEATURES OF CYBER DEFAMATION AND IMPACT11

There are a number of features unique to the Internet which distinguish it from any other medium. These

features have led to the current re-examination of existing libel laws to allow for their possible evolution and

ultimately their application in cyberspace.

1. GLOBAL NATURE

 The first feature of the Internet is its truly global nature. Presently, more than 125 countries are linked via

the Internet.

a) This feature immediately raises several interesting conflict of law questions for the libel lawyer, such as:

i) In which jurisdiction did the publication of the defamation occur?

Theoretically, every time a third party accesses a defamatory posting on the Internet, publication has

occurred.

ii) In what jurisdiction should the plaintiff sue?

Where the plaintiff resides?

Where the defendant resides?

Wherever publication has occurred?

Defamation laws vary from country to country and in countries such as the Canada, Australia and

the United States, it can vary from province to province and state to state. Therefore, plaintiffs may

have the luxury of "forum shopping" or choosing the jurisdiction in which the laws most favourable

to him/her.

iii) Whose laws should apply?

11 http://www.cyberlibel.com/elements.html retrieved on 12/11/2009

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For example, should First Amendment protection and the public figure defence available in the

United States of America apply; or should the common law of the commonwealth or the civil law?

iv) Will it be possible to enforce any judgment obtained?

Currently, despite legislation allowing reciprocal enforcement of civil judgments, courts in the

United States are unwilling to enforce defamation judgments from other jurisdictions because of

First Amendment protection of freedom of expression.

v) What is the quantum of damages?

Theoretically, damages could be very large as a publication on the Internet potentially reaches

millions of people. In practice, however, it is unlikely that millions of people will actually view each

particular publication. In any event, publication on the Internet will generally be larger than in all but

the largest print or broadcast media outlets.

b) The global nature of the Internet also raises some interesting procedural questions for the libel lawyer. In

traditional libel law there are three different types of defamatory statements:

i) The first is a statement that is defamatory on its face and which is obviously defamatory.

ii) The second is a statement which contains false innuendo. False innuendo is a defamatory

statement that has an inferential meaning, therefore only persons with the necessary contextual

knowledge appreciate that the statement is defamatory. Since statements on the Internet are

published globally, their inferential meanings may vary depending on the geographic or cultural

location of the reader or the newsgroups or the usenet group involved.

iii) The third category is legal innuendo. While not defamatory on their face, these statements are

defamatory when viewed together with extrinsic circumstances. Once again, contextual knowledge

may render a statement defamatory in one jurisdiction but not in another.

2. Interactive Nature

Another key feature of the Internet is its highly interactive nature. The ease with which users of the Internet

can access bulletin boards and usenets and communicate with each other has engendered in its users a false

sense of freedom in their communications. This is exemplified by the prevalence of activities such as

"spamming" and "flaming" in Internet communications. As a result, the Internet is qualitatively different

from any other medium, other than perhaps a "talk show" or village townhall session. Consequently, Mike

Godwin, counsel for the Electronic Frontier Foundation, says that "the public figure defence" should apply

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to statements made on the Internet. The ability to reply, he claims, is much more gratifying, immediate and

potent than launching a libel action.

3. Accessability

Accessability is another feature of the Internet which distinguishes it from traditional print or broadcast

media. The relatively low cost of connecting to the Internet and even of establishing one's own website

means that the opportunity for defamation has increased exponentially. Now, on the Internet everyone can

be a publisher and can be sued as a publisher.

4. Anonymity

Another key feature of the Internet is that users do not have to reveal their true identity in order to send e-

mail or post messages on bulletin boards. Users are able to communicate and make such postings

anonymously or under assumed names. This feature, coupled with the ability to access the Internet in the

privacy and seclusion of one's own home or office and the interactive, responsive nature of communications

on the Internet, has resulted in users being far less inhibited about the contents of their messages

5. LAW OF CYBER DEFAMATION IN VARIOUS COMMONWEALTH

COUNTRIES

1. POSITION IN UNITED STATES OF AMERICA

The Communications Decency Act 1996 (CDA) (United States Enactment)

Section 223 of this Act clearly lays down that any person who puts information on the web which is

obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person;

will be punished either with imprisonment or with fine. It is thus clear that the ISP will not be held liable.

Section 230 Protection For Private Blocking And Screening Of Offensive Material

(c) Protection for 'Good Samaritan' Blocking and Screening of Offensive Material:

'(1) Treatment of publisher or speaker: No provider or user of an interactive computer service shall be

treated as the publisher or speaker of any information provided by another information content provider.

'(2) Civil liability: No provider or user of an interactive computer service shall be held liable on account of

— '

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(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider

or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise

objectionable, whether or not such material is constitutionally protected; or

'(B) any action taken to enable or make available to information content providers or others the technical

means to restrict access to material described in paragraph (1).

There is no doubt that the US law is clear. Several cases have also arisen in this regard. The Supreme Court

has held that the ISP cannot be held liable for defamatory content. It is only a question of time before the

same problems and questions will have to be answered in the Indian context.

The First Amendment to the U.S. Constitution provides that "Congress shall make no law ... abridging

the freedom of speech, or of the press." Defamation law in the United States has struggled to protect this

freedom of speech and press, while protecting individuals whose reputations may be injured by a false

publication.

Defamation law in the United States includes civil actions for both libel (written words) and slander

(spoken words). Defamation provides personal reputational protection for individuals harmed by the

speech of others. American defamation jurisprudence is characterized by two distinct time periods:

pre-1964 (the common law) and post-1964, the year of the landmark case New York Times v.

Sullivan.

1. American Common Law: Strict Liability

In the United States, the common law of defamation set the balance between free speech and reputation

firmly in favor of reputation. Traditionally, American defamation law closely mirrored English common

law. The law of defamation was left to state control, and the prevailing rule reflected a theory of "strict

accountability for the substance of a defamatory statement." Publishers were, in effect, "insurers of the

reputations of those affected partly because the press was viewed as a powerful force with considerable

ability to harm innocent persons." Additionally, it was argued that the press could mitigate the harmful

effects of the strict liability rule by risk spreading and insurance. To succeed in a defamation suit at

common law, a plaintiff needed only to prove:

by a bare preponderance of the evidence (the normal burden of proof in civil, as opposed to criminal,

cases) that the defendant had uttered (or, more commonly, published) words tending to injure the alleged

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victim's reputation. The plaintiff/victim was not required to prove that the defendant/publisher was

negligent or in any other way at fault, and indeed the plaintiff did not even have to prove that the

imputation was false. The defendant could, to be sure, prevent recovery by asserting an affirmative

defense and showing that the words were true.12

In other words, the law required the plaintiff to show merely that:

(1) a publication or utterance 2) caused (3) injury to his or her reputation.

Under this common law tradition, defamation law was not a subject of constitutional concern.

2. American Law Today: New York Times v. Sullivan and its Progeny

In 1964, the United States departed dramatically from its common law tradition. In New York Times v.

Sullivan13, the Supreme Court "revolutionized the modern law of libel by declaring for the first time that

state libel laws were subject to First Amendment restraints." The Court feared that the traditional

common law approach imposed all risk of falsity upon the publisher, which in turn made publishers wary

of reporting even those charges that were in fact true.14 Justice Brennan expressed this concern:

Critics of official conduct may be deterred from voicing their criticism, even though it is believed to be

true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the

expense of having to do so. They tend to make statements which steer far wider of the unlawful zone.15

This phenomenon, now widely termed "the chilling effect,"16 was, in the Court's opinion, "inconsistent

with a First Amendment[,] part of whose goal was to encourage exposing and thus checking the abuses of

those in power." n The Court reasoned that if public officials were allowed to recover damages for any

false and defamatory statement, regardless of the level of care taken in printing such a story, then

newspapers would be discouraged, or "chilled," from printing stories on matters of public interest. To

remove the "chilling effect" of defamation law, the Court imposed, as a matter of constitutional law,

The Sullivan Court acknowledged the idea that "politicians ... must accept the risk of criticism as a

consequence of their entry into public life, but the ordinary citizen should not be held to that risk." As

12 Frederick Schauer, The Exceptional First Amendment, in American Exceptionalism and Human Rights 29, 38 (Michael Ignatieff ed., 2005).13 N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964)14 Id 1015 Id 12, pg 27916 Arielle D. Kane, Note, Sticks and Stones: How Words Can Hurt, 43 B.C. L. Rev. 159, 181 (2001);

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such, the Court created two distinct standards for fault: one for defamed public officials and one for

defamed private individuals. Under Sullivan, a public official must prove by clear and convincing

evidence that the material was published with constitutionally defined "actual malice"; that is, that the

defendant published false, defamatory material with knowledge or reckless disregard of its falsity. Private

individuals speaking on private issues, however, need only show by a mere preponderance of the

evidence that the defendant was at fault in publishing the defamatory falsehood in most jurisdictions, this

requires a showing of simple negligence. Under this framework, public officials have a much more

difficult time succeeding in a defamation suit.

In the years following Sullivan, the Supreme Court has refused to back away from its approach, instead

choosing to extend it. The Court has applied the "actual malice" standard to candidates for public office

as well as to office holders and extended the standard to "those who, by reason of the notoriety of their

achievements or the vigor and success with which they seek the public's attention, are properly classed as

public figures." As a result, courts have applied the rule to pop stars, television chefs, authors, corporate

executives, professional athletes, and other such members of the "glitterati."

The Sullivan decision undoubtedly changed defamation doctrine in the United States by bringing the

once private law governing defamatory speech under the ambit of First Amendment constitutional

jurisprudence. The decision also mandated a showing of "falsity as a constitutional prerequisite to a

public figure's recovery for defamation" and introduced drastically different standards of fault for

publishers, depending upon the public status of the defamed plaintiff. The decision also changed the

practice of defamation suits, as it "effectively ended civil defamation suits by public officials in the

United States." Today, "the law of libel involving public [figures] has been all but abolished."

Defamation claims often raise choice of law questions. This is especially true when the defamatory

speech is disseminated in several different nations. Because defamation law "clearly applies to

communications on the Net," the number of claims arising from multi-national defamation undoubtedly

has increased. Traditional choice of law principles instruct that a tort dispute is governed by the law of

the locale where the harm occurred. "In typical defamation cases, "the place of the wrong' [is] the

jurisdiction where the    defamatory matter was heard or read by a third person, regardless of the place of

broadcasting or writing." The Internet is "ubiquitous, borderless, global and ambient" by nature, however.

Both the United States and Australia have crafted different approaches to addressing the complicated

choice of law concerns raised by such global defamation actions.17

17 Abbey L. Mansfield, Cyber-Libeling the Glitterati: Protecting the First Amendment for Internet Speech, 9 Vand. J. Ent. & Tech. L. 897

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American "Choice of Law"

American courts that have addressed the jurisdiction questions arising from Internet defamation have

"exhibited a general unwillingness to allow libel plaintiffs to assert personal jurisdiction over defendants

simply based on the ability of individuals in a plaintiff's own forum to access allegedly defamatory

material via the Internet." Most American courts hold that Internet content must be "expressly targeted at

or directed to the forum state" to support jurisdiction, and that jurisdiction is proper only if the publishers

"manifested an intent to direct their website content" to a particular jurisdiction's audience. These courts

would not support an exercise of jurisdiction simply because material was accessible within the

jurisdiction.18

2: POSITION IN UNITED KINGDOM

The Defamation Act 1996 is the main UK law governing defamation. A defamatory statement can be

published in:

Verbal form, when it is classed as slander - because only the spoken word is involved, slander can

often be difficult to prove; or

Written form, when is classed as libel - a case for libel is easier to bring because evidence can be

documented.

Material may have the potential to defame someone if:

The statement made would make an ordinary person modify their opinions of a person as a result of

hearing or reading the statement.

Under UK law it is possible to defame corporations as well as individuals.

Defamation actions in relation to the Internet have so far involved libel. Libel must be widely 'published'.

You could libel someone using electronic networks by:

Sending an email, or an email attachment, where that email is widely posted or forwarded;

Making material available via a web page;

Posting to an email list or newsgroup; or

18 Ibid

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Streaming audio or video via the Net.

Anyone who actively transmits defamatory material is liable as part of any legal action. Most standard

contracts for Internet services include conditions relating to defamation.

The 1996 Act creates a category of 'special publisher', where;

the material transmitted is passed automatically by electronic systems without their involvement; or

they are only the suppliers of the equipment or systems that enable publishing or distribution.

The Act also outlines the framework for prosecuting cases of alleged defamation, as well as various

defences for anyone prosecuted along with the author of the material. To successfully defend against

prosecution you must show that:

You were not the author, editor or publisher of the material;

That you had taken 'reasonable care' to prevent the publication of any defamatory material; and

That you did not know, or had reason to believe, that the material was defamatory, and that your

transmission did not contribute to the construction of the defamatory material; or

The reputation of the 'defamed' person is such that the material could not conceivably change the

average person's views on them.

The current legal framework will probably be revised as part of new legislation for electronic commerce and

electronic media.

If a person discovers that material that is damaging to their reputation is about to be disclosed, they could

bring an injunction to prevent publication (on the basis of the damage it would cause, rather than on grounds

of defamation). If the alleged defamatory material is already in the public domain, an injunction could be

requested to force the removal or recall of the material before the case is heard.

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IMPORTANT CASES

1. Laurence Godfrey v Demon Internet Ltd.19

In UK’s first cyber defamation case, the defendants, who carried on business as an Internet service provider,

received and stored on their news server an article, defamatory of the plaintiff, which had been posted by an

unknown person using another service provider. The plaintiff informed the defendants that the article was

defamatory and asked them to remove it from their news server. The defendants failed to do so and it

remained available on the server for some 10 days until its automatic expiry. The plaintiff brought

proceedings for libel against the defendants, who relied in their defence on section 1(1) of

the Defamation Act 1996 n1 , contending that they were not the publisher of the statement complained of,

that they had taken reasonable care in relation to its publication, and that they did not know and had no

reason to believe that they had caused or contributed to the publication of a defamatory statement. The

plaintiff applied to strike out that part of the defence as disclosing no reasonable or sustainable defence at

law.

On the plaintiff's application-

Held

Granting the application, that as a service provider who transmitted or facilitated the transmission to any of

their newsgroup subscribers of a posting received and stored by them via the Internet the defendants were a

publisher of that posting at common law; that they were not merely the passive owner of an electronic

device through which postings were transmitted but actively chose to receive and store the news group

exchanges containing the posting which could be accessed by their subscribers, and could have chosen to

obliterate the posting complained of, as they later did; that, although they were not a publisher within the

meaning of section 1(2) and (3) of the 1996 Act and could therefore satisfy section 1(1)(a) of that Act, once

they knew of the defamatory content of the posting and chose not to remove it from their news server they

could no longer satisfy the additional requirements of section 1(1)(b), that they took reasonable care in

relation to the publication, or section 1(1)(c), that they did not know and had no reason to believe that what

they did caused or contributed to the publication; and that, accordingly, the parts of their pleaded defence

which relied on section 1(1) of the 1996 Act would be struck out

19 [2001] QB 201

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2.Jameel (Yousef) v Dow Jones & Co Inc20

The foreign claimant issued defamation proceedings in England against the publisher of a US newspaper in

respect of an article posted on an Internet website in the USA, which was available to subscribers in

England. The claimant alleged that the article, together with a list of names in an Internet hyperlink referred

to in the article, implied that he had been or was suspected of having been involved in funding a well known

terrorist organisation. The publisher averred that only five subscribers within the jurisdiction had accessed

the Internet article, that the claimant had in fact suffered no or minimal damage to his reputation and that

article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as scheduled to

the Human Rights Act 1998 n1 , precluded him from relying on any legal presumption of damage to

establish injury or harm. In due course the claimant, while disputing that only five subscribers had read the

article, accepted that there had been minimal publication within the jurisdiction. In interlocutory proceedings

the judge granted the claimant's application to strike out that part of the defence by which the publisher

sought to prevent him from relying on the legal presumption of damage and refused the publisher's

application for summary dismissal of the claim, rejecting its contention that the claimant had no realistic

prospect of success.

On the publisher's appeals against both orders-

Held, (1) dismissing the appeal against the striking out of part of the defence, that it was an irrebuttable

presumption in English defamation law that the publication of a defamatory article damaged the person

defamed by it; that the bringing of a defamation claim by a claimant who had suffered no or minimal

damage to his reputation might constitute an interference with freedom of expression that was not necessary

for the protection of the claimant's reputation; but that such cases would be very rare, would not have a

chilling effect upon the media and did not require the presumption of damage to be abandoned for

incompatibility with article 10 of the Convention; and that in such circumstances the appropriate remedy for

a defendant

3. Bunt v. Tilley and others21

The claimant brought proceedings in libel in respect of statements posted on websites, the responsibility for

which he attributed to one or other of the first to third defendants. He also sought remedies against their

respective internet service providers although he did not plead that any of them had hosted any website

20 [2005] QB 94621 [2006] 3 All ER 336

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relevant to his claims. The basis upon which the claimant sought to establish his causes of action was that

the first to third defendants published the words complained of 'via the services provided' by

the internet service provider defendants. The internet service provider defendants applied for orders that

the claims against them be struck out or dismissed on a summary basis. The court considered whether

aninternet service provider could be liable in respect of material which was simply communicated via the

services which they provided. The internet service provider defendants contended, inter alia, that the

necessary ingredients for publication were missing.

Held - An internet service provider which performed no more than a passive role in facilitating postings on

the internet could not be deemed to be a publisher at common law. It was essential to demonstrate a degree

of awareness or at least an assumption of general responsibility, such as had long been recognised in the

context of editorial responsibility, in order to impose legal responsibility under the common law for the

publication of words. Although it was not always necessary to be aware of defamatory content to be liable

for defamatory publication, there had to be knowing involvement in the process of publication of the

relevant words. It was not enough that a person had played merely a passive instrumental role in the process.

On the evidence in the instant case the claimant had no realistic prospect of being able to establish that any

of the internet service provider defendants had, in any meaningful sense, knowingly participated in the

relevant publications. The applications would therefore be allowed.

 

3: AUSTRALIAN POSITION

In Australia, there is no legislation dealing specifically with defamation on the Internet. Defamation laws are

applicable to publications generally, rather than specifically to particular media. Hence, the laws applicable

to offline material are also applicable, in principle, to online material. However, the courts are being called

on to work out how existing principles are to be applied to new contexts.22

The recent case:

Dow Jones & Co. v. Gutnick23

22 http://www.efa.org.au/Issues/Censor/defamation.html retrieved on 12/11/2009 23 (2002) 210 C.L.R. 575

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While American courts are increasingly unwilling to recognize personal jurisdiction over defamation

defendants based solely on the ability of individuals in the defendant's forum to access the material on the

Internet, Australian courts have no such qualms. In 2002, the High Court of Australia issued a landmark

decision in Dow Jones & Co. v. Gutnick. Gutnick was the subject of an expose in Barron's Online magazine

and the Wall Street Journal Online newspaper, both accessible on the Internet, and claimed that he was

defamed by the article. Gutnick, a citizen of Australia, filed the suit in Australian courts. Dow Jones, an

American company and the parent of Barron's and the Wall Street Journal, contended that the transformation

of an  [*909]  article from print format to electronic format is similar to the traditional publication of an

article. Because Dow Jones' electronic conversion sites were located in New Jersey, the defendant argued

that New Jersey was the site of publication and jurisdiction for the suit was vested in New Jersey courts.

The High Court rejected Dow Jones' argument, relying instead on Australian common law precedent, which

states that the place where defamatory material is "comprehended" is the place of the tort. Rigidly applying

this rule to the facts, the Court articulated the following rule:

In the case of material on the World Wide Web, it is not available in comprehensible form until

downloaded on to the computer of a person who has used a web browser to pull the material from the

web server. It is where that person downloads the material that the damage to reputation may be done.

Ordinarily then, that will be the place where the tort of defamation is committed.24

Though Dow Jones did not aim its allegedly defamatory statements at Australia, the court reasoned that

"those who post information on the World Wide Web do so knowing that the information they make

available is available to all and sundry without any geographic restriction." Because the allegedly

defamatory statement was downloaded and viewed in Australia, the High Court held that jurisdiction was

proper in Australia.

4:INDIAN POSITION: THE JOURNEY SO FAR

So far Cyber defamation was covered under section 499 of the Indian Penal Code read with Section 4 of the

IPC.

Section 499 of the IPC provides 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 expected, of defame that person. 24 Id pg. 607

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No specific mention has been made with regard to any electronic publication in the section. Section 4 of the

IT Act however, gives legal recognition to electronic records. It provides that if the law requires any

information or other matter in writing or typewritten or printed form, such requirement would be deemed to

have been satisfied if such information is rendered or made available in electronic form and accessible so as

to be usable for a subsequent reference. Keeping in mind the legal fiction being created by section 4 of the

IT Act, if any defamatory information is posted on the Internet either through emails or chat rooms or chat

boards, such posting would be covered under section 499 requirement of ‘publication’ and would amount to

cyber defamation.25

SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra

India’s first case of cyber defamation; was reported when a company’s employee (defendant) started

sending derogatory, defamatory and obscene e-mails about its Managing Director. The e-mails were

anonymous and frequent, and were sent to many of their business associates to tarnish the image and

goodwill of the plaintiff company.

The plaintiff was able to identify the defendant with the help of a private computer expert and moved the

Delhi High Court. The court granted an ad-interim injunction and restrained the employee from sending,

publishing and transmitting e-mails, which are defamatory or derogatory to the plaintiff.26

But the case have been dismissed in the year 2007 after the petitioner was not able to prove the case beyond

doubts of the case.

M.J.Akbar v. Indian Institute of Technology, Madras27

In this Criminal Original Petition fact in issue was that certain articles were published by the newspaper;

Deccan Chronicle in its Bangalore and Hyderabad edition alleging that IIT, Madras was involved in foul

admission procedure which was taken up as defamatory against IIT. Though the article was not published in

Madras or any part of Tamil Nadu, the Madras High Court exercised its jurisdiction relying upon the

argument of the Respondent; since, the said news item is also available on the publishers Internet edition of

the news paper which can be accessed by any person across India and World and in such cases the cause of

action can arise even in Madras Court where though no newspaper article was published but the article was

available through Internet. The case is under trial in a Madras Criminal Court.

25 S.K Varma and Raman Mitta, Legal Dimensions of Cyberspace, pg 312

26 http://cyberlaws.net/cyberindia/defamation.htm acessed on 12/11/200927 MANU/TN/1677/2009, decided on 16.07.2009

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Other than these two cases many cases have come up before the police which are still sub-judice like making

fake profiles of individual with electronically edited obscene images of them, publishing of Hate speeches

against a class or caste, etc.

6. IT ACT, 2008: THE ROAD AHEAD

The newly enacted IT Act, 2000 amended in 2008 , which came in force from 26th Nov. 2008, has Sec. 66A

which provides for penal measures for mala fide use of electronic resources to send information detrimental

to the receiver. For the section to be attracted the ‘information’ needs to be grossly offensive, menacing, etc.

and the sender needs to have known it to be false.

Section 66A

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; or

(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, image, audio, video and any

other electronic record, which may be transmitted with the message

Some of the early analysts feel that the Section 66A which punishes persons for sending offensive messages

is overly broad, and is patently in violation of Art. 19(1)(a) of our Constitution. The fact that some

information is "grossly offensive" (s.66A(a)) or that it causes "annoyance" or "inconvenience" while being

known to be false (s.66A(c)) cannot be a reasons for curbing the freedom of speech unless it is directly

related to decency or morality, public order, or defamation (or any of the four other grounds listed in Art.

19(2)).28

28 Pranesh Prakash, Centre for Internet and Society

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In my opinion the section also fails on one major issue, it says ‘a person who sends’, it is hard to interpret

whether it is focuses only on directed messages towards a particular individual or even to published articles

through medium like blogs, social networking websites, etc. Well this will be clear once it will come for

judicial interpretation.

Being a penal provision it will be upon the prosecution to prove the mala-fide intention of the sender beyond

doubt.

7. DISSCUSSION

The impact of the First Amendment has resulted in a substantial divergence of approach between American

and English defamation law. For example in innocent dissemination cases in English law the Defendant

publisher has to establish his innocence whereas in American law the Plaintiff who has been libelled has to

prove that the publisher was not innocent.

The US Congress decided not to impose tort liability on Internet Service Providers which carry other third

parties’ potentially defamatory content through their servers as a policy decision and the effect of the section

230 of the Communications Decency Act 1996 was to overturn the decision made in

theProdigy case. Wilkinson C.J. in Zeran v. America Online stated that "section 230 creates a federal

immunity to any cause of action that would make service providers liable for information originating with a

third-party user of the service. Specifically, Section 230 precludes courts from entertaining claims that

would place a computer service provider in a publisher’s role. Thus, lawsuits seeking to hold a service

providers liable for its exercise of a publisher’s traditional editorial functions -- such as deciding whether to

publish, withdraw, postpone or alter content -- are barred

The defence of innocent dissemination has never provided an absolute immunity for distributors, however

mechanical their contribution. It does not protect those who knew that the material they were handling was

defamatory, or who ought to have known of its nature. Those safeguards are preserved, so that the defence is

not available to a defendant who knew that his act involved or contributed to publication defamatory of the

plaintiff. It is available only if, having taken all reasonable care, the defendant had no reason to suspect that

his act had that effect." 

Holding service provider many people see it as an attack on the freedom of speech, …. but i think that they

have to distinguish between the right to state their views and opinions, and the quite different matter of

imaginary rights to make defamatory comments or statements and get away with it.

Accessed from: http://www.cis-india.org/advocacy/igov/it-act/short-note-on-amendment-act-2008, last on 13/11/2009

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On the one hand the Australian Courts are exercising international jurisdiction in defamatory cases the

Indian Court in MJ Akbar case has also shown that they will also not lag far behind and will take up the

jurisdiction of matters of cyber defamation even if the cause of actions did not arise in their ordinary

jurisdiction because of the far reach and presence of internet all around the globe.

8. SUGGESTIONS

Watching this non- uniformity among Cyber defamation cases around the world and considering its global

presence and cross-border feature it will be fair to suggest the followings:

1. The Governments around the world should try to form a Convention on the line of TRIPS

which should deal with Cyber related laws and crimes. The existing EU Budapest Convention

Cybercrime 2001 has not included Cyber Defamation in the convention.

2. The Jurisdiction matter in Defamation cases should be settled through such convention. In my

seeing the global nature of such crime the provision should be such, so, a suit can be filed

anywhere around convention countries.

3. The penal and civil provisions should be uniform around the world.

4. The liability of service provider should be completely erased because they providing a

opportunity to all to express themselves, it’s upto people, the way they wish to use it.

5. The service provider duty would be to reveal identity of the person so being called the

defamer, when asked by the appropriate law agencies.

9.CONCLUSION

In the conclusion it can be said that there is no uniformity around the globe in treating the cyber defamation

cases. The major commonwealth countries follow different practice in this regard. The US is most rigid on

this where a cyber defamation case is hard to prove because of the Constitutional first amendment. In

English law the Defendant publisher has to establish his innocence whereas in American law the Plaintiff

who has been libelled has to prove that the publisher was not innocent. Australia taking the extreme

approach have gone beyond the national boundaries to hold the people who cause defamation to its citizens.

The Indian Jurisprudence is yet to develop in this regard, the new IT Act, 2008 is a new ray of hope in this

regard which has some stringent section to tackle the activities of defamation and Hate speeches.

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BIBLIOGRAPHY

BOOKS

David Bainbridge, Introduction to Computer Law, Pearson Longman, Essex UK 2004

Majid yar, Cybercrime and Society, Sage Publication, London 2006

Patrica L. Ballica, Cyber Law: Problems of Policy & Jurisprudence in the information Age,

Thomson West, St. Paul 2004

Clive Gringras, The Laws of internet, BWLN, UK 2003

Sharon K. Black, Telecommunication law in the Internet Age, Morgan Kaufmann Publishers, San

Francisco, 2002

Verma S.K., Mittal Raman, Legal dimensions of Cyberspace, Indian Law Institute, New Delhi 2004

ARTICLES

Abbey L. Mansfield, Cyber-Libeling the Glitterati: Protecting the First Amendment for Internet

Speech, Vanderbilt Journal of Entertainment and Technology Law , Spring, 2007, 9 Vand. J. Ent. &

Tech. L. 897

Barry J. Waldman, A Unified Approach to Cyber-Libel: Defamation on the Internet, a Suggested

Approach, , Richmond Journal of Law & Technology, Fall, 1999, 6 Rich. J.L. & Tech. 9

Eric J. McCarthy, Networking in cyberspace: electronic defamation and the potential for

international forum shopping, University of Pensylvania Journal of International Business Law, 16

U. Pa. J. Int'l Bus. L. 527

Juanita Darling, Forum Shopping and the Cyber Pamphleteer: Banamex V. Rodriguez, Lawrence

Erlbaum Associates, Inc. Communication Law and Policy Summer, 2003, Comm. L. & Pol'y 361

K. Jaishankar, Cyber Hate: Antisocial networking in the internet, 2008 International Journal of

Cyber Criminology July - December 2008, Vol 2 (2): 16–20

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Scot Wilson, Corporate Criticism on the Internet: The Fine Line Between Anonymous Speech and

Cybersmear, Pepperdine University School of Law, Pepperdine Law Review 2002, 29 Pepp. L. Rev.

533

Shawn A. Bone, Private Harms in the Cyber-World: The Conundrum of Choice of Law for

Defamation Posed by Gutnick v. Dow Jones & Co., Washington & Lee Law Review 62 Wash &

Lee L. Rev. 279

Stephanie Blumstein , The new immunity in cyberspace: the expanded reach of the communications

decency act to the libelous "re-poster", Boston University Journal of Science and Technology Law,

Summer, 2003, 9 B.U. J. SCI. & TECH. L. 407

ELECTRONIC SOURCE

Important elements of the internet applicable to cyber libel http://www.cyberlibel.com/elements.html

US cases on cyber libelhttp://www.dba-oracle.com/internet_cyberlibel_usa_cases_message_boards_forums.htm

Beware of Cyber-libel: If you wouldn't say it in a newspaper, don't 'say' it on the net http://library.findlaw.com/2001/Jan/1/127167.html

What Was The Password? http://www.outlookindia.com/printarticle.aspx?260060

Regulation Of Defamation Over The Internet : Juridictional Issues

http://www.ebc-india.com/practicallawyer/index2.php?

option=com_content&itemid=99999999&do_pdf=1&id=467.

http://www.webnewswire.com/node/476399

http://jurisonline.in/2009/10/defamation-on-the-internet-a-comparative-study-of-laws-in-the-us-uk-and-india/

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