[Due to the extraordinary interest
generated by this issue, a more detailed discussion was found necessary. Hence a
series of articles are being presented links for which are given below as BB1,
BB2,BB3 etc....Naavi]
BB1:BB-2
: BB3:BB4:
BB 5:BB6:BB7:BB8:BB9:BB10
In our previous articles " we had discussed some of the
legal issues regarding Blogging. Let us visit a few more here.
Issue (6) Does calling one an "Idiot" on a Blog constitute cause
for action in a defamation case?
Issue (7) If a person places his work in a public
domain, what are the rights of the public to criticize? and is there a
difference between criticism and defamation? or between criticising the author and criticising the
work?
As we have already discussed, Blog can be treated as an
"Electronic Speech". Blog is also normally a public space.
According to Indian law, any material rendered in electronic
form is equivalent to what is rendered in paper form as can be implied from
Section 4 of ITA-2000. If such a document is authenticated as per the provisions
of Section 5 (i.e. by Digital Signature), it is equivalent to a written and
signed paper which is a prima facie evidence in a Court of Law.
If the
electronic document is not digitally signed, it may be proved in a court of law
with other witnesses and /or with certification from service providers such as
www.ceac4india.com .
It is therefore necessary to remember that anything written
on a Blog either by the owner or any of the visitor is equivalent to speaking in
the public. The writing therefore can be subject matter of "Defamation",
"Fraud", "Misrepresentation", "Breach of Trust", "Threat" etc.
Let us for the time being restrict our discussion to
"Defamation" only. In order to understand what IPC says about "Defamation", let
us see the complete section in IPC which talks about Defamation.
According to Section
499 of IPC,
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, to defame that person
Explanation 1- It may amount to
defamation to impute anything to a deceased person, if the imputation would
harm the reputation of that person if living, and is intended to be hurtful to
the feelings of his family or other near relatives.
Explanation 2- It may amount to
defamation to make an imputation concerning a company or an association or
collection of persons as such.
Explanation 3- An imputation in the
form of an alternative or expressed ironically, may amount to
defamation.
Explanation 4- No imputation is said
to harm a person's reputation, unless that imputation directly or indirectly,
in the estimation of others, lowers the moral or intellectual character of
that person, or lowers the character of that person in respect of his
caste or of his calling, or lowers the credit of that person, or causes it to
be believed that the body of that person is in a loath some state, or in a
state generally considered as disgraceful.
Illustrations
(a) A says-"Z is an honest man;
he never stole B's watch"; intending to cause it to be believed that Z did
steal B's watch. This is defamation, unless it fall within one of the
exceptions.
(b) A is asked who stole B's
watch. A points to Z, intending to cause it to be believed that Z stole B's
watch. This is defamation unless it fall within one of the exceptions.
(c) A draws a picture of Z
running away with B's watch, intending it to be believed that Z stole B's
watch. This is defamation, unless it fall within one of the exceptions.
First Exception- imputation of
truth which public good, requires to be made or published- It is not
defamation to impute anything which is true concerning any person, if it be
for the public good that the imputation should be made or published.
Whether or not it is for the public good is a question of fact.
Second Exception- Public conduct
of public servants- It is not defamation to express in a good faith any
opinion whatever respecting the conduct of a public servant in the
discharge of his public functions, or respecting his character, so far as his
character appears in that conduct, and no further.
Third Exception- Conduct of any
person touching any public question- It is not defamation to express in good
faith any opinion whatever respecting the conduct of any person touching any
public question, and respecting his character, so far as his character
appears in that conduct, and no further.
Illustration
it is not defamation in A to
express in good faith any opinion whatever respecting Z's conduct in
petitioning Government on a public question, in signing a requisition for a
meeting on a public question, in presiding or attending a such meeting, in
forming or joining any society which invites the public support, in voting or
canvassing for a particular candidate for any situation in the efficient
discharges of the duties of which the public is interested.
Fourth Exception- Publication of
reports of proceedings of Courts- It is not defamation to publish
substantially true report of the proceedings of a Court of Justice, or of the
result of any such proceedings.
Explanation- A Justice of the
Peace or other officer holding an inquiry in open Court preliminary to a trial
in a Court of Justice, is a Court within the meaning of the above section.
Fifth Exception- Merits of case
decided in Court or conduct of witnesses and others concerned- It is not
defamation to express in good faith any opinion whatever respecting the merits
of any case, civil or criminal, which has been decided by a Court of Justice,
or respecting the conduct of any person as a party, witness or agent, in any
such case, or respecting the character of such person, as far as his character
appears in that conduct, and no further.
Illustrations
(a) A says-"I think Z's evidence
on that trial is so contradictory that he must be stupid or dishonest". A is
within this exception if he says this is in good faith, in as much as the
opinion which he expresses respects Z's character as it appears in Z's conduct
as a witness, and no further.
(b) But if A says-"I do not believe
what Z asserted at that trial because 1 know him to be a man without
veracity"; A is not within this exception, in as much as the opinion which he
express of Z's character, is an opinion not founded on Z's conduct as a
witness.
Sixth Exception- Merits of public
performance- It is not defamation to express in good faith any
opinion respecting the merits of any performance which its author has
submitted to the judgement of the public, or respecting the character of the
author so far as his character appears in such performance, and no further.
Explanation- A performance may be
substituted to the judgement of the public expressly or by acts on the part of
the author which imply such submission to the judgement of the public.
Illustrations
(a) A person who publishes a
book, submits that book to the judgement of the public.
(b) A person who makes a speech
in public, submits that speech to the judgement of the public.
(c) An actor or singer who
appears on a public stage, submits his acting or signing in the judgement of
the public.
(d) A says of a book published by
Z- "Z's book is foolish; Z must be a weak man. Z's book is indecent; Z must be
a man of impure mind". A is within the exception, if he says this in good
faith, in as much as the opinion which he expresses of Z respects Z's
character only so far as it appears in Z's book, and no further.
(e) But if A says-"I am not
surprised that Z's book is foolish and indecent, for he is a weak man and a
libertines. A is not within this exception, in as much as the opinion which he
expresses of Z's character is an opinion not founded on Z's book.
Seventh Exception- Censure passed
in good faith by person having lawful authority over another- It is not
defamation in a person having over another any authority, either conferred by
law or arising out of a lawful contract made with that other, to pass in good
faith any censure on the conduct of that other in matters to which such lawful
authority relates.
Illustration
A Judge censuring in good faith
the conduct of a witness, or of an officer of the Court; a head of a
department censuring in good faith those who are under his orders; a parent
censuring in good faith a child in the presence of other children; a
schoolmaster, whose authority is derived from a parent, censuring in good
faith a pupil in the presence of other pupils; a master censuring a servant in
good faith for remissness in service; a banker censuring in good faith the
cashier of his bank for the conduct of such cashier as such cashier-are within
the exception.
Eight Exception- Accusation
preferred in good faith to authorised person- It is not defamation to prefer
in good faith an accusation against any person to any of those who have lawful
authority over that person with respect to the subject-matter of accusation.
Illustration
If A in good faith accuse Z
before a Magistrate; if A in good faith complains of the conduct of Z, a
servant, to Z's master; if A in good faith complains of the conduct of Z, and
child, to Z's father-A is within this exception.
Ninth Exception- Imputation made
in good faith by person for protection of his or other's interests- It is not
defamation to make an imputation on the character of another provided that the
imputation be made in good faith for the protection of the interests of the
person making it, or of any other person, or for the public good.
Illustrations
(a) A, a shopkeeper, says to B,
who manages his business-"Sell nothing to Z unless he pays you ready money,
for 1 have no opinion of his honesty". A is with in the exception, if he has
made this imputation on Z in good faith for the protection of his own
interests.
(b) A, a Magistrate, in making a
report of his own superior officer, casts an imputation on the character of Z.
Here, if the imputation is made in good faith, and for the public good, A is
within the exception.
Tenth Exception- Caution intended for
good of person to whom conveyed or for public good- it is not defamation to
convey a caution, in good faith, to one person against another, provided that
such caution be intended for the good of the person to whom it is conveyed, or
of some person in whom that person is interested, or for the public good.
According to Section 500 of IPC,
Whoever defames another shall be
punished with simple imprisonment for a term which may extend to two years, or
with fine, or with both.
Let us now analyze implications of
"language" used in a weblog comment.
Without much need for explanation it is
clear that there is a difference between stating that a person is an "idiot" and
his work is "idiotic". The former is a comment on the person while the latter is
a comment on the work. Former could be "Defamatory" and the latter is not.
Secondly, one has to check if the comment
was done in good faith or casually. If it has been made in good faith, it may
come under an exception. But otherwise the comment could be defamatory. "Good
Faith" normally requires that the person has made some reasonable effort to come
to the conclusion. For example if a person want to comment on even say the work
of an author, he should have at least read it before branding it as idiotic.
If a person ascribes derogatory remarks to another whom he has not
seen nor understood by reading any of his work, is open to the charge of defamation.
Another aspect which is normally
considered as "Not Amounting to Defamation" is when some thing stated is
actually true. However, this applies only if the person making a comment
believes that it is in the public interest to disclose the information. If not,
defamation can be implied even when the statement is true.
The laws regarding "Defamation" is very
subjective and what constitutes defamation may vary from case to case. For
example, words such as "Idiot", "Shit" etc may be common terms in certain
societies and culture but not so in others. Accordingly what constitutes
defamation also varies.
It is often seen that persons commenting
in Blogs hide behind an anonymous name and freely throw insults at others. This
constitutes defamation and in the absence of proper identity of the person
committing the crime, can render the Blog owner responsible.
We can therefore conclude that there is
enough reason to believe that "Calling a person Idiot" on a Web Blog, and more
so when it is "Unsubtantiated", "Without Specific Knowledge" and "In Bad Faith",
could constitute "Defamation" and render the person saying so liable both under
Section 499 of IPC as well as for Civil liability to the victim.
In the Case of work placed in public,
unless the comment is reasoned and made in the "opinion" of a person, in good
faith, there can be cause of action for defamation.
The final word on this depends on the
circumstances of the case.
Naavi
December 12,2004
..Will Be Continued in Bloggers
Beware..8
