"Defamation" is an important legal issue that arises often
on the Internet. Since Internet developed as a medium of "Free Expression" and
supports "Anonymity" more than the physical world, there are many instances of
Internet being used for expressing discontent either on a person or a service.
Sites such as "mouthshut.com", "Consumercomplaints.in", "mywoes.com", "consumerdaddy.com",
"corecenter.co.in" as well as Naavi.org and "Ccc-rac.in" are all
manifestations of Internet based Consumer protection agencies.
Along with such genuine attempts to project the public
grievances on the Internet through blogs or websites there are also cases
where disgruntled employees post adverse comments on their earlier employers
some with an exaggerated expression of their own woes. There are also cases of
a false propaganda indulged either by such employees or competitors.
Whenever complaints are raised by one person against
another company or its service, the accused always feels that he is being a
victim of free expression. In cases where the accused feels that he is
wronged, he is entitled to legally protect himself through a defamation suit
against the person who is complaining in a public forum.
in India, so far defamation was being covered in law under
Section 499 of IPC which states as under:
"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 excepted, 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 loathsome state, or in a state generally considered as
disgraceful."
The section also carries illustrations which are an
extended part of the explanation.
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.
The section also carries exceptions which are an
extended part of the section
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 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 at 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 discharge of the
duties of which the public is interested.
Fourth Exception.- Publication of reports of
proceedings of courts- It is not defamation to publish a 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 enquiry 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 in
good faith, inasmuch as the opinion which he expresses respects Z' s character
as it appears in Z' s conduct as a witness, and no farther.
(b) But if A says-" I do not believe what Z asserted at that trial because I
know him to be a man without veracity"; A is not within this exception,
inasmuch as the opinion which expresses 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 judgment of the public,
or respecting the character of the author so far as his character appears in
such performance, and no farther.
Explanation.- A performance may be submitted to
the judgment of the public expressly or by acts on the part of the author
which imply such submission to the judgment of the public. Illustrations
(a) A person who publishes a book, submits that book to the judgment of the
public.
(b) A person who makes a speech in public, submits that speech to the judgment
of the public.
(c) An actor or singer who appears on a public stage, submits his acting or
singing to the judgment 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, inasmuch 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 libertine." A is not within this exception,
inasmuch 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 this exception.
Eighth 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 accuses 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, a 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 interest 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 I have no opinion of his honesty." A is
within 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 to 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.
Whoever commits the offence under Section 499 is punishable
under Section 500 which states as under:
Whoever defames another shall be punished with
simple imprisonment for a term which may extend to two years, or with fine, or
with both.
The above law has been in existence since IPC and has been
examined in a number of Courts in India and can be considered as an
established law.
After the enactment of ITA 2000 which under Section 4
stated
Where any law provides that information or any other
matter shall be in writing or in the typewritten or printed form, then,
notwithstanding anything contained in such law, such requirement shall be
deemed to have been satisfied if such information or matter is- (a) rendered
or made available in an electronic form; and (b) accessible so as to be usable
for a subsequent reference.
the law of defamation under Section 499 got extended to "Speech"
and "Documents" in electronic form without ambiguity.
After the ITA 2008 was notified with effect from October
27, 2009, Section 66A has often been cited as a new provision regarding
"Defamation in electronic form".
Section 66A states as follows:
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; or
b) any content 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 makes 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.
A question now arises if the provisions of Sec 66A can be
applied for defamation otherwise covered under Sec 499 of IPC. Under section
66A, the words "Grossly Offensive", "Causing Insult" have the capability of
being interpreted as "Defamation". Similarly, though the section talks of
"Electronic mail" and "Message", it is possible to argue though with some
difficulty that the definition also covers a "Website" containing static
information which is pulled by the receiver by specifically going to the given
part of Cyber Space through the URL.
We may also observe that Section 66A does not appear to
either provide elaborate explanations nor make a reference to Section 499 of
defamation under IPC (like references made to IPC in Section 66 or elsewhere).
It is therefore not clear if it was the legislative intent
of the Government which drafted Section 66A to make it applicable to all cases
of defamation over Internet. Perhaps it was intended to cover E-Mails and SMS/MMS
sent through mobile and not to static web content which is already well
recognized as a "Written Document".
If however, we consider that this is an overlapping
provision then two situations arise.
Firstly ITA 2008 being a special legislation, it should
apply in all cases of electronic document exclusively and IPC 499 would not be
applicable in any case of electronic defamation.
Alternatively, the plaintiff can have the choice of
legislation to pursue without causing "Double Jeopardy".
A third situation may arise where a plaintiff may file a
defamation suit in a High Court and bring the accusation under Section 499 of
the IPC along with Section 66A of ITA 2008. This brings a conflict of
Jurisdiction into discussion. Any contravention under Section 66A could be
interpreted as coming within the jurisdiction of the Adjudicator/CAT (Please
see the views expressed by the Presiding officer of CAT and the
special
issue on Adjudication by Cyber Laws for CxO ). In such a case the High
Court becomes the Court of Second Appeal and not the trial Court. Only if the
compensation claimed is in excess of Rs 5 crores, it would come under the
jurisdiction of the Civil Court system and therefore the High Court.
Perhaps it would take a few more years for the opinion on
these matters to crystalize. Until then Naavi.org advocates that it may be
left to the choice of the complainant to invoke either 66A of ITA 2008 or Sec
499 of IPC and not both and if it is intended that the case is pursued both on
criminal front and the civil front, the civil claim may be pursued with the
Adjudicator while a Cyber Crime complaint may be lodged with the Police for
appropriate action on the criminal front.
[The above opinion is presented only for academic debate
and comments for publication or otherwise are welcome by e-mail at
naavi@vsnl.com]
Naavi
April 1, 2010
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naavi@vsnl.com
