Reputation damage through Social Media..New Zealand passes new law

“Reputation Damage” is a concern of both Individuals or a Companies. The risk of “Reputation Damage” has increased with the growing influence of Internet and more particularly the social media such as Twitter and Facebook.  While the core objective of Twitter and Facebook can be considered as providing a neutral platform for communication in the digital society, there are a few other internet based services that operate under a facade of “Free Speech” and build a commercially remunerative business of “Abusive Content”.

India has been a witness to this phenomenon by a glaring example in the TV media. Mr Arnab Goswami, the anchor of Times Now can be credited with being the creator of this brand of “Abusive Journalism” which has now showed a tendency to corrupt the minds of upcoming young journalists and other channels such as NewsX. On the Internet, sites such as *sucks.com have been there for some time to present a counter point of view against an identified physical entity. Websites such as Mouthshut.com built on the principle of Consumer protection through information dissemination have also been present in the Indian social media scene.

While one cannot fault the principle of “Consumer Protection” or “Freedom of Fee Speech” it is only when we analyse how an individual website or a user has used the medium in a given context that determines whether the medium is being used as an instrument of benefit to the society or an instrument of “Profiteering by Abuse”.

“Trolling” or “Flaming” are ways by which the social media is abused to harm the reputation of identified individuals. The differentiation of permitted “Criticism” and “Flaming” or “Trolling” is only in the degree of abuse and choice of words. When some body crosses the line, then law has to come to the assistance of the victim. This is the basis of “Defamation law”.

The frequent misuse of the defamation law by politicians in India has actually hurt the cause of decency in media by branding “Defamation law” as an instrument of oppression. Recently, clever lawyers convinced the Supreme Court of India that Section 66A of Information Technology Act 2000/8 was against the constitutional provision of free speech and hence should be deleted from the statute. Since even Judiciary is often carried away with popular sentiments such as “Free Speech” and “Human Rights”, they often err in their judgement as they did in the case of Section 66A where they equated “Abusive, targetted, one to one communication causing annoyance and distress” as “Free speech”. The legal representatives who defended the case from the Government failed to understand and project the purpose of the section. Even they were carried away by the grand talk of “Freedom of Speech” . The result is that there is a perception in some quarters that in India any abuse is tolerable though there are defamatory laws under IPC which can be invoked in case of need even against misuse of Internet.

Recently, a journalist has pointed out that in a criminal case (Aarushi murder case), the Judge had started writing his judgement convicting the accused, much before the defence even started its arguments. The Section 66A judgement was perhaps similar since the Judges were waiting for passing a judgement to scrap the section even before the petition was filed because they were angry that Police had repeatedly (mis) applied the section to mean that it was meant to address defamation and political criticism on social media.

It has been pointed out in these columns that in what we call as a “Glassdoor Attack”, that companies in India have frequently become a subject of abuse and reputational damage by disgruntled employees. This was earlier presented in an earlier article in the context of need to cover “Reputation Damage” through Cyber Insurance. However there is a larger need to debate if these principles of  “Abusive Journalism” which we see in Times Now TV channel or websites should be considered as equivalents of “Flaming” or “Trolling” and dealt with accordingly.

In New Zealand it appears that a new law called “Harmful Digital Communications Act” has been passed to address such issues. (Refer article here).

The law aims to deter, prevent and mitigate serious emotional distress resulting from digital communications, and to provide victims with “quick and efficient” redress. It includes civil and criminal remedies. The offence can be punished with imprisonment of upto 2 years and fine upto Pounds 21000 for individuals and 85000 for companies. The law applies to “Intermediaries” also.

In India, Section 79 of ITA 2000/8 makes an intermediary liable for any offence committed with content handled by them unless they can prove “Due Diligence”. Such due diligence could become a subject matter of interpretation in a Court of law and may involve the debates of free speech etc.  However, the victim has every right to seek a remedy. Indian law also has “Extra territorial jurisdiction” and hence can be applied to websites operating from outside India. If however, there is a problem of justice being denied by Courts in foreign jurisdiction, the victim can seek remedy of Courts to block the content from Indian viewers which results in a revenue loss to the website.

On the part of the websites who want to genuinely support the cause of consumer protection, there is a need to put in practice certain due diligence standards that protect the Companies from unfair reputation damage.  The due diligence requirements in such cases include a need to identify the persons who make abusive posts when a demand is made under due process of law. Failure to do so will elevate the media from being a neutral purveyor of information to an active supporter of the cause espoused by the abusing individual and a concomitant responsibility to defend under the freedom of speech provisions of law.

Unfortunately, many of these websites turn arrogant that they are protected by “Free Speech law” and any person raising objection is a votary for Internet censorship and hence fail to respond to genuine requests for either taking down of objectionable content or revealing the identity of the person posting the abusive content. This gives an opportunity even for business competitors to post harmful content solely to hurt the business prospects of an entity. Since these websites donot have any means of identifying the person posting the content, any imposter can easily post content as either an employee or ex-employee or a product user and post abusive reviews.

Now with the passage of the New Zealand law, there is a wake up call to the Intermediaries all over the world that they cannot make “Abuse as a business model”. The days of journalistic clan of Arnab Goswami and his clones in the digital media need to be brought to a logical end.

At the same time, there is a need for industry organizations such as ASSOCHAM, FICCI or CII to take up the issue of “Organized Media Abuse” as an industry issue and seek remedies. The “Risk Managers” in the industry need to look at the “Reputation Risk” arising out of such abusive journalism, trolling and flaming and cover it with appropriate cyber insurance. The Cyber Insurance industry on the other hand has to work out a mechanism to mitigate the risk of reputation loss through such abusive journalism and misuse of social media freedom.

Hopefully, the New Zealand law will pave the way for a debate on this issue.

Naavi

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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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