Abstract
Defamation basically means passing statements regarding someone intentionally in order to depreciate that human’s reputation, which can either be temporary or permanent. “Cyber Defamation”, which means passing harsh statements regarding someone or for his conduct, knowing that such statements are false, in order to harm his reputation in cyberspace. Also, the required provisions and statutes are there to act as a guard of the innocent prudent man, but sometimes there is a misuse of these laws and statutory provisions.
Defamation[1] sounded itself is unprecedented rapid increase. This unprecedented rapid increase in information and communication technology (ICT) such as electronic mail (e-mail), chat groups, online forums, web logs (blogs), social media platforms and many others, our daily lives have changed significantly. This amazing feature allows Internet users to publish and distribute information freely to the general public. Therefore, the finding of this research shown the level of awareness for cyber defamation among adolescent users is still at medium level which is Awareness in cyber defamation cases among adolescent can practically differ from the perspective of early adulthood and the aim of this research is to increase the behavior of helping and academic shared writing. These findings should be the early initiatives in helping our students to be aware of this cyber defamation. Future research regarding this should be applied into the bigger population, respective fields and difference ranged because this research limit only for
respondents on specific target (case studies) and these findings cannot be generalized to Malaysian context.
The rise of the internet has made anonymous defamation a reality. Tracking the footprints of anonymous defamation in cyberspace can be difficult from a legal and technological perspective. Legally, the injured party may need to pursue two defendants-
- The website that hosted the defamatory statement
- The anonymous defamer
This process can be taxing from both an economic and personal perspective and in some cases will lead to a dead end due to technological roadblocks. One of the primary reasons that the footprints of anonymous defamation can lead to a dead end is that the IP address logs may have been purged. Currently there are no regulations or standards in the industry requiring IP address logs to be preserved for a maximum time period. This article addresses the legal and technological roadblocks that can lead to anonymous defamation and suggest regulatory systems for IP address logs as a means of combating unacceptable anonymous behavior on the internet.
The present paper tries to point out relevant legal provisions on cyber defamation and liabilities of internet service providers or intermediaries in the light of some of the most landmark judgments on this issue in India and UK. The author further tries to highlight some of the practical difficulties with prosecution in such cases especially with regard to jurisdiction and Forum shopping. Since India has just emerged as a new battleground for Cyber disputes and crimes, the cases are not many but nonetheless they indicate how India is lagging behind as regards legislative framework Covering information technology law and prevailing lacunae in the current Legislations.
The present trend of legislation and also the judicial approach to such offenses appears to be such that these offenses are treated lightly and the punishments are not adequate having regard to the gravity of such offenses. Defamation laws should be sufficiently
flexible to apply to all media. It is not practical to apply the principles derived in 18th or 19th-century cases to the issues that arise on the internet in the 21st century.
The impact of the internet use in traditional law matters such as commerce, contracts, taxes, criminal law, etc., has required the adaptation of these fields. These changes have had effects both inside and outside of territorial borders. One of the legal aspects that should be resolved in order to sue for damages is to find rules for establishing jurisdiction when the defamation is made across boundaries by the internet. Defamation disputes have increased, and will continue to increase due to internet being able to deliver rapidly defamatory publications across boundaries.
Accessibility, anonymity, privacy, and the interactive, responsive nature of communications on the internet, have made the users far less inhibited than before especially about the contents of their messages. There is no lack of Soniya Gandhi-Manmohan Singh jokes and cartoons coming as your regular Facebook updates. The internet has made it far easier than ever before to disseminate defamatory statements to a worldwide audience with impunity. Now, on the internet everyone can be a publisher as well as a victim of defamatory publication. A defamatory allegation need only be disclosed to one person for publication to be proved. Since a publication on internet can be circulated to literally countless number of people, every time an email is forwarded to another person or defamatory content is shared on Facebook, it is published again and again creating further cause of action. This has led to cyberspace becoming a highly prone area for defamation. No doubt a John Doe always lurks around in the cyberspace. The issue is further aggravated by the difficulty in identifying the perpetrator, and the degree to which Internet Service Providers (ISP’s) should be held accountable for facilitating the defamatory activities.
Key Words: Cybercrime, cyber phishing, defamation, information, internet, privacy, defamation, proxy servers, libel, Technology, publishers.
Introduction
Cyber defamation is basically means publishing false statement about an individual in the cyberspace that can injure and demean the reputation of an individual. The defamation can be done by words, oral or written or by signs or by visible representation. Defamation is only done to lower down the image of the individual in the eye of the general public. Defamation is a “TORT” is French word mean “Wrongful Conduct” and it is taken from a Latin word “TORTUM” which mean “Twist or Twisted”. The defamation category falls into one of two categories – slander or libel. Slander is associated with oral form of defamation and libel is associated with written form of defamation. Defamation has been a burning issue of the present time from when it has create over the Freedom of speech and expression. Generally defamation requires that the publication be false and without the consent of the allegedly defamed person. Words or pictures are interpreted according to common usage and in the context of publication. Injury only to feelings is not defamation; there must be loss of reputation. The defamed person need not be named but must be ascertainable. A class of persons is considered defamed only if the publication refers to all its members particularly if the class is very small- or if particular members are specially imputed.
Digital law is the law that overcomes the wrongdoings carried out inside the internet. Defamation1 sounded itself is unprecedented proliferation. This unprecedented proliferation in information and communication technology (ICT) such as electronic mail (e-mail), chat groups, online forums, web logs (blogs), social media platforms and many others, our daily lives have changed significantly. This great feature allows Internet users to publish and distribute information freely to the general public. Therefore, the finding of this research shown the level of awareness for cyber defamation among adolescent users is still at medium level which is Awareness in cyber defamation cases among adolescent can practically differ from the perspective of early adulthood and the aim of
this research is to increase the behavior of helping and academic shared writing. These findings should be the early initiatives in helping our students to be aware of this cyber defamation. Future research regarding this should be applied into the bigger population, respective fields and difference ranged because this research limit only for respondents on specific target (case studies) and these findings cannot be generalized to Malaysian context.
Types of Defamation
There are two ways through which we can transmit the defamatory statement. One is through slander and another one is through libel. Libel is done through text or graphic and it is permanent in nature. Thus, it can be said that it will stay as long as the graffiti or statue or picture stays on.
Defamation can also be done through slander. Here, slander is referred to as transient or non-permanent in nature. Thus, in this case, the effect of defamation is considered to subsist for the time period of comment or action.
- Slander
Slander can also happen in a way that will closely represent libel. For example, when you dictate some defamatory comments to your clerk who in turn types it on a letterhead the communication that is going to happen for the third person through the speech. Thus, in this case, the mode of transmission is the one that is considered transient.
- Libel
For an action to be considered as a libel the proof in contention should be proved as defamatory, false, made public, or in writing. The comment that defamatory made should be directly or indirectly referred to the plaintiff. Furthermore, this comment should also draw a reasonable connection between the comment and the person.
Though it is not necessary that person should be named specifically neither is the intention of that defendant. However, defamation cannot be made against a category or a deceased person such as doctors. So, in these types of cases if the defamation happens to injure the living person’s reputation than that person will be sued for defamation.
Problems and issues in Cyber Defamation
Increasing dependency on he internet for the use of social networking sites has created several issue in the country. In the context of defamation, the biggest issue can be figuring out the person who is intended to harm the reputation or the third party who has read the defamatory statement as to when it comes to web pages such as blogs or other media sites including newspapers or magazines. That’s why the blogger keep their names or identities nameless to protect themselves.
Sometimes it’s more challenging to determine the readers who leave comments on blogs or online news article as most of the sites does not require the names, address or e-mail address to write the comment and if the site ask for the things the people give their false information. That’s make difficult to track them. If Sites like Facebook and etc gets a defamatory statement about the person gets circulated very quickly because there are large numbers of reader in it and which can cause damage to the defamed person.
Types of cyber crimes:
- Against individuals
This cyber crime includes one individual distributing malicious or illegal information online. It includes cyberstalking, distributing trafficking and pornography.
- Against government
A crime against a government is also called cyber terrorism. This is the cyber crime which happen least but is the most serious crime as it includes military websites,
distributing propaganda and country essential information for political purpose. These criminals are usually terrorists or enemy government of other nation
- Against property
In this hacker takes a person’s bank details in order to obtain access to funds, make online transactions, or launch public schemes to trick individual to give their personal information. They also gain access to website which includes confidential information. It’s similar to a real life of criminal illegally possessing an individuals bank or credit card details.
Comparative Analysis- India & UK
A correlation of cyber security approaches across India and the UK mirrors a few ongoing ideas in certain zones and huge difference in others. The distinctions in approaches can to a great extent be credited to varying conditions in the two nations. Be that as it may, regardless of a huge hole as far as verifiable access to innovation and assets to convey towards ensuring cyber space, India has, in the course of the most recent two decades, progressively accentuated cyber security as a significant strategy concern. The UK has genuinely evolved procedures and frameworks, and cyber security has been a strategy worry for extensively longer than in India. Normally, the UK cyber security system is more far reaching and firm than in India. In any case, utilizing the markers in the Global Cyber security Index, India isn’t altogether far away from the UK cyber security duty and advancement is concerned. This may likewise in part be a reason for the two nations being not able to apply previous laws to address new circumstances in cyberspace. Strategy in the two countries is drawn closer from power point of view, for example from the casing of national security plans. So also, knowledge and resistance establishments remain profoundly associated with cyber security in the two locales. Be that as it may, the distinguishing proof of entertainers, dangers and points and goals of
the cyber security strategy contrasts extensively. The UK is impressively more open to multi-partner contribution to trim its strategies, while cyber security in India stays bifurcated between private activities and government activities, which will in general spotlight on national security concerns. The UK’s grip of multi-partner standards ought to be received in Indian approach, which has just perceived the significance of multi-stakeholders in the global setting.
The Indian government can do significantly more as far as spreading mindfulness about cyber security and creating indigenous cyber security research. India could likewise helpfully utilize the delicate methodologies taken by the UK to boost organizations to consent to security best practices without fundamentally ordering severe guideline, similar to the execution of the cyber basics plot. Central parts of cyber security framework stay normal across the two wards, for example, the foundation of crisis reaction organizations and basic data insurance. Other than these, there are a few
dissimilar establishments taking care of divergent commands on cyber security. Thus, it is important that the proposed National Cyber Coordination Center, on the lines of the UK’s National Cyber Security Center, as a one stop look for cyber security-related concerns. Further, the jobs of every association must be obviously separated to maintain a strategic distance from cover and guarantee responsibility. India’s universal way to deal with cyber wrongdoing appears to have been held up for discretionary reasons. The Budapest Treaty setting up worldwide participation on cyber security and cyber wrongdoing, of which the UK is likewise (yet belatedly) a part, is a significant part of universal coordination on cyber security issues, which would be a lot harder to haggle on a respective premise. It is suggested that India return to the chance of going into worldwide duties given the huge level of participation required for exploring cyber dangers. Indian cyber security is likewise un-established in major standards on which such enactment ought to be based. The essential standards UK strategy perceives
guarantees that the primary methodology for cyber security remembers parts of common freedoms and person’s interests in the web as a mutual asset. While this may put imperatives on the administration’s hold over cyber security, security strategy must be adjusted towards maintaining common freedoms, and not the opposite way around. The UK in any case, in its activities, needs to adjust its national security worries with common freedoms worries around protection and reconnaissance.
Case laws
- Kalandi Charan Lenka vs State Of Odisha[2]
In this case, the petitioner was hounded on a regular basis, and the offender created a bogus account for her and sent obscene messages to her friends. On the walls of the hostel where the victim slept, a modified naked photograph was also put. The perpetrator was found guilty of his crime by the court.
- Rajiv Dinesh Gadkari vs Smt. Nilangi Rajiv Gadkari[3]
In this case, after obtaining a divorce letter from her spouse, the respondent filed a lawsuit against him for harassing her and defaming her by posting lewd images on social media. The offence has already been reported, and the wife has requested support of Rs. 75,000 per month (respondent).
- Cubby, Inc. vs. CompuServe Inc.[4]
In this absolute first major distributed case on Web criticism, the offended party, Cubby, Inc. guaranteed harms because of one of CompuServe’s many autonomous, self-worked discussions. At that point editorial gathering called, “Rumorville” had an electronic tattle magazine called “Skuttlebut “on which a disparaging remark about Cubby, Inc. was posted. Since CompuServe doesn’t audit the substance of distributions preceding postings, the court found that CompuServe stood firm on a footing practically equivalent to a merchant, accordingly soothing CompuServe from the responsibility that a distributer would confront. This finding depends on the legal dispute Smith v. California, in which
the US High Court held that a wholesaler should have obvious information on the mistaken (and abusive) substance of a distribution before scattering to be expected to take responsibility for delivering that content. Earlier milestone cases including offended parties squeezing criticism charges against a transporter, including N.Y. Times v. Sullivan and Western Association Broadcast v. Lesesne, have discovered that
transporters, or merchants of distributed works, don’t hold duty regarding slander except if they had sensible information in advance of the offensive material they had circulated.
- Stratton Oakmont vs. Prodigy (1995)[5]
This case is an occurrence of offensive comments over a public on-line gathering set off an organization to sue an organization specialist co-op. On a generally perused monetary issue gathering called “Cash Talk,” a Wonder client had posted about Daniel Porush, the leader of Stratton Oakmont, a venture protections firm, and his representatives. Porush, the banner guaranteed, was “soon to demonstrated crook,” and further, Stratton Oakmont, Inc., was a “clique of representatives who either lie professionally or get terminated.” Subsequent to perusing this posting on Wonder, Porush recorded suit against the organization administration asserting Wonder obligated for this present banner’s hostile cases. Wonder, for its lawful benefit, guaranteed the situation with a merchant (as on
account of Cubby versus CompuServe). Notwithstanding, Stratton Oakmont contended that because of Wonder’s publication command over content, Wonder ought to be all the more accurately delegated a distributer. Fundamentally, this is on the grounds that Wonder clarified to all clients that it held the option to alter, eliminate, and channel messages in its framework to guarantee a “family” environment on-line. On account of these cases, the court arranged Wonder as a distributer and granted harms to Stratton Oakmont.
- Zeran vs. America online (1996)[6]
On account of Zeran versus America On the web, in which a client was survivor of a pernicious deception. The offended party, Kenneth Zeran, had his location and
telephone number posted regarding ads for gifts (Shirts, mugs, and so forth) celebrating the Oklahoma City Bombarding. An obscure AOL (America On the web) client had get
Zeran’s own data and posted these promotions all through AOL. Zeran got many upsetting dangers because of this trick, and was ceaselessly pestered by means of phone and post. He sued AOL guaranteeing carelessness for AOL’s benefit in permitting such notification to be posted, regardless of the protests and postings he had enlisted with AOL upon first learning of the pantomime. Utilizing the CDA (Correspondences Tolerability Demonstration of 1996) as its guard, AOL guaranteed resistance through the security that the CDA gives Internet services. The courts decided for America Web based, maintaining that intelligent PC specialist organizations may not be expected to take responsibility for posting disparaging articulations posted by outsiders through the ISP. Viably, this choice switched the discoveries of Stratton Oakmont, Inc. versus Wonder.
Pre-requisite of Defamation
To constitute the defamation, there should be a defamatory statement that can be understood by the reasonable minded and right thinking person as referring to the person defamed. There is a defamatory requirements is that the defamatory statement must be publish and communicated to some person other than the person defamed.
Section 499 of the IPC says that if the communication of defamatory statement is between the person defaming and defamed i.e. direct SMS, E-mail, Whatsapp message etc., it would not amount in defamation. The section will cover the situation where the
communication of the defamatory statements has been made in front of third person i.e Whatsapp group, open internet or social networking sites etc. where it is seen by the other person who has been defamed.
Defamation law in India
Slander and libel doesn’t have any kind of distinction between in India and they both are criminal offense. In India it can be categories into two – Criminal and Civil.
- Defamation as a Civil (or we can say Defamation as a Tort)
The defamation under tort or civil is more for the libel it is not for the slander. In order to establish the statement is libelous it must be proved that it is false, written, defamatory and publish on the cyber space. In tort the defamation is only wrong when it harms the alive person reputation not wrong for the on the person who is dead.
- Defamation as a Crime
The IPC under chapter XXI sections 499-502 protects an person’s reputation. Defamation against the state is contained in section 124A, Section 153 of the Code provides for defamation of a class, while section 295A deals with hate speeches.
Section 499 of the IPC defines defamation as being committed by words, signs or visible representative.
Liability in Cyber Defamation
- Indian penal court
Section 499 says that whoever by spoken or written or by signs and visual representation make any publication which can harm the person reputation is excepted as defaming a person.
Section 469 says that if any person makes any false document or fake account which can harm the reputation of the person is called as offense and can be extended up to 3 years and fine.
Section 503 says that any offence of crime which is done by the use of the electronic medium to damage the reputation of the person.
- Information Technology Act, 2000
It is under the Section 66A. This law was been struck down by the Supreme Court in the year 2015. This section defies the punishment of sending offensive message through computer, mobile or tablet. In the year 2015 the whole section was quashed by The Supreme Court.
Now if a person is defamed in the cyberspace he can make a complaint in the Cyber Crime Investigation Cell. It is the unit of Crime Investigation Department.
Remedy for Defamation: Challenges
The biggest challenge for Defamation in the Digital Space is against whom the action should be initiated for defamation. The makes fun of Identity, Impersonation and Anonymity easy, as such knows the identity of the person who has caused the defamation may not be feasible at the first instance and therefore it may be difficult to initiate the proceeding for criminal defamation of filing the suit for damages for Defamation.
The appropriate step in such a case is two-fold, first, to initiate the proceeding for tracing the identity and second, to initiate the proceeding for criminal or civil defamation though these done alternatively or simultaneously which in turn implies to firstly locating the identity and then to initiate the criminal or civil proceeding.
In order to trace the Identity, the Criminal Proceeding can be initiated for Defamation by filing a complaint under section 200 Cr. P.C., accompanied by an application under section 202 Cr. P.C. with a request to court to direct the police to conduct inquiry to trace the identity of a person by locating IP address or collecting the other relevant evidences from Internet. The other option which also can be explored particularly in the cases where any cognizable offence is made out apart from the defamation, then to file criminal
complaint for registration of the FIR which may enable tracing of the Identity of the offender as well as collection of other evidences to prove the offence of defamation. The first priority for the aggrieved party in such cases of Defamation is to get remove the contents from the Internet which can be possible only through the court except in cases involving Obscenity. In case of an obscene profile, the social networking websites may remove the content as it may violate their own privacy policies. The remedy of blocking/ removal of the content can be availed in the civil as well as criminal proceeding. The removal of the content can be feasible only in cases where the offending website is located in India and in case of foreign website; the only option is for blocking of the content.
But in the most recent case of Swami Ramdev & Anr. v. Facebook Inc. &Ors[v]., Justice Pratibha Singh had passed an order to remove all defamatory content posted online against yoga guru Baba Ramdev based on a book titled “Godman to Tycoon- the untold story of Baba Ramdev”, without any territorial limit, mentioning that if the content is uploaded or if is located in India on a Computer Resource, then the Courts in India should have International Jurisdiction to pass Worldwide Injunctions. With the help of AI, it is possible to create “deep fakes,” which are AI-enhance fake pictures and videos and take leverage of “a machine-learning” algorithm to insert faces and voices into video and audio recordings of actual people and enables the creation of realistic impersonations”. Deep-fake technology wrongly portrays people saying or doing things they never said or did, alibi will become vital to proving innocence in the courtroom. In 2012, an AI ‘chatbot’ named SimSimi reportedly managed to teach itself ‘Thai’ through communication with users in Thailand. Using the new language and phrase, it had learned from the dealings with users, SimSimi went on allegedly to defame the Thai Prime Minister. There will always be a risk that AI software will pick up information which is either false or portrays accurate data in a way in which false and defamatory. As a result, the question of who is liable arises.
Another big challenge in cases of Online Defamation is to collect and preserve the digital evidence and to prove their Authenticity. The compliance of condition of section 65B and getting the forensic examination done may be necessary to prove the case beyond doubt. In case of defamation, on the public groups such as on Whatsapp, Instagram etc. proving the publication of the defamatory material may require appropriate forensic procedure to be adopted for preservation and authentication of the electronic evidence.
Getting the remedy in case of Online Defamation is difficult and more of complicated nature, but if followed appropriately, using technical and forensic procedure, it may be easy to prove and prosecute the offender and also to obtain the damages. However, these remedies are not effective and sufficient as by the time it could be enforced, the defamatory material in the form of audio, video or text would have achieved the desired impact of the offenders.
These remedies were introduced for the defamation in physical space rather than online medium as the nature of online medium is distinct from physical medium. In cyber space, the communication of publication is instant and global, spoofing the identity and anonymity is quite easy as compared to physical space. Further, the victim may not be able to produce all the evidence of communication, publication or publisher as the same can be collected through enforcement or court. Thus in an urgent need to amend the law to bring remedy for online defamation which is instantaneous similar to instantaneous communication through which it spreads and cascading impact created by it.
Conclusion
The intense volume of information and an easy way of transferring it on the Internet makes it a critical source of defamation. After researching on the aforesaid topic, it can be said that the present scenario of India regarding laws do not have an adequate
approach towards cases of cyber defamation. Also, defamation laws should be sufficiently flexible to be applied to all media. As the defamation laws in the era of the Internet, it becomes practically impossible to apply the principle of 18th and 19th-century cases to the issue arising on the Internet in the 21st century. Against this foregoing background and experiences enriched during the past decades, the following solutions would assist to a large extent in arresting cybercrime and strength monitoring mechanism of Government agencies, in ensuring promoting, protecting and preserving fundamental rights embedded in our Constitution:
Privacy needed on social networking site to avoid cyber defamation:
Networking sites have seen immense popularity in the internet world. Sites, such as Facebook, Instagram, Twitter, and My space have its boom in popularity. Social networking sites upload not only personal data and contents but also images, songs, videos, short movies, etc. Such pictures, videos, and other items can be tagged. Thus, it is essential to protect such content and its intent in totality by this social networking to ensure privacy. Otherwise, illegal act of cybercrime endangers basic preamble of the meaning of privacy and penetrate and perform injury or cause or damage or defame name and fame of the individual or entity.
With great power comes great responsibility” a familiar phrase in popular culture from the Spiderman story lines appropriately describes the situation of the use of technology and its potential misuse. With the advent of internet age, the convenience in communication has increased tremendously. However, such convenience comes with a catch. The effortless transfer of data and information over the internet has made it a critical hotspot for defamation. Although, there are laws in place which prohibit people from posting such content online, most people are not aware of the same or are too negligent to realize whether such content is defamatory or not. At times, when free speech runs contradictory to a person’s reputation it becomes pertinent for the State to establish a boundary, lest that free speech becomes a weapon in the hands of certain
people. There is a dire need of a system which educates and makes people aware of what to do and what not to do, what is wrong and what is right and what is defamatory and what is not defamatory in the cyber space. Further, the intermediaries which provide such an open platform should monitor the content posted on it and take appropriate actions against such users who post such defamatory content in order to avoid repetition in the future.
[1] The action of damaging the good reputation of someone
[2] Kalandi Charan Lenka vs State of Odisha on 22 Mar.,2001
[3] Rajiv Dinesh Gadkari vs Smt. Nilangi Rajiv Gadkari 16 Oct., 2009
[4] Cubby, Inc. vs. CompuServe Inc., 776 F. Supp. 135(S.D.N.Y. 1991)
[5] Stratton Oakmont vs. Prodigy (1995)
[6] Held on 16th Jan., 2017
