Cyber Defamation, The Law, practice and Future
Cyber Defamation
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY,
LUCKNOW2014-15
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
ACKNOWLEDGMENTFirstly, 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
HYPOTHESIS OF THE PROJECTCyber 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.
INDEX.
1. INTRODUCTION
2. DEFAMATION IN GENERAL
3. DEFAMATION ON THE INTERNET: THE RISING ISSUE4. DISTINCTIVE
FEATURES OF CYBER DEFAMATION AND IMPACT5. LAW OF CYBER DEFAMATION
IN VARIOUS COMMONWEALTH COUNTRIES.6. IT ACT, 2008: THE ROAD AHEAD7.
DISSCUSSION8. SUGGESSTIONS9. CONCLUSION10. BIBLIOGRAPHY
1.INTRODUCTIONThe 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.
2.DEFAMATION IN GENERAL
The law gives protection to a mans 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
ones reputation, honour and dignity in society. 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.
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. 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 persons reputation, It may be by
means of words, pictures, visual images, gestures or any other
method of signifying meaning. 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.
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.
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.
3.DEFAMATION ON THE INTERNET: THE RISING ISSUEIt 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 ones 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. 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.
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.
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.4.DISTINCTIVE FEATURES OF
CYBER DEFAMATION AND IMPACT
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?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 NatureAnother 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 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. AccessabilityAccessability 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. AnonymityAnother 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 COUNTRIES1.
POSITION IN UNITED STATES OF AMERICAThe Communications Decency Act
1996 (CDA) (United States Enactment)Section 223of 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 230Protection 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 '
(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 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. 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
ProgenyIn 1964, the United States departed dramatically from its
common law tradition. In New York Times v. Sullivan, 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. 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.
This phenomenon, now widely termed "the chilling effect," 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 such, the Court created two distinct standards for
fault: one for defamed public officials and one for defamed private
individuals. HYPERLINK
"http://www.lexisnexis.com:80/us/lnacademic/frame.do?reloadEntirePage=true&rand=1254653078135&returnToKey=20_T7496149713&parent=docview&target=results_DocumentContent&tokenKey=rsh-20.481236.03264888603"
\l "n39" 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.
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. HYPERLINK
"http://www.lexisnexis.com:80/us/lnacademic/frame.do?reloadEntirePage=true&rand=1254653078135&returnToKey=20_T7496149713&parent=docview&target=results_DocumentContent&tokenKey=rsh-20.481236.03264888603"
\l "n81" These courts would not support an exercise of jurisdiction
simply because material was accessible within the jurisdiction.
2: POSITION IN UNITED KINGDOMThe 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
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.
IMPORTANT CASES
1. Laurence Godfrey v DemonInternetLtd.
In UKs first cyber defamation case, the defendants, who carried
on business as anInternetservice 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 theDefamationAct 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-
HeldGranting 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
theInternetthe 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
2.Jameel (Yousef) v Dow Jones & Co Inc
The foreign claimant issueddefamationproceedings in England
against the publisher of a US newspaper in respect of an article
posted on anInternetwebsite in the USA, which was available to
subscribers in England. The claimant alleged that the article,
together with a list of names in anInternethyperlink 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 theInternetarticle, 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
Englishdefamationlaw that the publication of a defamatory article
damaged the person defamed by it; that the bringing of
adefamationclaim 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 others
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 respectiveinternetservice
providers although he did not plead that any of them had hosted any
website 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 theinternetservice provider defendants.
Theinternetservice provider defendants applied for orders that the
claims against them be struck out or dismissed on a summary basis.
The court considered whether aninternetservice provider could be
liable in respect of material which was simply communicated via the
services which they provided. Theinternetservice provider
defendants contended, inter alia, that the necessary ingredients
for publication were missing.
Held - Aninternetservice provider which performed no more than a
passive role in facilitating postings on theinternetcould 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 theinternetservice 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.
The recent case: Dow Jones & Co. v. Gutnick
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. HYPERLINK
"http://www.lexisnexis.com:80/us/lnacademic/frame.do?reloadEntirePage=true&rand=1254653078135&returnToKey=20_T7496149713&parent=docview&target=results_DocumentContent&tokenKey=rsh-20.481236.03264888603"
\l "n86" 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. HYPERLINK
"http://www.lexisnexis.com:80/us/lnacademic/frame.do?reloadEntirePage=true&rand=1254653078135&returnToKey=20_T7496149713&parent=docview&target=results_DocumentContent&tokenKey=rsh-20.481236.03264888603"
\l "n87" 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.
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 FARSo 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. 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.
SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra
Indias first case of cyber defamation; was reported when a
companys 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.
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, Madras
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.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 orinformation 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 messageSome 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)).
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. DISSCUSSIONThe impact of the First Amendment has resulted in
a substantial divergence of approach between American and
Englishdefamationlaw. 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 theProdigycase.Wilkinson C.J. inZeran
v. America Onlinestated 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 publishers role. Thus, lawsuits seeking to hold a service
providers liable for its exercise of a publishers 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.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. SUGGESTIONSWatching 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,
its 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.
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): 1620 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 libel
http://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/
K.D.Gaur, A Text Book on the Indian Penal Code, 3rd ed. updtd
rep. 2008, pg 744
Abbey L. Mansfield, Cyber-Libeling the Glitterati: Protecting
the First Amendment for Internet Speech,
9 Vand. J. Ent. & Tech. L. 897
David Bainbridge, Introduction to Computer Law, 5th ed. 2004,
pg. 329
Ibid
Govinda Charyulu v Sheshgiri Rao, AIR 1941 Mad 860 (861)
Supra note 1
Ibid
Sharon K. Black, Telecommunication Law in the Internet Age, 1st
ed. 2002, pg. 418
Clive Gringras, The Laws of Internet, 2003, pg. 123
Abbey L. Mansfield, Cyber-Libeling the Glitterati: Protecting
the First Amendment for Internet Speech,
9 Vand. J. Ent. & Tech. L. 897
HYPERLINK
"http://www.cyberlibel.com/elements.html"http://www.cyberlibel.com/elements.html
retrieved on 12/11/2009
Frederick Schauer, The Exceptional First Amendment, in American
Exceptionalism and Human Rights 29, 38 (Michael Ignatieff ed.,
2005).
N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964)
Id 10
Id 12, pg 279
Arielle D. Kane, Note, Sticks and Stones: How Words Can Hurt,
HYPERLINK
"http://www.lexisnexis.com:80/us/lnacademic/mungo/lexseestat.do?bct=A&risb=21_T7496144697&homeCsi=239002&A=0.4742577520947512&urlEnc=ISO-8859-1&&citeString=43%20B.C.%20L.%20Rev%20159,at%20181&countryCode=USA"
\t "_parent"43 B.C. L. Rev. 159, 181 (2001);
Abbey L. Mansfield, Cyber-Libeling the Glitterati: Protecting
the First Amendment for Internet Speech,
9 Vand. J. Ent. & Tech. L. 897
Ibid
[2001] QB 201
[2005] QB 946
[2006] 3 All ER 336
HYPERLINK
"http://www.efa.org.au/Issues/Censor/defamation.html"http://www.efa.org.au/Issues/Censor/defamation.html
retrieved on 12/11/2009
(2002) 210 C.L.R. 575
Id pg. 607
S.K Varma and Raman Mitta, Legal Dimensions of Cyberspace, pg
312
HYPERLINK
"http://cyberlaws.net/cyberindia/defamation.htm"http://cyberlaws.net/cyberindia/defamation.htm
acessed on 12/11/2009
MANU/TN/1677/2009, decided on 16.07.2009
Pranesh Prakash, Centre for Internet and Society
Accessed from: HYPERLINK
"http://www.cis-india.org/advocacy/igov/it-act/short-note-on-amendment-act-2008"http://www.cis-india.org/advocacy/igov/it-act/short-note-on-amendment-act-2008,
last on 13/11/2009
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