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DEFAMATION IN E-COMMERCE

Internet is playing a major role in our life. From calling or texting a friend to ordering a pizza, we know the medium. We can publish or retrieve any piece of data we wish to. This easy access sometimes causes problems, huge problems. One of the grave outputs is Defamation hampering someone’s goodwill.

Defamation basically means, passing statements regarding someone, intentionally in order to depreciate that human’s reputation, which can either be Slander (Temporary) or libel (Permanent). Defamation in E-commerce or say, “Cyber Defamation”, which means passing insulting / harsh statements regarding someone or for his conduct , knowing that such statements are false, in order to harm his repo in cyberspace. Also, the required provisions and statutes are there to act as a guard of the innocent prudent man, but sometimes there is misuse of these laws and statutory provisions.


There is need for amendment in the Law of defamation with respect to its applicability in cyberspace, as the internet is now the biggest way of communication & public opinion, thus the freedom of speech & expression is curtailed because the fear of suit for defamation which has become very common. This paper will fundamentally discuss briefly about the statutory provisions regarding defamation in cyber-space and the following judicial interpretations and the leading cases involved, and the liabilities of, sometimes, ISPs and the governing body (Primary publisher) for such act.


INTRODUCTION: PROLOGUE

Internet can be used to spread misinformation, just like sharing information. Websites can present false or defamatory statements or info, especially in chat rooms or cyber cafes, where this activity can be done at peanuts cost without any verification by moderators. In most cases, offenders find it much easy as providers offering cheap and free publications doesn’t require much verification or ID proof.


Wikipedia where strict procedure exists for publications, however, the same technique can be used to prevent such acts by offenders to

- Publish false information.

- Libel or slanderous messages.

- Disclose secret messages.


There’s a beauty in publishing info on internet, even if you remove it later on, it won’t get completely disappeared thereon, there might be some duplicate pages of it. Same happens with defamatory information and statements and the associated victims of it. Examples include cases or runaway emails, where millions of people or organizations. Where the damage to reputations may never be restored, regardless of the truth or otherwise of the original email. Therefore the freedom of speech and protection of the potential victims of libel needs to be well balanced.


Is Internet Defamation Defined as Slander, Libel or Both?

Until the recent development of "podcasts," and other types of online videos such as those featured on YouTube, Defamation on the Internet was largely deigned Libel. But whether an online case of accused Defamation should fall under either category of Libel or Slander will not be nearly as meaningful as whether the activity satisfies the criteria, as defined above. A recently filed case illustrates the application of a libel claim in a blogging case in NY, Stuart Pivar v. Seed Media[1],. Seed Media pays PZ Myers to blog at ScienceBlogs.com, and there he reviewed a book by Dr. Stuart Pivar, called "LifeCode: The Theory of Biological Self Organization" which purports to reconfigure Darwinian Evolution.


Myers guaranteed Pivar is an "classic crackpot" on his http://scienceblogs.com/pharyngula site. Accordingly, the claim dissension expresses, Myer's defamatory remarks were made with actual malice; Myers called Plaintiff "a classic crackpot" fully knowing that statement to be false as a statement of fact and in reckless disregard of the truth about Plaintiff because Myer's knew full well, the time of publishing his defamatory statement that no scientist holding the international reputation of any of Hazen, Sasselov, Goodwin or Tyson would endorse or review the work of a crackpot."


The complaint claims Myers caused "considerable mental and emotional distress," tortious interference with the plaintiff's business relationships as a "scientist and scientific editor," and "loss of book sales and diminished returns on ten years of funded scientific research in special damages" exceeding $5 million. The suits asks for: declaratory relief to remove defamatory statements from the web and an injunction to block further libel; $5 million in special damages for "tortious interference with business relations"; and $10 million in context of damages for defamation, emotional distress, and loss of reputation. These law suits well illustrate the libelous cause, effect and damages of a proper tort case based upon defamation.


Position In Other Countries

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 with the laws most favourable to him/her.


Position in US

In the United States, about 75% of defamation lawsuits are filed in state courts, and the remaining 25% in federal courts. A comprehensive discussion of what is and is not libel or slander is difficult, because each state's definition differs. Some states lump slander and libel together into the same set of laws. Some states have criminal libel laws on the books, though these are old laws, which are infrequently prosecuted.


So, hereby in further chapters discussions on various legal authorities and acts passed to act as savior of the affected citizens by cyber defamation and also discusses the relation and reasons of including defamation in civil and criminal perspectives of law.


STATUTORY PROVISIONS: GUARDING THE INNOCENT

Information technology Act 2000 is the principal legislation in the area of Cyber Laws. Internet lacks any geographical limits hence United Nations Commission on International Trade Law’ (UNCITRAL) proposed a certain level of uniformity of laws in all member countries – Model Law of Electronic Commerce was adopted. Dept. of IT in India proposed law based on UNCITRAL model after adoption by UN General Assembly.


THE IT ACT, 2000

In May 2000, at the height of the dot-com boom, India enacted the IT Act and became part of a select group of countries to have put in place cyber laws. In all these years, despite the growing crime rate in the cyber world, only less than 25 cases have been registered under the IT Act 2000 and no final verdict has been passed in any cases as they are now pending with various courts in the country. In spite of the fact that the law came into operation on October 17, 2000, despite everything it has a component of puzzle around it. Not just from the impression of the basic man, additionally from the view of legal counselors, law authorizing offices and even the legal.


IT Act 2000 is an encouraging, empowering Act and a regulating act. IT Act depicts different digital violations and recommends discipline for such offenses. Sections 43,65,66,67 manage Cyber Crimes under Chapter IX and XI.

But it need to evolve now, due to novel types of cyber crimes nowadays, which maybe have not been in the Act of 2000.


STATUTORY PROVISIONS GOVERNING CYBER DEFAMATION IN INDIA

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INDIAN PENAL CODE, 1860

The Indian Penal Code, 1860 contains provisions to deal with the menace of cyber defamation. 1. Section 499 of IPC:

Section 499 of IPC says 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 excepted, to defame that person. The offence of defamation is punishable under Section 500 of IPC with a simple imprisonment up to 2 years or fine or both. The law of defamation under Section 499 got extended to "Speech" and "Documents" in electronic form with the enactment of the Information Technology Act, 2000.


2. Section 469 of IPC:

Section 469 of IPC says that whoever commits forgery, intending that the document or electronic record forged shall harm the reputation of any party, or knowing that it is likely to be used for that purpose shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine. The phrase “intending that the document forged” under Section 469 was replaced by the phrase “intending that the document or electronic record forged” vide the Information and Technology Act, 2000.


3. Section 503 of IPC :

Section 503 of IPC defines the offense of criminal intimidation by use of use of emails and other electronic means of communication for threatening or intimidating any person or his property or reputation. Section 503 says that whoever, threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threats, commits criminal intimidation.


______________________________________________________________________________

INFORMATION TECHNOLOGY ACT, 2000

The Section 66A of the Information Act, 2000 does not specifically deal with the offence of cyber defamation but it makes punishable the act of sending grossly offensive material for causing insult, injury or criminal intimidation.


Section 66A of the Information Act, 2000

Section 66A of the IT Act says that any person who sends, by means of a computer resource or a communication device:-

any information that is grossly offensive or has menacing character; or 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, 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.


JUDICIAL INTERPRETATION – DEFAMATION IN E-COMMERCE OR CYBER CRIME

Perspective: Our public discourse would be deservingly enriched if our courts continue this process of jurisprudential refinement, particularly in today’s firmament, which is alive with the possibility of a slow expurgation of the wrong and the unacceptable from Indian politics.


CASE AUTHORITIES – CYBER DEFAMATION


· SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra

Considered to be the first civil defamation case of its kind and particularly on the subject of cyber defamation where it was alleged that a company’s reputation was harmed by an employee who sent derogatory and obscene emails to his employers and other subsidiary companies of the said company. Delhi High Court issued an ex-parte ad interim injunction against the employee stating that a prima facie case had been made out by the Company and thereby restrained the employee from publishing the derogatory emails.


· State of Tamil Nadu v. Suhas Katti

The case related to posting of obscene, defamatory and annoying message about a divorcee woman in the yahoo message group. E-Mails were also forwarded to the victim for information by the accused through a false e-mail account opened by him in the name of the victim. The posting of the message resulted in annoying phone calls to the lady in the belief that she was soliciting.


Charge Sheet was filed u/s 67 of IT Act 2000, 469 and 509 IPC before The Hon’ble Addl. CMM Egmore

The accused was found guilty of offences under section 469, 509 of IPC and Section 67 of IT Act, 2000, He was sentenced for the offence to undergo rigorous imprisonment for 2 years under 469 IPC and for the offence u/s 509 IPC sentenced to undergo 1 year Simple imprisonment and for the offence u/s 67 of IT Act 2000 to undergo imprisonment for 2 years.


Gremach Infrastructure Equipments & Projects Limited & Ors v. Google India Private Limited[2] Google Inc is the owner of the popular blogging platform Blogppost. Blogppost hosted a blog by one toxicwriter (a pseudonym chosen by the blogger to mask his/her identity). The writer had allegedly written certain defamatory comments about and Indian Mining company. The Bombay High Court found the postings prima facie defamatory and ordered Google to reveal toxic writer’s identity. This is only the interim order. It is unclear as to whether the company has asked for damages against Google (or whether safe harbors will come into play)

Google sought to comply with the order as not only the blog which was available at www.toxicwriter.blogspot.com but also its cache is available on Google. A few snapshots though were available on another website. Free Speech and Privacy issues notwithstanding Google may give the identifying information of the blogger. The reason for this is its own privacy policy. It stated that, “we have a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary to satisfy any applicable law, regulation, legal process or enforceable government request”.


Lalit Modi Case:

In Chris Lance Cairns v. Lalit Modi[3] has allowed a former cricketer accused of match fixing over twitter to continue with the libel action to trial in order to protect and vindicate his reputation.


Moore v. Allen:

Statements at issue were truthful and therefore not defamatory. However the case was decided in favor of the plaintiff under a claim of tortuous interference with employment contracts. “The plaintiff was awarded $60,000 in damages against a blogger who posted truthful information about him that contributed to his losing his job.


LIABILITIES OF THE ISP – INTERNET SERVICE PROVIDER

Courts generally analyzes ISP liability under the same standards as applied to newspapers and other media (anyone who exercised a substantial degree of editorial control over the distributed product).


Example: A person published defamatory material on a network and the computer redistributed that material, the owner or operator of the server will not be liable as they only permitted access to published defamatory content but they did not assist in publishing that content. Therefore proving facilitation of distribution of defamatory content is necessary.


Scenario in U.S.A

Communications Decency Act (USA) - No provider or user of an interactive computer service is treated as the publisher or speaker of any information provided by another information content provider. Thus the law is not harsh on the ISPs.


Factors to be taken into consideration by ISPs: ISPs and Web site hosts or owners must, therefore, take care to hold tight or control the information published on their Web sites. Factors that could possibly be taken into limelight in determining whether an ISP or a Web site owner have exercised reasonable care would be: # The nature and purpose of the site containing the defamatory material; # Whether the monitoring system is proportionate to the size of the site; # The amount and characteristics of information flowing through the site; # The characteristics of the site users; # Whether or not the Web site attracted repeat offenders and, if so, why was the site then not removed, and; # Whether or not defamatory material was done away with immediately upon request by the person being defamed.


RESULTS

The present trend of legislation and also the judicial approach to such offences appears to be such that these offences are treated lightly and the punishments are not adequate having regard to the gravity of such offences.

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 internet in 21st century.[4]

In my opinion the Law Commission should take brave task of analyzing such crimes, which are at the threshold and come up with recommendations in order to build the existing legal machinery against such offences. For this purpose necessary amendments could be made to Section 67 of the Information Technology Act, 2000 and also to Section 499 of the Indian Penal Code, by expressly bringing within their ambit offences such as defamation in cyber space, which is certainly a socio-economic offence.


LOOPHOLES –

The IT Act does not provide for the definition of ‘publication’ – the most important element of defamation.

Act provides remedy only for publication of obscene material thus limiting the scope.

Liability of Intermediary (ISP) is absolved under IT Act, which is in contravention of Section 501 of IPC.


RECCOMENDATIONS -

As mentioned in the discussions in the above chapters, these offensive and derogatory messages over social media may sometime lead to the suicides (of girl/women victims), these offenses should be non-bailable with increase in punishment from 3 years to 7 years with increased fine amount of Rs. 1 lakh from current Rs. 50,000/- so as to act as real deterrence. And in case of repeated offenses, amount should be doubled. The IT Act 2000 and the respective provisions should be amended to this effect.[5]


[1] 2007cv07334, Filed August 16, 2007, in New York Southern District Court [2] 508/2008 Bombay HC, Order passed by Justice Dr. D.Y Chandrachud. [3] (2010) EWHC 2859 (QB) the London High Court Queens Bench Division [4] http://www.legalservicesindia.com/articles/defcy.htm [5] https://wizardlegal1.wordpress.com/2014/06/20/cyber-defamation/



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Author Details: Ayush Tiwari (4th year student at University of Petroleum and Energy Studies)


The views of the author are personal only.

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