_edited.png)
Legal Article by - TANNU DAHIYA (This Article was written by her during her Internship)
In the modern era, social media and technology have captivated the attention of all. Various application such as twitter, etc provide a platform to express one’s opinion. Social media is becoming more and more popular, and with it, its misuses. Since misinformation and misunderstandings tend to spread along with it, this might be a serious disadvantage. Social media has also accelerated the rate of cybercrime.
According to data recently released by the Indian Cybercrime Coordination Centre (I4C), 7,000 cybercrime complaints were reported on average every day in May 2024. This represents a notable increase of 61.9% from 2022 to 2023 and a notable spike of 113.7% between 2021 and 2023 as per the report published by Economic Times.
DEFAMATION
Defamation can be defined as a speech that disparages the reputation of another person.
As per Section 356 of Bharatiya Nyaya Sanhita,2023, the essentials of defamation are as follows:
A false statement which is not true or real.
Harm to the reputation of the person.
Publication of the statement, meaning it must be communicated to a third person.
Intent and knowledge to harm the person's reputation.
Defamation law was first introduced by the British under section 499 of IPC,1860. Defamation can be categorised into two types: Slander and Libel.
The main distinction is that slander is verbal defamation and libel is written defamation.
Cyber Crime
The possibility of abuse increased along with the growth of computer networks. Anything wrong done offline is a wrong done online.
Any illegal behaviour through a computer network or networked device is referred to as cybercrime. Cyber defamation is also a type of cybercrime. Making inaccurate or disparaging statements about someone online or through other digital communication channels, such as social media platforms, emails, or instant messaging, is referred to as cyber defamation, or online defamation. Some examples are Cyberbullying, hate speech, revenge porn, impersonation, trolling, etc.
Legal provision in India
Bharatiya Nyaya Sanhita,2023
Section 356 (1) of the BNS defines defamation as creating or publishing false statements, whether verbal, written, or represented visually, to harm someone's reputation or know that it will do so.
Explanation 1 allegations made about a deceased person may constitute defamation if they would damage the individual's reputation if they were still alive.
Explanation 2 to include imputations about businesses or associations.
Explanation 3 Imputations made sarcastically or unconventionally may nevertheless be considered defamatory.
Explanation 4 establishes the criteria for imputations to be considered defamatory, including lowering moral or intellectual character, caste, calling, credit, or suggesting a loathsome state.
Exceptions
Public Good: Imputations even if true and for public good, are not defamation.
Opinion on Public Servant: Anything expressed in good faith regarding the conduct of a public servant in the discharge of his functions or character that appears from that conduct, no further.
Reports of court proceedings.
Opinions on court outcomes: Any opinions on the merits of the cases decided.
Opinions on the submissions made to the public at large for example books, shows, etc.
Censures by the authority made in good faith.
Imputations made for the protection of the interest.
Any cautionary statements made for the protection and good faith of the person to whom it is conveyed.
Penalties: Sections (2)(3), and (4) provide the penalties
356 (2) – simple imprisonment for two years, fine, or both or with community service.
356 (3) and (4) – publication or printing of defamatory statements and selling the same amounts for the same punishment.
Information Technology Act,2000
The IT Act lays down various provisions for dealing with cybercrime including cyber defamation:
Section 66A: In 2015, the Supreme Court struck down Section 66A, which forbade sending offensive messages over a computer or other communication equipment. While it is no longer in force, it formerly assisted in the fight against specific forms of online defamation.
Section 66C: This section deals with identity theft and impersonation, which are sometimes associated with cases of cyber-libel including the creation of false accounts or profiles to defame someone.
Section 66D: This section deals with cheating via personation, which is the act of posing as someone else to defraud and damage one's reputation.
Section 67 and 67A: It deals with the distribution of pornographic or sexually explicit content. These rules are commonly applied in cases involving revenge porn or the circulation of explicit defamatory material, even though they are not directly related to defamation.
Indian Evidence Act which now is replaced by BHARATIYA SAKSHYA ADHINIYAM, 2023 addressed the issue of the admissibility of electronic devices as evidence.
The balance between free speech and defamation laws: A Challenge
FREEDOM OF SPEECH: A Pillar of Democracy
According to Article 19(1)(a) of the Indian Constitution, the right to free speech is basic and indispensable. Defamation is one of the exceptions to it. Defamation laws and free expression have a complicated relationship. There is a thin line between Article 19 and defamation. Article 19(1)(a) attempts to protect the right to free speech, whereas defamation laws impose restrictions on it.
Misuse by powerful entities
Governments and politicians often misuse defamation sedition laws to lower the voice of media and journalists who publish news against them. There are number of journalists who have defamation suits against them.
Drawback of digitalization
Data available on the internet spreads within seconds. Fake news and deepfake videos have become common with the use of social media. It is difficult to fix accountability as the platforms and sites don’t take the responsibility for the content.
Role of Judiciary
Judiciary plays a vital role in interpreting of defamation laws and their application. The Hon’ble Supreme Court through various judgements has attempted to make a balance between the defamation laws and free speech.
Case: Subramanian Swamy v. Union of India, 2016
This case dealt with the question whether section 499 and 500 of IPC which deals with defamation are legitimate or not under the Constitution of India. Hon’ble Supreme court upheld the constitutional validity. Hence this judgement made an equilibrium between free speech and defamation laws.
References
Legal Soch Foundation offer mentorship sessions, CV and Cover Letter making, and email management services specifically designed for law students. To more more, contact 8797914487.
Comments