Online Defamation and Various Legal Issues

The concept of defamation in India is defined under Section 499 of Indian Penal Code. The concept is very old and is backed up by various judicial pronouncements.

It is pertinent to mark that what statements are defamatory and the span of defenses varies from jurisdiction to jurisdiction but there is common agreement in all jurisdictions that statements that are unflattering, annoying, irksome, embarrassing or hurt one's feelings are not actionable.

Court in various cases held that for proving the clause of defamation it is pertinent to prove the mens rea of the defendant. Here, it is to be taken into consideration that if a statement is made with a good intent and is for a good purpose, it cannot be said to be a case of defamation even if it contains allegations against a party.

Before proving the case of defamation guidelines mentioned in Panday Surinder Nath Sinha v. Bageshwari Prasad, case can be considered. Where distinction between absolute and qualified privilege was brought out as under:
(i) In absolute privilege, it is the occasion which is privileged and when once the nature of the occasion is shown, it follows, as a necessary inference, that every communication on that occasion is protected; in qualified privilege, the occasion is not privileged, until the defendant has shown how that occasion was used. It is not enough to have an interest or a duty in making a statement the necessity of the existence of an interest of duty in making the statement complained of, must also be shown.

(ii) In absolute privilege, the defendant gets absolute exemption from liability; in a qualified privilege, the defendant gets a conditional exemption from liability.

(iii) In absolute privilege, the defendant is exempted from liability even when there is malice on his part; in qualified privilege, the defendant is exempted from liability only when there is no malice on his part.

(iv) In absolute privilege, statements are protected in all circumstances, irrespective of the presence of good or bad motives; in qualified privilege, even after a case of qualified privilege has been established by the defendant, it may be met by the plaintiff proving in reply improper or evil motive on the part of the defendant, in which case defense of qualified privilege vanishes and the plaintiff succeeds; and

(v) In absolute privilege as well as in qualified privilege, the defendant has to prove his plea of privilege, but with this difference that in absolute privilege the defense is absolute and irrefutable by plaintiff, whereas in qualified privilege the defense is not absolute but reputable by the plaintiff.

What is actual malice- A statement made with a knowledge that it was false or with reckless disregard of whether it was false or not constitutes actual malice as explained in Sullivan's case.

Also, proving the case of defamation the decision of Tsc Wai Paul v. Chang, (2001) EMLR 777 may be considered which talks about the concept of fair comment. It was held that comment which falls within objective limits of the evidence of fair comment can loose its immunity only by proof that the defendant did not genuinely hold the view that he expressed, Honesty of the belief is the touchstone.

Thus, after observing Adam v. Ward, as observed at page 327 of the report: Hon'ble Pradeep Nandrajog, J.in the year 2006 in Ram Jethmalani Vs.Subramaniam Swamy held If the defamatory statement is quite unconnected with and irrelevant to the main statement which is ex-hypothesis privileged then I think it is more accurate to say that the privilege does not extend thereto than to say that the result may be the same, that the defamatory statement is evidence of malice. then I think the first way is the true way to put it, and under it will also range all the cases where the express malice is arguable I may note that this test was adopted by the Division Bench of the Bombay High Court in Janardan Karandinkar's case.

Concept of Online Defamation

The Communications Decency Act 1996 (CDA) (United States Enactment)
Section 223 of 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 230 Protection for Private Blocking and Screening of Offensive Material

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.

Civil liability: No provider or user of an interactive computer service shall be held liable on account of -
1. 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

2. 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)

Zeran v. AOL- Decided 12/11/97
Shortly after the Oklahoma City bombing, an unknown person posted messages on an AOL bulletin board falsely implicating Zeran. Zeran filed a lawsuit against AOL for the allegedly defamatory postings. The case concerned the question of whether AOL may be liable for allegedly being unreasonably slow to remove a series of allegedly defamatory messages posted on AOL message boards by an unidentified third party. The US District court granted the judgment in favour of AOL, holding that section 230 of the CDA, known as the good Samaritan provisions, protects providers of interactive computer services from liability for defamatory information posted on the network by someone else. The same was affirmed in the future appeals as well as at the Supreme Court.

Lunney v. Prodigy Services Company Opinion Decided 2/12 99
In its first major ruling on privacy and defamation in cyberspace, the court of appeals held that an ISP is merely a conduit for information, as opposed to a publisher, and consequently is no more responsible than a telephone company for defamatory materials transmitted over its lines.

Patrick Cahill v john Doe
The Delaware Supreme Court held that when guidelines on the top of the blogs state that the forum is dedicated to opinions, then the statements are considered not as matter of facts. However, in Singapore two ethic Chinese were punished under the country's anti sedition law for posting anti Moslem remarks in their weblogs. Internet service providers are thus in general, immune from liability for information that originates with third parties.

Privacy Policy of some of the Blogging sites

Google's privacy policy
 

Information sharing:
Google only shares personal information with other companies or individuals outside of Google in the following limited circumstances:
1) With consent
2) To subsidiaries, affiliated companies or other trusted businesses or persons for the purpose of processing personal information in their behalf.
3) They 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 governmental request, or enforce applicable terms of service including investigation of potential violations thereof, or detect, prevent or otherwise address fraud, security or technical issues, or protect against imminent harm to the rights, property or safety of google, its users or the public as require or permitted by law.

Blogger.com's privacy policy:

Blogger will not disclose the contents of a members information unless required to do so by law or in the good faith belied that such action is necessary to conform to the edicts of the law or comply with legal process served on Blogger; protect and defend the rights or property of Blogger, or act under exigent circumstances to protect the personal safety of BTS members or the public; fix or debug problems with the Blogger software/service.

Content responsibility:
Member acknowledges and agrees that Blogger neither endorses the contents of any Member communications nor assumes responsibility for any threatening, libelous, obscene, harassing or offensive material contained therein, any infringement of third party intellectual property rights arising there from or any crime facilitated thereby.

Quite clearly, the page providers do not claim any responsibility for the opinion of the people. Internet service providers are also wary of disclosing the personal information regarding the people who blog at their sites. Giving information to one person would mean that they would have to be answerable to millions of others. ISPs only agree to do so when it is absolutely necessary under the law or due to an order passed by a competent court.

Position in India
India is the only country which has both civil as well as criminal defamation in its legal books. That is another reason why rights of the people should clearly be laid down. People in India are liable for defamation not just to the extent of payment of damages but also undergoing imprisonment. Millions of people could be charged for defamation just by giving their opinion which in the eyes of some may be defamatory.

The problems for ISP's are just beginning. Some sites have already been blocked due to government directives. Bloggers in India are getting together to protest against the sudden blocking of popular Google-owned blog-hosting site Blogger by some (ISPs) like Spectranet, Mahanagar Telephone Nigam Limited (MTNL), Reliance Powersurfer, Airtel Broadband and Sify.

On July 15, the Department of Telecommunications (DoT) had sent ISPs a list of sites to be blocked. R H Sharma, senior engineer with MTNL, said the list ran into some 22 pages. Now, several bloggers have organized themselves into a Blogger's Collective and are planning to file a Right to Information application to obtain the list.

Under the Information Technology Act, 2000, a body called the Computer Emergency Response Team, or CERT-IN, was created along the lines of similar authorities the world over. Although its main task is in the domain of Internet security, it also oversees Internet censorship under a clause that seeks to ensure 'balanced flow of information.' Any government department seeking a block on any web site has to approach CERT-IN, which then instructs the DoT to block the site after confirming the authenticity of the complaint. In 2003, one of the first things CERT-IN did was to approve the blocking of an obscure mailing list run by a banned militant outfit, the Hynniewtrep National Liberation Council (HNLC) of the Khasi tribe in Meghalaya. Ironically, the popularity and visibility of the list went up by leaps and bounds, despite it being blocked by all ISPs. Many could still see the list via email or proxy surfing.

Whether such blocking is arbitrary, unreasonable and unfair and in violation of Articles 14, 19 and 21 of the Constitution of India is a question, which remains to be answered by the Indian Courts.

Defences for Defamation

Defamation is defined as the publication of a statement which reflects on a person's reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him. The Indian Penal Code, 1860 defines defamation as the wrong done by a person to another's reputation by words, signs or visible representation (S. 499) . The aim of the law of defamation is to protect one's reputation, honour, integrity, character and dignity in the society. Defamation is both a crime and a civil wrong. An aggrieved person may file a criminal prosecution as well as a civil suit for damages for defamation.

There is no statutory law of defamation in India except the Chapter XXI (Section 499 -502) of the Indian Penal Code. As far as civil liability of defamation is concerned, it has been long settled in the country that an action for damages would lie in proper cases. A large number of artificial and technical rules have grown around this branch of law in England. Though courts in India are not bound by them however, the dicta may be helpful in that they can be applied to Indian cases as principles of equity, justice and good conscience.

Under common law there are some general defenses available to all torts like consent, apology, accord, limitation and previous judgments. Another defence, 'Secondary Responsibility which was earlier embedded in the defence of 'innocent disseminators' is also being discussed.
Accord –
Accord signifies the presence of assent from the plaintiff. In Lane v. Applegate[(1815) 1 Stark 49] the defendant burnt libelous papers on plaintiffs agreeing not to sue if that was done. The court held that as there was a prior accord from the plaintiff he could now not claim for damages.

Apology –
An apology is not under the common law, a defence to an action for defamation but it is only a circumstance in mitigation of defences. However, in England under the Libel Act of 1943 this defence is available under certain circumstances. For example- Apology is available as a defence in actions for libel against newspapers and other periodical publications if the newspaper inserts a sufficient apology and adheres to certain other conditions. When there is an apology and an acceptance there of the defendant can resist the plaintiff's suit for reimbursement for defamation. Nevertheless, there has been no similar legislation in India. In past judgments the court has held that even if the plaintiff accepted an apology and withdrew a criminal prosecution for defamation he can still sue the defendant in a civil suit (Govindacharylulu v Srinivasa Rao AIR 1941 Mad 860. This ratio was reiterated in Narayanan v Mahendra AIR 1957 Nag 19).
Consent –
As observed by Salmond if the plaintiff has expressly or impliedly consented to the publication complained of or if it had invited the defendant to repeat those words before witness the defendant can use this defence. If a person telephones a newspaper with false information about himself, he would not be able to sue in defamation when the newspaper publishes it.

Limitation –
In India, the right to take legal action for defamation is restricted in accordance with the Limitation Act, 1963 to a period of one year. (Section 75 and Section 76 of the Limitation Act limit the period of filing a suit for compensation of libel and slander respectively to one year).

Specialized Defence to Defamation

# Justification by Truth
# Fair (and bona fide) Comment
# Privilege (which may be either absolute or qualified)

Justification by Truth

In a defamation suit it is not required from the claimant to prove the falsity of the statement for the reason that the law assumes that in his favour. Nevertheless the defendant can plead justification (the technical expression for truth). Truth of defamatory expression is an absolute defence in a civil action. The law has recognized this defence for the reason that since defamation is essentially an injury to a man's reputation, when it is shown that what is spoken of person is true it means only that his reputation has been brought down to its proper level and there is no reason for him to complain. M'Pherson v. Daniels (1829 10 B & C 263) embodies this principle commenting that the law will not permit a man to recover damages in respect to an injury to a character which he either does not or ought not to possess. The motive or maliciousness is immaterial to the extent the charges are correct. It would make no difference in law that the defendant had made a defamatory statement devoid of any belief in its truth, if it turned out afterwards to be true when made.

Whenever this plea of justification is raised by a defendant the burden is cast upon him to prove that precise imputation complained of. If the words impute a definite offence, e.g. stealing a watch, it is not enough to prove that the plaintiff was guilty of another offence though of the same character, e.g. stealing a sunglass. According to the rules of common law in case of multiple and distinct charges, each charge must be proved to be true to avail the defence. This rule has somewhat been amended and relaxed. If the defendant is successful in proving the truth regarding some of the charges only, the defence of justification will still be available if the charges not proved do not materially injure the reputation. The defendant must show that the imputation made or repeated by him was true as a whole and in every part thereof. The defendant need not show that the charge he seeks to justify is precisely true in every particular: what matters is whether it is substantially true. If the statement is to a large extent true but false in certain minor aspects, the protection will still be accessible. But if there is gross exaggeration, the plea of justification will fail.

In Gulf Oil v Page (1988 Ch. 327) it has been held that the Fourth Estate is authorized a degree of overstatement or exaggeration even in the context of factual assertions.

Where the words complained of add up to specific statements of a fact, for example, the plaintiff stole a car from the defendant's premises, it is adequate to plead that the said words are true. On the other hand if, the words convey a general charge, for example the plaintiff is a swindler or pickpocket, it is not adequate to plead merely that the said words are true, but the defendant must give particulars of facts on which the charge is based and plead that those facts are true. In a case of innuendo, the defendant must plead the truth of the words both in the natural and alleged hidden meaning.

In criminal law truth is not an absolute justification. It can only be availed if it is shown that the publication was for public benefit or public good. In accordance to the Exception 1 of Section 499 of the Indian Penal Code (It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for public good is a question of fact.), it is not enough that the words complained of are true, the defendant must then be prepared to go further and prove that not only are the words true, but that it is also for the public benefit that they should be published.

Limitations-
Truth is in any sense no justification in case of speaking ill about any religion or god. This would amount to blasphemy or sacrilege. In addition, truth cannot be claimed as a justification in case of defamation of the State called Sedition.
in Simi Garewal v T.N. Ramachandran (CA 387/74) a still from a US film was proposed to be published by a magazine owned by the defendant. It was against this proposed publication that the plaintiff sought for the issue of an injunction restraining the defendant form doing that. She alleged that the defendant wanted to defame her in the Indian society and among the Indian people. The defendant pleaded among other things that the photo was a true photo of a scene in the film. The court honoured the defendant's plea holding that once it is established that the representation or statement in question is true in substance and in fact, it is totally irrelevant to judge whether it is defamatory or not. Further the court said that a person has no right to the protection of the reputation to which that person is not entitled.

A comment is a statement of opinion on facts. It is an expression of opinion rather than assertion of fact. Making fair comments on matters of public interest is a defence in an action for defamation. It must be related to certain true facts and these facts must be known to the public or the commentator should make it known along with the comment. If the facts upon which the comment purports to be made do not exist or are fictions, the Fundamentum (foundation) of the plea is exhausted. (Subhash Chandra Bose v R. Knight & Sons AIR 1929 Cal 69 –where the distinction between fact and comment is obliterated there is no existence of fair comment.)

The comment must be bona fide as malice destroys the defence. If due to malice on the part of the defendant the comment is a distorted it ceases to be fair and the defence can not be availed. This is an exception to the general principle that the motive of the defendant is irrelevant in the law of tort.
Matters of public interest contains matters in which public is legitimately concerned or interested. These envelop a wide spectrum of subjects and individuals. In modern times the ambit of public interest has encompassed everything relating to national, state or local governments, the administration of public and private institutions, and the public conduct of public officials, clergyman, judges, advocates, political candidates and agitators who take part in public affairs. The conduct of all civil and criminal actions in courts, the decisions of Judges and the evidence of witnesses can properly be commented upon when the trial is over.

Fair Comment-
The defence of fair comment is different form that of justification. Under the latter, the defendant must prove the truth of every defamatory fact alleged and every injurious imputation made. On the other hand, under the former the defendant must prove that the facts on which the comment is based are true and that the comment on these facts is fair.

Another point of distinction is in relation to the mental state of the defendant. In the case of justification the state of mind of the defendant at the time he published the defamatory imputations is immaterial. Thus the presence of actual malice is irrelevant to the defence of justification. In contrast, in the case of fair comment the sate of mind of the defendant at the time he published the defamatory statements is most material. Thus he cannot avail of any facts as justifying his comment of which he was ignorant at the time he published the words complained of. Proof of actual malice would defeat the idea of fair comment.
Under fair comment it is enough to prove that there was some substratum of fact on which the comment was based. To succeed in a defence of fair comment the defendant must show that the words complained of were:
• expressions of opinion and not statements of fact, i.e., they constituted mere comment
• fair and bona fide (without malice)
• on a matter of public interest

The word 'fair' embraces the meaning of honest and also of relevancy. The view expressed must be honest and must be such as can fairly be called criticism. The word 'fair' refers to the language employed, and not to the mind of the writer. Mere exaggeration or even gross exaggeration does not make a comment unfair but maliciousness may negative fairness.

Comment in order to be fair must be based upon facts, and if the defendant cannot show that his comments contain no misstatement of fact he cannot prove a defendant of fair comment. Facts on which the comment is based must be truly stated though later on they may not turn out to be true at all. A fact may be truly stated and may yet be utterly untrue. Where the facts on a matter of public interest have been correctly stated, the test of fair comment is whether the opinion which is expressed in the comment even though it might be exaggerated, obstinate or prejudiced was honestly held by the writer. The comment to be fair must be based on true facts and must be objectively fair in the sense that any man however, prejudiced and obstinate could have honestly held the views expressed. The defence is concerned with protection of comments and not imputation of fact.

In Gregory v Duke of Brunswick (1843 6 M & G 205) the plaintiff an actor, appeared on the stage of a theatre and the defendant and other persons actuated by malice hissed and hooted at the plaintiff and thereby caused him to lose his engagement. Hissing and hooting after conspiracy was held to be actionable and that was not a fair comment on the plaintiff's performance.

On certain junctures law articulates that the right to free speech overshadows the plaintiff's right to reputation. These instances are coined 'Privileges' and a defamatory statement made on such occasions is not actionable. Privilege is a protective umbrella or immunity conferred by law on statements or communications made on certain 'privileged occasions'. Privileged occasions are occasions when a person has a duty or interest in making certain statements to some person or persons having a corresponding duty or interest (Lord Atkinson in Adam v Ward 1917 AC 309); also in Ram Jethmalani Vs.Subramaniam Swamy;

Privileges are of two types:
Absolute and Qualified. Instances of the former are statements made by a judge, advocate or witness during proceedings in a court of law. Whereas statements made by a person about his former servant to an intending employer or about a crime to the police are instances of qualified privileges. In the case of an absolute privilege it is not open to the plaintiff to prove malice to negative the privilege; in the case of qualified privilege it is so open. The reason is that public interests require that persons in the positions of judge, advocate or witness should be able to discharge their duties without fear or legal proceedings for defamation. In the case of person having a qualified privilege the demands of public policy are not so high, but require only that they should protected from liability so long as they are not proved to have acted from an improper motive. (Ramadas v Raja 1958 Raj 257)

Absolute Privilege –
In matters of absolute privilege, no action lies for the defamatory statement even though the statement is false or has been made maliciously. In these cases, the public interest demands that the individual's right to reputation should give way to the freedom of speech. Absolute privilege is recognized in the case of parliamentary proceedings, judicial proceedings, State communications and Military and Naval Proceedings. Thus statements made by an officer of the state to another in course of official duty are absolutely privileged for reasons of public policy.

An absolute privilege extends to statement and words used in the proceedings which have relevance to the matter before the court. These words should not cross the limits of relevance. In Pukhraj v State of Rajasthan (1973 SCC (Cri) 944) it was held that the words (sale, gunde, badmash) and actions (kicking the plaintiff) of postal authorities had no link to the discharge of their duties. An action for defamation therefore was valid.

Qualified Privileges –
A privileged occasion in reference to a qualified privilege is when a person who makes a communication has an interest or a duty – legal, social or moral – to make it to the person to whom it is made has a corresponding interest or duty to receive it. The test for this defence is requirement of public interest. In certain cases the speaker is prevented if there is absence of malice.

In Radheshyam Tiwari v Eknath (AIR 1985 Bom 285) the defendant who was the editor of a local Marathi Weekly published a series of articles mentioning that the plaintiff, who was a BDO, issued false certificates, accepted bribe, adopted corrupt and illegal means to mint money and was a 'Mischief Monger'. In an action for defamation, the defendant pleaded all three defences. The defence of Justification was discarded as truth of facts mentioned could not be proved. The defence of Fair Comment was not accessible because there was a statement of fact, rather than an expression of opinion. The defence of qualified privileges could also be not availed because the publications were mala fide.

End-Notes:
* Defamation is public communication which tends to injure the reputation of another
* Sh. R.K. Jha Vs. Govt. of NCT of Delhi and Anr.; also in: Ch. Ramoji Rao, Chairman Ramoji Group of Companies and Anr. Vs. State of Andhra Pradesh Defamation - Content of the voice over commentary was not intended in any manner to defame or harm the reputation of the Chief Minister or his entourage of ministers and officials
* Winfield and Jolowicz on Tort
* 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, to defame the person.

Related Articles on Torts law:
Torts In India
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Economic Torts
Negligence as a Tort: Meaning Essentials And Defences
Is It Law of Tort or Law of Torts: The Controversy And Theories
Doctrine of Constitutional Tort : Evolution And Evaluation
Nuisance: A Tort
Confidentiality, An Emerging Tort In India
Minors In Torts
Conversion - an Intentional Tort
Malicious Prosecution under Law of Tort
Quantum of damages in Tort Law
False Imprisonment as a tort
Vicarious Liability
Environmental Tort from Indian Perspective
Trespass: Tortious Liability
Private Nuisance in Tort Law
Comprehensive Analysis of Tort
Law of Tort And Sports Litigation
Childish Behavior and Law of Torts
Tortious Remedies - Injunction
Mass Torts and MNC's Liability

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