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Cyber Defamation, The Law, practice and Future

DR. RAM MANOHAR LOHIYA NATIONAL LAW


UNIVERSITY, LUCKNOW
2014-15

LAW OF TORTS
(Final Draft)
CYBER DEFAMATION

Submitted To:

Submitted By:

Dr. Rajneesh Yadav


Awasthi

Shobhit S.

Asstt. Prof. ( Law)

Roll No. 130


Semester 1st

Dr. RMLNLU Lucknow


Section- B

ACKNOWLEDGMENT:
Cyber Law Research Paper |

Cyber Defamation, The Law, practice and Future

Firstly, 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.

Thank you!

SHOBHIT SAINESH AWASTHI

INDEX.
Cyber Law Research Paper |

Cyber Defamation, The Law, practice and Future

1.

INTRODUCTION

2.

DEFAMATION IN GENERAL

3.

DEFAMATION ON THE INTERNET: THE RISING ISSUE

4.

DISTINCTIVE FEATURES OF CYBER DEFAMATION AND IMPACT

5.

LAW OF CYBER DEFAMATION IN VARIOUS COMMONWEALTH COUNTRIES.

6.

IT ACT, 2008: THE ROAD AHEAD

7.

DISSCUSSION

8.

SUGGESSTIONS

9.

CONCLUSION

10.

BIBLIOGRAPHY

1.INTRODUCTION
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Cyber Defamation, The Law, practice and Future

The 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 paper 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 paper also
discusses jurisdictional issues in such crimes, the problems connected and solutions
thereof.

HYPOTHESIS OF THE PROJECT

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Cyber Defamation, The Law, practice and Future

Cyber 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.

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.1 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.2
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.3 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.
1

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
3
David Bainbridge, Introduction to Computer Law, 5th ed. 2004, pg. 329
2

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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. 4 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.5
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, 1843.6
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.7

3.DEFAMATION ON THE INTERNET: THE RISING ISSUE


It 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
4

Ibid
Govinda Charyulu v Sheshgiri Rao, AIR 1941 Mad 860 (861)
6
Supra note 1
7
Ibid
5

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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.9
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."

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 chatrooms, or in electronic newspapers, has complicated defamation jurisprudence. 10
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 multinational 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

IMPACT11

Sharon K. Black, Telecommunication Law in the Internet Age, 1st ed. 2002, pg. 418
Clive Gringras, The Laws of Internet, 2003, pg. 123
10
Abbey L. Mansfield, Cyber-Libeling the Glitterati: Protecting the First Amendment for Internet Speech,
9 Vand. J. Ent. & Tech. L. 897
9

11

http://www.cyberlibel.com/elements.html retrieved on 12/11/2009

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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?
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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 Nature
Another 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.

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3. Accessability
Accessability 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. Anonymity
Another 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


COUNTRIES
1. POSITION IN UNITED STATES OF AMERICA
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
(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.

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'(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
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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.12
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 Progeny
In 1964, the United States departed dramatically from its common law tradition. In New
York Times v. Sullivan13, 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.14 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

12

Frederick Schauer, The Exceptional First Amendment, in American Exceptionalism and Human Rights 29,
38 (Michael Ignatieff ed., 2005).
13
N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964)
14
Id 10

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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.15
This phenomenon, now widely termed "the chilling effect," 16 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. 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."

15
16

Id 12, pg 279
Arielle D. Kane, Note, Sticks and Stones: How Words Can Hurt, 43 B.C. L. Rev. 159, 181 (2001);

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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.17
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

17

Abbey L. Mansfield, Cyber-Libeling the Glitterati: Protecting the First Amendment for Internet Speech,
9 Vand. J. Ent. & Tech. L. 897

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jurisdiction's audience. These courts would not support an exercise of jurisdiction


simply because material was accessible within the jurisdiction.18

2: POSITION IN UNITED KINGDOM


The 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;

18

Ibid

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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

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Laurence Godfrey v Demon Internet Ltd.19

1.

In UKs first cyber defamation case, the defendants, who carried on business as
an Internet service 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
the Defamation Act 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 applicationHeld
Granting 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 the Internet the 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

19

[2001] QB 201

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2.Jameel (Yousef) v Dow Jones & Co Inc20


The foreign claimant issued defamation proceedings in England against the publisher of a
US newspaper in respect of an article posted on an Internet website in the USA, which
was available to subscribers in England. The claimant alleged that the article, together with
a list of names in an Internet hyperlink 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
the Internet article, 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 ordersHeld, (1) dismissing the appeal against the striking out of part of the defence, that it was an
irrebuttable presumption in English defamation law that the publication of a defamatory
article damaged the person defamed by it; that the bringing of a defamation claim 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 others21


20
21

[2005] QB 946
[2006] 3 All ER 336

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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 respective internet service 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 the internet service
provider defendants. The internet service provider defendants applied for orders that the
claims against them be struck out or dismissed on a summary basis. The court considered
whether aninternet service provider could be liable in respect of material which was
simply communicated via the services which they provided. The internet service provider
defendants contended, inter alia, that the necessary ingredients for publication were
missing.
Held - An internet service provider which performed no more than a passive role in
facilitating postings on the internet could 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 the internet service 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
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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.22
The recent case:
Dow Jones & Co. v. Gutnick23
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.
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. 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.24
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
22

http://www.efa.org.au/Issues/Censor/defamation.html retrieved on 12/11/2009


(2002) 210 C.L.R. 575
24
Id pg. 607
23

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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 FAR


So 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.25
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

25

S.K Varma and Raman Mitta, Legal Dimensions of Cyberspace, pg 312

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the employee from sending, publishing and transmitting e-mails, which are defamatory or
derogatory to the plaintiff.26
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, Madras27
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 subjudice 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
26
27

http://cyberlaws.net/cyberindia/defamation.htm acessed on 12/11/2009


MANU/TN/1677/2009, decided on 16.07.2009

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(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 or information 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 message

Some 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)).28
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. DISSCUSSION
28

Pranesh Prakash, Centre for Internet and Society


Accessed from: http://www.cis-india.org/advocacy/igov/it-act/short-note-on-amendment-act-2008, last on
13/11/2009

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The impact of the First Amendment has resulted in a substantial divergence of approach
between American and English defamation law. 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 theProdigy case. Wilkinson C.J. in Zeran v. America
Online stated 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.
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8. SUGGESTIONS
Watching 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
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Cyber Defamation, The Law, practice and Future

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

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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
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-

internet

applicable

to

cyber

libel

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-theus-uk-and-india/

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