‘Cyber crimes’ is a term that has gained unprecedented popularity in the recent past, thanks to the extent to which cyber crimes have been committed. The advent of the internet has been accompanied by outcomes, good and bad. While the internet provides easy access to any information or person in any part of the world, it is the same advantage which has been misused for gaining undue advantage, in the form of various cyber crimes. One such crime among the plethora of cyber crimes, is the crime of defamation on the internet.
The freedom of expression is a fundamental human right that has been recognized at both the international and the national level. At the international level, the European Convention on Human Rights provides everyone with the right to freedom of expression. The same has been guaranteed by the Indian Constitution also. However, as with other rights, the freedom of expression can never be absolute. More so ever, in current times, with the increasing cases of defamation on the internet. Internet communications may do serious injury to individual and corporate reputations. The ease with which messages can be sent and read on the internet means that the most allegations and defamatory statements can gain widespread currency and acceptance. This calls for serious consideration of the matter and criminalization of the act.
Defamation is dealt with under S.499 of the Indian Penal Code. Owing to S.91 of the Information Technology Act, 2000, all offences under the Indian Penal Code are also applicable to acts of such nature on the internet, thus allowing conviction under S.499 of the Penal Code for cyber defamation. An essential requirement for conviction under defamation is that the defamatory material should be published. This has raised one of the major issues under defamation on the internet. Can e-mails containing defamatory statements be considered as publication? Another issue at hand with respect to defamation on the internet is the liability of the internet service provider. It has been established under US law that an internet service provider is liable for defamation if found to be a publisher. However, if the service provider is merely a distributor, he shall not be held liable. This position has not been accepted in India and is hence, not applicable for Indian law. However, this issue has been dealt with under S.79 of the Information Technology Act, 2000 which holds service providers liable for abuse of services provided by them unless they ‘prove that the offence or contravention was committed without their knowledge or that they had exercised all due diligence to prevent the commission of such offence or contravention. Establishing the knowledge or the fact of due diligence varies from case to case.
However, as is the case with most cyber crimes, controlling defamation on the internet has not been an easy task. On paper, it might be felt that S.499 of the Indian Penal Code coupled with S.79 of the Information Technology Act are sufficient to deal with the problem of defamation. However, this is not so. The existing legal provisions are falling short of being able to achieve their aim in various respects. S.79 that specifically tackles the liability of service providers can easily be flouted by the service providers by proving the absence of knowledge or by proving that they had taken due diligence. With just one section dealing with liability of service providers, and one section of the Penal Code dealing with defamation, and in the absence of appropriate law - enforcing mechanism to deal with the situation, it is no surprise that the offence of defamation has come to exist to such a large extent. Thus, the current problem at hand is the widespread existence of defamation on the internet despite the existence of legal mechanisms to deal with it. Further, it is well understood by everybody who uses the internet that the internet provides for an easy means of committing...