Defamation on the Internet

Topics: Defamation, Internet service provider, Law Pages: 17 (5855 words) Published: August 5, 2010
INTRODUCTION

‘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.[1] 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.[2] 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...

Bibliography: Primary Sources :
The Indian Penal Code, 1860
Information Technology Act, 2000
Secondary Sources :
Barendt, Eric, Freedom of Speech, 2nd Ed., Oxford University Press, Oxford, 2006.
Ferrera et al., Cyber Law : Text and Cases, 2nd ed., Thomson, USA, 2004.
Gupta, Apar, Commentary on Information Technology Act, Wadhwa & Co., Nagpur, 2007.
Justice Chadrachud, Y. V, Ratanlal & Dhirajlal- The Indian Penal Code, 29th Ed., Wadhwa & Co., Nagpur, 2004.
Kamath, Nandan, Law Relating to Computers, Internet & E-Commerce, 2nd Ed., Universal Law Publishing Ltd., London, 2000.
Kevan, Tim & Paul McGrath, E-mail, the Internet and the Law, Encyclopaedia if IT law, Universal Law Publishing Co., New Delhi, 2007.
Kohl, Uta, Jurisdiction and the Internet, Cambridge University Press, Cambridge, 2007.
Lloyd, Ian, Information Technology Law, 5th Ed., Oxford University Press, Oxford, 2008.
Maggs, Peter et al., Internet and Computer Law, West Group American Casebook Series, Minnesota, 2001.
Sarvaria, S.K, RA Nelson’s Indian Penal Code, Vol.4, LexisNexis, Butterworths, New Delhi, 2003.
Smith, Graham, Internet Law and Regulation, 4th Ed., Sweet & Maxwell, London, 2007.
Sood, Vivek, Cyber Law Simplified, Tata McGraw-Hill Publishing Co. Ltd., New Delhi, 2002.
No Bad Puns: A Different Approach to the Problem of Personal Jurisdiction on the Internet, 116 HARV. L. REV. 1821, Harvard Law Review, April, 2003.
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[1] Lloyd, Ian, Information Technology Law, 5th Ed., Oxford University Press, Oxford, 2008, 571.
[2] Barendt, Eric, Freedom of Speech, 2nd Ed., Oxford University Press, Oxford, 2006, 463.
[3] Justice Chadrachud, Y. V, Ratanlal & Dhirajlal- The Indian Penal Code, 29th Ed., Wadhwa & Co., Nagpur, 2004, 2339.
[4] Ferrera et al., Cyber Law : Text and Cases, 2nd ed., Thomson, USA, 2004, 345.
[5] Smith, Graham, Internet Law and Regulation, 4th Ed., Sweet & Maxwell, London, 2007, 534.
[6]Sarvaria, S.K, RA Nelson’s Indian Penal Code, Vol.4, LexisNexis, Butterworths, New Delhi, 2003, 4681.
[9] NCERT v. P.D. Bhatnager, (1980) Raj. Cr. Cases, 392 as cited in Justice Chadrachud, Y. V, Ratanlal & Dhirajlal- The Indian Penal Code, 29th Ed., Wadhwa & Co., Nagpur, 2004, 2351.
[10]Ferrera et al., Cyber Law : Text and Cases, 2nd ed., Thomson, USA, 2004, 356.
[11]Kevan, Tim & Paul McGrath, E-mail, the Internet and the Law, Encyclopaedia if IT law, Universal Law Publishing Co., New Delhi, 2007, 67.
[13] Kevan, Tim & Paul McGrath, E-mail, the Internet and the Law, Encyclopaedia if IT law, Universal Law Publishing Co., New Delhi, 2007, 69.
[14] Ferrera et al., Cyber Law : Text and Cases, 2nd ed., Thomson, USA, 2004, 344.
[15] Smith, Graham, Internet Law and Regulation, 4th Ed., Sweet & Maxwell, London, 2007, 318.
[16] Smith, Graham, Internet Law and Regulation, 4th Ed., Sweet & Maxwell, London, 2007, 334.
[17] [1994] 4 All ER 342 as cited in Lloyd, Ian, Information Technology Law, 5th Ed., Oxford University Press, Oxford, 2008, 578.
[18] Kevan, Tim & Paul McGrath, E-mail, the Internet and the Law, Encyclopaedia if IT law, Universal Law Publishing Co., New Delhi, 2007, 64.
[19] Barendt, Eric, Freedom of Speech, 2nd Ed., Oxford University Press, Oxford, 2006, 465.
[20] 1999 N.Y. LEXIS 3746(1999) as cited Ferrera et al., Cyber Law : Text and Cases, 2nd ed., Thomson, USA, 2004, 348.
[21] 776 F.Supp. 135 (S.D. N.Y. 1991) as cited in Ferrera et al., Cyber Law : Text and Cases, 2nd ed., Thomson, USA, 2004, 349.
[22] 1995 N.Y. Misc. LEXIS 229 (1995) as cited in Ferrera et al., Cyber Law : Text and Cases, 2nd ed., Thomson, USA, 2004, 349.
[23] Chief Judge Wilkinson in Zeran v. America Online Inc. 129 F.2d 327 (4th Cir. 1997) as cited in Ferrera et al., Cyber Law : Text and Cases, 2nd ed., Thomson, USA, 2004, 351.
[24] District Judge Freidman in Sidney Blumenthal v. Matt Drudge and America Online Inc. 992 F,Supp.44 (D.D.C. April 22, 1998) as cited in Ferrera et al., Cyber Law : Text and Cases, 2nd ed., Thomson, USA, 2004, 353.
[25] 992 F,Supp.44 (D.D.C. April 22, 1998) as cited in Rowland, Diane and Elizabeth Macdonald, Information Technology Law, 3rd Ed., Cavendish Publishing Co. Pvt. Ltd., New Delhi, 2002, 407.
[26] Case No. CV 01-0018 DT (C.D. Cal. 2002) as cited in Ferrera et al., Cyber Law : Text and Cases, 2nd ed., Thomson, USA, 2004, 355.
[27] Barendt, Eric, Freedom of Speech, 2nd Ed., Oxford University Press, Oxford, 2006, 466.
[28] Gupta, Apar, Commentary on Information Technology Act, Wadhwa & Co., Nagpur, 2007, 216.
[29] Gupta, Apar, Commentary on Information Technology Act, Wadhwa & Co., Nagpur, 2007, 216-18.
[32] No Bad Puns: A Different Approach to the Problem of Personal Jurisdiction on the Internet, 116 HARV. L. REV. 1821, 1824.
[33] 1997 WL 835442 (C.D. Cal.) as cited in No Bad Puns: A Different Approach to the Problem of Personal Jurisdiction on the Internet, 116 HARV. L. REV. 1821, 1824.
[35] 631 F. Supp. 1356 (C.D. Cal. 1986) as cited in Amar, Tanmay & Sarayu Natarajan, Regulation of Defamation over the Internet : Jurisdictional Issues.
[37] Laid down in Keeton v. Hustler Magazine, Inc., 465 US 770 (1984) as cited in Amar, Tanmay & Sarayu Natarajan, Regulation of Defamation over the Internet : Jurisdictional Issues.
[38] 977 F. Supp. 404 (E.D. Va. 1997) as cited in Amar, Tanmay & Sarayu Natarajan, Regulation of Defamation over the Internet : Jurisdictional Issues.
[39] Gutnick v. Dow Jones & Co. Inc., 2002 HCA 56 as cited in Rowland, Diane and Elizabeth Macdonald, Information Technology Law, 3rd Ed., Cavendish Publishing Co. Pvt. Ltd., New Delhi, 2002, 398.
[40] Amar, Tanmay & Sarayu Natarajan, Regulation of Defamation over the Internet : Jurisdictional Issues, as available on www.ebc-india.com/practicallawyer/index.php?option=com_content&task=view&id=469&Itemid=54 last visited on 29 December, 2008.
[41] 952 F. Supp. 1119 (W.D. Pa. 1997) as cited in Amar, Tanmay & Sarayu Natarajan, Regulation of Defamation over the Internet : Jurisdictional Issues.
[42] Braintech Inc. v. Kostiuk, (1999), 63 B.C.L. R 3d as cited in Amar, Tanmay & Sarayu Natarajan, Regulation of Defamation over the Internet : Jurisdictional Issues.
[43]Kohl, Uta, Jurisdiction and the Internet, Cambridge University Press, Cambridge, 2007, 259.
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