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Cyber defamation

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  • SMC - India’s first case of cyber defamation was reported when a company’s 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 the employee from sending, publishing and transmitting e-mails, which are defamatory or derogatory to the plaintiffs.
  • Transcript

    • 1. Cyber Defamation Tuhin Batra 02610303808
    • 2. Chapters
      • Cyber Crimes
      • Defamation vis-a-vis Cyber Defamation
      • Liabilities, Remedies & Damages
      • Liability of ISP
      • Evidentiary value of Electronic Evidences
      • Burden of Proof
    • 3. Introduction
      • Cyber Defamation is Cyber Crime.
      • Cyber crimes not radically different from conventional crimes.
      • Mens Rea
        • Intention to secure access to any program or data held in any computer, computer system or computer network.
        • Knowledge at the time of committing actus rea that the act is unauthorised.
    • 4. Cyber Laws
      • Cyber laws in India synonymous to Information technology Act 2000.
      • Internet lacks any geographical limits hence United Nations Commission on International Trade Law’ (UNCITRAL) proposed a certain level of uniformity of laws in all member countries – Model Law of Electronic Commerce was adopted.
    • 5. Cyber Law in India
      • DIT in India enacted law on UNCITRAL model after adoption by UN General Assembly.
      • IT Act 2000 is: a facilitating Act, an enabling Act and a REGULATING ACT.
      • IT Act regulated cyber crimes and provides for redressal of such offences.
      • Section 43,65,66,67 deals with Cyber Crimes under Chapter IX and XI.
    • 6. Cyber Defamation
      • The intention to harm the reputation of a particular person or reasonably know that his/her conduct could cause such harm – s.499 IPC.
      • Cyber Defamation when defamation done with computer as tool.
      • Section 43 - unauthorised access, unauthorised downloading, virus attacks etc.- fine upto Rs. one crore (data theft, disruption of network).
      • Section 65 - ‘ tampering with computer source documents ’ – imprisonment for 3 years and fine.
    • 7. Cyber Defamation
      • Section 66 – ‘ hacking with computer system’  - imprisonment for 3 years and fine.
      • Section 67 deals with publication of obscene material and provides for imprisonment up to a term of 10 years and also with fine up to Rs. 2 lakhs.
      • However the IT Act does not cover cyber defamation specifically, so to seek remedy against cyber defamation, the aggrieved party will have to rely mainly on IPC.
    • 8. Case Laws
      • SMC Pneumatics (India) Pvt. Ltd. v . Jogesh Kwatra
      • State of Tamil Nadu v. Suhas Katti - The accused is found guilty of offences under section 469, 509 of IPC and Section 67 of IT Act.
    • 9. Liability, Remedy & Damages
      • Cyber defamation need not necessarily be directed against an individual victim.
      • Why Punishable - the criminal act is potentially capable of harming a large number of persons and that is the principal object behind punishing it.
      • traditional standards for the grant of injunctions in cases of defamation over internet will be applicable – TATA v. Greenpeace.
    • 10. Liability, Remedy & Damages
      • Most important relief claimed in a defamatory action is damages.
      • Depend on the nature of the defamation sought and the extent of publication .
      • Jurisdiction - where a cause of action arises.
      • A plaintiff can choose to litigate in whichever country has the most favorable laws (doctrine of forum shopping).
      • Every time a third party accesses a defamatory posting on the Internet, publication has occurred.
        • Doctrine of ‘single publication’.
    • 11. Liability of ISP
      • Courts generally analyzed ISP liability under the same standards applied to newspapers and other media (anyone who exercised a substantial degree of editorial control over the distributed product).
      • A third party published defamatory material on a network and the computer redistributed that material, the owner or operator of the server was not liable if one who permits access to published defamatory content, but who do not assist in publishing that content.
    • 12. Liability of ISP
      • Communications Decency Act (USA) - 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.
      • Internet service Provider (ISP) liable under Section 501 of the IPC - publisher/printer of defamatory material is the prime offender
    • 13. Controversy
      • ‘ Publication’ – most important ingredient of defamation defined under IPC.
      • What constitutes ‘Publication’ on internet.
      • No definition of ‘Publication’ under IT Act.
      • IT act covers only ‘publishing of information which is obscene in electronic form’.
      • What about ‘derogatory’ remarks and words intended to insult the modesty of women (S.509 IPC).
    • 14. Admissibility of Electronic Records
      • Section 65A & 65B of Indian Evidence Act.
        • electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a ‘document’.
        • Online Chat to be admissible as evidence under section 65B of the Indian Evidence Act (State of TN v. Suhas Katti).
        • Emails to be admissible as evidence under section 65B of the Indian Evidence Act (SMC v. Jogesh Kwatra)
    • 15. Burden of Proof
      • Section 102 of IE Act: The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side, therefore burden lays on prosecution.
      • Section 106 - doctrine of exclusive knowledge - when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
      • Burden of proof v. onus of proof.
    • 16. Conclusion
      • The IT Act does not provide for the definition of ‘publication’ – the most important element of defamation.
      • Provides remedy only for publication of obscene material thus stressing upon pornography and not mention ‘defamation’.
      • Intermediary (ISP) is absolved of liability under IT Act, which in contravention of 501 of IPC.
    • 17. Thank You