Cyber Defamation Case Study Understanding how to fight Defamation matters online.

1. Cyber Defamation
By-
YOGESH PANDIT
Lawyer
Cyber Lawyer
Certified Ethical Hacker
Cyber Crime Investigator
Cyber Security Analyst
Chaptor Lead Null Bhopal @ null.co.in
Director @ www.techilaw.com
Asst. Prof. Cyber Law Dept. @ ABVHV
Trainer - Cyber Crime Investigation @ various Law Enforcement Agencies
Trainer - Cyber Security /Cyber Law @ RCVP Noronhna Academy MP Govt.
Trainer- Bureau Of Police Research & Development,MHA, Govt. Of India

2. Defamation
• Cyber defamation is not a specific criminal offense,
misdemeanor or tort, but rather defamation or slander
conducted via digital media, usually through the Internet.
The term defamation is used to define the injury that is
caused to the reputation of a person in the eyes of a third
person. The injury can be done by words oral or written, or
by signs or by visible representations. The intention of the
person making the defamatory statement must be to lower
the reputation of the person against whom the statement has
been made in the eyes of the general public. Cyber
defamation is a new concept but the traditional definition of
the term defamation is application to the cyber defamation
as it involves defamation of a person through a new and a
virtual medium.

3. Defamation – 3 essentials
• In order to recover in an action for defamation,
the plaintiff must show:
•The words complained of were defamatory
•The words referred to the defendant
•The words were published to a third party

4. Libel vs. Slander
Two kinds of defamation:
•Libel: consists of any written or printed words or
any visible or audible matter recorded in any form
of a more or less permanent nature
•Slander: consists of spoken words or other
transitory forms of communication
Everything printed or written, which tends to lower
the plaintiff in the estimation of right-thinking
members of society generally, and is published
without lawful justification or excuse, is a libel,
whatever the intention may have been.

5. Defamation and the Internet

6. Who May Be Liable?
•General Rule: every participant in the
publication incurs liability, regardless of the
degree of involvement; this includes not only
those who take part in the composition, but
also those responsible for its distribution and
dissemination
•Potential Targets for a defamation action: the
ISP, website owner, those responsible for
editing the content, and the original author

7. Conduct That May Lead to Liability
• •Hyperlinking
Definition: when an element in an electronic document links to
another place in the same document or to an entirely different
document
•“Hyperlinkin gmay, in some cases, amount to publication by the
person creating the link. If it is apparent from the context in which
the hyperlink is used that it is being used merely as a bibliographical
or similarly limited reference to an original source, without in any
way actively encouraging or recommending to the readers that they
access that source…this would not amount to publication.”
Crookes v. Wikimedia Foundation Inc., (B.CC.A.)
•A finding of defamation in this situation may depend on the
purpose for which the hyperlink is placed on the site

8. Anonymity?
Anonymity?
A potential plaintiff may be able to determine
an otherwise “anonymous”defamer by
following two steps:
•obtaining the defendant’s identifying
information
•establishing that the identifying information is
accurate

9. Obtaining the Defendants Identifying
Information
•A potential plaintiff may be able to identify an
anonymous defendant by determining the IP
address of the computer where the defamatory
message originated
•IP Address Defined: a unique identifier
number which is assigned to an internet user
by their internet service provider and is
capable of identifying which computer an
email or website posting was sent from

10. Defences
• •Consent
May apply if a reasonable person would acknowledge the plaintiff
consented to the publication of the comment about them
•Absolute Privilege
The law recognizes an absolute privilege for certain communications made
by executive officers of state, parliamentary and legislative officials, and
persons involved in judicial or quasi-judicial proceedings and offers full
immunity from an action in defamation.
•Qualified Privilege
a communication is protected by a qualified privilege if it is fairly made on
a privileged occasion by a person in the discharge of some public or private
duty, or the purpose of protecting some private interest, provided it is made
to a person who has a corresponding interest in receiving it
•However, mere membership in a common organization does not create a
“corresponding interest” •Lawrence v. Finch(Ont. C.A.)

11. Defences
•Justification
•Fair Comment
•Responsible Communication on Matters of
Public Interest
•Innocent Dissemination

12. Justification
•The defendant must disprove the presumption at
law, in favour of the plaintiff, that the words
complained of are false
•it is the imputation contained in the words that
must be justified
•the defendant must prove that the facts which are
stated and proved to be true warrant to the
imputation in the sense that is the conclusion that
ought to be drawn

13. Fair Comment
•A fair comment on a matter that is of pubic interest or is
subject to public criticism is not actionable, even if it is
defamatory
•fundamental principle of freedom of expression
•The following criteria must be established by the
defendant:
•the words complained of are recognizable by a ordinary
viewer as comment, although the comment may consist of,
or include inferences from facts
•the comment is based on true facts set out in the article or
clearly indicated in it
•it is no defence to show that a defendant honestly believed
in the truth of the allegations of fact

14. Fair Comment
• the comment is a matter of public interest
•when the public at large is affected
•Example of matters found not to be of public interest
•an article in a union newsletter referring to the plaintiff
as a“small time lawyer/businessman/politician whose
contribution to social justice for working people has yet
to be recorded”and as someone who charged exorbitant
fees”
•the comment is one which a person could honestly
make on the facts proven and some authorities indicate
must, be fair, in the sense that a fair minded person
could believe it.

15. Responsible Communication on
Matters of Public Interest
• •The following criteria must be established by the defendant:
•the publication is a matter of public interest
•the publisher was diligent in trying to verify the allegation having regard
to:
•the seriousness of the allegation
•the public importance of the matter
•the urgency of the matter
•the status and reliability of the source
•whether the plaintiff’s side of the story was sought and accurately reported
•whether the inclusion of the defamatory statement was justified •whether
the defamatory statement’s public interest lay in the fact that it was made
rather than its truth (reportage)
•other relevant circumstances
•defence is not limited to news media, but can also be used for newer forms
of media, including bloggers on the internet Grant v. Torstar(S.C.C.)

16. Innocent Dissemination
•If the defendant can prove that he or she was a mere
mechanical distributor of the information, then the
defence may be used
•ISPs have invoked this defense in regards to
defamatory material on a website within their control
•Courts have held that the relevant factors to determine
whether this defence will succeed include:
•whether the intermediary knew of the alleged libel
•whether there were conditions present that would have
led the ISP to suspect libel
•whether the ISP was negligent in failing to be aware of
libel

17. Malice
• Malice
• The defences of Fair Comment, Qualified
Privilege, Responsible Communication on
Matters of Public Interest, and Innocent
Dissemination are defeated by a finding of
malice

18. STATUTORY PROVISIONS GOVERNING CYBER
DEFAMATION IN INDIA
• The Indian Penal Code, 1860 contains provisions to deal with the
menace of cyber defamation.
1. Section 499 of IPC:
Section 499 of IPC says 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 excepted, to defame that person.
• The offence of defamation is punishable under Section 500 of IPC
with a simple imprisonment up to 2 years or fine or both.
• The law of defamation under Section 499 got extended to "Speech"
and "Documents" in electronic form with the enactment of the
Information Technology Act, 2000.

19. • 2. Section 469 of IPC:
Section 469 of IPC says that whoever commits forgery, intending that the
document or electronic record forged shall harm the reputation of any party,
or knowing that it is likely to be used for that purpose shall be punished
with imprisonment of either description for a term which may extend to
three years and shall also be liable to fine.
• The phrase “intending that the document forged” under Section 469 was
replaced by the phrase “intending that the document or electronic record
forged” vide the Information and Technology Act, 2000.
• 3. Section 503 of IPC :
Section 503 of IPC defines the offense of criminal intimidation by use of
use of emails and other electronic means of communication for threatening
or intimidating any person or his property or reputation.
• Section 503 says that whoever, threatens another with any injury to his
person, reputation or property, or to the person or reputation of any one in
whom that person is interested, with intent to cause alarm to that person, or
to cause that person to do any act which he is not legally bound to do, or to
omit to do any act which that person is legally entitled to do, as the means
of avoiding the execution of such threats, commits criminal intimidation.

20. • INFORMATION TECHNOLOGY ACT, 2000
• The Section 66A of the Information Act, 2000 does not specifically deal with the
offence of cyber defamation but it makes punishable the act of sending grossly
offensive material for causing insult, injury or criminal intimidation.
Section 66A of the Information Act, 2000
• Section 66A of the IT Act says that any person who sends, by means of a computer
resource or a communication device:-
any information that is grossly offensive or has menacing character; or
• any content 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 makes by making use of such computer
resource or a communication device,
• 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.
Repealed

21. Admissibility of Electronic records
• Section 65A and 65B of the Indian Evidence
Act, 1872
Online chat to be admissible as evidence
(State of Tamil Nadu vs Suhas katti)
Emails to be admissible as evidence
(SMC Pneumatics (India) Pvt. Ltd. v. Jogesh
Kwatra)

22. • Cyber Defamation

23. JUDICIAL RESPONSE TO OFFENCE OF
CYBER DEFAMATION
• In the first case of cyber defamation in India,
SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra, the reputation of a
corporate was being defamed by an employee of the plaintiff company by
sending derogatory, defamatory, obscene, emails obscene, vulgar, filthy and
abusive emails to its employers and also to different subsidiaries of the said
company all over the world with the aim to defame the company and its
Managing Director. The Hon'ble Judge of the Delhi High Court passed an
ex-prate ad interim injunction observing that a prima facie case had been
made out by the plaintiff.
Consequently, the Delhi High Court restrained the defendant from sending
derogatory, defamatory, obscene, vulgar, humiliating and abusive emails
either to the plaintiffs or to its sister subsidiaries all over the world
including their Managing Directors and their Sales and Marketing
departments. Further, Hon'ble Judge also restrained the defendant from
publishing, transmitting or causing to be published any information in the
actual world as also in cyberspace which is derogatory or defamatory or
abusive of the plaintiffs.

24. • In another case State of Tamil Nadu v. Suhas Katti related to posting of
obscene, defamatory and annoying message about a divorcee woman in
the yahoo message group. E-Mails were also forwarded to the victim for
information by the accused through a false e-mail account opened by him
in the name of the victim. The posting of the message resulted in annoying
phone calls to the lady in the belief that she was soliciting. Based on a
complaint made by the victim in February 2004, the Police traced the
accused to Mumbai and arrested him within the next few days. Relying on
the expert witnesses and other evidence produced before it, including the
witnesses of the Cyber Cafe owners, the Additional Chief Metropolitan
Magistrate held the accused guilty of offences under section 469, 509 IPC
and 67 of IT Act, 2000 and the accused is convicted and is sentenced for
the offence to undergo RI for 2 years under 469 IPC and to pay fine of
Rs.500/-and for the offence u/s 509 IPC sentenced to undergo 1 year
Simple imprisonment and to pay fine of Rs.500/- and for the offence u/s
67 of IT Act 2000 to undergo RI for 2 years and to pay fine of Rs.4000/- All
sentences to run concurrently.” The conviction of the accused was
achieved successfully within a relatively quick time of 7 months from the
filing of the FIR.

25. • In the case of Tata Sons Ltd. vs. Greenpeace International, the
Delhi High Court has held that publication is a comprehensive term,
embracing all forms and mediums – including the Internet. That an
internet publication has wider viewership, or a degree of
permanence, and greater accessibility, than other fixed (as opposed
to intangible) mediums of expression does not alter the essential
part, i.e. that it is a forum or medium. There is much sense to have
more defined criteria taking into account the nature of the internet
content. Injunctions on internet content should not be readily
granted (especially ex-parte) since, firstly the internet is an easy,
self publishing platform providing a medium of expression for
marginal individuals not having corporatist outlets. Secondly, the
internet facilitates the distribution of content for a minor cost to a
vast audience. Both the alleged injury and the free speech concern
are greater due to the wider dissemination of the content. These
are only some of the concerns which set the internet apart and it is
desirable to have a nuanced appreciation.

26. Conclusion
• Large Damage awards
However there are laws in place to deal with
cyber defamation and with admissibility of
electronic records as evidence things have
been eased. If the plaintiff is able to prove that
defamation has occurred then the onus lies on
the defendant to prove that he was innocent.

27. • References –
http://www.mondaq.com/india/x/218890/Social+Media/Cyber+Defamation+In+Cor
porate+World
http://www.helplinelaw.com/employment-criminal-and-labour/CDII/cyber-
defamation-in-india.html
Tuhin batra
http://www.symantec.com/connect/blogs/indian-evidence-act-section-65a-and-
section-65b
Fasken Martineau

28. • Regards,
Yogesh Pandit
email me at – yogi@null.co.in
twitter- @CyberMahaPandit
+91-971-322-7771