Overview 1. Cyber Crimes 2. Defamation vis-a-vis Cyber Defamation 3. Liabilities, Remedies & Damages 4. Liability of ISP 5. Evidentiary value of Electronic Evidences 6. Burden of Proof 7. Conclusion
Introduction Defamation of Cyber space is also a crime ! Crimes committed on internet are not radically different from conventional crimes. Mens Rea : A necessity – Intention to defame coupled with knowledge must be there. – Knowledge that the actions would amount to defamation.
Cyber Laws Information technology Act 2000 is the principal legislation in the area of Cyber Laws. Internet lacks any geographical limits hence United Nations Commission on International Trade Law’ (UNCITRAL) proposed a certain level of uniformity of laws in al member countries – Model Law of Electronic Commerce was adopted.
Cyber Law in India Dept. of IT in India proposed law based on UNCITRAL model after adoption by UN General Assembly. IT Act 2000 is a facilitating, enabling Act and a regulating act. IT Act describes various cyber crimes and prescribes punishment for such offences. Section 43,65,66,67 deals with Cyber Crimes under Chapter IX and XI.
Cyber Defamation The intention to harm the reputation of a particular person knowing that their conduct is likely to cause such harm to the reputation– s.499 IPC. Cyber Defamation is when defamation done with computer as tool.
Cyber Defamation 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 specifical y, therefore to seek remedy against cyber defamation the aggrieved party wil have initiate proceedings under the provisions of IPC read with the provisions of IT Act, 2000.
Case Laws in India 1. SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra Considered to be the first civil defamation case of its kind and particularly on the subject of cyber defamation where it was alleged that a company’s reputation was harmed by an employee who sent derogatory and obscene emails to his employers and other subsidiary companies of the said company. Delhi High Court issued an ex-parte ad interim injunction against the employee stating that a prima facie case had been made out by the Company and thereby restrained the employee from publishing the derogatory emails.
2. State of Tamil Nadu v. Suhas Katti The case 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 cal s to the lady in the belief that she was soliciting. Charge Sheet was filed u/s 67 of IT Act 2000, 469 and 509 IPC before The Hon’ble Addl. CMM Egmore
The accused was found guilty of offences under section 469, 509 of IPC and Section 67 of IT Act, 2000, He was sentenced for the offence to undergo rigorous imprisonment for 2 years under 469 IPC and for the offence u/s 509 IPC sentenced to undergo 1 year Simple imprisonment and for the offence u/s 67 of IT Act 2000 to undergo imprisonment for 2 years.
Liability, Remedy & Damages Cyber defamation need not necessarily be directed against an individual victim. The act of defamation is potential y capable of harming a large number of persons and that is the principal object behind making penal provisions for the same.
Liability, Remedy & Damages Defamation cases are either instituted in the nature of civil or criminal. Basis for a civil defamation suit (for damages) related to internet would be Tort law while criminal cases would be covered under Section 499 IPC read with section 67 of IT Act. Both nature of cases (Civil and Criminal) can be instituted simultaneously. Jurisdiction of court lies wherever the publication of defamatory content is affected.
Liability of ISP (Internet Service Provider) Courts general y analyzes ISP liability under the same standards as applied to newspapers and other media (anyone who exercised a substantial degree of editorial control over the distributed product). Example: A person published defamatory material on a network and the computer redistributed that material, the owner or operator of the server wil not be liable as they only permitted access to published defamatory content but they did not assist in publishing that content. Therefore proving facilitation of distribution of defamatory content is necessary.
Liability of ISP in U.S. Communications Decency Act (USA) - No provider or user of an interactive computer service is treated as the publisher or speaker of any information provided by another information content provider. Thus the law is not harsh on the ISPs.
Challenges to developing Jurisprudence: Cyber Defamation ‘Publication’ – most important ingredient of defamation defined under IPC. What constitutes ‘Publication’ on internet is stil not clear. No definition of ‘Publication’ is provided in IT Act, 2000. IT act covers only ‘publishing of information which is obscene in electronic form’. No mention of ‘derogatory’ remarks and words intended to insult the modesty of women (S.509 IPC). i.e. no specific provision which is the need of the hour given the current situation prevailing in the Country.
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 shal be deemed to be a ‘document’. – Online Chat is admissible in evidence under section 65B of the Indian Evidence Act (State of TN v. Suhas Katti). – Emails are admissible as evidence under section 65B of the Indian Evidence Act (SMC v. Jogesh Kwatra)
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 al were given on either side, therefore burden lays on prosecution. Section 106 - doctrine of exclusive knowledge - when any fact is especial y within the knowledge of any person, the burden of proving that fact is upon him. Burden of proof v. onus of proof.
Conclusion The IT Act does not provide for the definition of ‘publication’ – the most important element of defamation. Act provides remedy only for publication of obscene material thus limiting the scope. Liability of Intermediary (ISP) is absolved under IT Act, which is in contravention of Section 501 of IPC.
The Author of this Slide is a practicing lawyer in the Delhi High Court and can be contacted on