Cyber defamation poses need for legal evolution

By Mridula R Ravindran, Lall Lahiri & Salhotra
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Alie can travel around the world while the truth is putting its shoes on” – Mark Twain

In today’s tech savvy world, where even home appliances are controlled by computers, the misuse of computer technology is inevitable. Cyber crimes are the latest and most complicated problems in the cyber world.

Mridula R Ravindran Lall Lahiri & Salhotra
Mridula R Ravindran
Lall Lahiri & Salhotra

Cyber crimes are committed with the purpose of harming others in various ways and encompass a wide range of activities including Trojan attacks, web jacking, cyber stalking, email bombing, cyber defamation and internet time theft. Various groups of people fall into the category of cyber criminals – children and adolescents between the ages of 7 and 18, professional hackers, angry ex-spouses, dissatisfied employees, etc.

As social networking sites and internet blogs continue to increase in both popularity and use, the opportunities for defamation and libel increase proportionally. The target of these crimes may be an individual, an organization or society at large.

Cyber defamation is the leading cyber crime. Defamation is the act of disparaging a person or organization with an intent of maligning their image in the estimation of other members of the society.

Defamation may broadly be categorized as libel and slander. Libel is written defamation and slander is oral defamation. A major difference between the two is that in libel damages are presumed, while in slander the plaintiff must prove actual or quantifiable damages.

Rights abused

The internet gives the average, anonymous person an unlimited opportunity to express their opinion and comments. The rights of freedom of speech and freedom of the press should not be used as pretexts to defame others and should be exercised with a sense of social and moral responsibility.

Compared with traditional defamation, cyber defamation poses the threat of far greater harm. Cyber defamation can take a significant toll on the targeted victim in the absence of strict laws and regulations, strictly enforced. Once defamatory contents are published they are instantly visible. The published material cannot be recovered and amended.

Faced with an allegation of cyber defamation, one must act fast to put out the fire before it spreads. Expert advice on jurisdictional issues, limitation periods and technological pitfalls should be obtained immediately from a specialized lawyer.

The user profile and IP address of the offender must be checked to identify the offender and their acts of cyber abuse. The cyber company and the internet service provider can help unveil facts about the offender.

Once the offending material is recognized, the next step should be to determine the magnitude and scope of the defamation. Understanding these aspects is crucial in determining the best course of action.

Evidence key

Once a defamatory action is alleged, the aggrieved person must prove publication of the defamatory matter. For this, evidence such as snapshots of the pages where the content appears and search engine results should be preserved.

It must also be proved that the defamation refers to the plaintiff and that the publication is indeed defamatory, targeted to injure their reputation in any way.

There are accepted defences to allegations of defamation. Where allegedly defamatory statements are authentic, true and fall under the ambit of fair comment, and where they are not intended to malign the image of the plaintiff, they may be regarded as lawful.

In India’ s first case of cyber defamation, SMC Pneumatics (India) Pvt Ltd v Jogesh Kwatra, a company’s reputation was being defamed through emails by an employee. Delhi High Court granted an ex parte injunction restraining the defendant from defaming the plaintiffs by sending derogatory emails either to the plaintiffs or to their subsidiaries.

Dealing with new crimes

Cyber defamation does not fit neatly in the accepted categories of traditional crimes. In India, the offence of defamation is defined in the Indian Penal Code (IPC), while cyber laws have been put in the Information Technology (IT) Act, 2000. The IT Act was much needed since there was no express legislation covering crimes committed in the cyber world.

However, while the IT Act includes the publication of obscene material as a punishable offence, new categories of crimes such as cyber defamation have not been expressly included. So to seek a remedy against cyber defamation, an aggrieved party will have to rely mainly on the IPC.

With the advent of the internet, the problem of cyber defamation has attained such a monstrous stature that the law of defamation has come under constant scrutiny. The law must evolve to tackle the ever growing issue of cyber defamation. Current laws and procedures should therefore be adequately modified to deal with and prevent such crimes.

Mridula R Ravindran is a member of the trademarks prosecution team at Lall Lahiri & Salhotra, which is an IP boutique based in Gurgaon.

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