cyber defamation, the law, practise and future

Cyber Defamation, The Law, practice and Future

INTRODUCTION

The Internet promised to make everyone a publisher, subject and reader, simultaneously,

connecting the lonely pamphleteer to the whole world through cyberspace. That new

freedom also brought the liberty to cause harm all over the world, however. When that

happens, where can a victim seek redress?... " The law of defamation attempts to provide

an outlet for individuals to avenge their reputation after it has been tarnished by the

publication of false statements. However, defamation law involves a clash of two

important societal values: freedom of speech and freedom to protect one's own

reputation. ... "

A high proportion of internet cases concern defamation. Part of the reason for this is that

the internet provides the man on the street with a unique opportunity to have his thoughts

published instantaneously throughout the world. Moreover, the internet, particularly in the

early years, encouraged a spirit of unrestrained comment or discussion. This often involved

highly defamatory statements being made against an individual, State, race, religion or

group etc.

The law of defamation in the context of internet requires almost every concept and rule in

the field ....to be reconsidered in the light of this unique medium of instant worldwide

communication. The issue that relate partly from the nature of defamation as a cause of

action, differences in national laws on defamation and jurisdictional issues. In terms of

traditional forms of publishing, a publisher exerted a great deal of control over where

copies of his publication were made available. Publication on internet is different in that it

is, potentially, publication to entire world.

This research paper aims at analysing the law of defamation over internet by doing a

comparison between the ‘law in practice’ in different commonwealth countries like UK,

USA, India and Australia in both national and international aspect. The paper also

discusses jurisdictional issues in such crimes, the problems connected and solutions

thereof.

Cyber Law Research Paper | 1


HYPOTHESIS OF THE PROJECT

Cyber Defamation is not particular to the place of its origin and can cast a wide effect

anywhere all over globe as per its content. The present practice of law are insufficient to

curb it.

PROJECT METHODOLOGY

The project follows Doctrinal research methodology. For this i went through books on

Defamation over internet from UK and US publishers, articles from lexis-nexis, other

internet sources, Case laws from USA, Australia, UK and India. Since in India the law on

defamation over internet is not much developed and authors have really not commented on

this, so, the internet sources and case laws are important source for the Indian position.

1. BACKGROUND



1. DEFAMATION IN GENERAL

The law gives protection to a man’s reputation, which to some is dearer than life itself.

Love of reputation inspires people to do great things, acquire fame and name which is the

mainspring of life in every walk of life. The aim of law of defamation is to protect one’s

reputation, honour and dignity in society.1 The law of defamation attempts to provide an

outlet for individuals to avenge their reputation after it has been tarnished by the

publication of false statements. However, defamation law involves a clash of two

important societal values: freedom of speech and freedom to protect one's own reputation.

"The proper balance between these two goals has been vigorously debated over the years,"

and different nations have crafted varying approaches to deal with this tension.2

A defamatory statement is one which, when published, tends to lower a person in the

esteem of right thinking members of the society generally; or which tends to make them

shun or avoid that person.3 The statement does not have to allege some moral turpitude or

wrong doing on the part of the claimant and it can be defamation to allege insanity or being

victim of a crime such as practices of bestiality. The three essentials of Defamation are:

a. The statement must be defamatory.

b. The said statement must refer to the plaintiff.

c. The statement must be published.

Defamation, an injury to a person’s reputation, It may be by means of words, pictures,

visual images, gestures or any other method of signifying meaning.4 It is both civil and

crime wrong. An aggrieved person may file a criminal complaint for prosecution of

defamer or can sue him for damages. Withdrawal of a criminal complaint on tender of

apology is no bar to a civil action for libel unless there is a specific agreement barring a

civil action.5

The law of civil defamation in India is uncodified, as in English and in other Common law

countries, it is largely based on case laws. The law of criminal defamation is based on the

1 K.D.Gaur, A Text Book on the Indian Penal Code, 3rd ed. updtd rep. 2008, pg 7442 Abbey L. Mansfield, Cyber-Libeling the Glitterati: Protecting the First Amendment for Internet Speech, 9 Vand. J. Ent. & Tech. L. 8973 David Bainbridge, Introduction to Computer Law, 5th ed. 2004, pg. 3294 Ibid5 Govinda Charyulu v Sheshgiri Rao, AIR 1941 Mad 860 (861)



codified in Sec. 499 to 502 of Indian Penal Code. In England the publication of a criminal

Libel is punishable to the extent of 1 year imprisonment and fine; and if the publication is

with the knowledge of its being untruth is 2 years vide section 5 of the Libel Act, 1843.6

In a civil action for defamation in tort, truth is a defence, but in a criminal action, the

accused must prove the truth of the matter and that its publication was for the public good.

The defence of truth is not satisfied merely on the ground that the publisher honestly

believed the statement to be true, he must prove that the statement was infact true.7

2. DEFAMATION ON THE INTERNET: THE RISING ISSUE

6 Supra note 17 Ibid



It is said that the law develops with the society, as the society develops so develops the

technology, with technology the ways to perform certain task changes. Internet is one such

thing which have opened new opportunities for mankind through which any information in

electronic form can be received at any end of a computer network in the world. With the

establishment of Internet and inception of webpages, e-mail services, chat rooms, social

networking sites etc man have come closer to each other than ever before. Now with the

click of a mouse one can see his loved one’s from a small town of Uttar Pradesh sitting in

say London. But with a good side this very human networking solutions have appalling

shades too.

The placing of defamatory material on webpages or sending such materials in or attached

to e-mails give rise to number of issues that relate to the nature of the Internet. The ease of

publishing information, correct or not, to millions of readers worldwide over the internet

has caused defamation to become an increasing problem. 8 The part of reason for this is

that the internet provides the man on the streets with a unique opportunity to have his

thoughts published instantaneously throughout the world. Moreover, the Internet,

particularly in its early years, encouraged a spirit of unrestrained comment or discussion.

This often involved highly defamatory statements being made.9

Different nations place different premiums on free speech and, as a result, have varying

levels of protection for defamatory speech. Until recently, disparities in defamation laws

made little difference as "defamation laws, and their applications, [were] restricted to their

respective counties." n This changed, however, with the advent of the Internet: "As

communications technology advanced, the effect of a statement became more and more

widespread, until the Internet gave communicators the ability to send one line to the entire

world instantaneously. Cyber defamation claims for material posted on web-pages, in chat-

rooms, or in electronic newspapers, has complicated defamation jurisprudence.10

Defamation claims often raise choice of law questions. This is especially true when the

defamatory speech is disseminated in several different nations. Because defamation law

8 Sharon K. Black, Telecommunication Law in the Internet Age, 1st ed. 2002, pg. 4189 Clive Gringras, The Laws of Internet, 2003, pg. 12310 Abbey L. Mansfield, Cyber-Libeling the Glitterati: Protecting the First Amendment for Internet Speech, 9 Vand. J. Ent. & Tech. L. 897



"clearly applies to communications on the Net," the number of claims arising from multi-

national defamation undoubtedly has increased. Traditional choice of law principles

instruct that a tort dispute is governed by the law of the locale where the harm occurred. "In

[typical] defamation cases, "the place of the wrong' is the jurisdiction where the

defamatory matter was heard or read by a third person, regardless of the place of

broadcasting or writing." The Internet is "ubiquitous, borderless, global and ambient" by

nature, however. Both the United States and Australia have crafted different approaches to

addressing the complicated choice of law concerns raised by such global defamation

actions.

2A. DISTINCTIVE FEATURES OF CYBER DEFAMATION AND IMPACT11

11 http://www.cyberlibel.com/elements.html retrieved on 12/11/2009


http://www.cyberlibel.com/elements.html


There are a number of features unique to the Internet which distinguish it from any other

medium. These features have led to the current re-examination of existing libel laws to

allow for their possible evolution and ultimately their application in cyberspace.

1. GLOBAL NATURE

The first feature of the Internet is its truly global nature. Presently, more than 125

countries are linked via the Internet.

a) This feature immediately raises several interesting conflict of law questions for the libel

lawyer, such as:

i) In which jurisdiction did the publication of the defamation occur?

Theoretically, every time a third party accesses a defamatory posting on the

Internet, publication has occurred.

ii) In what jurisdiction should the plaintiff sue?

Where the plaintiff resides?

Where the defendant resides?

Wherever publication has occurred?

Defamation laws vary from country to country and in countries such as the

Canada, Australia and the United States, it can vary from province to province and

state to state. Therefore, plaintiffs may have the luxury of "forum shopping" or

choosing the jurisdiction in which the laws most favourable to him/her.

iii) Whose laws should apply?

For example, should First Amendment protection and the public figure defence

available in the United States of America apply; or should the common law of the

commonwealth or the civil law?

iv) Will it be possible to enforce any judgment obtained?

Currently, despite legislation allowing reciprocal enforcement of civil judgments,

courts in the United States are unwilling to enforce defamation judgments from

other jurisdictions because of First Amendment protection of freedom of

expression.



v) What is the quantum of damages?

Theoretically, damages could be very large as a publication on the Internet

potentially reaches millions of people. In practice, however, it is unlikely that

millions of people will actually view each particular publication. In any event,

publication on the Internet will generally be larger than in all but the largest print or

broadcast media outlets.

b) The global nature of the Internet also raises some interesting procedural questions for

the libel lawyer. In traditional libel law there are three different types of defamatory

statements:

i) The first is a statement that is defamatory on its face and which is obviously

defamatory.

ii) The second is a statement which contains false innuendo. False innuendo is a

defamatory statement that has an inferential meaning, therefore only persons with

the necessary contextual knowledge appreciate that the statement is defamatory.

Since statements on the Internet are published globally, their inferential meanings

may vary depending on the geographic or cultural location of the reader or the

newsgroups or the usenet group involved.

iii) The third category is legal innuendo. While not defamatory on their face, these

statements are defamatory when viewed together with extrinsic circumstances.

Once again, contextual knowledge may render a statement defamatory in one

jurisdiction but not in another.

2. Interactive Nature

Another key feature of the Internet is its highly interactive nature. The ease with which

users of the Internet can access bulletin boards and usenets and communicate with each

other has engendered in its users a false sense of freedom in their communications. This is

exemplified by the prevalence of activities such as "spamming" and "flaming" in Internet

communications. As a result, the Internet is qualitatively different from any other medium,

other than perhaps a "talk show" or village townhall session. Consequently, Mike Godwin,

counsel for the Electronic Frontier Foundation, says that "the public figure defence" should



apply to statements made on the Internet. The ability to reply, he claims, is much more

gratifying, immediate and potent than launching a libel action.

3. Accessability

Accessability is another feature of the Internet which distinguishes it from traditional print

or broadcast media. The relatively low cost of connecting to the Internet and even of

establishing one's own website means that the opportunity for defamation has increased

exponentially. Now, on the Internet everyone can be a publisher and can be sued as a

publisher.

4. Anonymity

Another key feature of the Internet is that users do not have to reveal their true identity in

order to send e-mail or post messages on bulletin boards. Users are able to communicate

and make such postings anonymously or under assumed names. This feature, coupled with

the ability to access the Internet in the privacy and seclusion of one's own home or office

and the interactive, responsive nature of communications on the Internet, has resulted in

users being far less inhibited about the contents of their messages.

3: LAW OF CYBER DEFAMATION IN VARIOUS COMMONWEALTH COUNTRIES



1. POSITION IN UNITED STATES OF AMERICA

The Communications Decency Act 1996 (CDA) (United States Enactment)

Section 223 of this Act clearly lays down that any person who puts information on the web

which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse,

threaten, or harass another person; will be punished either with imprisonment or with fine.

It is thus clear that the ISP will not be held liable.

Section 230 Protection For Private Blocking And Screening Of Offensive Material

(c) Protection for 'Good Samaritan' Blocking and Screening of Offensive Material:

'(1) Treatment of publisher or speaker: 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.

'(2) Civil liability: No provider or user of an interactive computer service shall be held

liable on account of— '

(A) any action voluntarily taken in good faith to restrict access to or availability of material

that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively

violent, harassing, or otherwise objectionable, whether or not such material is

constitutionally protected; or

'(B) any action taken to enable or make available to information content providers or others

the technical means to restrict access to material described in paragraph (1).

There is no doubt that the US law is clear. Several cases have also arisen in this regard.

The Supreme Court has held that the ISP cannot be held liable for defamatory content. It is

only a question of time before the same problems and questions will have to be answered

in the Indian context.

The First Amendment to the U.S. Constitution provides that "Congress shall

make no law ... abridging the freedom of speech, or of the press." Defamation law in



the United States has struggled to protect this freedom of speech and press, while

protecting individuals whose reputations may be injured by a false publication.

Defamation law in the United States includes civil actions for both libel (written

words) and slander (spoken words). Defamation provides personal reputational

protection for individuals harmed by the speech of others. American defamation

jurisprudence is characterized by two distinct time periods: pre-1964 (the common

law) and post-1964, the year of the landmark case New York Times v. Sullivan.

1. American Common Law: Strict Liability

In the United States, the common law of defamation set the balance between free

speech and reputation firmly in favor of reputation. Traditionally, American defamation

law closely mirrored English common law. The law of defamation was left to state

control, and the prevailing rule reflected a theory of "strict accountability for the

substance of a defamatory statement." Publishers were, in effect, "insurers of the

reputations of those affected partly because the press was viewed as a powerful force

with considerable ability to harm innocent persons." Additionally, it was argued that the

press could mitigate the harmful effects of the strict liability rule by risk spreading and

insurance. To succeed in a defamation suit at common law, a plaintiff needed only to

prove:

by a bare preponderance of the evidence (the normal burden of proof in civil, as

opposed to criminal, cases) that the defendant had uttered (or, more commonly,

published) words tending to injure the alleged victim's reputation. The plaintiff/victim

was not required to prove that the defendant/publisher was negligent or in any other

way at fault, and indeed the plaintiff did not even have to prove that the imputation was

false. The defendant could, to be sure, prevent recovery by asserting an affirmative

defense and showing that the words were true.12

In other words, the law required the plaintiff to show merely that:

(1) a publication or utterance 2) caused (3) injury to his or her reputation.

12 Frederick Schauer, The Exceptional First Amendment, in American Exceptionalism and Human Rights 29, 38 (Michael Ignatieff ed., 2005).



Under this common law tradition, defamation law was not a subject of constitutional

concern.

2. American Law Today: New York Times v. Sullivan and its Progeny

In 1964, the United States departed dramatically from its common law tradition. In New

York Times v. Sullivan13, the Supreme Court "revolutionized the modern law of libel by

declaring for the first time that state libel laws were subject to First Amendment

restraints." The Court feared that the traditional common law approach imposed all risk

of falsity upon the publisher, which in turn made publishers wary of reporting even

those charges that were in fact true.14 Justice Brennan expressed this concern:

Critics of official conduct may be deterred from voicing their criticism, even though it is

believed to be true and even though it is in fact true, because of doubt whether it can be

proved in court or fear of the expense of having to do so. They tend to make statements

which steer far wider of the unlawful zone.15

This phenomenon, now widely termed "the chilling effect,"16 was, in the Court's

opinion, "inconsistent with a First Amendment[,] part of whose goal was to encourage

exposing and thus checking the abuses of those in power." n The Court reasoned that if

public officials were allowed to recover damages for any false and defamatory

statement, regardless of the level of care taken in printing such a story, then newspapers

would be discouraged, or "chilled," from printing stories on matters of public interest.

To remove the "chilling effect" of defamation law, the Court imposed, as a matter of

constitutional law,

The Sullivan Court acknowledged the idea that "politicians ... must accept the risk of

criticism as a consequence of their entry into public life, but the ordinary citizen should

not be held to that risk." As such, the Court created two distinct standards for fault: one

for defamed public officials and one for defamed private individuals. Under Sullivan, a

public official must prove by clear and convincing evidence that the material was

13 N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964)14 Id 1015 Id 12, pg 27916 Arielle D. Kane, Note, Sticks and Stones: How Words Can Hurt, 43 B.C. L. Rev. 159, 181 (2001);


http://www.lexisnexis.com:80/us/lnacademic/frame.do?reloadEntirePage=true&rand=1254653078135&returnToKey=20_T7496149713&parent=docview&target=results_DocumentContent&tokenKey=rsh-20.481236.03264888603#n34

http://www.lexisnexis.com:80/us/lnacademic/mungo/lexseestat.do?bct=A&risb=21_T7496144697&homeCsi=239002&A=0.4742577520947512&urlEnc=ISO-8859-1&&citeString=43%20B.C.%20L.%20Rev%20159,at%20181&countryCode=USA


published with constitutionally defined "actual malice"; that is, that the defendant

published false, defamatory material with knowledge or reckless disregard of its falsity.

Private individuals speaking on private issues, however, need only show by a mere

preponderance of the evidence that the defendant was at fault in publishing the

defamatory falsehood in most jurisdictions, this requires a showing of simple

negligence. Under this framework, public officials have a much more difficult time

succeeding in a defamation suit.

In the years following Sullivan, the Supreme Court has refused to back away from its

approach, instead choosing to extend it. The Court has applied the "actual malice"

standard to candidates for public office as well as to office holders and extended the

standard to "those who, by reason of the notoriety of their achievements or the vigor

and success with which they seek the public's attention, are properly classed as public

figures." As a result, courts have applied the rule to pop stars, television chefs, authors,

corporate executives, professional athletes, and other such members of the "glitterati."

The Sullivan decision undoubtedly changed defamation doctrine in the United States by

bringing the once private law governing defamatory speech under the ambit of First

Amendment constitutional jurisprudence. The decision also mandated a showing of

"falsity as a constitutional prerequisite to a public figure's recovery for defamation" and

introduced drastically different standards of fault for publishers, depending upon the

public status of the defamed plaintiff. The decision also changed the practice of

defamation suits, as it "effectively ended civil defamation suits by public officials in the

United States." Today, "the law of libel involving public [figures] has been all but

abolished."

Defamation claims often raise choice of law questions. This is especially true when the

defamatory speech is disseminated in several different nations. Because defamation law

"clearly applies to communications on the Net," the number of claims arising from

multi-national defamation undoubtedly has increased. Traditional choice of law

principles instruct that a tort dispute is governed by the law of the locale where the

harm occurred. "In typical defamation cases, "the place of the wrong' [is] the

jurisdiction where the defamatory matter was heard or read by a third person,

regardless of the place of broadcasting or writing." The Internet is "ubiquitous,

borderless, global and ambient" by nature, however. Both the United States and



Australia have crafted different approaches to addressing the complicated choice of law

concerns raised by such global defamation actions.17

American "Choice of Law"

American courts that have addressed the jurisdiction questions arising from Internet

defamation have "exhibited a general unwillingness to allow libel plaintiffs to assert

personal jurisdiction over defendants simply based on the ability of individuals in a

plaintiff's own forum to access allegedly defamatory material via the Internet." Most

American courts hold that Internet content must be "expressly targeted at or directed to

the forum state" to support jurisdiction, and that jurisdiction is proper only if the

publishers "manifested an intent to direct their website content" to a particular

jurisdiction's audience. These courts would not support an exercise of jurisdiction

simply because material was accessible within the jurisdiction.18

2: POSITION IN UNITED KINGDOM

The Defamation Act 1996 is the main UK law governing defamation. A defamatory

statement can be published in:17 Abbey L. Mansfield, Cyber-Libeling the Glitterati: Protecting the First Amendment for Internet Speech, 9 Vand. J. Ent. & Tech. L. 897

18 Ibid



Verbal form, when it is classed as slander - because only the spoken word is

involved, slander can often be difficult to prove; or

Written form, when is classed as libel - a case for libel is easier to bring because

evidence can be documented.

Material may have the potential to defame someone if:

The statement made would make an ordinary person modify their opinions of a

person as a result of hearing or reading the statement.

Under UK law it is possible to defame corporations as well as individuals.

Defamation actions in relation to the Internet have so far involved libel. Libel must be

widely 'published'. You could libel someone using electronic networks by:

Sending an email, or an email attachment, where that email is widely posted or

forwarded;

Making material available via a web page;

Posting to an email list or newsgroup; or

Streaming audio or video via the Net.

Anyone who actively transmits defamatory material is liable as part of any legal action.

Most standard contracts for Internet services include conditions relating to defamation.

The 1996 Act creates a category of 'special publisher', where;

the material transmitted is passed automatically by electronic systems without their

involvement; or

they are only the suppliers of the equipment or systems that enable publishing or

distribution.

The Act also outlines the framework for prosecuting cases of alleged defamation, as well

as various defences for anyone prosecuted along with the author of the material. To

successfully defend against prosecution you must show that:

You were not the author, editor or publisher of the material;



That you had taken 'reasonable care' to prevent the publication of any defamatory

material; and

That you did not know, or had reason to believe, that the material was defamatory,

and that your transmission did not contribute to the construction of the defamatory

material; or

The reputation of the 'defamed' person is such that the material could not

conceivably change the average person's views on them.

The current legal framework will probably be revised as part of new legislation for

electronic commerce and electronic media.

If a person discovers that material that is damaging to their reputation is about to be

disclosed, they could bring an injunction to prevent publication (on the basis of the damage

it would cause, rather than on grounds of defamation). If the alleged defamatory material is

already in the public domain, an injunction could be requested to force the removal or

recall of the material before the case is heard.

IMPORTANT CASES

1. Laurence Godfrey v Demon Internet Ltd.19

In UK’s first cyber defamation case, the defendants, who carried on business as

an Internet service provider, received and stored on their news server an article,

defamatory of the plaintiff, which had been posted by an unknown person using another

service provider. The plaintiff informed the defendants that the article was defamatory and

asked them to remove it from their news server. The defendants failed to do so and it

remained available on the server for some 10 days until its automatic expiry. The plaintiff

brought proceedings for libel against the defendants, who relied in their defence on section

1(1) of the Defamation Act 1996 n1 , contending that they were not the publisher of the

statement complained of, that they had taken reasonable care in relation to its publication,

and that they did not know and had no reason to believe that they had caused or

19 [2001] QB 201



contributed to the publication of a defamatory statement. The plaintiff applied to strike out

that part of the defence as disclosing no reasonable or sustainable defence at law.

On the plaintiff's application-

Held

Granting the application, that as a service provider who transmitted or facilitated the

transmission to any of their newsgroup subscribers of a posting received and stored by

them via the Internet the defendants were a publisher of that posting at common law; that

they were not merely the passive owner of an electronic device through which postings

were transmitted but actively chose to receive and store the news group exchanges

containing the posting which could be accessed by their subscribers, and could have

chosen to obliterate the posting complained of, as they later did; that, although they were

not a publisher within the meaning of section 1(2) and (3) of the 1996 Act and could

therefore satisfy section 1(1)(a) of that Act, once they knew of the defamatory content of

the posting and chose not to remove it from their news server they could no longer satisfy

the additional requirements of section 1(1)(b), that they took reasonable care in relation to

the publication, or section 1(1)(c), that they did not know and had no reason to believe that

what they did caused or contributed to the publication; and that, accordingly, the parts of

their pleaded defence which relied on section 1(1) of the 1996 Act would be struck out

2. Jameel (Yousef) v Dow Jones & Co Inc20

The foreign claimant issued defamation proceedings in England against the publisher of a

US newspaper in respect of an article posted on an Internet website in the USA, which

was available to subscribers in England. The claimant alleged that the article, together with

a list of names in an Internet hyperlink referred to in the article, implied that he had been

or was suspected of having been involved in funding a well known terrorist organisation.

The publisher averred that only five subscribers within the jurisdiction had accessed

the Internet article, that the claimant had in fact suffered no or minimal damage to his

reputation and that article 10 of the Convention for the Protection of Human Rights and

Fundamental Freedoms, as scheduled to the Human Rights Act 1998 n1 , precluded him

from relying on any legal presumption of damage to establish injury or harm. In due course

20 [2005] QB 946



the claimant, while disputing that only five subscribers had read the article, accepted that

there had been minimal publication within the jurisdiction. In interlocutory proceedings the

judge granted the claimant's application to strike out that part of the defence by which the

publisher sought to prevent him from relying on the legal presumption of damage and

refused the publisher's application for summary dismissal of the claim, rejecting its

contention that the claimant had no realistic prospect of success.

On the publisher's appeals against both orders-

Held, (1) dismissing the appeal against the striking out of part of the defence, that it was an

irrebuttable presumption in English defamation law that the publication of a defamatory

article damaged the person defamed by it; that the bringing of a defamation claim by a

claimant who had suffered no or minimal damage to his reputation might constitute an

interference with freedom of expression that was not necessary for the protection of the

claimant's reputation; but that such cases would be very rare, would not have a chilling

effect upon the media and did not require the presumption of damage to be abandoned for

incompatibility with article 10 of the Convention; and that in such circumstances the

appropriate remedy for a defendant

3. Bunt v. Tilley and others21

The claimant brought proceedings in libel in respect of statements posted on websites, the

responsibility for which he attributed to one or other of the first to third defendants. He

also sought remedies against their respective internet service providers although he did not

plead that any of them had hosted any website relevant to his claims. The basis upon which

the claimant sought to establish his causes of action was that the first to third defendants

published the words complained of 'via the services provided' by the internet service

provider defendants. The internet service provider defendants applied for orders that the

claims against them be struck out or dismissed on a summary basis. The court considered

whether aninternet service provider could be liable in respect of material which was

simply communicated via the services which they provided. The internet service provider

defendants contended, inter alia, that the necessary ingredients for publication were

missing.

21 [2006] 3 All ER 336



Held - An internet service provider which performed no more than a passive role in

facilitating postings on the internet could not be deemed to be a publisher at common law.

It was essential to demonstrate a degree of awareness or at least an assumption of general

responsibility, such as had long been recognised in the context of editorial responsibility,

in order to impose legal responsibility under the common law for the publication of words.

Although it was not always necessary to be aware of defamatory content to be liable for

defamatory publication, there had to be knowing involvement in the process of publication

of the relevant words. It was not enough that a person had played merely a passive

instrumental role in the process. On the evidence in the instant case the claimant had no

realistic prospect of being able to establish that any of the internet service provider

defendants had, in any meaningful sense, knowingly participated in the relevant

publications. The applications would therefore be allowed.

3: AUSTRALIAN POSITION

In Australia, there is no legislation dealing specifically with defamation on the Internet.

Defamation laws are applicable to publications generally, rather than specifically to

particular media. Hence, the laws applicable to offline material are also applicable, in



principle, to online material. However, the courts are being called on to work out how

existing principles are to be applied to new contexts.22

The recent case:

Dow Jones & Co. v. Gutnick23

While American courts are increasingly unwilling to recognize personal jurisdiction over

defamation defendants based solely on the ability of individuals in the defendant's forum to

access the material on the Internet, Australian courts have no such qualms. In 2002, the

High Court of Australia issued a landmark decision in Dow Jones & Co. v. Gutnick.

Gutnick was the subject of an expose in Barron's Online magazine and the Wall Street

Journal Online newspaper, both accessible on the Internet, and claimed that he was

defamed by the article. Gutnick, a citizen of Australia, filed the suit in Australian courts.

Dow Jones, an American company and the parent of Barron's and the Wall Street Journal,

contended that the transformation of an [*909] article from print format to electronic

format is similar to the traditional publication of an article. Because Dow Jones' electronic

conversion sites were located in New Jersey, the defendant argued that New Jersey was the

site of publication and jurisdiction for the suit was vested in New Jersey courts.

The High Court rejected Dow Jones' argument, relying instead on Australian common law

precedent, which states that the place where defamatory material is "comprehended" is the

place of the tort. Rigidly applying this rule to the facts, the Court articulated the following

rule:

In the case of material on the World Wide Web, it is not available in comprehensible

form until downloaded on to the computer of a person who has used a web browser to

pull the material from the web server. It is where that person downloads the material

that the damage to reputation may be done. Ordinarily then, that will be the place

where the tort of defamation is committed.24

Though Dow Jones did not aim its allegedly defamatory statements at Australia, the court

reasoned that "those who post information on the World Wide Web do so knowing that the

information they make available is available to all and sundry without any geographic

22 http://www.efa.org.au/Issues/Censor/defamation.html retrieved on 12/11/2009 23 (2002) 210 C.L.R. 57524 Id pg. 607


http://www.efa.org.au/Issues/Censor/defamation.html


restriction." Because the allegedly defamatory statement was downloaded and viewed in

Australia, the High Court held that jurisdiction was proper in Australia.

4. INDIAN POSITION: THE JOURNEY SO FAR

So far Cyber defamation was covered under section 499 of the Indian Penal Code read

with Section 4 of the IPC.

Section 499 of the IPC provides 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 expected, of defame that person.

No specific mention has been made with regard to any electronic publication in the section.

Section 4 of the IT Act however, gives legal recognition to electronic records. It provides

that if the law requires any information or other matter in writing or typewritten or printed

form, such requirement would be deemed to have been satisfied if such information is

rendered or made available in electronic form and accessible so as to be usable for a

subsequent reference. Keeping in mind the legal fiction being created by section 4 of the IT

Act, if any defamatory information is posted on the Internet either through emails or chat

rooms or chat boards, such posting would be covered under section 499 requirement of

‘publication’ and would amount to cyber defamation.25

SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra

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 plaintiff.26

But the case have been dismissed in the year 2007 after the petitioner was not able to prove

the case beyond doubts of the case.

M.J.Akbar v. Indian Institute of Technology, Madras27

In this Criminal Original Petition fact in issue was that certain articles were published by

the newspaper; Deccan Chronicle in its Bangalore and Hyderabad edition alleging that IIT,

Madras was involved in foul admission procedure which was taken up as defamatory

25 S.K Varma and Raman Mitta, Legal Dimensions of Cyberspace, pg 312

26 http://cyberlaws.net/cyberindia/defamation.htm acessed on 12/11/200927 MANU/TN/1677/2009, decided on 16.07.2009


http://cyberlaws.net/cyberindia/defamation.htm


against IIT. Though the article was not published in Madras or any part of Tamil Nadu, the

Madras High Court exercised its jurisdiction relying upon the argument of the Respondent;

since, the said news item is also available on the publishers Internet edition of the news

paper which can be accessed by any person across India and World and in such cases the

cause of action can arise even in Madras Court where though no newspaper article was

published but the article was available through Internet. The case is under trial in a Madras

Criminal Court.

Other than these two cases many cases have come up before the police which are still sub-

judice like making fake profiles of individual with electronically edited obscene images of

them, publishing of Hate speeches against a class or caste, etc.

IT ACT, 2008: THE ROAD AHEAD

The newly enacted IT Act, 2000 amended in 2008 , which came in force from 26th Nov.

2008, has Sec. 66A which provides for penal measures for mala fide use of electronic

resources to send information detrimental to the receiver. For the section to be attracted the

‘information’ needs to be grossly offensive, menacing, etc. and the sender needs to have

known it to be false.

Section 66A

Any person who sends, by means of a computer resource or a communication device,

(a) any information that is grossly offensive or has menacing character; or



(b) any 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 by making use of such computer resource or a communication device,

(c) 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.

Explanation: For the purposes of this section, terms "Electronic mail" and "Electronic

Mail Message" means a message or information created or transmitted or received on a

computer, computer system, computer resource or communication device including

attachments in text, image, audio, video and any other electronic record, which may be

transmitted with the message

Some of the early analysts feel that the Section 66A which punishes persons for sending

offensive messages is overly broad, and is patently in violation of Art. 19(1)(a) of our

Constitution. The fact that some information is "grossly offensive" (s.66A(a)) or that it

causes "annoyance" or "inconvenience" while being known to be false (s.66A(c)) cannot

be a reasons for curbing the freedom of speech unless it is directly related to decency or

morality, public order, or defamation (or any of the four other grounds listed in Art.

19(2)).28

In my opinion the section also fails on one major issue, it says ‘a person who sends’, it is

hard to interpret whether it is focuses only on directed messages towards a particular

individual or even to published articles through medium like blogs, social networking

websites, etc. Well this will be clear once it will come for judicial interpretation.

Being a penal provision it will be upon the prosecution to prove the mala-fide intention of

the sender beyond doubt.

28 Pranesh Prakash, Centre for Internet and Society Accessed from: http://www.cis-india.org/advocacy/igov/it-act/short-note-on-amendment-act-2008, last on 13/11/2009


http://www.cis-india.org/advocacy/igov/it-act/short-note-on-amendment-act-2008


6. DISSCUSSION

The impact of the First Amendment has resulted in a substantial divergence of approach

between American and English defamation law. For example in innocent dissemination

cases in English law the Defendant publisher has to establish his innocence whereas in

American law the Plaintiff who has been libelled has to prove that the publisher was not

innocent.

The US Congress decided not to impose tort liability on Internet Service Providers which

carry other third parties’ potentially defamatory content through their servers as a policy

decision and the effect of the section 230 of the Communications Decency Act 1996 was to

overturn the decision made in theProdigy case. Wilkinson C.J. in Zeran v. America

Online stated that "section 230 creates a federal immunity to any cause of action that



would make service providers liable for information originating with a third-party user of

the service. Specifically, Section 230 precludes courts from entertaining claims that would

place a computer service provider in a publisher’s role. Thus, lawsuits seeking to hold a

service providers liable for its exercise of a publisher’s traditional editorial functions --

such as deciding whether to publish, withdraw, postpone or alter content -- are barred

The defence of innocent dissemination has never provided an absolute immunity for

distributors, however mechanical their contribution. It does not protect those who knew

that the material they were handling was defamatory, or who ought to have known of its

nature. Those safeguards are preserved, so that the defence is not available to a defendant

who knew that his act involved or contributed to publication defamatory of the plaintiff. It

is available only if, having taken all reasonable care, the defendant had no reason to

suspect that his act had that effect."

Holding service provider many people see it as an attack on the freedom of speech, …. but

i think that they have to distinguish between the right to state their views and opinions, and

the quite different matter of imaginary rights to make defamatory comments or statements

and get away with it.

On the one hand the Australian Courts are exercising international jurisdiction in

defamatory cases the Indian Court in MJ Akbar case has also shown that they will also not

lag far behind and will take up the jurisdiction of matters of cyber defamation even if the

cause of actions did not arise in their ordinary jurisdiction because of the far reach and

presence of internet all around the globe.

7. SUGGESTIONS

Watching this non- uniformity among Cyber defamation cases around the world and

considering its global presence and cross-border feature it will be fair to suggest the

followings:

1. The Governments around the world should try to form a Convention on the

line of TRIPS which should deal with Cyber related laws and crimes. The



existing EU Budapest Convention Cybercrime 2001 has not included Cyber

Defamation in the convention.

2. The Jurisdiction matter in Defamation cases should be settled through such

convention. In my seeing the global nature of such crime the provision

should be such, so, a suit can be filed anywhere around convention

countries.

3. The penal and civil provisions should be uniform around the world.

4. The liability of service provider should be completely erased because they

providing a opportunity to all to express themselves, it’s upto people, the

way they wish to use it.

5. The service provider duty would be to reveal identity of the person so being

called the defamer, when asked by the appropriate law agencies.

CONCLUSION

In the conclusion it can be said that there is no uniformity around the globe in treating the

cyber defamation cases. The major commonwealth countries follow different practice in

this regard. The US is most rigid on this where a cyber defamation case is hard to prove

because of the Constitutional first amendment. In English law the Defendant publisher has

to establish his innocence whereas in American law the Plaintiff who has been libelled has

to prove that the publisher was not innocent. Australia taking the extreme approach have

gone beyond the national boundaries to hold the people who cause defamation to its

citizens. The Indian Jurisprudence is yet to develop in this regard, the new IT Act, 2008 is



a new ray of hope in this regard which has some stringent section to tackle the activities of

defamation and Hate speeches.

BIBLIOGRAPHY

BOOKS

David Bainbridge, Introduction to Computer Law, Pearson Longman, Essex UK

2004

Majid yar, Cybercrime and Society, Sage Publication, London 2006

Patrica L. Ballica, Cyber Law: Problems of Policy & Jurisprudence in the

information Age, Thomson West, St. Paul 2004

Clive Gringras, The Laws of internet, BWLN, UK 2003



Sharon K. Black, Telecommunication law in the Internet Age, Morgan Kaufmann

Publishers, San Francisco, 2002

Verma S.K., Mittal Raman, Legal dimensions of Cyberspace, Indian Law Institute,

New Delhi 2004

ARTICLES

Abbey L. Mansfield, Cyber-Libeling the Glitterati: Protecting the First Amendment

for Internet Speech, Vanderbilt Journal of Entertainment and Technology Law ,

Spring, 2007, 9 Vand. J. Ent. & Tech. L. 897

Barry J. Waldman, A Unified Approach to Cyber-Libel: Defamation on the

Internet, a Suggested Approach, , Richmond Journal of Law & Technology, Fall,

1999, 6 Rich. J.L. & Tech. 9

Eric J. McCarthy, Networking in cyberspace: electronic defamation and the

potential for international forum shopping, University of Pensylvania Journal of

International Business Law, 16 U. Pa. J. Int'l Bus. L. 527

Juanita Darling, Forum Shopping and the Cyber Pamphleteer: Banamex V.

Rodriguez, Lawrence Erlbaum Associates, Inc. Communication Law and Policy

Summer, 2003, Comm. L. & Pol'y 361

K. Jaishankar, Cyber Hate: Antisocial networking in the internet, 2008

International Journal of Cyber Criminology July - December 2008, Vol 2 (2): 16–

20



Scot Wilson, Corporate Criticism on the Internet: The Fine Line Between

Anonymous Speech and Cybersmear, Pepperdine University School of Law,

Pepperdine Law Review 2002, 29 Pepp. L. Rev. 533

Shawn A. Bone, Private Harms in the Cyber-World: The Conundrum of Choice of

Law for Defamation Posed by Gutnick v. Dow Jones & Co., Washington & Lee

Law Review 62 Wash & Lee L. Rev. 279

Stephanie Blumstein , The new immunity in cyberspace: the expanded reach of the

communications decency act to the libelous "re-poster", Boston University Journal

of Science and Technology Law, Summer, 2003, 9 B.U. J. SCI. & TECH. L. 407

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What Was The Password? http://www.outlookindia.com/printarticle.aspx?260060

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http://jurisonline.in/2009/10/defamation-on-the-internet-a-comparative-study-of-laws-in-the-us-uk-and-india/

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http://www.outlookindia.com/printarticle.aspx?260060

http://www.outlookindia.com/article.aspx?260060

http://library.findlaw.com/2001/Jan/1/127167.html

http://www.dba-oracle.com/internet_cyberlibel_usa_cases_message_boards_forums.htm

http://www.cyberlibel.com/elements.html

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