The use of
technology has become like drinking a glass of water, one might survive without
water but in today’s world living without technology sounds like a joke. The
growth of technology has made life easier, and humans dependable on it. Though
the concept of online defamation is new, the definition for defamation which is
used traditionally is used to describe the concept of online defamation, the
new concept involves injuring the reputation of a person through virtual mode.
The modern
trend of updating daily life online on social media has increased the chances
of defamation. People commenting on their views and making judgements, one or
another leads to hurting of feelings of a person, and has, therefore, increased
the risk of a person’s feeling getting hurt.
Court
stated in the case of Dixon v. Holden[1] that, “A man’s reputation is his property,
and if possible, more valuable, than other property.”
In India,
defamation comes under both civil and criminal offences, and the judiciary
system provides, with the legal remedies for the said victim. Defamation is
defined under Sec 499 of Indian Penal Code (IPC), under which both libel and
slander are criminal offences. Libel,
is a representation made in a permanent form, e.g., written, picture or
statute, etc. Whereas, Slander, is an
ephemeral publication of a defamatory statement made through words or gestures.
Section 500 of IPC provides for the punishment, for the person held accountable
under Section 499, the person is to be punished with two years of imprisonment
or fine, or both.
Essentials of Defamation[2]
1.
The statement must be
defamatory.
2.
The statement must refer
to the plaintiff.
3.
The statement must be
published.
4.
The 3rd party
should believe the defamatory statement to be true.
⮚ The statement must be defamatory:
defamatory statement is the one which leads to causing harm to the reputation
of a person (the plaintiff). To defame someone is to demean someone, by making
a statement, in the eyes of rational thinkers of the society.
In ‘Salmond
on the Law of Torts’, the following is mentioned about defamatory
statement:-
“A defamatory statement
is one which has a tendency to injure the reputation of the person, to whom it
refers; which tends, that is to say, to lower him in the estimation of
right-thinking members of society generally and in particular to cause him to
be regarded with feelings of hatred, contempt, ridicule, fear, dislike or
disesteem,”
⮚ The statement must refer
to the plaintiff: the plaintiff needs to
prove that the defamatory statement was directed towards him. It is not
necessary for the plaintiff’s name to be mentioned, if the person can still be
recognized, the defamatory statement
can be made in a
metaphorical way.
“If the label speaks of a
person by description without mentioning the name in order to establish a right
of action, the plaintiff must prove to the satisfaction of a jury that the
ordinary readers of the paper who knew him would have understood.”[3]
⮚ The statement must be
published: The communication of the
defamation needs to be made with someone other than the person defamed, as
defamation is an injury to a person’s reputation. Any statement made personally
to someone, without the presence of the third party, doesn’t amount to
defamation. Unless the statement is published, no civil action can be taken for
defamation
⮚ The 3rd party
should believe in the defamatory statement to be true: the third party should have the knowledge that the statement made is
describing the plaintiff, or is directed towards the
plaintiff.
What is Online Defamation?
Cyber or
online defamation is made through an electronic device connected to the
internet, where the computer or other devices are used for defaming someone.
Our Constitution indeed provides us with the right to ‘Freedom of Speech and
Expression’, but there are also limitations to the right, one of which is to
use the freedom in a rational way, the freedom is given to us, to express our
views about any wrong and unjust situations, not for causing any harm to the
reputation or feelings of a fellow citizen.
The
remedies provided for defamation, are specifically for the cases that take
place on physical space rather than on an online platform. As it is mentioned
earlier that defamation is both civil and criminal wrong, the aggrieved person
can file a plaint in civil against defamation under Tort, or can file a
complaint under IPC. In cases of defamation made in physical space it is easier
to trace and track down the person who made the statement, whereas in cases of
defamation made online, it’s quite a difficult job to trace down the person, as
in the cases of online defamation the matter is much global and there’s a high
chance for it to be ‘viral’, though it is not impossible to track down that
person.
With the
increasing numbers of internet usage, it gets difficult to find out the
culprit, because for e.g., if someone publishes a blog or a post causing harm
to the reputation of a person, finding out who was behind it takes strenuous
efforts, as while making an account people don’t always give authentic information
about themselves, once a defamatory post is published on websites like
Instagram and Facebook, it is only a matter of seconds for it to be viral. If
you see something offensive on Instagram or Facebook or Twitter, the website
tells you to either report the account or to just block it, but does blocking
or reporting the accounts to solve the issue of an individual regarding
defamation? It’s clear, things that are said and done on social media affects
the mental health of an individual more than we would like to admit, with the
involvement of social media in daily life, it certainly needs to be a safe
space for everyone.
How can India deal with online defamation?
1.
Firstly, the most
important way of curbing an issue is to make sure
that there’s a law regarding the same enforced in the
country. There is a law regarding offline defamation, but the issue arises
when the same law is used while dealing with online defamation.
2.
When it comes to the
laws regarding defamation, the laws should be flexible enough to be applicable
on all the social media platforms.
3.
And lastly, the lack of
awareness regarding online defamation should be dealt with, and lack of
importance that people give to cases of online defamations, needs to be dealt
with too.
With decades
passed India is still following many laws and rules that were established
during the British British Era but, the efficiency of those laws are not as
high as they were during that period. The problems faced by the modern and
digitalized society are not completely dealt with the laws that were made
decades ago. For a country like India, which is thriving to be digitally empowered, isn’t it necessary
for the government to make sure that the citizens feel comfortable enough to be
on the internet? Because digitalization doesn’t only mean turning paper
currency to plastic.
The law of
defamation is full of flaws, one of the reason is that it was made by British,
who no doubt made laws to protect their own; laws were made to protect the
Englishmen against any rumours that were being floated against them, other
being that, in civil law for defamation is not codified as legislation and
hence, depends on judge-made law.
Thus,
there is an urgent need for defamation law to be amended and to provide
remedies for the ones aggrieved.
[1] 1869 7 Eq. 488.
[2]to Dr R.K. Bangia, Law of Torts, 24th
ed., p. 151.
[3] Jones V. Hulton & co.,
(1909) 2 K.B. 444, at 454
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