CYBER DEFAMATION

(Term paper towards the fulfilment of assessment in the subject of Law of Torts)

LAW OF TORTS
NATIONAL LAW UNIVERSITY, JODHPUR

WINTER SESSION

JAN-MAY 2023

Submitted By: Submitted To:

Ishiteshwari Mrs. Kanika Dhingra

B.A.-LL.B.(Hons.) Faculty of Law of Torts

U.G. II-Semester (Section-A)

Roll No: 2141

Shalu Meena

B.A.-LL.B.(Hons.)

U.G. II-Semester (Section-B)

Roll No: 2175

Law of Torts 1
 ACKNOWLEDGMENT

Firstly, I would like to thank respected Mrs. Kanika Dhingra for giving me such a golden opportunity to

show my skills and capability through this project. This project is the result of the extensive ultrapure study,

hard work and labour, put into to make it worth reading. It is my pleasure to be indebted to various people,

who directly or indirectly contributed in the development of this work and who influenced my thinking,

behaviour, and acts during the course of study. Lastly, I would like to thank the almighty and my parents for

their moral support and my friends with whom I shared my day-to-day experience and received

lots of suggestions that improved my quality of work.

Ishiteshwari

Shalu Meena

Law of Torts 2
 TABLE OF CONTENTS
1.INTRODUCTION .......................................................................................................................................... 6

2.DEFAMATION IN GENERAL ..................................................................................................................... 6

3.DEFAMATION ON THE INTERNET: THE RISING ISSUE ...................................................................... 8

4.DISTINCTIVE FEATURES OF CYBER DEFAMATION AND IMPACT ................................................. 9

GLOBAL NATURE .............................................................................................................................. 9

Interactive Nature................................................................................................................................. 10

Accessability ........................................................................................................................................ 10

Anonymity ........................................................................................................................................... 10

5. LAW OF CYBER DEFAMATION IN VARIOUS COMMONWEALTH COUNTRIES ......................... 11

POSITION IN UNITED STATES OF AMERICA ............................................................................. 11

POSITION IN UNITED KINGDOM .................................................................................................. 13

AUSTRALIAN POSITION ................................................................................................................. 14

INDIAN POSITION: THE JOURNEY SO FAR ................................................................................ 15

IT ACT, 2008: THE ROAD AHEAD.................................................................................................. 16

Section 66A .............................................................................................................................................. 16

7. DISSCUSSION ............................................................................................................................................ 18

8. SUGGESTIONS .......................................................................................................................................... 19

9. CONCLUSION ............................................................................................................................................ 19

BIBLIOGRAPHY ............................................................................................................................................ 20

Law of Torts 3
 INDEX OF AUTHORITIES:

Cases

Govinda Charyulu v Sheshgiri Rao, AIR 1941 Mad 860 (861) ........................................................................................ 9

MANU/TN/1677/2009, decided on 16.07.2009 ............................................................................................................. 18

Other Authorities

(2002) 210 C.L.R. 57 ...................................................................................................................................................... 16

Abbey L. Mansfield, Cyber-Libeling the Glitterati: Protecting the First Amendment for Internet Speech ..................... 9

Abbey L. Mansfield, Cyber-Libeling the Glitterati: Protecting the First Amendment for Internet Speech, ............ 10, 14

Clive Gringras, The Laws of Internet, 2003, pg. 12 ........................................................................................................ 10

http://cyberlaws.net/cyberindia/defamation.htm acessed on 12/11/200 ......................................................................... 18

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

http://www.efa.org.au/Issues/Censor/defamation.html retrieved on 12/11/2009............................................................ 16

Pranesh Prakash, Centre for Internet and Society ........................................................................................................... 19

S.K Varma and Raman Mitta, Legal Dimensions of Cyberspace, pg 31 ........................................................................ 17

Sharon K. Black, Telecommunication Law in the Internet Age, 1st ed. 2002, pg. 41...................................................... 10

Treatises

David Bainbridge, Introduction to Computer Law ........................................................................................................... 9

K.D.Gaur, A Text Book on the Indian Penal Code ....................................................................................................... 8, 9

Law of Torts 4
 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.

Law of Torts 5
 1.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 project 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 project also discusses jurisdictional issues in such crimes, the
problems connected and solutions thereof.

2.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

1
K.D.Gaur, A Text Book on the Indian Penal Code, 3rd ed. updtd rep. 2008, pg 744
Law of Torts 6
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 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
Abbey L. Mansfield, Cyber-Libeling the Glitterati: Protecting the First Amendment for Internet Speech,
9 Vand. J. Ent. & Tech. L. 897
3
David Bainbridge, Introduction to Computer Law, 5th ed. 2004, pg. 329
4
Ibid
5
Govinda Charyulu v Sheshgiri Rao, AIR 1941 Mad 860 (861)
6
Supra note 1
7
Ibid
Law of Torts 7
3.DEFAMATION ON THE INTERNET: THE RISING ISSUE
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
8
problem. 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 "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

8
Sharon K. Black, Telecommunication Law in the Internet Age, 1st ed. 2002, pg. 418
9
Clive Gringras, The Laws of Internet, 2003, pg. 123
10
Abbey L. Mansfield, Cyber-Libeling the Glitterati: Protecting the First Amendment for Internet Speech,
9 Vand. J. Ent. & Tech. L. 897

Law of Torts 8
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.

4.DISTINCTIVE FEATURES OF CYBER DEFAMATION AND IMPACT11

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.

❖ 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?

11
http://www.cyberlibel.com/elements.html retrieved on 12/11/2009
Law of Torts 9
 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.

❖ 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.

❖ 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.

❖ 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

Law of Torts 10
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

5. LAW OF CYBER DEFAMATION IN VARIOUS COMMONWEALTH

COUNTRIES
❖ 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.

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 of Torts 11
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.

the law required the plaintiff to show merely that:

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

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

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.12

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.13

12
Abbey L. Mansfield, Cyber-Libeling the Glitterati: Protecting the First Amendment for Internet Speech,
9 Vand. J. Ent. & Tech. L. 897
13
Ibid
Law of Torts 12
 ❖ POSITION IN UNITED KINGDOM
The Defamation Act 1996 is the main UK law governing defamation. A defamatory statement can be
published in:

• 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:

Law of Torts 13
 • 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.

❖ 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.14

The recent case: Dow Jones & Co. v. Gutnick15

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.

14
http://www.efa.org.au/Issues/Censor/defamation.html retrieved on 12/11/2009
15
(2002) 210 C.L.R. 575
Law of Torts 14
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.16

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 restriction." Because the allegedly
defamatory statement was downloaded and viewed in Australia, the High Court held that jurisdiction was
proper in Australia.

❖ 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.17

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

16
Id pg. 607
17
S.K Varma and Raman Mitta, Legal Dimensions of Cyberspace, pg 312

Law of Torts 15
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.18

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, Madras19

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 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

18
http://cyberlaws.net/cyberindia/defamation.htm acessed on 12/11/2009
19
MANU/TN/1677/2009, decided on 16.07.2009
Law of Torts 16
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)).20

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.

20
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
Law of Torts 17
 7. 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 the
Prodigy 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.

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 8. 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.

9. 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.

Law of Torts 19
 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

Law of Torts 20
 • 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

ELECTRONIC SOURCE

• Important elements of the internet applicable to cyber libel http://www.cyberlibel.com/elements.html

• US cases on cyber libel

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

• Beware of Cyber-libel: If you wouldn't say it in a newspaper, don't 'say' it on the net
http://library.findlaw.com/2001/Jan/1/127167.html

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

• Regulation Of Defamation Over The Internet : Juridictional Issues http://www.ebc-
india.com/practicallawyer/index2.php?option=com_content&itemid=99999999&do_pdf=1&id=467.
• http://www.webnewswire.com/node/476399
• http://jurisonline.in/2009/10/defamation-on-the-internet-a-comparative-study-of-laws-in-the-us-uk-and-india/

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Law of Torts 22