Introduction: social media has become a part and portion of our
daily life and on regular basis most of us remain engaged in the social media
by posting some text or picture or video or otherwise. The burning question in this regard is liability
of a person who made a post in social media.
To be more precise, what is the liability of a person who
posted something on the social media which seems to be defamatory to another.
What is defamation:
As per section 499 of Indian Penal Code, 1860
defamation is
“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, to defame that person.
Explanation 1.—It may amount to defamation to impute anything to a deceased
person, if the imputation would harm the reputation of that person if living,
and is intended to be hurtful to the feelings of his family or other near
relatives. Explanation 2.—It may amount to defamation to make an imputation
concerning a company or an association or collection of persons as such.
Explanation 3.—An imputation in the form of an alternative or expressed
ironically, may amount to defamation. Explanation 4.—No imputation is said to
harm a person’s reputation, unless that imputation directly or indirectly, in
the estimation of others, lowers the moral or intellectual character of that
person, or lowers the character of that person in respect of his caste or of
his calling, or lowers the credit of that person, or causes it to be believed
that the body of that person is in a loathsome state, or in a state generally
considered as disgraceful. Illustrations
(a) A says—“Z is an honest man; he never stole B’s
watch”; intending to cause it to be believed that Z did steal B’s watch. This
is defamation, unless it fall within one of the exceptions.
(b) A is asked who stole B’s watch. A points to Z,
intending to cause it to be believed that Z stole B’s watch. This is
defamation unless it fall within one of the exceptions.
(c) A draws a picture of Z running away with B’s
watch, intending it to be believed that Z stole B’s watch. This is defamation,
unless it fall within one of the exceptions. First Exception.—Imputation of
truth which public good requires to be made or published.—It is not defamation
to impute anything which is true concerning any person, if it be for the public
good that the imputation should be made or published. Whether or not it is for
the public good is a question of fact. Second Exception.—Public conduct of
public servants.—It is not defamation to express in a good faith any opinion
whatever respecting the conduct of a public servant in the discharge of his
public functions, or respecting his character, so far as his character appears
in that conduct, and no further. Third Exception.—Conduct of any person
touching any public question.—It is not defamation to express in good faith any
opinion whatever respecting the conduct of any person touching any public
question, and respecting his character, so far as his character appears in that
conduct, and no further. Illustration It is not defamation in A to express in
good faith any opinion whatever respecting Z’s conduct in petitioning
Government on a public question, in signing a requisition for a meeting on a
public question, in presiding or attending a such meeting, in forming or
joining any society which invites the public support, in voting or canvassing
for a particular candidate for any situation in the efficient discharges of
the duties of which the public is interested. Fourth Exception.—Publication of
reports of proceedings of Courts.—It is not defamation to publish substantially
true report of the proceedings of a Court of Justice, or of the result of any
such proceedings. Explanation.—A Justice of the Peace or other officer holding
an inquiry in open Court preliminary to a trial in a Court of Justice, is a
Court within the meaning of the above section. Fifth Exception.—Merits of case
decided in Court or conduct of witnesses and others concerned.—It is not
defamation to express in good faith any opinion whatever respecting the merits
of any case, civil or criminal, which has been decided by a Court of Justice,
or respecting the conduct of any person as a party, witness or agent, in any
such case, or respecting the character of such person, as far as his character
appears in that conduct, and no further. Illustrations
(a) A says—“I think Z’s evidence on that trial is so
contradictory that he must be stupid or dishonest”. A is within this exception
if he says this is in good faith, in as much as the opinion which he expresses
respects Z’s character as it appears in Z’s conduct as a witness, and no
further.
(b) But if A says—“I do not believe what Z asserted at
that trial because I know him to be a man without veracity”; A is not within
this exception, in as much as the opinion which he express of Z’s character, is
an opinion not founded on Z’s conduct as a witness. Sixth Exception.—Merits of
public performance.—It is not defamation to express in good faith any opinion
respecting the merits of any performance which its author has submitted to the
judgment of the public, or respecting the character of the author so far as his
character appears in such performance, and no further. Explanation.—A
performance may be substituted to the judgment of the public expressly or by
acts on the part of the author which imply such submission to the judgment of
the public. Illustrations
(a) A person who publishes a book, submits that book
to the judgment of the public.
(b) A person who makes a speech in public, submits
that speech to the judgment of the public.
(c) An actor or singer who appears on a public stage,
submits his acting or signing in the judgment of the public.
(d) A says of a book published by Z—“Z’s book is foolish;
Z must be a weak man. Z’s book is indecent; Z must be a man of impure mind”. A
is within the exception, if he says this in good faith, in as much as the
opinion which he expresses of Z respects Z’s character only so far as it
appears in Z’s book, and no further.
(e) But if A says—“I am not surprised that Z’s book is
foolish and indecent, for he is a weak man and a libertine”. A is not within
this exception, in as much as the opinion which he expresses of Z’s character
is an opinion not founded on Z’s book. Seventh Exception.—Censure passed in
good faith by person having lawful authority over another.—It is not defamation
in a person having over another any authority, either conferred by law or
arising out of a lawful contract made with that other, to pass in good faith
any censure on the conduct of that other in matters to which such lawful
authority relates. Illustration A Judge censuring in good faith the conduct of
a witness, or of an officer of the Court; a head of a department censuring in
good faith those who are under his orders; a parent censuring in good faith a
child in the presence of other children; a school-master, whose authority is
derived from a parent, censuring in good faith a pupil in the presence of other
pupils; a master censuring a servant in good faith for remissness in service; a
banker censuring in good faith the cashier of his bank for the conduct of such
cashier as such cashier—are within this exception. Eighth Exception.—Accusation
preferred in good faith to authorised person.—It is not defamation to prefer
in good faith an accusation against any person to any of those who have lawful
authority over that person with respect to the subject-matter of accusation.
Illustration If A in good faith accuse Z before a Magistrate; if A in good
faith complains of the conduct of Z, a servant, to Z’s master; if A in good
faith complains of the conduct of Z, and child, to Z’s father—A is within this
exception. Ninth Exception.—Imputation made in good faith by person for
protection of his or other’s interests.—It is not defamation to make an
imputation on the character of another provided that the imputation be made in
good faith for the protection of the interests of the person making it, or of
any other person, or for the public good. Illustrations
(a) A, a shopkeeper, says to B, who manages his
business—“Sell nothing to Z unless he pays you ready money, for I have no
opinion of his honesty”. A is within the exception, if he has made this
imputation on Z in good faith for the protection of his own interests.
(b) A, a Magistrate, in making a report of his own
superior officer, casts an imputation on the character of Z. Here, if the
imputation is made in good faith, and for the public good, A is within the
exception. Tenth Exception.—Caution intended for good of person to whom
conveyed or for public good.—It is not defamation to convey a caution, in good
faith, to one person against another, provided that such caution be intended
for the good of the person to whom it is conveyed, or of some person in whom
that person is interested, or for the public good.”
Freedom of speech:
Article 19(1) (a) of the Constitution of India states
that, all citizens shall have the right to freedom of speech and expression.
The philosophy behind this Article lies in the Preamble of the Constitution,
where a solemn resolve is made to secure to all its citizen, liberty of thought
and expression. The exercise of this right is, however, subject to reasonable
restrictions for certain purposes being imposed under Article 19(2) of the
Constitution of India.
Section 66A of Information Technology Act:
Section 66A of Information & Technology Act 2000
(IT Act), was quashed by the Supreme Court of India in Shreya Singhal v. Union
of India, due to ambiguity in the definition of the word ‘offensive’ in the
Section. The section stated that sending any offensive message to a computer or
any other communication device would be an offence. Such unfettered power,
under section 66A, was misused by the Government in curtailing and suppressing
people’s freedom of speech and expression and hence repealed.
How and where to complaint:
Anybody who has been the victim of online defamation
can file a complaint with the Cyber Crime Investigation Cell via the National
Cyber Crime Reporting Portal.
Yet, it is important to highlight that filing a cyber
defamation case against someone is a serious matter, since the act of making a
complaint puts the accused's reputation in jeopardy.
Furthermore, the burden of establishing that he or she
has been defamed falls fully on the complainant, and if he or she is unable to
do so, the defendant has the right to sue for defamation, false and frivolous
complaint, and damages.
Provisions Governing Online Defamation In India
Section 499, Indian Penal Code
This section says 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 excepted, to defame that
person.
Section 500, Indian Penal Code
This section provides for punishment. Any person held
liable under section 499 will be punishable with imprisonment of two years or
fine or both.
Section 469, Indian Penal Code
This section deals with the forgery, in this if anyone
creates false document or fake account by which it harms the reputation of a
person. The punishment of this offence can extend up to 3 years and fine.
Elements Of Defamation
·
The
statement should be made – Statement can be made orally by words or visible
gestures and by written statement intended to be read.
·
The
statement must refer to the plaintiff – The defamatory statement made to the
person shall be expressed or implied. Name of the plaintiff shall not be
necessarily mentioned.
·
The
statement must be defamatory – The most important essential of the offence is
that the statement must be defamatory and untrue.
·
The
intention of the doer – The person making the statement must know that the
statement published will damage the reputation of another person.
·
The
statement should be false – The statement published should be forced because
the truth is a defence to defamation. The law does not punish anyone publishing
the truth.
·
The
statement must be published – Publication of statement to a third person other
than the person being defamed makes the person liable for the offence.
·
Statement
must cause injury – The statement made should in some way harm or injure the
plaintiff.
Burden Of Proving Defamation
The liability to prove the statement made is
defamatory and untrue lies upon the plaintiff. The plaintiff has to prove that
the statement was made and that the statement shall be published, or heard by a
person other than the person being defamed. The statement made should be false
and untrue and must cause injury to the person being defamed. He/she has to
prove that the statement made is referred to him/her.
Defamation and its Nature:
·
Defamation
by nature is both a civil and criminal offence.
·
In
civil law, defamation is punishable under the Law of Torts by imposing
punishment in the form of damages awarded to the aggrieved party.
·
In
Criminal law, Defamation is a bailable, non-cognizable offence and can be
compounded.
Criminal Defamation:
·
In
matters of criminal defamation, imprisonment can be awarded, as per Indian
Penal Code (IPC) section 500.
·
Under
a criminal suit, the intention of the allegation must involve a criminality,
i.e. to defame, with malicious intent.
·
Must
be established beyond reasonable doubt that the action was meant for lowering,
harming the reputation of the affected party.
Case law on Social Media Post:
Allahabad HC stays criminal proceedings against man booked for Facebook Post expressing anguish over wife’s death during Medical Treatment; Ashok Kumar Gautam v. State of UP Application U/S 482 No. - 7716 of 2022.
Gauhati High Court grants bail to writer who allegedly questioned Martyr status of 22 CRPF involved in anti naxal operation; Sikha Sarma v. State of Assam, 2021 SCC OnLine Gau 1070, decided on 19-04-2021.
Conclusion:
Defamation is antithetical to reputation, fame, public
image, and is a valued asset for an individual. The courts have balanced
freedom of speech, expression, and dignity with the right to life with dignity.
The wisdom of lawmakers is reflected in treating slander and label at par with
each other, and discouraging malicious intent to harm.
https://www.linkedin.com/pulse/social-media-post-cyber-law-prithwish-ganguli
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