Cyber Defamation- Section 66 A controversy

With the advent of social media, there have been innumerable instances of cyber defamation. It has definitely become very easy to defame anyone as cyber space has no territorial boundaries and has a very vast reach.

Defamation is defines as any intentional false communication, either written or spoken, that harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person. It encompasses both written statements, known as libel, and spoken statements, called slander. In law of torts there is legal recourse for the same.

However, the law of torts is not a very strong legal recourse, and if the defamation occurs in a case where a person uses a computer, computer network, computer system or communication device, then cyber laws has the answer.

Section 66 A of the Information Technology Act, 2000 provides for

Punishment for sending offensive messages through communication service, etc. It reads as under

- 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 makes 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.

Section 66A refers to the sending of any information through a communication service that is ‘grossly offensive’ or has ‘menacing character’. In the U.K., Section 127(1)(a) makes the sending of ‘matter that is grossly offensive or of an indecent, obscene or menacing character’ an offence. The words ‘indecent, obscene’ are omitted in the Indian version of this section.

There have been many PILs filed challenging the constitutionality of Section 66 A and for determination of a standard to determine what is “grossly offensive” and “menacing character”. The scope of these terms can differ from person to person and one person may find his friends referring to him as a fool or stupid on social networking platforms as mere fun, while some persons could find it as grossly offensive and an instance of cyber bullying. There has to be a reasonable standard and it should not stifle the fundamental freedom of speech and expression.

It is interesting to note that in the United States the elements that must be proved to establish cyber defamation are:

1. a publication to one other than the person defamed;

2. a false statement of fact;

3. that is understood as

a. being of and concerning the plaintiff; and

b. tending to harm the reputation of plaintiff.

If the plaintiff is a public figure, he or she must also prove actual malice.

A negative opinion does not constitute defamation and the Courts look at whether a reasonable reader or listener could understand the statement as asserting a statement of verifiable fact.

A statement of verifiable fact is a statement that conveys a provably false factual assertion, such as someone has committed a crime. In the case of Vogel v. Felice, considering the alleged defamatory statement that plaintiffs were the top-ranking ‘Dumb Asses’ on defendant’s list of “Top Ten Dumb Asses”:

The Court analysed that the statement that the plaintiff is a “Dumb Ass,” even first among “Dumb Asses,” communicates no factual proposition susceptible of proof or refutation. “Dumb” by itself can convey the relatively concrete meaning “lacking in intelligence.” Even so, depending on context, it may convey a lack less of objectively assayable mental function. Here defendant did not use “dumb” in isolation, but as part of the idiomatic phrase, “dumb ass.” When applied to a human being, the term “ass” is a general expression of contempt essentially devoid of factual content. Adding of the word “dumb” is a mere conversion of “contemptible person” to “contemptible fool.” Plaintiffs were justifiably and understandably insulted by this epithet, but they failed entirely to show how it could be found to convey a provable factual proposition. If the meaning conveyed cannot by its nature be proved false, it definitely cannot support a libel claim. So if it cannot be proved to be false, it cannot constitute cyber defamation.

Application of the standard of “Verifiable Fact” is necessary in order to determine whether a person should be held guilty under Section 66 A.

If a reasonable man on verification could know that the statement on social media is untrue or merely in jest, then it would not constitute an offence on application of the verifiable fact principle.

Disclaimer:

This does not constitute a legal opinion, and is merely a possible interpretation of the law.

Advocate Puneet Bhasin,

Cyber Law Expert,

Cyberjure Legal Consulting

contact.cyberjure@gmail.com