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The Internet is a cheap, fast means of international communication of text, sound or image. In other words, an information resource without political or content boundaries; limited only by the extent to which the information providers are willing to disclose their materials and the fruits of their own writing and research. In the present day, web sites displaying information of all kinds are proliferating. These sites are established and controlled by Internet Service Providers (ISPs) or, sometimes, by the company's information technology department. These sites can be accessed through suitable search engines, which will trace and display information to suit the requirements of the searcher. However, not many of the companies are aware of the risks attached with the hosting of a Web site. Who would be held liable, for instance, if an employee clandestinely posts racist, sexist, or defamatory allegations about a competitor on the company's official web site?
It is to be remembered that a number of features unique to the internet distinguishes it from any other medium. These features have led to the current re-examination of existing laws relating to defamation, to allow for their possible evolution and ultimately their application in cyberspace. A key feature of the internet is its highly interactive nature. The ease with which users of the internet can access information and communicate with each other has engendered in its users a false sense of freedom in their communications. Accessibility 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.
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 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 resulting in cyber space becoming excessively prone to defamation.
Defamation can be understood as the intentional infringement of another person's right to his good name. It is the wrongful and intentional publication of words or behaviour concerning another person, which has the effect of injuring that person's status, good name, or reputation in society. Libel is written defamation and slander is oral defamation. The primary difference is that in libel, damages are presumed, whereas in slander actions, unless the slander falls into a certain category, called slander per se, the plaintiff must prove actual or quantifiable damages.
A person's good name can only be damaged if maligning statements are made to someone other than that person; that is, the defamatory statement must be disclosed to a third person, thereby satisfying the requirement of publication. When determining whether or not defamation has taken place, the only issue to consider is whether a person of ordinary intelligence in society would believe that the words would indeed injure the person's reputation.
Thus the law of defamation places a heavy burden on the defendant. All that a plaintiff has to prove, in a defamation action, is the publication of defamatory matter. The onus then lies on the defendant to prove innocence. Once again, most people are unaware of this burden.
In essence, the law on defamation attempts to create a workable balance between two equally important human rights: The right to an unimpaired reputation and the right to freedom of expression. In a cyber society, both these interests are increasingly important. Protection of reputation is arguably even more important in a highly technological society, since one may not even encounter an individual or organization other than through the medium of the internet.
The elements of a defamation action can be summarized as follows:
# The plaintiff must prove publication of the defamatory statement;
# The plaintiff must prove that the defamation refers to the plaintiff; and
# The plaintiff must prove that the statement is defamatory.
Upon proof of publication, the law makes several presumptions in favour of the plaintiff:
# That the statement is false;
# That it was published with malice; and
# That in the case of libel or slander per se, the plaintiff has suffered damage.
Defences that can be raised against such a defamation action are as follows:
# Fair comment: The defendant is allowed to comment on facts truly stated, as long as the comment is fair and the defendant is not motivated by actual malice.
# Privilege: On certain occasions, the courts have held that policy and convenience require that a person should be free from responsibility for the publication of defamatory words. These occasions constitute privileges. Privilege may be absolute, such as statements in the House of Commons or the Courts. It may be qualified, in that it may be lost if the publication is unnecessarily wide or made with malice.
# Innocent dissemination: This last defence is potentially very important in cyber libel.
If a defendant proves that his statements were true and in public interest, then his conduct is regarded as lawful. In addition, if the defendant can show that he had no intention to defame (the plaintiff), then he could avoid liability.
This paper seeks to throw light on the law relating to cyber defamation and to suggest a legal framework to handle such situations, which is inevitable, especially in the light of the present IT boom in India.
Cyber Defamation: A Socio-Economic OffenceCyber law encompasses cyber crimes, electronic commerce, freedom of expression, intellectual property rights, jurisdiction issues and choice of law, and privacy rights. Cyber crimes involve activities like credit card fraud, unauthorized access to computer systems, child pornography, software piracy and cyber stalking. Freedom of expression includes defamation, obscenity issues and censorship. Jurisdiction issues focuses on who makes and enforces the rules governing cyber space.
The definition of what constitutes a crime in cyber space is still being developed. In the past, the states and federal government defined cyber crime activities to include the destruction or theft of computer data and programs. More recently the definition has expanded to include activities such as forgery, illegal gambling, cyber stalking, cyber defamation etc.
There are several areas on the internet where there is a real risk of liability for defamation. The fact that a user is "alone" with his computer and distanced from other users creates a sense of intimacy. There is no spoken/telephonic conversation or dictated correspondence that would normally instill some caution. In addition, the notion that the internet is a "free-for-all" cyberspace where there are no limits or boundaries results in a user's sense of social norms and propriety generally getting blurred.
The Web results in an instant global publication of information at a very low cost. Information, which would not normally have been revealed prior to the dawning of the internet, can now be unearthed by practically anyone. Intranets are intended to be exclusively used by a company. However, information from an intranet can be easily downloaded and forwarded by e-mail or otherwise to third parties. Information posted to a bulletin board can be accessed by anyone. This means that anyone can place defamatory allegations on the bulletin board. E-mail users generally tend to treat their correspondence as a kind of conversation rather than a written interaction. Users forget that e-mails are stored and can be retrieved as hard copies and that their contents then cannot be disputed. One message can be circulated to literally hundreds of people. As a defamatory allegation need only be disclosed to one person for publication to be proved, every time e-mail is forwarded to another person, it is published again and an additional cause of action for defamation arises.
The scope of every firm having a cyber presence to liability for defamation is global. Internet sites can be accessed in most countries throughout the world; huge amounts of data can be transmitted simultaneously to several different destinations; and e-mail can be forwarded to an indefinite number of recipients without the original author having any control over the transmission.
While a legal action based on defamation is usually aimed at stopping the defamatory allegations, the harm in most cases has already been done. Consequently, the most important relief claimed in a defamatory action is damages. The amount of damages granted will depend on the nature of the defamation sought and the extent of publication. Furthermore, a defamation claim can be instituted in any jurisdiction in which a cause of action arises. In theory then, a potential defendant to a defamation suit could be sued in respect of a particular defamatory statement in a number of different countries with which it has no connection under any number of different laws with which it is totally unfamiliar. Indeed, a potential plaintiff can choose to litigate in whichever country has the most favourable laws. Theoretically, every time a third party accesses a defamatory posting on the Internet, publication has occurred.
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.
Cyber defamation need not necessarily be directed against an individual victim, but it could be harmful to the whole society. No doubt, at times, it could be directed against an individual ('victim'), but the criminal act is potentially capable of harming a large number of persons and that is the principal object behind punishing it. In short it is an offence, which affects the health or material welfare of the community as a whole and not merely of the individual victim. Similarly it is also an offence, which affects the country's economy and not merely the wealth of an individual victim, since defamation of a corporate house could even adversely affect its share value.
Two very significant aspects of such a social and economic offence are:
(i) the gravity of the harm caused to society; and
(ii) the nature of the offence.
The gravity of the harm is not easily apparent, but is nevertheless, undeniable. The nature of the offence is peculiar, in the sense that they are planned and executed in secrecy by shrewd and dexterous persons with sophisticated means. The public welfare is gravity affected; but detection is unusually difficult.
Cases of cyber defamation do not fit neatly in the accepted categories of crimes. They represent harm of greater magnitude than the traditional crimes and of a nature different from them. Unlike the traditional crimes, they are not in the shape of positive aggressions or invasions. They may not result in direct or immediate injury; nevertheless, they create a danger, which the law must seek to minimise. Hence if legislation applicable to such offences, as a matter of policy, departs from legislation applicable to ordinary crimes in respect of the traditional requirements as to mens rea and the other substantive matters as well as on points of procedure, the departure would be justified.
Position In Other Countries
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 with the laws most favourable to him/her.
Position in US
In the United States, about 75% of defamation lawsuits are filed in state courts, and the remaining 25% in federal courts. A comprehensive discussion of what is and is not libel or slander is difficult, because each state's definition differs. Some states lump slander and libel together into the same set of laws. Some states have criminal libel laws on the books, though these are old laws, which are infrequently prosecuted.
Most defendants in libel lawsuits are newspapers, which are involved in about twice as many lawsuits as are TV stations. Most plaintiffs are corporations, business people, entertainers and other public figures, and inmates. Most states do not allow defamation lawsuits to be filed if the allegedly defamed person is already deceased. None of the states allow the plaintiff to be a group of people.
In the various states, whether by case law or actual legislation, there are generally several "privileges" that can get a libel case dismissed without proceeding to trial. These include the allegedly defamatory statement being one of opinion rather than fact; or being "fair comment and criticism", as it is important to society that everyone be able to comment on matters of public interest. If a defamation lawsuit actually gets to trial, truth is an affirmative defense. Further, if the allegedly defamatory statement is not actually capable of being defamatory, i.e., an insulting statement that does not harm someone's reputation is prima facie not libelous.
New York Times Company v. Sullivan was a U.S. Supreme Court case which established the actual malice standard before press reports could be considered to be defamation and libel; and hence allowed free reporting of the civil rights campaigns in the southern United States. It is one of the key decisions supporting the freedom of the press. The actual malice standard requires that the publisher knows the statement is false or acts in reckless disregard of the truth.
The decision established that for a plaintiff to win a libel ruling against a newspaper, "actual malice" or "reckless negligence" must be proved on the part of the paper if the statement in question is about a public official or public figure. In the case of a private figure, the plaintiff must merely prove negligence.
Prior to the enactment of the Telecommunications Act of 1996, the position in US with regard to cyber defamation was such that the Courts applied the common law definition of "publisher," which held liable anyone who exercised a substantial degree of editorial control over the distributed product. This definition distinguished between a distributor, such as a newsstand or a library, and a publisher, such as a newspaper or book author. Distributors were not to be held liable for the information they disseminated, while those who reviewed content before publication would be held liable. Courts generally analyzed ISP liability under the same standards applied to newspapers and other media.
If a third party published defamatory material on a network and the computer redistributed that material, the owner or operator of the server was liable if:
# They or their agents knew that the material was defamatory.
# They or their agents had reasons to be suspicious that the material was defamatory.
In Stratton Oakmount v. Prodigy (1995), the US Supreme Court provided no incentive for online service providers to remove obscene or libelous material from their databases. If any good faith attempt were made to inspect content prior to publication, the online service provider risked liability for any offensive material it missed. This case led to the enactment of the Telecommunications Act of 1996, and was effectively overruled by the said Act.
This Act was signed into law by President Clinton On February 8, 1996, and includes the Communications Decency Act ("CDA") and the Internet Freedom and Family Empowerment Act. The Act recognizes the value of the internet, and declares that the internet has "flourished, to the benefit of all Americans, with a minimum of Government regulation."
The Act Provides:
(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 provider 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).
The Act also allows for the enforcement of any State law that is consistent with its provisions. Courts have construed the Act to be a broad defense against libel actions arising out of content provided by a third party, and refused to hold ISPs' liable regardless of whether plaintiffs characterize them as distributor or publisher.
Some argue that Congress acted too hastily in enacting the CDA, and instead should have allowed the courts to apply traditional real space defamation law to cyberspace. By deferring to the courts the law would develop gradually to adapt to the new medium of cyberspace. This would encourage the growth of the internet and simultaneously encourage ISPs to monitor their content. After the CDA, ISPs do not have as much of an incentive to monitor the content of their subscribers' postings.
Liability of ISPs after enactment of the Telecommunications Act can be summarized as follows:# The law has shifted from allowing liability for ISPs even when they tried to screen offensive content, to barring liability for ISPs, even when they promote such offensive content.
# The CDA still leaves the problem of the anonymous publisher. The unrestricted global use of the internet makes it easy for someone to publish information about a person without identifying himself. Defamed plaintiffs may be left with no redress when their reputations are damaged or they are harassed by a defendant whose identity is unknown and undiscoverable.
It seems that the CDA has eliminated all liability for internet service providers with respect to libelous postings of its subscribers. Recent case law has given broad protection to ISPs faced with lawsuits for the defamatory postings of their subscribers. Although the CDA was enacted with the honorable goal of promoting ISP self-regulation, it has instead left defamed plaintiffs who do not know the identity of their attackers with no remedy against the very activity the Act was meant to eliminate. Despite the courts' deference to the CDA, the law of cyber-defamation will be forced to evolve to address this problem.
Position in Canada & UK
As with other Commonwealth countries, Canada also follows United Kingdom law on defamation issues. Recently the Supreme Court of Canada in the case, Hill v. Church of Scientology of Toronto (1995), has reviewed the relationship of the common law of libel and its relation to the Canadian Charter of Rights and Freedoms. The reasoning in this case specifically rejects the actual malice test in New York Times Co. v. Sullivan citing criticism of it, not only in the United States, but in other countries as well.
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.
A company could also be held liable, as a Web site host/owner, or as an ISP, for any defamatory statement published on its site. If a hacker breaks into a Web site and publishes a defamatory statement, the Web site host or ISP could be held liable. However, if a defendant can show that the publication of the defamatory matter was not intentional, he can escape liability proceedings.
The question that will have to be decided by courts is whether a Web site host can be equated to a distributor of published matter such as a library, or whether it should simply be equated to an institution such as a telephone firm, which is a mere passive conduit for the information which it carries and over which it has no effective control.
Position in Australia
Recently, Australia's apex court gave a landmark judgement concerning internet defamation and the related issue of jurisdiction. In the case of Dow Jones v. Joseph Gutnick, Australia's high court has ruled that the financial publishers Dow Jones can be sued in the Australian state of Victoria over an article that appeared on their website. The facts of the case are that Dow Jones & Co. Inc. prints and publishes the newspaper Wall Street Journal and Barron's Magazine. Dow Jones also operates the portal www.wsj.com which is a subscription news site on the internet. Those who have subscribed to the said web site by payment of the subscription charges are entitled to access the same utilizing the user name and password provided by Dow Jones. The on-line edition for 28th October 2000 contained an article entitled "Unholy Gains" in which several references were made to the respondent Joseph Gutnick.
The defamation case was brought by Melbourne mining magnate Joseph Gutnick, who argued that the article could be read on the internet by people who knew him in Melbourne. In his action, Gutnick claimed that the article defamed him by portraying him as a schemer given to stock scams, money laundering and fraud. Dow Jones argued that the court was clearly an inappropriate forum for trial proceedings as the relevant publication took place in the US and that the court had no jurisdiction. Several international media companies who also made submissions to the court - such as Reuters, News International and Amazon.com - backed up that position. The primary judge held that the Australian Court had jurisdiction to try the matter. The case went to the court of appeal of Victoria and finally came up for hearing before the High Court of Australia. It is thought to be the first such decision in the high court of any country to consider the question of jurisdiction and the internet.
Before the High Court, the issue debated was as to where was the alleged defamatory material published? Was it published in Victoria? Dow Jones argued that the publication of the article occurred at its servers maintained in New Jersey in the United States and, therefore, an Australian Court could not assume jurisdiction over the matter.
In a landmark judgement, the High Court of Australia held that the Australian Court indeed had the jurisdiction to try an action for defamation concerning an article, hosted at the servers of Dow Jones in the United States. The Court held that the law of defamation seeks to strike a balance between, on the one hand, the society's interest in freedom of speech and the free exchange of information and ideas and on the other hand, an individual's interest in maintaining his or her reputation in society, free from unwarranted slur or damage.
The majority judgment further held that those who post information on the World Wide Web do so knowing that the information is available to all, without geographical restrictions. The Court further held that defamation is to be located at the place where the damage to the reputation occurs. It was in the place where any person downloaded the defamatory material that the damage to reputation could be done. Following this principle, the court held that an action for damages for defamation can be continued in Australia against a US web site. This judgement can act as a precedent for all courts in the world as it is that of the Apex Court of Australia, thus enabling the internet to be amenable to worldwide jurisdiction.
Measures that could reduce the exposure of an ISP or a Web site host/owner to liability for defamation includes:
# Posting of notices, warning potential users of the site not to put libelous material on the site;
# A periodic monitoring of sites and bulletin boards with a view to deleting any problematic material;
# The introduction of a system to facilitate speedy publication of apologies in respect of any statements published on the site, which are found to contain libelous allegations, and;
# Making access to the Web site conditional upon the provision by any user to provide his/her name, address and other specified identifying data so that the author of any defamatory statement can later be easily traced.
Factors to be taken into consideration by ISPs:
ISPs and Web site hosts or owners must, therefore, take care to control, as far as possible, the information published on their Web sites. Factors that could possibly be taken into account in determining whether an ISP or a Web site host/ owner have exercised reasonable care would be:
# The nature and purpose of the site containing the defamatory material;
# Whether the monitoring system is proportionate to the size of the site;
# The amount and characteristics of information flowing through the site;
# The characteristics of the site users;
# Whether or not the Web site attracted repeat offenders and, if so, why was the site then not removed, and;
# Whether or not defamatory material was done away with immediately upon request by the person being defamed.
Position In India
IPC on Defamation:Chapter XXI of the IPC exclusively talks of defamation. Section 499 prescribes the offence:
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 . . . to defame that person.
Explanation 2. - It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Section 500 prescribes the punishment in such cases:Whoever defames another shall be punished with simple imprisonment for a term, which may extend to two years, or with fine, or with both.
A company can be held liable for the conduct of its employees. If an employee, during working hours, e-mails a defamatory remark about a competitor company to a colleague, the firm could be held liable for defamation even if the employee's actions were not authorised or expressly prohibited.
For instance, in a dispute, which arose in the United Kingdom between the Western Provident Association (WPA) and Norwich Union, it was suggested that Norwich Union staff were spreading e-mail rumours amongst their sales force that WPA was more or less insolvent and under investigation by the Department of Trade and Industry. WPA sued Norwich Union, alleging that the latter was responsible for the communications made by its employees, even though the allegations were made without the instructions or knowledge of the management. The case was settled out of court but it is believed that Norwich Union paid approximately half a million pounds to WPA in settlement.
In fact, Asia's first case of cyber defamation has been filed in India in the case of SMC Numatics Ltd. v. Jogesh Kwatra. Defamatory emails were allegedly sent to the top management of SMC Numatics by the defendant, who has since been restrained by the Delhi High Court from sending any form of communication to the plaintiff. This order of Delhi High Court assumes tremendous significance as this is for the first time that an Indian Court assumes jurisdiction in a matter concerning cyber defamation and grants an ex-parte injunction restraining the defendant from defaming the plaintiffs by sending derogatory, defamatory, abusive and obscene emails either to the plaintiffs or their subsidiaries.
An important test in determining whether a company can be held responsible for its employees' actions is to decide whether the actions were to the benefit of the company. An employer would be held vicariously liable in case of an employee promoting his own interests.
The Australian judgment could impact freedom of speech of media organisations and expose publishers to legal actions all over the world. The judgment has raised complex global issues regarding internet publications, which could develop over time. The principle enunciated by the Australian Apex court is likely to stand in conflict with emerging jurisprudence relating to jurisdiction. Such an approach is likely to undermine the global nature of the internet, because it could make online publishers cautious and may deny access of their web sites to readers in countries where they fear litigation. This judgment will certainly have an impact on the Indian web publishing industry. It could open up the ground of misuse of law as Indian web publishers would be amenable to defamation laws not only in India but outside.
Further, the offence of defamation as defined in the IPC when extended to cyberspace may not achieve desired results. However, the Australian Judgment can be cited as a precedent and that will have persuasive value in India. Hence if defamatory material is downloaded by someone in India, that will be enough cause for action even if the servers of such site are located outside India.
The Information Technology Act, 2000In May 2000, at the height of the dot-com boom, India enacted the IT Act and became part of a select group of countries to have put in place cyber laws. In all these years, despite the growing crime rate in the cyber world, only less than 25 cases have been registered under the IT Act 2000 and no final verdict has been passed in any of these cases as they are now pending with various courts in the country.
Although the law came into operation on October 17, 2000, it still has an element of mystery around it. Not only from the perception of the common man, but also from the perception of lawyers, law enforcing agencies and even the judiciary.
The prime reason for this is the fact that the IT Act is a set of technical laws. Another major hurdle is the reluctance on the part of companies to report the instances of cyber crimes, as they don't want to get negative publicity or worse get entangled in legal proceedings. A major hurdle in cracking down on the perpetrators of cyber crimes such as hacking is the fact that most of them are not in India. The IT Act does give extra-territorial jurisdiction to law enforcement agencies, but such powers are largely inefficient. This is because India does not have reciprocity and extradition treaties with a large number of countries.
What India needs to do in this backdrop, is to be a part of the international momentum against cyber crimes. The only international treaty on this subject is the Council of Europe's Convention on Cyber Crime, formulated primarily by the European Union. By signing this treaty, member countries agree on a common platform for exchange of information relating to investigation, prosecution and the strategy against cyber crime, including exchange of cyber criminals. At the last count, there are 43 member countries, including the US and South Africa. India is not yet a part of this group and being a member would go a long way in addressing this issue of cross-border cyber terrorism.
The Indian IT Act also needs to evolve with the rapidly changing technology environment that breeds new forms of crimes and criminals. We are now beginning to see new categories and varieties of cyber crimes, which have not been addressed in the IT Act. This includes cyber stalking, cyber nuisance, cyber harassment, cyber defamation and the like. Though Section 67 of the Information Technology Act, 2000 provides for punishment to whoever transmits or publishes or causes to be published or transmitted, any material which is obscene in electronic form with imprisonment for a term which may extend to two years and with fine which may extend to twenty five thousand rupees on first convection and in the event of second may extend to five years and also with fine which may extend to fifty thousand rupees, it does not expressly talk of cyber defamation. The above provision chiefly aim at curbing the increasing number of child pornography cases and does not encompass other crimes which could have been expressly brought within its ambit such as cyber defamation.
Cyber JurisdictionInternet can been seen as multi-jurisdictional because of the ease with which a user can access a web site anywhere in the world. It can even be viewed as uni-jurisdictional in the sense that from the user's perspective, state and national borders are essentially transparent. The Court in Zippo Mfg. v. Zippo Dot Com, Inc. said there is a global revolution looming on the horizon, and the development of the law in dealing with the allowable scope of personal jurisdiction based on Internet use in its infancy.
The developing law of jurisdiction must address whether a particular event in Cyberspace is controlled by the laws of the state or country where the web site is located, by the laws of the state or country where the ISP is located, by the laws of the state or country where the user is located, or perhaps by all of these laws. Some of the jurists are of the view that cyberspace should be treated as a separate jurisdiction. In practice, this view has not been supported by the Courts or addressed by lawmakers. Cyber jurisdiction issues have been dealt with primarily in the civil courts. Since the advent of US v. Thomas and Minnesota v. Granite Gate Resorts, Inc , however, cyber jurisdiction issues have begun to be examined in criminal courts as well.
Cyber jurisdiction in Civil CasesIn determining whether jurisdiction exists over a defendant, the US Federal courts apply the law of the forum state, subject to the limits of the Due Process Clause of the Fourteenth Amendment. Under Due Process, in order for the court to exercise personal jurisdiction, it must be shown that the defendant had purposefully established minimum contact with the forum state such that the maintenance of the suit did not offend the traditional notions of fair play and substantial justice. In Bensusan Restaurant Corp. v. King, the court held that an exercise of personal jurisdiction would violate the protection of the Due Process clause.
Further in the case of The Hearst Corp. v. Goldberger, the US District Court of the Southern District of New York ruled that nationwide jurisdiction was inconsistent with traditional personal jurisdiction case law, and as a policy matter, it was unacceptable. In McDonough v. Fallon McElligott, a Federal Court in California also refused to exercise personal jurisdiction over the defendant simply because it maintained a web site. The court held that the fact that the defendant had a web site accessed by Californians was not enough by itself to establish jurisdiction.
Further more in Zippo Mfg. v. Zippo Dot Com. Inc., the court held that a passive web site that only made information available to interested users was not grounds for exercising jurisdiction. A web site that entered into contracts and knowingly and repeatedly transmitted computer files would be properly subject to personal jurisdiction. The issue of jurisdiction should be determined by examining the commercial nature of the exchange and the level of interactivity.
Cyber Jurisdiction in Criminal CasesThe question of cyber jurisdiction in criminal cases came to the forefront of attention in early 1996 in US v. Thomas, when the Sixth Circuit upheld the highly publicized conviction of a couple operating a pornographic bulletin board from their home. The defendants were convicted by the District Court of Tennessee on federal obscenity charges. They appealed and the appellate court affirmed.
There were two premises for their appeal:
(1) the federal obscenity statute did not apply to intangible objects like computer Graphic Interchange Format ("GIF") files, and (2) Congress did not intend to regulate the type of transmissions at issue because the federal obscenity statute did not expressly prohibit such conduct. The Court disagreed ruling that the manner in which the images were transmitted did not affect their ability to be viewed or printed out by members in Tennessee. That the statue should be construed to affect the intent of the Legislators (the Congress) which was to prevent the channels of interstate commerce from being used to disseminate any obscene matter.
In Minnesota v. Granite Gate Resorts Inc., the Court denied the defendant's motion to dismiss for lack of jurisdiction and held that the defendant's advertising on the internet constituted a direct marketing campaign directed at residents of the state of Minnesota, which was sufficiently purposeful to subject the defendant to suit in the forum state.
Cyber Jurisdiction in International CasesWhen adjudicating cases involves foreign nationals the courts must balance several factors. On a case-by-case basis, the courts must consider the procedural and substantive policies of other countries whose interests are affected by the court's assertion of jurisdiction. Keeping these policies in mind, the court must then consider the reasonableness of assertion of jurisdiction examined in the light of the interests of the federal government in its foreign relation policies. When extending jurisdiction into the international field, great care and reserve must be exercised. Hence there is higher jurisdictional barrier when litigating against a foreign national.
In order to support personal jurisdiction in cyberspace the courts now require that defendants provide more than mere accessibility to a web site. Some sort of interaction is required. The trend appears to be that information providers must comply with the limitations of the laws wherever the user is located or find themselves subject to the user's state jurisdiction, and its civil and criminal laws. Case law indicates that the courts are inclined to expect the information provider to determine where the user is located and to block access to their site if access is illegal in the users' locale.
The present trend of legislation and also the judicial approach to such offences appears to be such that these offences are treated lightly and the punishments are not adequate having regard to the gravity of such offences. Though the Government of India sought the Law Commission to come up with a well-considered opinion as regards desirability of dealing with adequately and swiftly certain anti-social and economic offences, such as, those offences calculated to prevent or obstruct the economic development of the country and endanger its economic health, evasion of taxes, hoarding and black-marketing etc.; but it has not expressly included cyber crimes such as defamation in cyber space.
Defamation laws should be sufficiently flexible to apply to all media. A balance will always need to be struck between freedom of expression and reputation. The difficulty is that the defamation laws world over were principally framed at a time when most defamatory publications were either spoken or the product of unsophisticated printing. Hence it is not practical to apply the principles derived from 18th and 19th century cases to the issues that can arise on the internet in the 21st century. The ultimate aim of legislation world-wide should be to reduce the costs of world trade by issuing out inconsistencies and uncertainties resulting from differences in national laws.
The intense volume of information and the simplicity of its transfer make Internet a very critical source of defamation, while the electronic based trading systems are affecting all aspects of commercial and business entities. The IT revolution is sprawling new business and forcing the old modes to either change or die out. Hence most commercial organizations around the globe will be affected in some significant manner by the internet and therefore crimes in cyber space as well.
It may be noted here that there has been an increasing awareness among law enforcement agencies on the need to set up special cells to handle cyber crimes. The CBI has a well-established cyber crime cell. The first such cyber crime police station has also come up in Bangalore. As the network environment becomes more pervasive and easier to use, it will also be a medium through which crime and fraud can take place. It is therefore necessary to review the current legislative provisions to ensure that the network environment is adequately protected against criminal activities. Under the current legislation there is no definition of damage and it is consequently difficult for the current enhanced penalties to be imposed.
In the short term, the following may be likely:
# The old laws will prevail until more cases and legislation emerge to provide a more refined and a more contemporary application of libel laws to the Internet.
# All Internet users will be exposed to liability for libel on the Internet, whether they are e-mail publishers, owners and/or operators of bulletin boards or home page operators. Individuals or corporate organizations who establish bulletin boards on their web sites are particularly vulnerable.
# There is unlikely to be an explosion of libel actions against individuals for several reasons.
a) The cost of libel actions.
b) The jurisdictional problems.
c) The unlikelihood of recovering many assets.
d) The opportunity and ease of immediate reply.
# There are likely to be more lawsuits against the operators of bulletin boards, whether they are corporations, organizations or individuals.
# There will be actions against owners and/or operators of web sites for statements made by their employees or their organizations.
In our opinion the Law Commission should take up the brave task of analyzing such crimes, which are at the threshold and come up with recommendations in order to equip the existing legal machinery against such offences. For the said purpose necessary amendments could be brought to Section 67 of the Information Technology Act, 2000 and also to Section 499 of the Indian Penal Code, by expressly bring within their ambit offences such as defamation in cyber space, which is certainly a socio-economic offence.
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