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Introduction
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:
# Truth.
# 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 Offence
Cyber 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.
Employer's
liability
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, 2000
In 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
Jurisdiction
Internet 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 Cases
In 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 Cases
The 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 Cases
When 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.
Conclusion
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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