Defamation is a tort that encompasses the publication of false statements which subsequently harm someone’s reputation. There are two types of defamation depending on the medium of publication- libel (in permanent form) and slander (in transient form). To establish a case of defamation, certain prerequisites are to be met. Firstly, the imputation should be about the plaintiff, secondly, such imputation should be defamatory and should not fall under the exceptions, thirdly, the defamatory imputation should be published i.e. communicated to a third person, and lastly, such imputation should lower down the reputation of the plaintiff in the eyes of people who think highly of him.
The development of technology and the advent of the internet have provided an online medium for individuals to make defamatory imputations. In light of this, jurisprudence with respect to cyber defamation has evolved over the last few decades.
REGULATION OF CYBER DEFAMATION IN THE UNITED STATES OF AMERICA
The first amendment to the U.S. Constitution guarantees its citizens, the freedom of expression and freedom of the press. The defamation law seems to be in conflict with the right to express oneself. However, the exercise of such a right cannot be unrestricted as defamation law seeks to protect human dignity. The same has been highlighted by the US Supreme Court by asserting that the tort of defamation “reflects no more than the basic concept of the essential dignity and worth of every human being- a concept at the root of any decent system of ordered liberty.”[1]
On the federal level, there is no criminal defamation. Majority of the defamation suits (both libel and slander) are dealt with by applying the common law principles of tort. Some the states have codified slander and libel together into the same set of laws to be applicable within their jurisdiction. Cyber defamation is also governed by the same set of legal framework regulating traditional defamation in the U.S.
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The burden of proof standards
Until the second half of the 20th century, the defamation law in the US seemed to be favorable to the plaintiff as the statement made was presumed defamatory and the burden was on the defendant to prove that the statement was true, as truth was an absolute defense to defamation. However, in 1964, the case of New York Times Co. v. Sullivan[2] dramatically changed the nature of libel law in the US. The court held that when libellous statements were made against the public officials, the plaintiff (such public officials) should prove ‘actual malice’ on part of the publisher. Actual malice was defined as “knowledge that the information was false or that it was published with reckless disregard of whether it was false or not”[3]. This decision was later extended to cover ‘public figures’[4]. This highlights the paradigm shift in the burden of proof standards involving public officials.
The liability of Internet Service Providers (ISPs) and Intermediaries
Technology and internet provided a new platform to individuals to express their opinions and thoughts. Therefore, in cases of cyber defamation, the plaintiff has the option of instituting a suit against the person who made the imputation or the entities which provided a platform for such imputation to be made. However, considering the nature of the internet, the courts analysed whether the same standard of protection can be provided to ISPs, as is provided to their traditional counterparts like newspapers and radios.
In Chubby Inc v CompuServe Inc[5], defamatory statements were made using the platform of CompuServe, which was an ISP. The issue was whether such ISP can be held liable for defamation. The court held that CompuServe was merely a distributor and not a publisher, which had no editorial control over the content being shared and uploaded. Therefore, it could not be held liable as it was a mere passive conduit, without direct editorial control.
However, the court in Stratton Oakmont, Inc. v. Prodigy Services Co.[6], a case involving similar facts with the difference that Prodigy, as an ISP, employed a screening program, implying that it had editorial control, held that Prodigy is liable for the defamatory statements made using its platform, not as a distributor, but as a publisher.
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Considering the extent of liability imposed on the ISPs post-Stratton Oakmont, Congress enacted the Communications Decency Act, 1996 (CDA) to provide protection to ISPs from online defamation. Section 230(c)(1) of the Act stated that “no provider or user of any interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”[7]
After the enactment of the CDA, the judicial approach to defamation cases changed significantly. In Zeran v. America Online, Inc[8], the court implemented section 230 by providing federal immunity to America Online (AOL) for unreasonable delay in removing defamatory messages posted by a third party and refusal to post a retraction. The court further held that ‘distributor’ was a sub-class of ‘publisher’, and would fall under the ambit of section 230. Additionally, the court established that notice to an ISP of defamatory content does not create liability.
Further, in Blumenthal v. Drudge[9], the court again reiterated the finding that in cases involving ISPs, the only potential party to the defamation claim is the original author.
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The protection under section 230 was further extended in Carafano v. Metrosplash.com[10] and Barrett v. Rosenthal[11]. Lunney v. Prodigy[12] also asserted that ISPs play a passive role and cannot be held liable in light of section 230. The court further added that even if the ISP were a publisher, it would have a common law qualified privilege on the basis of lack of knowledge about the fact that the statements were false.
Publication rule
The publication of imputation i.e. communication to a third person is one of the prerequisites of a defamation suit. This requirement of publication can also be satisfied by the republication of the original defamatory statement. The publication rule is important to ascertain the limitation period for filing the suit. In case of a single publication, the period starts as soon as the statement is communicated to a third person, however, in the case of multiple publications, a fresh cause of action starts each time the statement is communicated to a third person. Therefore, in case of multiple publication rule, the limitation period loses its significance.
Taking into account the inherent issue of the multiple publication rules, the American courts have adopted the single publication rule in case of defamation[13]. In Wolfson v. Syracuse Newspapers Inc.[14], the court rejected the multiple publication rule by asserting that it makes the applicability of the limitation period in such cases futile. The single publication rule has been adopted in cyber defamation cases as well. In Firth v. State[15], the court held that “a multiple publication rule would implicate an even greater potential for endless retriggering of the statute of limitations, the multiplicity of suits and harassment of defendants.”[16]
To conclude, although the jurisprudence with respect to cyber defamation is evolving in the U.S., however, the courts still provide greater protection to the first amendment right of expression by asserting that defamation lawsuits have a ‘chilling effect’ on speech. This has led to the proliferation of so-called ‘Anti-SLAPP’ suits which provide a way for the individuals to fight back against the baseless lawsuits that are designed to silence expression.
REGULATION OF CYBER DEFAMATION IN THE EUROPEAN UNION
The European Convention on Human Rights (ECHR), under Article 10, enshrines freedom of expression[17]. Article 10(2) further allows the contracting states to impose restrictions for the protection of the reputation or rights of others[18]. Therefore, with respect to defamation in the European Union (E.U.), the legal framework has been left to the individual member states. However, the E-commerce Directive deal with certain aspects relating to the liability of ISPs in cyber defamation cases.
With respect to the jurisdictional issues arising in defamation cases in the E.U., the Brussels Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters, 1968 becomes relevant. Article 5(3) of the Convention provides that “a person domiciled in the contracting state may be sued in matters relating to tort, delict or quasi-delict, in the courts for the place (of other contracting state) where the harmful event occurred”[19]. However, if the ‘harmful event’ occurred at a number of places, i.e. with respect to defamation, if the harm to reputation occurred at a number of places, then which court will assume jurisdiction. This issue was addressed by the Court of Justice of the European Union in Shevill and others v Presse Alliance SA[20], on reference from the House of Lords. The court held that the victim of libel in several contracting states can either institute a suit in the jurisdiction where the publisher is established, or in each of the contracting states where the publication was distributed, and the plaintiff suffered damage to reputation[21]. Further, wherever the plaintiff decides to institute the suit, the law of that contracting state will apply[22].
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Shevill was decided on the premise of traditional defamation. However, it has been adopted by the District Court of Ammochostos, Cyprus, in the Cyber Libel case of Christoforos Karayiannas & Sons Ltd Vs. Cornelius Desmond O’ Dwyer[23].
Later in 2011, in eDate Advertising GmbH v X and Olivier Martinez v MGN Ltd[24], CJEU dealt with the applicability of Shevill’s ruling in cyber defamation cases, with respect to the issue of jurisdiction. The court held that online medium has to be distinguished from the traditional medium as the former is aimed at ensuring ubiquity of the content. Online content can be accessed by a number of users throughout the world, irrespective of any intention on part of the person who uploaded such content online. Therefore, the Shevill criteria have to be adapted in a manner in which the plaintiff can institute a suit in one jurisdiction, for all the damage caused to him. The court said the jurisdiction where the plaintiff had his ‘centre of interests’ should also be a jurisdiction to institute a suit of cyber defamation.
Furthermore, the CJEU in Bolagsupplysningen OÜ, Ingrid Ilsjan v. Svensk Handel AB[25], held that an action for removal of defamatory imputation by way of an injunction cannot be initiated in every Member State where the website was accessible.
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The most recent case of Glawischnig-Piesczek v. Facebook Ireland Limited[26] is of specific significance with respect to the scope of removal of defamatory content. The case involved the posting of a defamatory comment against the applicant, Eva Glawischnig–Piesczek, by an anonymous Facebook user in Austria. The European Court of Justice held that the EU E-commerce Directive does not preclude the member states from ordering the worldwide removal of unlawful content and it is left to the member states to decide the geographic scope of the restriction.
The court reached the conclusion by recalling that Article 14(1) of the Directive exempts ISPs from liability as long as they have no knowledge of any illegal activity or information[27], or if they become aware of it, they have acted expeditiously to remove or disable access[28]. Within this realm, individual states and their courts may establish procedures to remove or disable illegal content.
The Court further held that although Article 15(1) prohibits general monitoring of online content, which includes actively seeking facts or circumstances indicating illegal activity, however, once being notified of the illegal content, the ISP has to expeditiously remove or disable the impugned content.
REGULATION OF CYBER DEFAMATION IN THE UNITED KINGDOM
Defamation in the United Kingdom is governed by the Defamation Act of 1996 and 2013. These acts do not provide an explicit definition of ‘defamation’. In the leading case of Sim v. Stretch[29], it was proposed by Lord Atkin that a defamatory statement is one which “injures the reputation of another by exposing him to ̳hatred, contempt or ridicule, or which tends to lower him in the estimation of right-thinking members of society.”[30]
Elements of defamation
Section 1(1) of the 2013 Act state that a statement cannot be considered defamatory unless its publication has caused or is likely to cause ‘serious harm’ to the reputation of the plaintiff[31]. Section 1(2) further states that ‘serious harm’ is the one involving serious financial loss[32]. This definition has raised the bar for bringing a claim of defamation in the UK.
Jurisdiction
With respect to the publication of defamatory imputation, the court in Harrods v. Dow Jones[33] adopted the approach used by the Australian court in Dow Jones v. Gutnick[34] by establishing the principle that where a newspaper or magazine was published on the internet, the plaintiff could bring an action in any jurisdiction where the content could be received[35]. Therefore, the plaintiff can institute a suit in any jurisdiction where the users had accessed the defamatory content, thus fulfilling the publication requirement.
Publication rule
The publication can be defined as “the making known of defamatory matter after it has been written to some person other than the person to whom it is written.”[36]
Earlier, UK courts used to follow the multiple publication rule, which derived its origin in the case of Duke of Brunswick v. Harma[37]. However, the same was done away with, and the single publication rule was adopted after the 2013 Act came into being[38]. Therefore, the first publication of the defamatory content to the public triggers the limitation period of one year for initiating the claim for defamation.
The liability of ISPs
In defamation law, ISPs can be considered secondary publishers. Section 1(1) of the Defamation Act, 1996 lays down the situations where the secondary publisher cannot be held liable for the illegal content posted on its platform- if the ISP took reasonable care in relation to the publication[39], or it did not have the knowledge that the content was defamatory[40]. This provision is based on the common law defence of ‘innocent dissemination’.
In Godfrey v. Demon Internet Service[41], the court addressed the issue of liability of ISP as a publisher. It was held that once the ISP has actual knowledge of defamatory statements being posted on its platform, it should take down such content to escape liability. If it fails to do so, is can be held liable as a publisher of such content.
Defenses
The law accepts that in some circumstances, the publication of a statement may be public interest, even though the veracity of such statement cannot be proved. The same has been held in Reynolds v, Times Newspaper[42] by the House of Lords. The court developed the common law defence of qualified privilege to give protection to a newspaper article that implied that the former Prime Minister of Eire had lied. However, the court also held that in such cases, it is important for the defendant to show that it abided by high journalistic standards to verify the information, seek the plaintiff’s comments and include the gist of the plaintiff’s side story.
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REGULATION OF CYBER DEFAMATION IN INDIA
The Constitution of India, under Article 19(1)(a) provides the citizens of India, the right to freedom of speech and expression. However, this right is not absolute and is subject to certain reasonable restrictions mentioned under Article 19(2), under which defamation is considered a reasonable restriction. This particular restriction provides a constitutional basis to defamation laws in India. The same position has been upheld by the Supreme Court of India in the case of Subramanian Swamy v. Union of India[43], while holding that section 499 of the Indian Penal Code, 1860, which deals with criminal defamation in India, is not an excessive restriction under Article 19(2). The Apex Court also held that an individual has a right to reputation, which is a part of Article 21 of the Indian Constitution[44].
In India, under the law of land, a person aggrieved by defamation has both civil and criminal remedies available simultaneously[45].
Under the tort law, the following elements need to be fulfilled before instituting a suit for defamation[46]–
- The words or the act must be defamatory i.e. it should tend to injure the reputation of the plaintiff;
- They must have reference to the plaintiff, and
- They must have been published i.e. communicated to a third party, a party other than the person defamed.
The provisions of the Indian Penal Code, 1860[47] deal with criminal defamation in India under sections 499 to 502. Section 499 provides what amounts to defamation[48], section 500 provides the punishment[49], section 501 and section 502 provide for the liability in case of printing or engraving matter known to be defamatory[50], and sale of such material[51], respectively.
Applicable law
Previously, section 66A of the Information Technology Act, 2000, dealt with cases of cyber defamation. However, the same was struck down by the Supreme Court in Shreya Singhal v. Union of India[52] owing to the broad and ambiguous purview of the provision.
Therefore, owing to the lack of specific provision/legislation dealing with cyber defamation in India, it is generally dealt under the Indian Penal Code (for criminal defamation) and the general principles or tort law (for civil defamation). It is pertinent to note that section 499 does not specify the medium used to make imputations, neither traditional medium, nor computer/internet medium.
Publication rule
With respect to publication by repetition, initially, India adopted the common law approach of multiple publications [53]. However, in Khawar Butt vs Asif Nazir Mir[54], the Delhi High Court, in 2013, set aside the multiple publication rule on the internet and followed the single publication rule[55]. With respect to the limitation period for filing a civil suit of defamation, the Limitation Act, 1968 provides for the limitation period of 1 year[56].
Jurisdiction
The Delhi High Court in Swami Ramdev v. Facebook Inc[57], held that- “once content was uploaded from India and was made available globally, the removal of such content, as ordered by a competent court, shall also be ‘worldwide’ and not just restricted to India”[58]. By adopting this approach, the court assumed global jurisdiction while issuing the take-down order to the intermediaries.
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Liability of ISPs and Intermediaries
With respect to the liability of intermediaries in India, section 79 of the I.T. Act states that intermediaries are not liable for any third-party information, data, or communication link made available or hosted by them[59] so long as[60]–
- “Their function is limited to only providing access to communication system;
- They do not initiate the transmission; select the receiver of the transmission, and select or modify the information contained in the transmission.
- They exercise due diligence in their duties and adhere to any guidelines which may be prescribed”[61]
Therefore, if the above-mentioned conditions are met by the intermediary, liability for publication may only arise when it has failed to remove defamatory material after being notified. This principle is called the ‘Notice and take down approach’.
With respect to such liability of the intermediary, the Delhi High Court in Vyakti Vikas Kendra, India Public Charitable Trust, Trustee Mahesh Gupta & Ors vs. Jitender Bagga & Anr, held that under Section 79(3)(b) of the IT Act, 2000, “Google is under an obligation to remove unlawful content if it receives actual notice from the affected party of any illegal content being circulated/published through its service.”[62] The Court observed that Rule 3(3) of the IT Rules read with Rule 3(2) requires an intermediary to “observe due diligence or publish any information that is grossly harmful, defamatory, libellous, disparaging or otherwise unlawful”[63]. Rule 3(4) of the Rules creates an “obligation on an intermediary to remove such defamatory content within 36 hours from receipt of actual knowledge”.[64]
[1] Rosenblatt v. Baer, 383 U.S. 75 (1966).
[2] New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
[3] Id.
[4] St. Amant v. Thompson, 390 U.S. 727 (1968).
[5] Chubby Inc v. CompuServe Inc, 776 F. Supp. 135 (S.D.N.Y. 1991).
[6] Stratton Oakmont, Inc. v. Prodigy Services Co., (1995 WL 323710).
[7] Communications Decency Act, 1996, s. 230.
[8] Zeran v. America Online Inc., 129 F. 3d 327.
[9] Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998).
[10] Carafano v. Metrosplash.com, 339 F.3d 1119.
[11] Barrett v. Rosenthal, 146 P.3d 510 (Cal. S. Ct. 2006).
[12] Lunney v. Prodigy 94 N.Y.2d 242.
[13] The Restatement (Second) of Torts, s. 577A.
[14] Wolfson v. Syracuse Newspapers Inc, 254 App. Div. 211.
[15] Firth v. State, 98 N.Y.2d 365.
[16] Id.
[17] The European Convention on Human Rights, 1950, art. 10(1).
[18] The European Convention on Human Rights, 1950, art. 10(2).
[19] Brussels Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters, 1968, art. 5(3).
[20] Shevill and others v. Presse Alliance SA, [1995] 2 W.L.R. 499.
[21] Id.
[22] Supra note 20.
[23] Christoforos Karayiannas & Sons Ltd v. Cornelius Desmond O’ Dwyer, Case 365/2006.
[24] eDate Advertising GmbH v. X, C-509/09; Olivier Martinez v. MGN Ltd, C-161/10.
[25] Bolagsupplysningen OÜ, Ingrid Ilsjan v. Svensk Handel AB, C‑194/16.
[26] Glawischnig-Piesczek v. Facebook Ireland Limited, C-18/18.
[27] Electronic Commerce Directive, 2000, art. 14(1)(a).
[28] Electronic Commerce Directive, 2000, art. 14(1)(b).
[29] Sim v. Stretch, [1936] 2 All ER 1237 (HL),
[30] Id.
[31] Defamation Act, 2013, s. 1(1).
[32] Defamation Act, 2013, s. 1(2).
[33] Harrods v. Dow Jones, [2003] EWHC 1162 (QB).
[34] Dow Jones v. Gutnick, 210 CLR 575.
[35] Id.
[36] Pullman v. W. Hill & Co Ltd, [1891] 1 QB 524.
[37] Duke of Brunswick v. Harma, (1849) 14 QB 185.
[38] Defamation Act, 2013, s. 8(1)(3).
[39] Id, (b).
[40] Supra note 38, (c).
[41] Godfrey v. Demon Internet Service, [2001] QB 201.
[42] Reynolds v. Times Newspaper, [2001] 2 AC 127.
[43] Subramanian Swamy v. Union of India, (2015) 13 SCC 353.
[44] Id.
[45] Asoke Kumar v. Radha Kanto, A.I.R. 1967 Cal. 17.
[46] R F V HEUSTON, SALMOND ON THE LAW OF TORTS 355 (1996).
[47] Indian Penal Code, 1860.
[48] Id, s. 499.
[49] Supra note 47, s. 500.
[50] Supra note 47, s. 501.
[51] Supra note 47, s. 502.
[52] Shreya Singhal v. Union of India, (2013) 12 S.C.C. 73.
[53] Followed in UK prior to enactment of the Defamation Act, 2013, s. 8.
[54] Khawar Butt v. Asif Nazir Mir, CS(OS) 290/2010.
[55] Defamation Act, 2013, s. 8 (United Kingdom).
[56] The Limitation Act, 1963, Entry 75.
[57] Swami Ramdev v. Facebook Inc., 263 (2019) DLT 689.
[58] Id.
[59] The Information Technology Act, 2000, s. 79(1).
[60] The Information Technology Act, 2000, s. 79(2).
[61] Id.
[62] Vyakti Vikas Kendra, India Public Charitable Trust v. Jitender Bagga & Anr., CS(OS) No.1340/2012.
[63] Information Technology (Intermediaries guidelines) Rules, 2011, rule 3(3) and rule 3(2).
[64] Information Technology (Intermediaries guidelines) Rules, 2011, rule 3(4).