BY: -ATUL KUMARCHANAKYA NATIONAL LAW UNIVERSITY

A Presentation on Cyber defamation, Censorship, and

Information and technology act, 2000

Table of Contents

Chapter 1:IntroductionChapter 2:Cyber defamation

Chapter 3:CensorshipChapter 4: Conclusion

INTRODUCTION

The Internet, as anyone who has ever experienced the wonder of going online would know, is a very different communications platform from any that has existed before. It is the one medium

where anybody can directly share their thoughts with billions of other people in an instant.

Not very long back when the scope of internet access was very limited, there was no requirement of law relating to cyberspace.

The concept has been developed, recently with the advent of the internet, and crimes on internet. Crime is no longer limited to space, time or a group of people. Cyber space creates moral, civil and criminal wrongs.

A crime committed in cyberspace is known as cyber crime. It could be against the government, property and against any person in various forms.

Crime that can be committed via internet

1. Child pornography

2. Identity Theft

3. Unlawful Arranging Sale or Purchase of Controlled Substance Using a Communication Facility

4. Computer Crimes

5. Piracy Recordings

6. Gambling

7. Defamation

8. Phishing

CYBER DEFAMATION

In general, defamation is an act to portray somebody in a false light and deprive him of his reputation. Thus, defamation is a wrong done by a person to another's reputation.

With tremendous rise in the use of the internet as a medium of communication, chances of use of the web as a forum for publication of defamatory content has increased multi-fold and there is a need for a clear, coherent expression of the law in this area.

Defamation traditionally requires the proof of publication of a matter intentionally and with malice, thus lowering the reputation of a person in the eyes of right thinking people.

In the context of the internet, the proof of these elements acquires new dimensions: determining the place of publication, establishing what constitutes a publication, ascertaining which country's law applies; and deciding whether an individual can be subject to the jurisdiction of the court of another country based on a defamatory statement disseminated over the internet, etc.

LAW OF DEFAMATION IN INDIA

In India, both civil and criminal remedies are available in case of defamation. The Indian Penal Code provides for criminal liability and civil actions lies under the Tort.

Section 499 of the IPC:-“Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.”

section 500 of IPC:“Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”

LAW OF CYBER DEFAMATION IN INDIA

The Information Technology Act deals with the various cyber crimes in chapters IX & XI.

Several questions arise regarding the content of the web pages on the Internet. Who is considered the publisher? What if the material put up on the site is defamatory or pornographic in nature? What is the liability of the ISP? Whose responsibility is it to survey these web pages?

Important sections with regard to law on cyber defamation in India are:section 66A and section 79 of the Information and Technology act.

SNWs are, at a grass root level, a medium for exchanging information between people. SNWs allow any person to write any statement, including the defamatory one, on their own or a third person's virtual profile. In this scenario, the question which naturally arises is: who can be sued by the person against whom such defamatory statement has been made?

Liability of Publisher or Author

Previously, the IT Act does not cover cyber defamation specifically, so to seek remedy against cyber defamation, the aggrieved party will have to rely mainly on IPC. The criminal law in India with regard to defamation depends on the construction of S. 499 and S.500.

But after the amendment in the year 2008, Information and technology act, 2000 now covers these matters of cyber defamation.

Section 66 A states:“Any person who sends, by means of a computer resource or a communication device,-

1. any information that is grossly offensive or has menacing character; or

2. any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device,

3. any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages

Shall be punishable with imprisonment for a term which may extend to three years and with fine.”

Liability of Publisher or Author (contd…)

Under sec. 66 A, a publisher of the defamatory statement could be held liable personally if he publishes any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently by making use of any computer resource or a communication device.

The punishment under this section is imprisonment for a maximum period for 3 years and with fine. Offence given under this section is a cognizable offence.

LIABILITY OF INTERMEDIARY

Under the operative Indian law, the person who made such statement as well as its distributor and publishers can be sued.

Apart from the author of such statement, intermediaries such as the concerned SNW, the website holder, the internet service providers, as well as the other users of such SNW on whose profiles defamatory statements have been written by the author, can be sued in their capacity as a publisher of defamatory statements and can be held liable for such statements.

Section 79 of the Information Technology Act, 2000 (the "Act") gives immunity to intermediary.

According to Section 79 of the Act, a 'intermediary' not be liable under the Act, or Rules or Regulations made there under, for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.

Liability of intermediary (contd…)

Section 79 of the I T act states that:

“1. Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and

(3), an intermediary shall not be liable for any third party information, data, or communication link hosted by him. 2. The provisions of sub-section (1) shall apply if -

(a). The function of the intermediary is limited to providing access to a Communication system over which information made available by third parties is transmitted or temporarily stored; or (b). The intermediary does not-

(i) Initiate the transmission,(ii) Select the receiver of the transmission, and(iii) Select or modify the information contained in the transmission

(c). The intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

3. The provisions of sub-section (1) shall not apply if-(a). The intermediary has conspired or abetted or aided or induced whether by threats or promise or otherwise in the commission of the unlawful act.

(b). upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating

the evidence in any manner.”

Liability of intermediary (contd…)

Section 2(w) of the IT act 2000 states that:-"intermediary", with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes, but does not include body corporate referred to in section 43A.”

o After the Information Technology Amendment Act 2008 become effective from October 27, 2009, intermediaries such as SNWs are immune from any defamation liability provided such intermediaries have acted bonafide or come within the purview of the exemptions envisaged under the amendment.

Liability of intermediary (contd…)

SECTION 79 AND 2(W) BEFORE AMENDMENT:

Sec. 79: Network service providers not to be liable in certain cases. “For the removal of doubts, it is hereby declared that no person providing any service as a network

service provider shall be liable under this Act, rules or regulations made there under for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.Explanation.—for the purposes of this section, —(a) "Network service provider" means an intermediary;(b) "Third party information" means any information dealt with by a network service provider in his capacity as an intermediary.”

• Sec. 2(w) "intermediary" with respect to any particular electronic message means any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message;

Liability of intermediary (contd…)

Section 79, which was amended in 2008, brought into being an intermediary liability regime. This was in part precipitated by the arrest of Avnish Bajaj, the former CEO of bazee.com in December 2004 for the infamous Delhi Public School MMS clip which was being sold on his e-commerce platform.

Just as the postal department is not considered liable for the content of letters or telecom operators liable for the content of phone conversations, Internet intermediaries, too, were to be considered “dumb pipes” or “common carriers” of content produced and distributed by users.

The amendment to the provision on intermediary liability (s.79) while a change in the positive direction, as is seeks to make only the actual violators of the law liable for the offences committed, still isn't wide enough:Firstly, the requirement of taking down content upon receiving "actual knowledge" is much too heavy a burden for intermediaries. Such a requirement forces the intermediary to make decisions rather than the appropriate authority (which often is the judiciary). The intermediary is no position to decide whether a Gauguin painting of Tahitian women is obscene or not, since that requires judicial application of mind. Secondly, that requirement is vitiates the principles of natural justice and freedom of expression because it allows a communication and news medium to be gagged without giving it, or the party communicating through it, any due hearing. It has been held by our courts that a restriction that does not provide the affected persons a right to be heard is procedurally unreasonable.

JURISDICTIONAL ISSUES

Sec 75: Act to apply for offence or contraventions committed outside India:

“1. Subject to the provisions of sub-section (2), the provisions of this Act shall apply also to any offence or contravention committed outside India by any person irrespective of his nationality.

2. for the purposes of sub-section (1), this Act shall apply to an offence or contravention committed outside India by any person if the act or conduct constituting the offence or contravention involves a computer, computer system or computer network located in India.”

RECENT CASES OF CYBER DEFAMATION

Digwijay singh case:

The very recent case of cyber defamation in India, which was highlighted by the media, is of Indian national congress leader Digvijay Singh, who allegedly have been defamed though hate speeches on the internet.

Twenty-two people who used websites to allegedly post "highly offensive" content against Congress leader Digvijay Singh will face a criminal case following a complaint filed by him.

The Economic Offences Wing of Delhi Police's Crime Branch registered a case under Section 66-A of IT Act, which deals with punishment for sending offensive messages through communication services, on September 29.

The registration of the case came after 44-days of investigations into a complaint filed by Singh's lawyer Rohit Kochar on August 16 during which police prima facie found a case against those 22 people.

He had sought registration of a case against 22 people and eight websites alleging that they have committed serious criminal offences against him by using computers to send and post "highly offensive, menacing, annoying, insulting and injurious content, messages, pictures and other data."

He had named the websites Facebook, Orkut, Ibibio, Twitter, MSN, YouTube, newsofdelhi.com, dhimagkharab.com in his complaint and sought registration of a case against then under Section 79 of IT Act but police has not done so.

In the complaint, Singh had argued that statutory obligations imposed upon websites and social networking platforms do not allow them to absolve themselves of the obligation to perform their duties and responsibilities.

CENSORSHIP

Censorship is the suppression of speech or other public communication which may be considered objectionable, harmful, sensitive, or inconvenient to the general body of people as determined by a government, media outlet, or other controlling body. It is now a days a very effective method to control cyber defamation.

Internet censorship is the control or suppression of the publishing of, or access to information on the Internet. It may be carried out by governments or by private organizations either at the behest of government or on their own initiative.

CENSORSHIP IN INDIA: Internet censorship in India is selectively practiced by both federal and state governments. While

there is no sustained government policy or strategy to block access to Internet content on a large scale, measures for removing content that is obscene or otherwise objectionable, or that endangers public order or national security have become more common in recent years.

The Indian Government in its latest move has asked the internet companies like Google, Facebook, Microsoft to create a framework to pre-screen the data before it goes up on the website.

INSTANCES OF INTERNET CENSORSHIP IN PAST

Immediately after the Kargil War in 1999, the website of the Pakistani daily newspaper Dawn was blocked from access within India by Videsh Sanchar Nigam Limited, a government-owned telecommunications company which at the time had monopoly control of the international internet gateways in India.

In September 2003, Kynhun, a Yahoo group linked to the "Hynniewtrep National Liberation Council" (an illegal, minor separatist group from Meghalaya), which discussed the case of the Khasi tribe was banned. The Department of Telecommunications asked Indian ISPs to block the group, but difficulties led to all Yahoo! groups being banned for approximately two weeks.

In 2007 Indian law enforcement entered an agreement with the popular social networking site Orkut to track down what it deems defamatory content which, in their example, includes content critical of Bal Thackeray.

LATEST CONTROVERSY

On the 7th of December 2011, The Times of India revealed that the search engine Google was asked to remove around 358 items by the Government of India out of which 255 items were said to criticize the government as per a Google transparency report.

The news of banning and blocking objectionable content on the internet was seen negatively by many Indian netizens. It was seen as a way to block websites criticizing the government.

In an interview to NDTV, communications minister Kapil Sibal responded by saying that most of the content being asked to remove was pornographic in nature and involved deities, which could have caused communal disharmony.

While Kapil Sibal claimed that the government wanted to remove pornographic content, Google transparency report published by Google claims that the content that included protests against social leaders or used offensive language in reference to religious leaders were not removed.

According to The New York Times India Ink reportage, Mr. Sibal demanded proactive and pre-emptive screening of posts that people make on social media sites, ostensibly to filter out or remove “offensive” content and hate speech.

IT ACT AND FREEDOM OF SPEECH AND EXPRESSION

The amendments passed in 2008 — without any discussion in Parliament – did solve some existing policy concerns, but simultaneously introduced new ones. For instance, Section 66, introduced during this amendment, criminalises sending offensive messages through any ICT-based communication service.

Offensive messages are described as “grossly offensive, menacing character, or causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will.” These terms are not defined in the IT Act or in any other existing law, rules or case-law, except for a couple of exceptions such as what constitutes “criminal intimidation”.

These limits on the freedom of expression go well beyond Article 19(2) of the Constitution, which only permits “reasonable restrictions in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”

PRE- SCREENING

Proactive and pre-emptive screening of social media content, as Mr Sibal has demanded, will only further compromise online civil liberties in what’s already a dismal situation.

In fact, given the magnitude of the task of pre-screening in a nation with a 100 million Internet users and growing, such an intense censorship regime will mean not only that what Indian citizens say or post will be censored by private companies, but those private companies will, in turn, use machines to screen what humans are saying and doing! After all, otherwise, companies would require armies of human censors to screen the millions of posts that are made on Twitter and Facebook every minute.

Machines, as we know, continue to be poor judges of the nuances of human expression and will likely cause massive damage to the idea of public debate. Humans, on the other hand, will begin to circumvent machine filters – for example, content labelled as PRON instead of PORN will go through.

Websites such as Facebook and YouTube already have mechanisms in place to report objectionable photographs and content. If some particularly inflammatory content does manage to seep through such filters, a complaint to one of the Cyber Crime Cells would get it offline.

INTERMEDIARY GUIDELINE RULE

In India, the new 'Intermediary Guidelines' Rules and the Cyber Cafe Rules that have been in effect since April 2011 give not only the government, but all citizens of India, great powers to censor the Internet.

These rules, which were made by the Department of Information Technology and not by the Parliament, require that all intermediaries remove content that is 'disparaging', 'relating to... gambling', 'harm minors in any way', to which the user 'does not have rights'.

The removal of the content shall be within 36 hours of the receiving of complaint.

The Centre for Internet and Society in Bangalore, decided to test the censorship powers of the new rules by sending frivolous complaints to a number of intermediaries. Six out of seven intermediaries removed content, including search results listings, on the basis of the most ridiculous complaints. The persons whose content was removed were not told, nor was the general public informed that the content was removed.

Yet, not only was what the Internet companies did legal under the Intermediary Guideline Rules, but if they had not, they could have been punished for content put up by someone else. That is like punishing the post office for the harmful letters that people may send over post.

CONCLUSION

Globally, excessive regulation of online discussions, particularly those related to political and social issues, can kill the open exchange of information. "In many countries, we saw that new laws, prosecutions, or proactive government censorship contributed to greater self-censorship among users.

Balancing the right to freedom of expression against security threats, hate speech or child pornography is quite difficult — even for nations that rank high in their study. But there are a few best practices that India could learn from. "Examples of good practices would include no criminal defamation provisions (though criminal penalties for inciting violence would be appropriate), immunity for online content providers from being held liable for the information posted by their users (there is such a law in the United States), and multi-stakeholder consultations prior to the passing of regulations related to the internet/digital media.

The new rules India has come up with fly in the face of such best practices. Authorities and netizens alike should be on the guard, lest we go the China way.