It would be a cliché to begin with the statement, "The internet has provided a multitude of varied methods of expressing thought and opinion on a global stage." But, clichéd as it may be, the statement is glaringly true. This online social revolution has, however, also awakened a law that was previously limited in its application to the more traditional forms of media, such as print and broadcast. With a steady flow of opinion and the advent of the 'amateur' journalist, the significance of what to say and how to say it, has become paramount, with regard to its repercussions and its legality in the context of defamation.
Defamation is an exception to the Right to Freedom of Speech and Expression (Article 19) in the Constitution of India. It is further elaborated in section 499 of the Indian Penal Code 1860. It states, any speech, text or other visible representations made by a person, with the belief that such may explicitly or implicitly harm the reputation of another person - constitutes defamation.
Thus, there are three parts to the offence. First, the defamatory action itself; second, there is an intention to harm or a belief that harm would come to the reputation of the person so defamed; and third, an element of influence of the defamatory act and its ensuing harm. While such a concept may appear self-explanatory to the legal fraternity, the same may not hold true for the non-legal populace.
Lon L. Fuller, a proponent of natural law, hypothesized eight principles to be followed for the successful functioning of a legal system, one of which was the need for law to be adequately publicized. Through his Princely character of 'Rex', Fuller illustrated that if the subjects of a government simply did not know the law, it would be impossible for them to adhere to the rules laid down. In essence, no legislation should creep and catch an unaware public for misdoings; instead it should provide a guiding path with signposts pointing the right way. This happens to not be the situation with dormant defamation law in India and an unsuspecting and unguided social networking and blogging public.
With almost 45 million users by 2012 involved in some form of social networking (the number does not include bloggers, or people involved in any other form of media creation or sharing), it goes without saying that the sheer quantity of content is unimaginable. It is fathomable though that occasionally people may say or share something inflammatory about another individual or corporation. So, should such people immediately fall under the purview of defamation, as defined in the IPC, and become vulnerable to expensive and resource-consuming litigation, especially since they had not been actively made aware of the law?
Due to the singular test for defamation, anyone who shares his or her views on the internet is held to the same standard as a large news corporation with its extensive resources and qualified journalists. While it is hard to justify making an inconsistent and arbitrary application of the law to excuse someone for making a libelous statement and penalize another, a concession for this can be made with regard to the influence the statement wields.
A defamatory statement made by a media organisation, for instance, is likely to be well researched, have a wide audience, and will carry with it a level of credibility, which stems from the reputation of the organisation - hence, there exists a high probability that it will influence the wider public against the defamed party. By contrast, an inflammatory statement by a layman is usually an emotional outburst or a composition of personal thought and opinion. It is not likely to be thoroughly researched, will bear little weight due to the anonymity of the source and will largely go unnoticed in the vast chasm of the 'web'. Therefore, it will be less persuasive, and will be taken 'less seriously'(if at all) by its audience (if any).
It is also worth noting that there may be a significant difference in the intent of an ordinary social network user and a media conglomerate. As mentioned above, a statement on a social networking site or in a blog is likely to be some sort of vent of opinion. Such a statement is made not with the intent to defame or cause malicious harm to someone's reputation, but merely to express opinion, if slightly inappropriately. Compared to the potentially damaging statement by a larger and more prominent entity, which may adopt a systematic approach to release of defaming statements (which demonstrates a greater propensity to intent to defame), and the difference in desired outcome is clear.
If no distinction is made between the positions of an ordinary internet user who made an inadvertent defamatory remark and a larger, more resourceful entity, and both are equally vulnerable to claims for defamation, there is tremendous potential for an abuse of dominant bargaining position. If a user on a social networking site makes an offensive statement against a large corporation, and is subsequently sued by the same, can the resources of the layman be comparable to those of corporation. Likely, not. With the threat of such abundant resources, firms can employ bullying tactics to force internet users to retract potentially defamatory material off the internet, even if it were true.
Events similar to those described above unfolded recently. Though the details are rather unclear, essentially, Vodafone India sued its customer for posting defamatory comments on a popular social networking website (amongst other things). Unusually, this customer, through his concerted efforts (and probably those of his lawyers) was able to defend and force Vodafone to settle out of court, setting an unexpected benchmark, and only delaying what can become a discreet and suppressive practice. Encouraging as it may seem, this particular course of events is not indicative of the action an ordinary citizen of the country can hope to sustain or even succeed at.
In fact, it comes as a surprise that litigation pertaining to defamation through social media is virtually non-existent in India. In the United Kingdom, the number of cases initiated due to defamatory statements in social media has been increasing steadily. Last year alone there were 16 cases, the majority of which were settled out of court. In fact, the Americans, rather eager with their system of punitive damages, awarded a claimant $11.3 million for defamatory statements posted on internet forums and blogs (it seemed immaterial that the defendant did not have the means to pay even $1 million, let alone $11 million).
Social media related defamation cases are conspicuous by their absence in this country. India has more 'Facebook' users than the UK and the number of internet users involved in social media alone (at over 40 million) is not what one would call, small. This points to one of the two trends; Indian firms and celebrities are only just grasping the effects of social media defamation; or, all such defamation cases have settled in the hush-hush. Either way, the future looks bleak.
Currently, the onus to disprove the act of defamation and an intent to defame lies on the person making the statement; this includes anyone merely participating in some social networking activity. This, coupled with limited resources, it is not inconceivable that an average 'social networker' of the internet, suddenly thrust into the legal system as a defendant will not have the will to prolong litigation.
This wouldn't be a one-off trend, and would only bolster the position of the allegedly defamed. Aside from the minor inconvenience of an appalling violation of the right to freedom of speech and expression, it will give rise to a sea of new litigation flooding into our already overburdened courts. Is this in the interest of justice?
To apply strict defamation laws to a phenomenal amount of content in a multitude of forms, much of which is unverified and has little credibility content, is an unfeasible and senseless proposition. If unchecked, anyone who has greater resources than an ordinary user of the internet will abuse his, her or its position to try and control every single instance of dissenting opinion, even if it causes no financial or reputational harm.
Thus, a change in the law is essential. First, in matters of defamation where a 'David' and 'Goliath' battle is to ensue, the overly powerful party should be restricted in the use of its resources. Such a system is already in place in the UK, where, as the fulfillment of the overriding objective courts limit legal representation and costs of the dominant party, in an effort to keep the trial fair.
Second, a split standard of defamation should be considered. This should give more weight to the authenticity and accuracy of the defaming material, along with a greater consideration for the credibility of the maker of such material. In theory, this should differentiate between professional organisations and influential individuals, on the one hand, and an average internet user on the other.
While current defamation law is proficient in its traditional application and will continue to monitor and filter deprecatory content online, its failings lie in its initial operation. It is, however, unable to prevent a baseless claim of defamation from arising, consequently abetting a rise in frivolous litigation and the infringement of Constitutional freedoms. It is for this reason the law needs to be updated.