cyber smearing

8/18/2019 Cyber Smearing

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Accessibility, anonymity, privacy, seclusion of one's own space, and the interactive, responsive

nature of communications on the internet, has made the users far less inhibited than before

especially about the contents of their messages. There is no dearth of Soniya Gandhi!anmohan

Singh "o#es and cartoons coming as your regular $aceboo# updates. The internet has made it far easier than ever before to disseminate defamatory statements to a worldwide audience with

impunity. %ow, on the internet everyone can be a publisher as well as a victim of defamatory

publication.

A defamatory allegation need only be disclosed to one person for publication to be proved. Since

a publication on internet can be circulated to literally countless number of people, every time an

email is forwarded to another person or defamatory content is shared on $aceboo#, it is

published again and again creating further cause of action. This has led to cyber space becoming

a highly prone area for defamation and smearing. %o doubt a &ohn Doe always lur#s around in

the cyber space. n this section of the assignment we will cover the various forms of (yber smearing, the legal provisions on cyber defamation and liabilities of internet service providers or

intermediaries in the light of some of the most landmar# "udgments on this issue.

Forms of Cyber Smearing:

(yber smear is essentially same as defamation, e)cept that the alleged defamatory material is

posted on the nternet. Defamation may also be referred to as libel, slander, disparagement,

defamation of character, etc.. Defamation in the nternet can be classified as libel in view of that

material communicated on the nternet is published e.g. bulletin boards, emails, chat rooms etc.

The tort of cyber smearing is considered to be the act of defaming, insulting, offending or

otherwise causing harm through false statements pertaining to an individual in cyberspace. This

is commonly done through the nternet via websites, blogs, forums, emails and instant

messaging, chat rooms and now in the social networ#ing sphere. Smearing law in general

describes the tort as *the issuance of a false statement about another person, which causes that

person to suffer harm+ -arson where libel is the written form and slander is spo#en. -ibel is

typically the form addressed with cyber smearing because the nternet essentially receives the

same protections as print and published media.

The other elements applied to smearing include/

• The unprivileged publication of the statement to a third party


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• f the defamatory matter is of public concern, fault amounts at least to negligence on the

part of the publisher

• 0erceivable damage to the plaintiff

Along with the core elements of smearing, the burden of proof is placed on the plaintiff in a case,

damages are usually awarded monetarily and in the 1nited States, truth is an *absolute defense+

1nder the common law, there are four main defenses to defamation. These are/ 2 "ustification3

4 consent to the publication3 5 fair comment3 6 absolute and 7ualified privilege3 and 8

innocent dissemination.

(yber or online smearing is considered to be as, if not more harmful than smearing in the form

of libel and slander in the bric# and mortar, physical world. n some cases, the effects of online

smearing could be e)ponentially worse than an offline incident due to the global nature of the

nternet and the fact that the statements can be accessed by virtually anyone. n addition to this,

the issue of anonymity online raises even more concern when dealing with smearing because the

author or origin of the statements may be very difficult to trace depending on the medium.

(yber smear is still a developing area of cyber law, clear precedents have not yet been set. 9ne

of the most important issues in cyber libel is whether S0s, operators of bulletin boards or

website owners are common carriers, distributors or publishers. Tension e)ists between the right

to free speech and the legal duty to protect people being defamed because of the increasing ease

and potential harm in the face of nternet publication.

The ndian 0enal (ode defines Defamation as :;hoever, by words either spo#en or intended to

be read, or by signs or by visible representations, ma#es or publishes any imputation concerningany person intending to harm, or #nowing or having reason to believe that such imputation will

harm, the reputation of such person, is said, e)cept in the cases hereinafter e)pected, to defame

that person:2. (yber Defamation, also #nown as nternet Defamation or 9nline Defamation, is

defamation in the world of nternet and its users.

(yber Defamation is amongst one of the various (yber (rimes that can ta#e place. (yber

crimes are neither bound by time nor by national boundaries i.e. a person sitting in one corner of

the world, can at any time easily cause damage to a person sitting in another corner of the world

within a few minutes. (yber Defamation in (orporate ;orld can ta#e place in various forms for

e)ample a disgruntled employee of a (ompany may post some defamatory remar#s about the

(ompany on a popular blog site or may send some slanderous email, defaming the company or

any of its important managerial personnel, to the clients of the company across the globe3 a

competitor may divert the client and


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(ompany in a very short span of time owning to a worldwide accessibility of internet and its

ever increasing number of users.

LAWS APPLICABLE IN INDIA IN CASES OF CYBE DEFA!A"ION

n ndia (yber Defamation results in (ivil as well as (riminal proceedings against the accused.

Some the Acts and rules that deals with (yber Defamation are The ndian 0enal (ode, 2=>?, The

nformation Technology Act, 4???, The (ode of (riminal 0rocedure, 2=@5 and The ndian

vidence Act, 2B@4. The (harging Act for prevention of (yber (rimes in ndia is the

nformation Technology Act, 4???. Section >>A of the nformation Technology Act, 4???

provides punishment for online Defamation. Section >>A can be read as follows

>A. 0unishment for sending offensive messages through communication service, etc..

Any person who sends, by means of a computer resource or a communication device,

a any information that is grossly offensive or has menacing character3 or

b any information which he #nows to be false, but for the purpose of causing annoyance,

inconvenience, danger, obstruction, insult, in"ury, criminal intimidation, enmity, hatred, or ill

will, persistently ma#es by ma#ing use of such computer resource or a communication device3

c 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 e)tend to tthree years and with fine.

)planation/ $or the purposes of this section, terms :lectronic mail: and :lectronic !ail

!essage: means a message or information created or transmitted or received on a computer,

computer system, computer resource or communication device including attachments in te)t,

image, audio, video and any other electronic record, which may be transmitted with the message.

Section >8A and Section >8C of The ndian vidence Act, 2B@4 provides for Admissibility of

electronic records as evidence. Some of the sections of ndian 0enal (ode, 2=>? that deal with

(yber defamation are Section 6==, 8?? and 8?5.


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Se#$ion %%A of Informa$ion "e#&no'ogy A#$( )000

n ndia, a person can be liable for defamation both under civil and criminal law. Section 6== of

the ndian 0enal (ode which deals with defamation when e)panded also covers the cases of

cyber defamation. owever, with the new amendment in the nformation Technology Act, 4???,

ndia now has e)press provision on (yber Defamation.

*Any person who sends, by means of a computer resource or a communication device,

a Any information that is grossly offensive or has menacing character3 or

b Any information which he #nows to be false, but for the purpose of causing annoyance,

inconvenience, danger, obstruction, insult, in"ury, criminal intimidation, enmity, hatred, or ill

will, persistently ma#es by ma#ing use of such computer resource or a communication device,

c 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 e)tend to three years and

with fine.+

LIABILI"Y OF ISPS * IN"E!EDIAY IN INDIA

Section @= of nformation Technology Act, 4???

As per Section @= of the T Act, S0s are not liable for any third party information, data, or

communication lin# made available or hosted by them so long as

2. Their function is limited to only providing access to communication system3

4. They do not

a nitiate transmission3

b Select the receiver of the transmission, and

c Select or modify the information contained in the transmission


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5. They e)ercise due diligence in their duties and adhere to any guidelines which may be

prescribed

owever, S0s can be held liable in the following situations

2. f they have conspired, abetted or induced in the unlawful act,

4. f, they fail to e)peditiously remove or disable access to any information, data or

communication lin# upon receiving the #nowledge or on being notified by appropriate

Government agency that such information, data or communication lin# is being used to

commit unlawful act withoutinterfering with the evidence3

As a curious deviation from the position of law in commonwealth countries, the T Act, 4???

bears a certain degree of similarity with the laws in the 1nited States in cases of cyber

defamation. Though the new amendment does not shift the burden of proof from defendant to

plaintiff, it definitely ma#es it easier for the defendants to prove their innocence in the event they

have acted bona fide and complied with the obligations under Section @= of the Act and Rule 5 of

the T Rules, 4?22. owever, although S0's are theoretically not liable for posting and

transmitting defamatory information, they are nevertheless fre7uently "oined as defendants in

defamation lawsuits because of their deeper poc#et. The 7uestion that ne)t comes up is the e)tent

of involvement of S0s in publication of defamatory content. n this conte)t, it is important to

understand and appreciate the difference between primary publisher and secondary publisher.

The 1. E. Defamation Act 2==> defines a primary publisher as F *a person whose business is

issuing material to the public and who issues the material in the course of that business and those

who are only involved in processing, ma#ing copies, distributing or selling any electronic

medium in which the statement is recorded are defined as secondary publishers.+ A secondary

publisher can thus escape liability for handling third party defamatory material if it is able to

prove that a it was merely acting as a conduit3 b it e)ercised due diligence and, c it was not

aware of the defamatory nature of such material and immediately removed the content onceinformed or notified by appropriate Government agency. Therefore, S0s in certain cases may act

as primary as well as secondary publishers. f the S0s e)ercise editorial control over messages

posted on bulletin boards, use Coard -eaders to enforce the content guidelines or provide them

with an emergency delete function to control content there is great li#elihood that they may end

up being treated as a primary publisher


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