Reputation is a jus in rem, a right absolute and against the world and a person’s reputation is his/ her property. Thus, no one can defame a person i.e. use his freedom of speech or expression so as to injure another’s reputation. The essence of defamation is its tendency to cause that description of pain which is felt by a person who knows himself to be the object of the unfavorable sentiments of his fellow- mates and those inconveniences to which a person who is the object of such unfavorable sentiments is exposed. In general, there are four requirements for liability for defamation to arise. A false and defamatory statement must be made about another’s reputation or business. What is necessary in a case of defamation is that the statement made is understood by others to be “of or concerning” the plaintiff. If the individual who is the subject of defamation is deceased, no cause of action lies for defamation. The publication should be made out to a third party. Generally, there is no liability if the defendant did not intend the publication to be viewed by anyone other than the plaintiff. However, most defamatory material on the internet is accessible to millions worldwide. Therefore, it is unlikely that a defendant would be able to argue that he or she did not intend that others should view the statements. The plaintiff must establish some extent of fault or negligence on the part of the defendant in publishing the statements. Thus, a plaintiff who is a public figure will have to show that the statements were made out of malice. The burden of proof is less demanding in case of a private individual. The statements must result in actual or presumed damage. The permanent nature of libel coupled with the ability to distribute it widely especially through the internet have led courts to allow for recovering damages for libel without actually proving damage caused. Thus, for material to be defamatory, one of the tests should be satisfied –
The criminal law in India with regard to defamation depends on the construction of S. 499 and S.500. In India, it does not matter whether the words were publishes or they were uttered, or heard by people, as long as those defamatory words were intended to harm the reputation of another person. Thus, in the Indian context, the following are various ingredients which constitute defamation-
Making or publishing of an imputation concerning a person,
Such imputation should have been made-
By words either spoken or written - Words are powerful vehicles which convey the thoughts of a person. Thus, a misapplied and misapprehended term can give rise to a dispute. However, insulting a person is not defamation as it was uttered in a fit of anger; or
By signs or visible representation: any sign or possible form of defamation that a person can think of is covered under this type of imputation. Hence, a statute, a caricature, an effigy, chalk marks on a wall or a display of photographs etc. are all signs and visible representation.
This imputation should have been made with intent to harm or knowing or having reason to believe that it will harm the reputation of such person or harm him. Thus, the person passing the remark should know that it will harm the reputation of the person.
Thus, a defamatory statement is one which would tend to lower the reputation of the claimant in the eyes of right-thinking members of society and which would result in the shunning or avoidance of the claimant by society. Defamation, traditionally, may either be a slander or a libel. A slanderous statement is that which is issued verbally, or not produced in permanent form. If the statement is published in a permanent form, it becomes a libel. Going by the traditional definitions of libel and slander, an electronically disseminated defamatory statement would generally amount to libel. The electronic data is content committed to the host computer and resides on the same until deleted. This is more than a transient form and is more likely to be libel.
Considering the wide reach that the internet has, anonymous defamatory speech directed at individuals and employers in chat rooms and bulletin boards has the potential for causing great damage and hurt. In the US, cases involving defamatory statements made by anonymous internet users are commonly called ‘John Doe’ cases. The courts that have dealt with this issue have tried to reach a compromise between the freedom to speak anonymously and the right to determine the identity of one who has misused that freedom to engage in harmful speech or other illegal activity. In Immunomedics, Inc., v Doe (342 N.J.Super. 160 (2001) ), the court held that “although anonymous speech on the internet is protected, there must be an avenue for redress for those who are wronged. Individuals choosing to harm another or violate an agreement through speech on the internet cannot hope to shield their identity…”
There are certain general defences that can be taken to a suit for defamation. Absolute privilege is a complete defence concerned with judicial proceedings, parliamentary privileges and official business. There is no cause of action for words said within the walls of a courthouse or tribunal recognised by law, no matter the content of the same. Similarly, communications between a solicitor and a client attract absolute privilege. The same applies to parliamentary proceedings or statements made in course of business.
Qualified privilege on the other hand, consists of:
Limited statements between persons with a common duty/interest to make and receive such statements
Statements made to public pursuant to some form of legal duty
Fair and accurate reporting of specified proceedings
In addition to this, it must be shown that the statement made was at a fit and proper time, that the statement referred to the occasion in question and that it was published under right and honest motives.
Fair comment and criticism is a defence extended only if the statement made is an opinion and not if it is a fact. Again, the comment must be made without malice to afford a defence. To qualify as fair comment, the statement must be based on facts which are substantially true, or honestly believed to be true. It must also have a relation to the forum in which the statement is being made and should not merely assail an individual on unrelated grounds. Thus, for example, it would be permissible for a book-review website to say that the book is immoral. But it would hardly be so, if the statement read that the author, personally, was immoral.
With the area of defamation on the internet facing so many ambiguities, one particular area that needs attention is the liability of the internet service provider for defamatory statements posted by a third party who happens to avail his services. Confusion persists over the extent to which the internet service provider can be made liable for the statements that he might not even know to exist.
LIABILITY OF INTERNET SERVICE PROVIDERS
The laws regarding defamation differ from state to state. This poses interesting questions of jurisdictions, conflict of laws and choice of laws. As a general rule, courts apply the laws of the area where the impact and injurious effects of the defamatory statements are most felt. However, there are three general rules that courts consider for determining a court’s authority to exercise jurisdiction over a person of another state who posts defamatory statements online. These are :
Whether there was a direct electronic activity into the state
An intent to conduct business or other interactions in the state
The activity must create in a person within a state a cause of action recognizable by the courts of that state.
United Kingdom :
Under English law, anyone who participates in the publication of a defamatory statement will be held liable for defamation. On the other hand, a person who merely facilitates, as opposed to participate, in the publication of the statement shall not be held liable. With respect to the internet, this distinction becomes important so as to draw a line between authorising or participating in publication on the one hand, and mere facilitation on the other. The position of passive facilitators, who provide a connection to the internet, is that it did not render the provider a publisher at common law of a statement transmitted across the connection. The crucial consideration was whether the person had “a knowing involvement in the process of publication of the relevant words.” Thus, it is essential to show that they had a degree of awareness that such words existed, or atleast an assumption of general responsibility.
Section 1 of the Defamation Act, 1996 lays down that to escape liability for defamation, the person has to show that he took reasonable care in relation to its publication and that he did not know, and had no reason to believe that what he did caused or contributed to the publication of the defamatory statement. Godfrey v. Demon Internet Ltd. is authority for the proposition that all three elements have to be satisfied in order to apply this defence. In this case, the defendant was an ISP who provided services for publication of material on the internet. The claimant, about whom defamatory material was published on the defendant’s service, informed the defendant of the material on gaining knowledge of the same. However, the defendant took no care in removing the material. Morland J. rejected the contentions of the defendants that they were merely owners of an electronic device through which postings were transmitted and held them liable as they exercised sufficient degree of control over the content. This case is the only reported case in England concerned with the extent of ISP defamation liability.
United States :
As noted before, one of the most debated issues in litigation has been determining whether online service providers and internet service providers are common carriers, distributors or publishers for the sake of defamation. In Lunney v. Prodigy, the court held that an ISP was merely a conduit and not a publisher of defamatory statements posted on its bulletin board by an imposter, and therefore was no more liable for messages than a telephone company. Thus, the position in the US is that, while publishers, who have discretion over content published, can be held liable for defamation, distributors of published material cannot be held liable. The two landmark cases that set the trend for future decisions on liability of ISPs in the US are Cubby, Inc. v. CompuServe and Stratton Oakmont v. PRODIGY Services Company.
In Cubby Inc., the court held that the defendant ISP exerted no control or knowledge regarding what was published and was, thus, merely a distributor and could not be held liable. However, in Stratton, the defendant, who owned a widely read financial bulletin board, had employed an agent and software-screening programs for monitoring purposes and thus could be considered a publisher rather than a mere distributor.
The position on ISP liability sought to be made clear by the Congress by the passing of the Communications Decency Act, 1996. Under this Act, Sec.230 provides complete immunity to ISPs by stating that “no provider or user of an interactive computer service shall be treated as publisher or speaker of any information provided by another information content provider.” By its plain language, the section creates an immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. While various options were available to the congress, it chose to “promote the continued development of the Internet and other interactive computer services and other interactive media”. In recognition of the speed with which information may get disseminated and the near impossibility of regulating information content, Congress decided not to treat providers of interactive services like other information providers such as newspapers, magazines, or television and radio stations. However, despite the good intentions with which the legislation was framed, the provision has been misused by internet service providers as one that authorizes a blanket immunity to them. This can clearly be seen in the case of Sidney Blumenthal v. Matt Drudge and America Online Inc. In this case, AOL had entered into an agreement with Drudge by which Drudge would provide all AOL members with a report on all gossip from Hollywood and Washington D.C. from his report called the Drudge Report. Drudge was alleged to have posted defamatory material about the plaintiff, who then sought to hold AOL liable. However, due to the immunity provided by Sec.230, AOL was able to escape liability despite having appointed Drudge themselves.
However, though most courts follow the precedents set by the above cases, some have recently qualified the section by taking a closer look at the responsibility of ISPs for content control. This can be seen from the case of Carafano v. Metrosplash.com, Inc., where the defendant, who operated an online matchmaking or dating service, was held liable for defamation of the plaintiff, as on examination, it was found that he exercised a great degree of control over content of the services provided by him. He could not claim immunity under Sec.230.
Thus, we see that, the law on defamation and the liability of ISPs is different in both these jurisdictions. The general practice in England is to remove a site from their service once they are informed that it contains defamatory material. Otherwise, they may held liable for defamation. In the US on the other hand, complete immunity has been provided to any secondary publisher of defamatory material. The UK approach may have a far more limiting effect on the freedom of speech on the internet than on the freedom of speech by press or media. This is because it is unlikely that an ISP would be able to defend as strongly a suit for libel as would the press of media, as the latter are far more confident of their publishings. However, the US approach may leave individuals without an effective remedy to protect their reputation against defamatory material. It would be wrong to confer unconditional immunity to ISPs as is the current position.
India:
To deal with the contentious issue of ISP liability in India, provision has been made in the Information Technology Act, 2000. Sec. 79 of the Act reads :
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 thereunder 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.
The reason for providing internet intermediaries with safe harbours is that given the obvious technical and economic impracticalities, intermediaries cannot be expected to monitor or regulate the vast amount of content that they host on their servers. The immunity is provided by the Act based on knowledge and due diligence. However, the section has been criticised on many grounds as being ambiguous and unclear. The section is silent on whether the knowledge required is actual knowledge or constructive knowledge. Further, there exist different standards of due diligence, and which standard is to be adopted is not specified in the section. Also, the scope of the section is highly limited to the term ‘message’, which again is not defined in the Act anywhere. This leads to ambiguity in the interpretations attached to the term. The same is true of the term ‘intermediary’. Lastly, the extent of the safe harbours is limited to “this Act, rules or regulations made thereunder”. This opens various litigation possibilities against service providers under civil and criminal liabilities. Thus, at best, the safe harbour provided to intermediaries under the Act proves sketchy and inadequate.
JURISDICTIONAL ISSUES
Cyberspace has a very unique aspect of having a heightened potential to cause defamatory effects world-wide. Further, the issue of cyberspace lacking defined boundaries and borders always finds a place in cases of multistate defamation cases. These often lead to conflicts over the application of the appropriate jurisdiction by the appropriate state. To solve these jurisdictional issues, certain theories have been evolved through case laws.
Totality of contacts
In totality of contact analysis, the court gathers and weighs all online contacts that the defendant has with the forum, electronic or non-electronic, to determine whether sufficient minimal contacts exist to assert specific jurisdiction.
In Rubbercraft Corpn. of California v. Rubbercraft, Inc., the court, after explaining that a passive website alone is insufficient to convey jurisdiction in the forum, identified Rubbercraft’s contacts like advertisement by web page and a nationally circulated periodical, operation of a web page and sales in the forum of about $20,000 in that year, as being sufficient to convey jurisdiction to the forum.
Effects test
The effects test approach as enunciated in Calder v. Jones, essentially inquires whether the forum State is the focal point of the defamatory story and the harm suffered. The inquiry requires an examination of whether the defaming party had the intent to cause injury in the forum or whether knowledge could be reasonably presumed that injury would be caused in the forum.
In California Software, Inc. v. Reliability Research, the court explained that even if defendant did not send a tangible object into the forum or was not present in the forum, he is not at liberty to use the unique characteristics of internet technology to avoid jurisdiction. The test was further clarified in Young v. New Haven Advocate, where the court held that jurisdiction would be established if the publisher’s intent was to reach the readers in the forum.
Keeton test
The Keeton test approach transports a traditional multi-State defamation jurisdictional analysis into cyber-libel thus allowing exercise of jurisdiction where the defamatory statement is published and delivered to the forum.
In TELCO Communications v. An Apple A day, the court held that even though the evidence showed that the defendant had no other actual contacts with the forum apart from a defamatory statement on a passive website, it was subject to the exercise of jurisdiction. In Gutnick the High Court of Australia held that a court in Victoria could exercise jurisdiction over an American defendant who had defamed an Australian resident.
While it is true that Gutnick is unlikely to have succeeded in the USA, where defamation laws are much less strict, the Court failed to recognise that such a decision may result in Australians being cut off from internet contents due to the fear of an unfriendly forum. The decision makes it necessary for internet publishers to have contemplated the defamation laws of all countries where there is a reasonable likelihood of access, especially if the laws are stricter than where the server is based. The alternative is to erect firewalls around countries where the person resides, so that residents there have no access to the site. The Court recognised that the public interest in the free flow of information and opinion stands in broad opposition to the private interest in the security of reputation
Nature of the website or Zippo approach
A fourth approach, embodied in Zippo Mfg. Co. v. Zippo Dot Com contemplates that it is not sufficient to show that it is possible for someone to reach into cyberspace and bring the materials on to the screen in that particular jurisdiction—there has to be evidence that the defendant used the internet for a commercial purpose to enter that particular jurisdiction.
Where a defendant clearly does business over the internet, personal jurisdiction is proper. On the other hand, a passive website that does little more than make information available to those who are interested in it does not create grounds for the exercise of personal jurisdiction. The middle path is occupied by interactive websites where a user can exchange information with the host computer. Reasonableness of the forum depends on the level of interactivity and the commercial nature of the information exchanged. This is somewhat similar to the totality of contacts approach, but that approach takes into account electronic as well as non-electronic contacts with the forum, while only electronic contacts are considered here.
The Keeton approach has to be discounted altogether because of manifest unreasonableness. The Zippo approach and the totality of contacts approach are similar, but the Zippo approach should be considered to be superior, as it does not take extraneous factors such as non-electronic contact into account. However, in the absence of an international agreement, the effects approach seems to be the best.
