Cyber law is the “law governing cyberspace”. Cyberspace comes alive only when two or more computers are networked together. It may be described as the non-physical terrain created by computer systems. However, Cyberspace should not be thought of being restricted to the internet, but as a wider term that includes computers, computer networks, the internet, data, software etc. Any criminal activity that uses a computer either as an instrument, target or a means for perpetuating further crimes comes within the ambit of cyber crime.
Cyber Law encompasses laws relating to:
a. Electronic and Digital Signature Laws
b. Cyber Crime Law
c. Intellectual Property Law
d. Data Protection and Privacy Laws
Cyber Defamation would fall in the category of Cyber Crime Law. The concept of cyber crime is not radically different from the concept of conventional crime. Both include a conduct, whether act or omission, which cause breach of rules of law and counterbalanced by the sanction of the state. Few examples of Cyber Crime would be e-mail spoofing, unauthorized control/access over computer system, transmitting virus, Cyber terrorism against the government organization.
Cyber Defamation
Defamation is injury to the reputation of a person. If a person injures the reputation of another, he does so at his own risk, as in the case of an interference with the property. A man’s reputation is his property, and if possible, more valuable than the other property. Cyber defamation is not different from conventional defamation except the involvement of a virtual medium. Example: A defamatory article can be published in a newspaper or it can be published on a website. Publishing through a website would amount to cyber defamation.
The three essentials of Defamation are:
a. The statement must be defamatory.
b. The said statement must refer to the plaintiff.
c. The statement must be published.
Internet provides us with a very cheap and a quick way of communication. It has made the world a close nit organisation. Also, with the growth of social networking sites like orkut, facebook, etc., lot of personal information is shared amongst many people therefore, the chances of defamation through internet has become a major threat in today’s world. Even if a single defamatory email is forwarded, it becomes very difficult to trace and stop its circulation. Any article published on a website is open for the entire world to read. The damage or losses caused to the victim is very huge especially if the imputation is intended to harm the business of an individual or a business entity.
II. STATUTORY POSITION IN INDIA
Laws relating to illegal and harmful contents were first enacted in the 1980s. Amendments aimed at adapting etc. traditional legal provisions on the dissemination of pornography and defamation to electronic data were passed in the United Kingdom in 1994, in Germany in 1997 and in India in 2000.
Provisions related to Cyber Crime in IT Act 2000
The Information Technology Act deals with the various cyber crimes in chapters IX & XI. The important sections are Ss. 43,65,66,67. Section 43 in particular deals with the unauthorised access, unauthorised downloading, virus attacks or any contaminant, causes damage, disruption, denial of access, interference with the service availed by a person. This section provide for a fine up to Rs. 1 Crore by way of remedy. Section 65 deals with ‘tampering with computer source documents’ and provides for imprisonment up to 3 years or fine, which may extend up to 2 years or both. Section 66 deals with ‘hacking with computer system’ and provides for imprisonment up to 3 years or fine, which may extend up to 2 years or both. Further section 67 deals with publication of obscene material and provides for imprisonment up to a term of 10 years and also with fine up to Rs. 2 lakhs. (14)
However, 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.
Provisions related to Cyber Defamation in IPC
i. Part of Section 499 of IPC reads as under:
“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 excepted, to defame that person”.
According to section 500 of IPC, punishment for Defamation shall be simple imprisonment up to 2 years or fine or both.
ii. IT Act replaces the words “intending that the document forged”, with the words “intending that the document or electronic record forged” in section 469 of the Indian Penal Code.
Section 469 reads as under:
“Whoever commits forgery, intending that the document or electronic record forged shall harm the reputation of any party, or knowing that it is likely to be used for that purpose, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine”.
This section punishes forgery committed for the purpose of defaming a person. The amendment made to this section, extends such forgery to include electronic records, where such defamation has been carried out by forging such electronic record(s).
Illustration: Anoop puts up a website where he displays a forged newspaper report holding Suman responsible for the murder of Sonia, thereby harming the reputation of Suman. Anoop has committed an offence described under this section.
An offence under this section is cognizable, bailable and triable by a Magistrate of the first class.
iii. Section 470 of IPC defines a forged document.
The section 470 of IPC reads as under:
“A false document or electronic record made wholly or in part by forgery is designated a forged document or electronic record”.
iv. Use of emails and other electronic means of communication for threatening or intimidating any person or his property or reputation, attracts Section 503 of the IPC.
Section 503 of IPC reads as under:
“Whoever, threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threats, commits criminal intimidation”.
Explanation: A threat to injure the reputation of any deceased person in whom the person threatened is interested; is within this Section.
Illustration: A sends an email message to B saying that if B does not close down his website, A would send emails to B’s friends regarding his affair with his colleague. A is said to have criminally intimidated B.
An offence committed under this section is non-cognizable, bailable, and triable by any Magistrate. If however, the threat is to cause death or grievous hurt etc., then it is triable by a Judicial Magistrate of the first class.
3. WHERE TO LODGE A COMPLAINT
Cyber Crime Investigating Cells (CCIC) have opened up in many cities like Delhi, Mumbai, Chandigarh, Hyderabad, Bangalore, Gurgaon etc. CCIC is a part of CBI ie, Central Bureau of Investigation. CCIC started functioning from the year 2000. Besides the offences punishable under Chapter XI of IT Act, it also has the power to look into other high tech crimes. In case of any cyber crime the case should be reported to the CCIC.
4. INDIAN CASE LAWS
Ø The Court of Metropolitan Magistrate Delhi found guilty a 24-year-old engineer working in a call centre, of fraudulently gaining the details of Campa’s credit card and bought a television and a cordless phone from Sony website. Metropolitan magistrate Gulshan Kumar convicted Azim for cheating under IPC, but did not send him to jail. Instead, Azim was asked to furnish a personal bond of Rs 20,000, and was released on a year’s probation.
Ø In the case of corporate cyber defamation, Delhi High Court assumed jurisdiction over a matter where a corporate’s reputation was being defamed through emails. The Delhi High Court has passed an ex-parte ad interim injunction in the case. This matter is being handled by India’s leading Cyber lawyer Mr. Pavan Duggal. In this case, the defendant Jogesh Kwatra being an employ of the plaintiff company started sending derogatory, defamatory, obscene, vulgar, filthy and abusive emails to his employers as also to different subsidiaries of the said company all over the world with the aim to defame the company and its Managing Director Mr. R K Malhotra. The plaintiff file a suit for permanent injunction restraining the defendant from doing his illegal acts of sending derogatory emails to the plaintiff.
After hearing detailed arguments of Mr. Duggal, Hon’ble Mr. Justice J D Kapoor of the Delhi High Court passed an ex-parte ad interim injunction observing that a prima facie case had been made out by the plaintiff. Consequently, the Delhi High Court restrained the defendant from sending derogatory, defamatory, obscene, vulgar, humiliating and abusive emails either to the plaintiffs or to its sister subsidiaries all over the world including their Managing Directors and their Sales and Marketing departments. Further, Hon’ble Justice J D Kapoor also restrained the defendant from publishing, transmitting or causing to be published any information in the actual world as also in cyberspace which is derogatory or defamatory or abusive of the plaintiffs.
5. LEGAL POSITION IN OTHER COUNTRIES
Ø Single-Publication Rule
In the case of Traditional Cat Association Inc v Laura Gilbreath, the plaintiffs argue that their defamation cause of action arose continuously while the Web site was operating and the one year statute of limitation for defamation had not expired at the time they filed their complaint. However, the Court did not accept this analysis. The plaintiffs’ defamation claim is governed by the single publication rule.
This conclusion also had the potential to disturb the repose that the statute of limitations ordinarily would afford, because a new publication of the defamation could occur if a copy of the newspaper or book were preserved for many years and then came into the hands of a new reader who had not discovered it previously. The statute of limitations could be tolled indefinitely, perhaps forever, under this approach.
“Seeking to avoid both the multiplicity and the staleness of claims, courts fashioned what became known as the single-publication rule, holding that, for any single edition of a newspaper or book, there was but a single potential action for a defamatory statement contained in the newspaper or book, no matter how many copies of the newspaper or the book were distributed.
Ø In Firth v. State, The court concluded that minor changes to a website, adding information unrelated to the report about which the plaintiff complained, could not be equated with the republication of defamatory matter.
6. SCOPE OF IMPROVEMENT
Ø Though various Cyber Crime Investigation Cells have been opened throughout the country, but with the cutting edge technology available in the countries abroad and to the cyber criminals, we need to be equipped in a more advanced way. Apart from that, the Officers of CCIC should be given ongoing training from the experts to be able to deal with the high tech crimes. We face threat not only from the criminals in India but also from the criminals of other countries. The recent instances of various Nigerian nationals held responsible for cyber crimes in India, is an example of the universal nature of cyber crime. One of the websites very commonly used in India to download Hindi songs called “www.songs.pk.” has been identified to be of Pakistani origin and that when a user downloads songs from this site certain software automatically gets stored in the user’s computer which enables the website owner to secretly obtain information from the user’s computer.
Ø The citizens need to be aware of their rights and the procedure to deal with cyber defamation or any other cyber crimes. The government should advertise about the local Cyber Crime Investigating Cell and its functioning in the local newspaper.
Ø Computer Savvy Judges would be of great assistance, especially in proving the electronic documents in the Court of Law.
Ø Last but not the least, there is a need of timely amendment in the IT Act 2000 to deal with those crimes which are not covered in IPC or IT Act.
