A Critical Study On Cyber Defamation and Liability of Isps
A Critical Study On Cyber Defamation and Liability of Isps
A Critical Study On Cyber Defamation and Liability of Isps
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International Journal of Pure and Applied Mathematics Special Issue
1. Introduction
Cyberspace is a technical term used for the electronic medium of computer
networks, in which online communication takes place. It comes alive only when
two or more computers are networked together. The term has a very wide
meaning and is not only restricted to the internet but also includes computers,
computer networks, the internet, data, software etc. The crimes that are
committed by using the computer as an instrument, or a target or a mean for
perpetuating further crimes falls within the definition of cyber crime. Cyber law
is the law that governs the crimes committed within the cyberspace. Cyber
Defamation is also a cyber crime.[ii]
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5. Research Methodology
The present research is conclusive, descriptive and based on non- empirical
design. Qualitative data was generated to test the research hypothesis. In order
to collect data on the dimensions of the study, a research instrument was
designed. The study was conducted on secondary source of data books, articles,
journals, e-sources, theories and the relevant provision with decided case laws.
Focusing on these three areas put forward specific research problems.
Sample Size Calculation Sources of Study
Only secondary sources are available. The secondary sources include books
which is available in English, E-sources. Primary source of interview can‟t be
conducted which researcher unable to refer due to shortage of time.
In India, a person can be liable for defamation both under civil and criminal
law. Section 499 of the Indian Penal Code which deals with defamation when
expanded also covers the cases of cyber defamation. However, with the new
amendment in the Information Technology Act, 2000, India now has express
provision on Cyber Defamation.[v]
Section 66A of Information Technology Act, 2000 “Any person who sends, by
means of a computer resource or a communication device,-
any information that is grossly offensive or has menacing character;
or
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,
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If, they fail to expeditiously remove or disable access to any information, data
or communication link upon receiving the knowledge or on being notified by
appropriate Government agency that such information, data or communication
link is being used to commit unlawful act without interfering with the
evidence;[vi]
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This blog is about a small comparison between developing countries like India
and developed countries like USA and China . India is developing day by day in
every sector but in IT and cyber sectors it is far back than other developed
countries like USA and China .In developed countries awareness and
knowledge among the people regarding cyber and IT law is much better than
the developing countries. People are more aware regarding their rights and
privacy in developed countries .[viii] Most of the countries have the separate
rules , regulations and laws which maintain n deals with the cyber sectors of the
country which provides a security to the citizens of that country . India also has
a separate act called IT Act which was amended in 2008 last time which was
come into force in the year 2000 first time. But this act not that sufficient that it
can manage the IT and cyber sectors of India properly . It is like a coin which
has two faces; good as well as bad.[ix]
In developed countries like China and USA the new Cybersecurity law is too
tight and brings restrictions to foreign companies doing business in the
countries which protects the countries and controls the cybercrime rates. On the
other hand India also making many efforts to make the country efficient to
provide better services and protection in cyber sector. In 2013 , government of
India introduced a National Cyber Security Policy with the aim of protecting
information infrastructure, reducing vulnerability , increasing capabilities and
safeguarding it from cyber-attacks . India is now on the way to make the IT act
more efficient which needs some more amendments which can be possibly done
in near future and our country will also compete the foreign developed countries
in cyber and IT protection sector.[xi]
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Asia's first case of cyber defamation was filed in India in 2001. The case was
SMC Pneumatics India Pvt. Ltd. v. Jogesh Kwatra1. In this case, the defendant
Jogesh Kwatra, an employee of the plaintiff‟s company started sending
defamatory emails to his employers and different subsidiaries of the company
all over the world. The plaintiff thereafter filed a suit for permanent injunction
restraining the defendant from posting such defamatory remarks. The Hon‟ble
Delhi High Court in this case allowed an ex-parte ad interim injunction
observing that a prima facie case was made out by the plaintiff and restrained
the defendant from posting such remarks.[xii]
Avnish Bajaj vs. State[xiii]
Facts of the Case
Another significant case was Avnish Bajaj vs. State2 more popularly known as
DPS MMS Scandal case. The case involved an IIT, Kharagpur student Ravi
Raj, who placed on the baazee.com a listing offering an obscene MMS video
clip for sale with the username „aliceelec‟. Despite the fact that baazee.com
have a filter for posting of objectionable content, the listing nevertheless took
place with the description, “Item 27877408 – DPS Girls having fun!!! full video
+ Baazee points.” The item was listed online around 8.30 pm in the evening of
November 27th 2004 and was deactivated, around 10 am on 29th November
2004. The Crime Branch of Delhi police took cognizance of the matter and
registered an FIR. Upon investigation, a charge sheet was filed showing Ravi
Raj, Avnish Bajaj, the owner of the website and Sharat Digumarti, the person
responsible for handling the content, as accused. Since, Ravi Raj absconded; the
petition was filed by Avnish Bajaj, seeking the quashing of the criminal
proceedings.
Arguments
The court in this case observed that a prima facie case for the offence under
Section 292 (2) (a) and 292 (2) (d) of Indian Penal Code (IPC) is made out
against the website both in respect of the listing and the video clip respectively.
The court noted that “[b]y not having appropriate filters that could have
detected the words in the listing or the pornographic content of what was being
offered for sale, the website ran a risk of having imputed to it the knowledge
that such an object was in fact obscene”, and thus it held that as per the strict
liability imposed by Section 292, knowledge of the listing can be imputed to the
company.
As regards Avnish Bajaj, the court surprisingly held that since the Indian Penal
Code does not recognize the concept of an automatic criminal liability attaching
to the director where the company is an accused, the petitioner can be
discharged under Sections 292 and 294 of IPC. Eventually, Avnish Bajaj in this
case was not declared guilty
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The author respectfully submits that there was no sound reason to absolve the
director, Avnish Bajaj in this case. The concept of corporate criminal liability
could have been applied to impose appropriate penalty on the director. The
argument also derives support from Article 12 of the European Convention on
Cyber Crime which provides for imposition of criminal liability on the legal
person having a power of representation, authority to take decisions and
exercise control. Clause 2 of Article 12 of the Convention provides that a legal
person can be held liable where the lack of supervision or control by a natural
person acting under his authority has made possible the commission of a
criminal offence.
Although India has not ratified this Convention as yet, the said provision could
have been taken as a guiding principle to impose liability on Avnish Bajaj.
Furthermore, the stance taken by the Court in this case does not even contribute
to the determination of the extent of liability of ISPs and their directors, as the
Court did not specifically delve into these issues and settle the law on this
subject.[xiv]
Vyakti Vikas Kendra, India Public Charitable Trust Thr Trustee Mahesh
Gupta & Ors vs. Jitender Bagga & Anr.[xv]
Facts of the Case
Delhi High Court in this case first held Google to be an “intermediary” within
the definition of Section 2(1)(w) and Section 79 of the Information Technology
Act, 2000. The Court accordingly pointed out that under Section 79(3)(b) of the
IT Act, 2000, Google is under an obligation to remove unlawful content if it
receives actual notice from the affected party of any illegal content being
circulated/published through its service. Google is also bound to comply with
Information Technology (Intermediaries Guidelines) Rules 2011. The Court
observed that Rule 3(3) of the IT Rules read with Rule 3(2) requires an
intermediary to observe due diligence or publish any information that is grossly
harmful, defamatory, libelous, disparaging or otherwise unlawful. Rule 3(4) of
the Rules creates obligation on an intermediary to remove such defamatory
content within 36 hours from receipt of actual knowledge.
Decision
Thus, in the present case, Google was directed to remove all defamatory
contents about the plaintiffs posted by the defendant No.1 from its website
www.blogger.com as well as all the links containing defamatory content within
36 hours from the date of knowledge of the order passed by this Court.
Defendant No.1 was restrained from sending any such e-mails or posting any
material over the internet having a direct or indirect reference to the plaintiffs or
the Art of Living Foundation or any member of the Art of Living Foundation, or
His Holiness Sri Sri Ravi Shankar.
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In United States, Section 230 of the Communication and Decency Act, 1996
prvides that- “No provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided by another
information content provider.” 4 In other words, it precludes courts from
entertaining claim that would place ISPs in a publisher‟s role.[xvi]
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7. Conclusion
The problem of determining the jurisdiction in cyberspace is further aggravated
by the fact that plaintiffs have the luxury of "forum shopping" or choosing the
jurisdiction with the laws most favorable to them. Such problem of jurisdiction
can be of two types, one where alleged defamatory material is published in only
one state and second when it is multistate. In first case, the presumption is that
the law to be applied is “the . . law of the state where the publication occur.”
However, in multistate defamation actions the presumption is that the state with
the most significant relationship will be “the state where the person was
domiciled at the time.” In cases involving corporations or other legal persons,
“the state of most significant relationship will usually be the state where the
corporation, or other legal person, had its principal place of business at the
time.” The judicial trend in this regard is that instead of creating new regimes
for cyber-defamation disputes, most courts apply traditional choice-of-law
doctrines-usually sub silentio-and utilize old analogies to deal with the
substance of cyberspace.[xix]
References
[1] https://www.quora.com/What-is-the-conviction-for-cyber-
defamation-in-India
[2] Hannan.M & Blunde;;. B (2004). “electronic crime- it not only the
big end of town that should be worried”’ we-B centre & edith
cowan university, PP 1-9.
[3] Article on one in the three cyber attacks in banks are successful
by Riju Mehta April 27, 2017, economic times.
[4] Kumar. A (2002) “cyber crime- crime without punishment”,
available at unpanl.un.org.
[5] Perumal, subramoniam Arumuga, Impact of cyber crime on
virtual banking (ovt 24,2008) available at www.ssrn.com
[6] Amar Singh and his wife Neha Panjani [2012 case in US]
[7] cyber extortion risk report 2015, NYA International, oct 2015
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[8] https://wikispaces.psu.edu/display/IST432TEAM4/Cyber+and+O
nline+Defamation
[9] John La Cour (April 29, 2014) vishing campaign steals card from
customers of dozens of banks [online] available at
www.blog.phishlabs.com
[10] http://www.jusimperator.org/2017/11/27/comparison-of-india-
with-other-countries-on-the-basis-of-cyber-law-crime-and-it-
services/
[11] Umashankar sivasubramannian vs ICICI bank 2008, Tamil Nadu
[12] www.cyberlawsindia.com
[13] https://indiancaselaws.wordpress.com/2013/10/20/avnish-bajaj-
vs-state-dps-mms-scandal-case/
[14] Muthukumaran.B (2008), “cyber crime scenario in India”, criminal
investigation department Review, January, pp. 17-23.
[15] https://indiankanoon.org/doc/121103864/
[16] https://cyberdefamation.in/popular-cyber-defamation-cases-india/
[17] https://www.myadvo.in/blog/defamation-in-the-age-of-internet-
the-indian-scenario/
[18] Kumar vinod- winning the battle against cyber crime by
Parthasarthi Pati
[19] https://www.lawfarm.in/blogs/cyber-defamation-in-india
[20] http://www.legalservicesindia.com/articles/defcy.htm
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