The cyber law series: Emoticons, text messages, Tweets can be defamatory; here’s what you need to know to keep things legit

The quashing of the much-misused Section 66A of the Information Technology Act, 2000 last year set off celebrations in those quarters that furiously defend free speech and working towards a practical cyber law.

By Asheeta Regidi

The quashing of the much-misused Section 66A of the Information Technology Act, 2000 last year set off celebrations in those quarters that furiously defend free speech. Social media users could now openly debate, discuss and criticise a wide variety of things without fear that it would ‘annoy’ or ‘insult’ someone, inviting litigation.

This activity of social media users is now governed by other laws on defamation; the primary concern of a social media user is about what statements can be made under the other laws, and what cannot.

When is a statement defamatory?

Section 66A was worded in a broad and vague manner. There is no legal definition as to what is ‘offensive’, ‘insulting’, an ‘annoyance’ or a ‘menace’. The effect of this was to create a large net under which the police could jail all possible offenders, and the courts would later decide who was jailed rightfully and who was to be set free. Thankfully, defamation will now be governed by much more specific law; the Indian Penal Code, 1860, has a very detailed definition of defamation under Section 499. Under civil law, defamation is recognised under the law of torts, which is not in the form of an actual law but laid down through several judgements.

The main concern of the law on defamation is to protect the reputation of a person. So if a person makes a statement that harms the reputation of another, it constitutes defamation. Here are a few quick pointers that define the legal contours of defamation on social media:

  1. The statement must be seen as harming a person’s reputation. The words in the statement must, in some way, affect the opinion of others regarding a person’s moral character, his credibility, his caste, his profession and so on. If the words do not have such an effect, then the statement is not defamatory. Also, the person must actually intend to harm the reputation of the other person.
  2. A defamatory statement made on all forms of social media, such as Twitter, Facebook, WhatsApp, and messages and e-mails is within the ambit of the law.
  3. Words are not the only form of the defamatory statement. Emoticons, pictures, cartoons, and all such signs and representations, which are used commonly for communication online, will also come under the purview of defamation.
  4. People should not assume that if they are making a statement about a person who is deceased, that they are safe from legal action. The relatives of the deceased person can file suit against such statements.

If the statement made is a true statement, then it is not defamatory. In criminal law, the statement must also be a true statement made for the good of the public. For example, if a person shares a WhatsApp message in his friends’ group accusing a friend of stealing his watch, and if that person did indeed swipe the timepiece, it does not constitute defamation. If the person shared this message with his friends, with the intention that they should be aware of the thief’s true character, then he has made the statement ‘for the good of the public’ and it is not considered defamatory.

The redeeming aspect of other laws governing defamation is that they permit fair criticism. Section 66A did not allow this, since what is considered fair criticism by some may not be so for the person criticised. This, of course, is exemplified by the case of Shaheen Dhada and Rinu Shrinivasan, from Mumbai: they were arrested in Palghar in Thane district as one of them posted a comment against the shutdown in the city following Shiv Sena leader Bal Thackeray’s death and the other ‘liked’ it. A public interest litigation on the issue was filed in 2012 by law student Shreya Singhal, who sought amendment in Section 66A.

Statements such as the one protesting Mumbai’s blockade may not now be defamatory, but there are, however, boundaries to this right:

  1. A statement is considered to be ‘fair criticism’ only if it is an expression of the person’s opinion.
  2. The opinion must be founded on actual fact.
  3. The person should also be stating his opinion honestly; he should genuinely believe in his statement.
  4. The statement should not be made with any bad intention.

Reviews of restaurants, movies, books, a public speech and so on, which are posted so commonly online are therefore protected as fair criticism. This also protects blogs, online discussions and debates and the like.

Fair criticism of a public servant’s action, such as a minister or a political leader, can be made. However, this must be restricted to the minister’s actions and character in his line of duty, and cannot extend to anything else, such as his personal life. Similarly, fair criticism may be made of the action of any person with respect to a public question. For example, a person may lawfully criticise a person’s decision to canvass for a particular political candidate. For example, a tweet that ‘A’s evidence is so contradictory that he must be lying’, is an opinion based on A’s conduct in the case. This is not defamatory. On the other hand, a tweet that ‘I know A is a dishonest man, and so I don’t believe his evidence’, is a personal opinion which has nothing to do with the case, and is defamatory.

When a person is dissatisfied with a service, or an item he purchased, it has become a common practice to put up a Facebook post or tweet about it. These statements are not defamatory if they are made by a person to protect his or another person’s interest. However, it is essential that the person must make the statement honestly, and with the ‘genuine belief’ that this information is needed for the public’s or his interest. Therefore, when a person posts to Facebook with the intention that the matter be resolved by the company he’s feels shorted by, or that the public get to know about the bad service, then it is not defamatory. A deliberate statement made to lower the reputation of a company, or to affect the business of the company, is considered defamatory.

So as long as you’re being honest online and say your piece without intending to harm another person, you’re safe.

The author is a lawyer with a specialisation in cyber laws and has co-authored books on the subject.

The next part of the series will examine the true nature of those tedious ‘terms and conditions’ you’re asked to ‘accept’. 

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