Communication is an art. An art that has developed immensely over
the past few centuries and an art that will continue to reinvent
itself to unimaginable technological advance. Starting with the
advent of the printing press in the nineteenth century, to the era
of the Internet that we are living in today, communication has
become astoundingly simple and continues to become simpler by the
The Law however, developed though it may be in the United States
and Europe, is not growing at the same rate as the Internet is, in
India. Several questions arise regarding the content of the web
pages on the Internet. This particular article deals with
is derived from two words, namely,
Blogs are online Internet diaries. They are web pages giving
public opinion. These may be relating to personal experiences or
the daily news. These web users may use photographs, cartoons,
notes, videos, audios etc.
Getting a blog of your own is extremely simple. One has to log on
to one of the sites providing for blogs and create ones own with a
minimum of personal information requirement. The Internet Service
Provider (ISP) provides the space and the user can use it for
putting in any information he wants. There are no service charges.
The commercial requirement of profit making is met from the
advertisements that are pasted on each page.
Although on the surface it sounds quite simple, an in depth study
reveals that this gives rise to quite a few problems. Who is
considered the publisher in the case of a blog? What if the
material put up on the site is defamatory or pornographic in
nature? What is the liability of the ISP or the blogger (the
person owning the blog), if any? Whose responsibility is it to
survey these web pages? These questions, as far as India is
concerned, remain unanswered, as there is no law governing it.
All blogging sites are equipped with spam filters. Any words or
pictures, which are clearly abusive in meaning or pornographic in
nature, are immediately filtered out. The problem arises when
words are defamatory in context. Although words, which by their
meaning itself are abusive, are filtered out immediately, the
technology is not developed enough to recognize inputs, which
become defamatory only in context. Since anyone and everyone can
have a blog, it is humanly impossible to monitor every one of the
pages that would probably run into millions. This is where the
importance of a Law relating to Internet defamation arises. The
law must clearly place the liability on someone.
Let us now see how some of the other nations have dealt with
The Communications Decency Act 1996 (CDA) (United States
Section 223 of this Act clearly lays down that any person who
puts information on the web which is obscene, lewd, lascivious,
filthy, or indecent, with intent to annoy, abuse, threaten, or
harass another person; will be punished either with imprisonment
or with fine. It is thus clear that the ISP will not be held
Protection For Private Blocking And Screening Of Offensive
Protection for 'Good Samaritan' Blocking and Screening of
Treatment of publisher or speaker:
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.
No provider or user of an interactive computer service shall be
held liable on account of— '
(A) any action voluntarily taken in good faith to restrict access
to or availability of material that the provider or user considers
to be obscene, lewd, lascivious, filthy, excessively violent,
harassing, or otherwise objectionable, whether or not such
material is constitutionally protected; or
'(B) any action taken to enable or make available to information
content providers or others the technical means to restrict access
to material described in paragraph (1).
There is no doubt that the US law is clear. Several cases have
also arisen in this regard. The Supreme Court has held that the
ISP cannot be held liable for defamatory content. It is only a
question of time before the same problems and questions will have
to be answered in the Indian context.
Zeran v. AOL
Shortly after the Oklahoma City bombing, an unknown person posted
messages on an AOL bulletin board falsely implicating Zeran. Zeran
filed a lawsuit against AOL for the allegedly defamatory postings.
The case concerned the question of whether AOL may be liable for
allegedly being unreasonably slow to remove a series of allegedly
defamatory messages posted on AOL message boards by an
unidentified third party. The US District court granted the
judgment in favour of AOL, holding that section 230 of the CDA,
known as the
provisions, protects providers of interactive computer services
from liability for defamatory information posted on the network by
someone else. The same was affirmed in the future appeals as well
as at the Supreme Court.
Lunney v. Prodigy Services Company Opinion
Decided 2/12 99
In its first major ruling on privacy and defamation in cyberspace,
the court of appeals held that an ISP is merely a conduit for
information, as opposed to a publisher, and consequently is no
more responsible than a telephone company for defamatory materials
transmitted over its lines.
The court unanimously upheld an Appellate division, second dept,
decision that dismissed a defamation lawsuit brought against
prodigy services co. by the father of a Boy Scout whose identity
was usurped by an unknown imposter. The imposter posted vulgar
messages in the boy’s name on an electronic board and e mailed
abusive, threatening and sexually explicit messages also in the
name of the boy, to the local scoutmaster.
Patrick Cahill v john Doe
The Delaware Supreme Court held that when guidelines on the top of
the blogs state that the forum is dedicated to opinions, then the
statements are considered not as
matter of facts.
However, in Singapore two ethic Chinese were punished under the
country’s anti sedition law for posting anti Moslem remarks in
their weblogs. Internet service providers are thus in general,
immune from liability for information that originates with third
Google only shares personal information with other companies or
individuals outside of Google in the following limited
1) With consent
2) To subsidiaries, affiliated companies or other trusted
businesses or persons for the purpose of processing personal
information in their behalf.
3) They have a good faith belief that access, use, preservation or
disclosure of such information is reasonably necessary to satisfy
any applicable law, regulation, legal process or enforceable
governmental request, or enforce applicable terms of service
including investigation of potential violations thereof, or
detect, prevent or otherwise address fraud, security or technical
issues, or protect against imminent harm to the rights, property
or safety of google, its users or the public as require or
permitted by law.
Blogger will not disclose the contents of a members information
unless required to do so by law or in the good faith belied that
such action is necessary to conform to the edicts of the law or
comply with legal process served on Blogger; protect and defend
the rights or property of Blogger, or act under exigent
circumstances to protect the personal safety of BTS members or the
public; fix or debug problems with the Blogger software/service.
Member acknowledges and agrees that Blogger neither endorses the
contents of any Member communications nor assumes responsibility
for any threatening, libelous, obscene, harassing or offensive
material contained therein, any infringement of third party
intellectual property rights arising there from or any crime
Quite clearly, the page providers do not claim any responsibility
for the opinion of the people. Internet service providers are also
wary of disclosing the personal information regarding the people
who blog at their sites. Giving information to one person would
mean that they would have to be answerable to millions of others.
ISPs only agree to do so when it is absolutely necessary under the
law or due to an order passed by a competent court.
India is the only country which has both civil as well as criminal
defamation in its legal books. That is another reason why rights
of the people should clearly be laid down. People in India are
liable for defamation not just to the extent of payment of damages
but also undergoing imprisonment. Millions of people could be
charged for defamation just by giving their opinion which in the
eyes of some may be defamatory. Wouldn’t this then be against the
right of freedom of speech guaranteed under our Constitution?
The problems for ISP’s are just beginning. Some sites have already
been blocked due to government directives. Bloggers in India are
getting together to protest against the sudden blocking of popular
Google-owned blog-hosting site Blogger by some (ISPs) like
Spectranet, Mahanagar Telephone Nigam Limited (MTNL), Reliance
Powersurfer, Airtel Broadband and Sify.
On July 15, the Department of Telecommunications (DoT) had sent
ISPs a list of sites to be blocked. R H Sharma, senior engineer
with MTNL, said the list ran into some 22 pages. Now, several
bloggers have organized themselves into a Blogger’s Collective and
are planning to file a Right To Information application to obtain
Under the Information Technology Act, 2000, a body called the
Computer Emergency Response Team, or CERT-IN, was created along
the lines of similar authorities the world over. Although its main
task is in the domain of Internet security, it also oversees
Internet censorship under a clause that seeks to ensure 'balanced
flow of information.' Any government department seeking a block on
any web site has to approach CERT-IN, which then instructs the DoT
to block the site after confirming the authenticity of the
complaint. In 2003, one of the first things CERT-IN did was to
approve the blocking of an obscure mailing list run by a banned
militant outfit, the Hynniewtrep National Liberation Council (HNLC)
of the Khasi tribe in Meghalaya. Ironically, the popularity and
visibility of the list went up by leaps and bounds, despite it
being blocked by all ISPs. Many could still see the list via email
or proxy surfing.
Whether such blocking is arbitrary, unreasonable and unfair and in
violation of Articles 14, 19 and 21 of the Constitution of India
is a question, which remains to be answered by the Indian Courts.
Blogging sites are commercial entities, which derive profit thanks
to the millions of people who create their own web pages to put
down their own opinion. Although they would prefer to absolve
themselves of all responsibility for the content put on such
pages, the Indian Courts may not share the same opinion. In the
absence of any legislation governing ISPs, and no case having
arisen in the courts regarding the same, the path to follow is
anybody’s guess. Although legislations passed in the United States
and Europe along with relevant case law maybe of some value,
cultural differences may hinder courts in India from taking to the
decisions of foreign courts in India. With the number of bloggers
increasing everyday and the concept of
becoming more and more prominent, other forms of mass media would
be more than happy to regain their business and stop this form of
free opinion building. These questions must be answered, for until
then, it is the voice of the people that will suffer.
author can be reached at :firstname.lastname@example.org