Online Defamation

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 day.

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 questions regarding Blogging.

Blogging-The concept
The word Blog is derived from two words, namely, web and log. 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.

Spam Filters
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 similar problems.

The Communications Decency Act 1996 (CDA) (United States Enactment)
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 liable.

Section 230 Protection For Private Blocking And Screening Of Offensive Material
(c) Protection for 'Good Samaritan' Blocking and Screening of Offensive Material:

'(1) 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.

'(2) Civil liability: 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 Decided 12/11/97
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 good Samaritan 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 parties.

Privacy Policy of some of the Blogging sites
Google’s privacy policy

Information sharing:
Google only shares personal information with other companies or individuals outside of Google in the following limited circumstances:

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.com’s privacy policy:
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.

Content responsibility:
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 facilitated thereby.
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.

Criminal Defamation
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 the list.

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.

Conclusion
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 citizen journalism 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.

The  author can be reached at :prithajha@legalserviceindia.com