Trolling, Cyber Harassment and Defamation: Know Your Rights!

While the advent of science and technology has made our lives significantly easier, it comes with its own perils and disadvantages. One such disadvantageous aspect of the social-media revolution is targeted harassment and aggression in the form of trolling and cyberbullying, a nasty by-product that has fast become a common-place and an everyday reality for many.

Trolling may be defined as deceptive and disruptive online behavior, which is characterized by posting malicious, divisive and controversial content with the intention to stir up an altercation and to upset or otherwise damage civil discourse. A person who indulges in such behavior may be defined as a
Troll.

Cyberbullying may be defined as a practice where an individual or group uses the Internet to ridicule, harass or harm another person.

‘Cyberbullying’ and ‘Trolling’ are both forms of cyber harassment, often referred to as cyber aggression or online aggression and have become a recognized social problem.

Social-media while being one of the most effective mediums of communication is also rapidly becoming a breeding ground for targeted online harassment, cyberbullying, privacy invasion etc. Online communication allows trolls and bullies the much needed anonymity to engage in what they may presume to be an act of harmless fun even if it comes at the cost of someone’s mental peace or quality of life.

By the intrinsic nature of social media and digital forums, information and content shared online is open to be viewed by anyone and everyone. Content shared online creates a kind of public record. Therefore, the act of cyberbullying or trolling that involves posting of inflammatory or derogatory content about a person online can create a negative reputation of the person involved and may result in causing mental harassment to them.

Cyber-harassment [1] may be defined as mental harassment caused by means of offensive content either by email, text (or online) messages or the internet. It can take multiple forms, including but not limited to:

  • Posting unwanted sexually explicit emails, text (or online) messages;
  • Inappropriate or offensive advances on social networking websites or internet chat rooms;
  • Threats of physical and/or sexual violence by email, text (or online) messages;
  • Hate speech, i.e. language that denigrates, insults, threatens or targets an individual based on her identity (gender) and other traits (such as sexual orientation or disability).

Any intentional false communication, either written or spoken, that harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person, is called
Defamation[2] . Reputation is an integral and important part of the dignity of an individual and Right to Reputation is inherent among the rights guaranteed by Article 21 of the Constitution of India.

Defamation may be caused either by spoken words or in the form of written matter. Where the statement is made in writing and published in some permanent and visible form, then the defamation is called libel. However, if the statement is made by some spoken words then the defamation is called slander.

In India, Defamation is both a civil and criminal offence. The remedy for civil defamation is covered under the Law of Torts and in a case of civil defamation, a person defamed can move the court to claim damages in the form of monetary compensation from the accused. Sections 499-500, Indian Penal Code, 1860 deal with criminal defamation and a person found to be guilty can be imprisoned for a period of two years.

Elements of a defamation claim

  • Statement- There must be a statement which can be spoken, written, pictured or even gestured.
  • Publication- For a statement to be published, a third party must have seen, heard or read the defamatory statement. If there is no publication there is no injury of reputation and no action will arise.
  • Injury- The above statement must have caused an injury to the subject of the statement. It means that the statement must tend to injure the reputation of a person to whom it refers.
  • Falsity- The defamatory statement must be false. If the statement is not false then the statement will not be considered as defamatory statement.
  • Unprivileged- In order for a statement to be defamatory, it must be unprivileged. There are certain circumstances, under which a person cannot sue someone for defamation.

When a person is defamed (fulfilling all requirements essential to prove defamation) in the virtual/cyber space by words oral or written, or by signs or by visible representation, it is known as
cyber or virtual defamation. In cyber defamation, an online platform is used to defame or disrepute the other person. The liability in cases of cyber defamation is two-fold i.e., defamation by:

  1. The principal defamer who has written the defamatory statements; and
  2. The social-media portal that authorized the publication of such defamatory statements

While there is no specific law catering to the issues of cyber harassment arising out of acts such as trolling, cyberbullying, cyber stalking or from any other form of ‘online aggression’, the Indian Penal Code, 1860 (Sections 354A, 354C, 354D, 499 to 509) and the Information Technology Act, 2000 (Sections 66E and 67) make such acts criminal in nature and punishable under the law.

What to do if you are a victim of cyber defamation?[3]

  • Make a written complaint:
    An aggrieved person can register a written complaint to the Cyber Crime Investigation Cell which is a branch of the Criminal Investigation Department (CID). When filing the complaint, the complainant will need personal details regarding name, contact number, and mailing address. The said written complaint is to be addressed to the Head of the Cyber Crime Cell of the city where the cybercrime complaint is being filed.

    (Cyber Crime Investigation Cells have opened up in many cities like Delhi, Mumbai, Chandigarh, Hyderabad, Bangalore, Tamil-Nadu, Gurgaon, Pune, Madhya-Pradesh, Lucknow, etc.)

  • Register a Cyber Crime FIR: If you do not have access to any of the cyber cells in India, you can file a First Information Report (FIR) at the local police station. In case your complaint is not accepted there, you can approach the Commissioner or the city’s Judicial Magistrate. Certain cybercrime offences come under the Indian Penal Code and you can register a cybercrime FIR at the nearest local police station to report them.

    It is mandatory under Section 154, Code of Criminal Procedure, for every police officer to record the first information/complaint of an offence, irrespective of the jurisdiction in which the crime was committed.
    Most of the cybercrimes that are covered under the Indian Penal Code are classified as cognizable offences and do not require a warrant for arrest or investigation. In such a case, a police officer is bound to record a Zero FIR from the complainant. He must then forward it to the police station under the jurisdiction of the place where the offence was committed.

  • Report to social-media portals in case of complaints related to social media cybercrimes:Apart from the above steps, one must also register a complaint on the corresponding platform where the offense was committed. The steps for the same are clearly stated on every social media platform generally in the “Help” or “Privacy Policy” sections. Most of the social media platforms have outlined a clear procedure for reporting any abuse or other nasty offenses. It is preferable that the victim report such activities in the very initial stages of its occurrence. This enables the concerned social media platform to take immediate steps for blocking further activities and protecting the privacy of the victim’s personal information.

    Facebook, Twitter, Instagram, Snapchat, and YouTube have strict and clear redressal mechanisms to protect its users from online abuse and cybercrimes.

  • Report to CERT:The Information Technology Amendment Act 2008 has designated the Indian Computer Emergency Response Team (CERT-IN) as the national nodal agency for tackling the issues occurring in association with computer security threats. They issue guidelines on the procedure, prevention, reporting, and response to cyber incidents, among other functions.

Liabilities of social-media portals that have allowed the publication of defamatory content

Intermediary responsibility in cases of cyber harassment and defamation is governed by Section 79, Information Technology Act, 2000. Section 79(3) of IT Act, 2000 provides that intermediaries shall be held liable if:

  1. The intermediary has conspired or abetted or aided or induced whether by threats or promise or otherwise in the commission of the unlawful act;
  2. upon receiving actual knowledge, or on being notified by information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.

Some case laws on Cyber defamation

SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra (Original Suit No.1279 of 2001) [4]

The very first case of cyber defamation where the reputation of a corporate was being defamed by an employee of the plaintiff company by sending derogatory, defamatory, obscene, vulgar, filthy and abusive emails to its employers and also to different subsidiaries of the said company all over the world with the aim to defame the company and its Managing Director. The Hon’ble Judge 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, the Hon’ble Judge also restrained the defendant from publishing, transmitting or causing to be published any information in the material world as also in cyberspace which is derogatory or defamatory or abusive of the plaintiffs.

Derogatory remarks may be defined as remarks that detract from the character or standing of someone or are expressive of low opinion of someone. They are disparaging and offensive in nature. Racial, sexist, homophobic, appearance related slurs are a few examples of derogatory comments.

A defamatory statement is a false statement of fact that exposes a person to hatred, ridicule, or contempt, causes him to be shunned, or injures him in his business or trade. Statements that are merely offensive are not defamatory.

Kalandi Charan Lenka vs. State of Odisha (16.01.2017 – ORIHC): MANU/OR/0027/2017[5]

In the instant case, the petitioner was continuously being stalked, and a fake account of her was later created and obscene messages were sent to the victim’s friends by the culprit. A morphed naked picture was also posted on the walls of the hostel where the victim stayed. The court held the culprit liable for his offence.

The state Cyber Cell (Mumbai) v Yogesh Pandurang Prabhu (C.C. NO. 3700686/PS/2009) [6]

The complainant communicated with Prabhu through online networking site Orkut. However, on one occasion Prabhu sent the complainant obscene messages, following which she removed him from her friend list. A few days later, she received an email from an unknown person with “foul and objectionable language”. The complainant continued to receive the emails and she eventually sent a complaint to the Joint Commissioner of Police (crime). Following the complaint, the cyber cell traced the IP address and found that it was sent from the same office where she worked and it was the same person the complainant had chatted with, i.e. Prabhu. The Additional Chief Metropolitan Magistrate convicted Yogesh Prabhu under Section 509 (word, gesture or act intended to insult the modesty of a woman) of the IPC and Section 66 (E) (punishment for violation of privacy) of the Information Technology Act, 2008.

State v. Jayanta Kumar Das (G.R. Case No.1739/2012)[7]

The complainant alleged that a fake profile was created in his wife’s name in a pornographic website where derogatory and obscene comments were posted. Similarly, the complainant’s mobile phone number was also uploaded on the said website which led to receipt of number of unsolicited calls and objectionable requests. The complainant had alleged that the accused was behind such acts because he had reported the accused RTI Activist’s activities in newspapers.

Investigations revealed that fake e-mail account in the name of complainant and a fake profile in his wife’s name had indeed been created by the accused, Das. The probe also revealed that accused was named in at least six criminal cases and charge sheets were also submitted by police in such cases. He was arrested and remanded in custody for about a month. The court considered the evidence produced for charges of forgery, identity theft and cyber pornography and convicted Das.

State of Tamil Nadu v. Suhas Katti (CC No. 4680 of 2004)[8]

The case of Suhas Katti is notable for the fact that the conviction was achieved successfully within a relatively quick time of 7 months from the filing of the FIR. The case is related to posting of obscene, defamatory and annoying message about a divorcee woman in the Yahoo message group. Further, emails were also forwarded to the victim for information by the accused through a false e-mail account opened by him in the name of the victim. The posting of the message resulted in annoying phone calls to the lady in the belief that she was a sex worker.

Based on a complaint made by the victim in February 2004, the police traced the accused to Mumbai and arrested him within the next few days. The accused was a known family friend of the victim and was reportedly interested in marrying her. She had however married another person. This marriage later ended in divorce and the accused started contacting her once again. On her reluctance to marry him, the accused took up the harassment through the Internet.

Conclusion

It is a recognized fact that increased internet availability has led to an increase in the number of cyber-crimes such as cyber defamation, trolling, bullying etc. However, one must not let trolls, bullies and stalkers affect one’s mental peace and in such an event, take appropriate legal action against the culprits by filing a complaint with the cyber cell or the police authorities.

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[1]https://eige.europa.eu/thesaurus/terms/1486

[2]http://www.legalserviceindia.com/legal/article-207-defamation-in-law-of-torts-meaning-essentials-and-defences.html

[3]https://ifflab.org/how-to-file-a-cyber-crime-complaint-in-india/

[4]http://www.helplinelaw.com/employment-criminal-and-labour/CDII/cyber-defamation-in-india.html

[5]https://cyberdefamation.in/popular-cyber-defamation-cases-india/

[6]http://www.legalserviceindia.com/legal/article-16-case-note-on-the-state-cyber-cell-v-yogesh-pandurang-prabhu.html

https://37c96d72-a-1c2e865b-s-sites.googlegroups.com/a/prashantmali.com/prashantmali/yogeshprabhu-vs-state.pdf?

[7]http://naavi.org/uploads_wp/jayant_das_judgement_sec65B_sec79A.pdf

[8]https://www.legalserviceindia.com/lawforum/index.php?topic=2238.0

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