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An estimated 7-minute read


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By Nimanniyu Sharma, Intern, Kaden Boriss Legal LLP, India


 Human beings are human beings. They say what they want, don't they? They used to say it across the fence while they were hanging wash. Now they just say it on the Internet. –Dennis Miller

The Constitution of India lays down the Freedom of Speech for one; the Law has a duty to regulate it. But what does the law of the land have to say for Libel or Defamation on the Internet? This issue persists because there are varied opinions, even more Internet blogs on the said subject than the ones actually professing defamatory causes and there’s no definitive ruling made by the Supreme Court. None as of now, because the Supreme Court can only decide cases that reach its doors, and moreover only the ones that are relevant. Until that day comes, let’s just say, ‘We sit back and enjoy the show.’

What is Defamation?

The concept of defamation or libel in India is defined under Section 499 of Indian Penal Code as, “Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.” Now, it is very pertinent to note that even though if statements are defamatory and the defenses may vary from case to case and jurisdiction to jurisdiction, there is a common agreement in all of them that statements that are merely unflattering, annoying, irksome, embarrassing or just hurt one's feelings are not actionable. Let it also be clear here that there’s no separate crime known as “internet defamation” or “e-libel” as of now, making it very clear indeed that the general purview of the aforesaid definition is quite absolute in its application.

Many nations have criminal penalties for defamation in some situations, and different conditions for determining whether an offense has occurred or not. For example, in Zimbabwe "insulting the President" is by statute (Public Order and Security Act 2001) a criminal offence. To the Bloggers’ delight, not many are criminalized for what they write on the Internet, here (in India). More so, most of their ‘words’ are not even legally acknowledged. But for those who get caught off stump, it is a death of their democratic being. At this point, let me mention the widely debated case of Ajith D. which even though has not been one of defamation, has been incorrectly hyped up as one. Incidentally, Ajith D. has been sued not for creating a ‘community’ against a said political party, but for some ‘comments’ made in the community’s forum by others. But to counter that easily, we have the December 2008 Amendment in the IT Act of 2000 which exonerates one from the liability of what others say on one’s forum, website or server. So, what is defamation exactly here- the ‘community’ so created, the ‘views’ in it or the ‘comments’ in the forum? Answers to this need to be found and such case law is the actual need of the hour, to decide upon the inconclusive debate on online speech and defamation and its legal conclusion and have the ground rules laid out for the same.

Why is there no Internet Defamation?

The non-existence of the concept of e-defamation or internet libel makes a lot of sense. The concept of ‘internet’ and the ‘www’ generation emerged towards the end of the 20th century, and ‘blogs’ or other forms of electronic expressions started much later. The term “blog”, coined by Peter Merholz in 1999, is a shortened version of the term “weblog” coined in 1997 by Jorn Barger. While on the other hand, it is to be fairly considered that the IPC (Indian Penal Code, 1860) or so even the other relative provisions or acts of law were conceptualized way before. Even before the time we had airplanes.

Elements of Defamation.

For a person to be liable for defamation, the following elements must be necessarily present: (1) An allegation of a discreditable act or some condition concerning another; (2) Publication of the act so alleged; (3) Person or his/her reputation to be defamed; and (4) Existence of intent to defame or soil another’s reputation.

“Publication,” here, is probably the key requisite, and can be defined as the “communication of the defamatory matter to some third person or persons.” The element of publication and exactly how the defamatory material is “published” determines the exact classification. Defamation, which includes slander and libel both, means injuring a person’s character, fame or reputation through false and malicious statements. While Oral defamation is called slander, Libel, on the other hand, is defamation committed by “means of writing, printing, lithography, engraving, radio, phonograph, painting or theatrical or cinematographic exhibition, or any similar means.” It could be fairly argued that blogs and the internet are not included in the aforesaid enumeration of all that is included under libel however, the catch-all phrase to it is “or any similar means.” The television is not expressly included in the enumeration, but defamatory statements made on TV are still libel. And likewise, the blog/internet is definitely a means of communication and publication and could be easily subsumed in “any similar means.” What also needs to be noted here is that the Internet now is spilled with the radio extracts, and theatrical and cinematographic exhibitions. Be it popular music videos, excerpts from movies, vogue dialogues etc. You may not only watch re-runs or previously aired programs but now can also listen to live radio or stream live TV, through the internet. Any libelous pronouncements made by the same then considering such developments, are not diminished and can rather be taken to be propagating of such defamatory matters.

Blogs and other Internet Publications

A blog can be defined as ‘a website, usually maintained by an individual, with regular entries of commentary, descriptions of events, or other material such as graphics or video.’  It is a website that is updated frequently, most often displaying its material in journal-like chronological dated entries or posts. Most blogs allow readers to post comments to the original author’s post, and link it from their blog to other posts using the permalink URL or address. In a blog, the content is not just simply ‘shared’ by one but can also be published and syndicated separate from the formatting as well by using an RSS feed. Readers can then subscribe to the feed to automatically receive updates on the same blog like further comments, more links being attached etc. More so, they are taken to be online public diaries by many, which is quite correct in certain respects as it can even serve to be your ‘daily’ repository of expressions. Now here, a diary entry would probably mean to be very personal to one, but in actuality, a blog always need to be published by clicking on the ‘publish’ button after one is done writing, thereby making it absolutely public in character. Blogs, in fact are meant to be read. It is the very aim and purpose of blogging that they should be made public, which is why one of the distinguishing features of blogs is the ‘comment’ section under almost each of them, where fellow readers are not just expected, but in a way encouraged to post their opinions on the subject matter of the blog. Bloggers must be aware of their responsibilities as hosts of discussions where these comments are invited from readers.  After all, the blog is in fact, an inspiration or the reason for the comment to be made, in the first place. So, any defamatory comments made in other posts on the blogger's website may result in the blogger being held responsible for those comments and being sued for libel. This is again very evident from Ajith D’s case whereby even if the cause of the original blog was not libelous, but the comments which were defamatory in nature owe that nature to the original material of the blog itself.


The internet is rightly and ‘write’ly one’s way to expression and speech. But more than democratization, it is a tool to murder another’s e-being at the least. As I read somewhere, ‘A single person can take on a huge institution which just a computer, an internet connection, and a cause (or even without a cause).’ It can be very conveniently discerned that the internet today, provides not only just a worldwide exposure to one’s ideologies; but a whole world available at one’s beck and his popular blog.

The time is not to cull the freedom of speech and its defenses and contemplate on what has been said; rather it is time to break the strands of complacency and legislate on what has been left unsaid…

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