India needs a law on online defamation urgently

Raghav Pandey and Neelabh Bist

On October 21, the Delhi High Court sought a police report on Aam Aadmi Party’s (AAP's) complaint against a Facebook page, which had 100,000-plus followers and was posting defamatory material against AAP. It was alleged that the page, ‘Paltu Aadmi Party’, was publishing material that was false and fabricated, and thus was used as a tool to showcase the party in bad light, thereby misguiding the public. This case has brought to the forefront the bigger problem relating the inadequate development of jurisprudence with respect to online defamation in India.

The primary issue that confronts matters relating to online defamation is jurisdiction. It assumes importance because it has a direct impact on the pockets of the parties if the case is lodged in some other state. For example, in the case of M/s Future Gaming and Hotel Services Pvt. Ltd v. Malayala Manorama & Ors, the case was lodged in Gangtok, Sikkim, and it was alleged that a local daily of Kerala had defamed them online. The Supreme Court ordered that the suit could not be quashed as only at the stage of evidence could it be determined whether there are grounds to dismiss the same.

This order provides a troublesome picture of the approach of the judiciary towards such jurisdictional issues. Online media transcends the boundaries of states and nations and is accessible at almost every place. The problem with the apex court order is that because of its pervasive nature, a defamatory claim can be made at every place where the alleged material is available. Therefore, the defendant will have to then go ahead and defend the claims against her at the place of choosing of the complainant. To make matters worse, if a publication is made nationwide then going by the court order, a compliant can be made at each and every place. That means a case can be lodged and tried at 29 different states in India.

It also leads to forum shopping, wherein the complainants file cases in jurisdictions where they expect a favourable judgment. This has a chilling effect on free speech, especially on investigative journalists with meagre financial resources, who are usually made to run from one corner of the country to the other, defending such defamation suits against them.

In the United States, to resolve this issue, in the case of Revell vs. Lidov, the courts used a mixture of two tests to determine a particular jurisdiction. The first test is to decide whether the jurisdiction arises from, or is directly related to, the cause of action due to a certain level of interactivity with the website that could lead to possible defamation. The second test is the ‘effects test’ which makes it incumbent to decide whether the effect of the defamatory statement in the state is such that it should be conferred automatic jurisdiction upon the same.

Another issue that confronts online defamation is the question of anonymity of the person posting the ‘defamatory’ material. In almost all cases, the complainant makes a request for the disclosure of the identity of the person from the intermediaries/publisher. However, owing to contractual obligation, these intermediaries/publishers are stuck in limbo. While the exception of public policy requirement, there is still no settled jurisprudence to decide when the disclosure becomes mandatory.

Further, issues of injunctions, liability of intermediaries, and a host of others are yet to find a strong settled jurisprudential standing in India. One of the biggest reasons for this is that we are trying to fit online defamation within the contours of the archaic law relating to defamation.

The United Kingdom enacted the Defamation Act of 2013 whereby it addressed most of the contemporary issues relating to defamation. The Act changed the defences available, established the duties of intermediaries in unambiguous terms and resolved the questions related to jurisdictions, such as libel tourism.

Unsurprisingly, the law in India remains unchanged and as is the case with many other laws, this one too remains the same as enacted by the British -- at a time when they themselves have changed their laws. The law on defamation as it is, remains controversial in its existence, because of its natural conflict with the developed fundamental rights jurisprudence of Indian Constitutional Law.

If the Indian law has to keep up with the times, then it has to change with time, otherwise such issues would only result in overburdening of the courts.

Raghav Pandey is an assistant professor and Neelabh Bist is a fifth-year student, at Maharashtra National Law University, Mumbai. Views are personal.