The great Greek thinker Publilius Syrus said that “A good reputation is more valuable than money” and the same holds good today. In epoch of information technology where information is transferred at the blink of an eye and access to information is only at a click of a button, guarding ones reputation has become imperative. Also these are times of brands where persons and products are known by their reputations and their image more than by their substance and therefore protecting one’s image and reputation has become imperative. But more importantly as Prof Toynbee has observed that the highest pursuit of any civilization is human dignity and the purpose of all human rights is to enable an individual to live with dignity. The reputation of the individual is at the least as valuable to him as any other possession; rather it is more valuable than any other possession. It cannot be measured in terms of any material thing including money. The reputation of the individual is a part of his dignity. The basic human rights include a person’s right to live with his reputation unsullied as it is a part of human dignity. Therefore preservation and promotion of reputation also becomes a part of basic human rights. Today this right to lead a life with dignity is endangered because of the conflict of laws with regards to definition of defamation, which seeks to dent the reputation, as well as the conflict of law with regards to jurisdiction of the courts to take cognizance and award the requisite relief when suits for defamation are filed. Hence the topic has become a burning question in the field of Law.

In India the law of defamation provides both civil and criminal remedies. Civil action maybe brought under law of Torts and criminal under the Indian Penal Code. While these laws are adequate to deal with conventional forms of defamation within the boundaries of India, with the advance of technology we are now faced with the challenge of defamation on the internet, a new frontier without any boundaries.
Before one goes into the nuances of defamation on the internet one must understand what is the internet. The internet is nothing but an interconnected system of networks that connects computers around the world via the TCP/IP protocol. In lay mans terms this means that it is a network whereby all the computers in the world are interconnected. Due to this interconnectivity of computers it is now possible to access information posted on a server/computer in any part of the world by someone in some other part of the world.
Online defamation is, as a matter of fact, more dangerous than other conventional forms because of the relatively low cost of setting up a site, the ability to disguise identities and ease with which uncensored information can reach with a limitless audience. You can have a defamatory statement spread via a site, text message, email or discussion board, and get sued for it, too. You could be held guilty even if you have simply -- or even wrongly -- forwarded a defamatory email, since every subsequent "publication" is a fresh offence. Similarly, owners, administrators and coordinators of any such site will also become a party to the suit.
Defamation, in common parlance, is a publication/communication of a statement by one person to at least one other, that lowers the reputation of an identifiable third person, where the communicator has no legal defence. The law of defamation aims to balance free speech with the right of an individual to protect his/her reputation. In order to found an action for libel in common law four main ingredients must be present:-
i) the statement complained of must be false;
ii) the statement must be in writing;
iii) statement must be defamatory; and
iv) the statement must be published
For defamation on the internet the statement complained of must be published on a website and/or forwarded to people via email. While the same principles which apply in determining whether any statement is defamatory in the regular course apply to matter published on the internet, the matter with regards to jurisdiction is not so clear. This is because while the information may be posted on a server in the United States of America it could be accessible in India, or for that matter from anywhere in the world. In India the Information Technology Act provides for prosecution of people for publishing and/or transmitting certain material in electronic form it does not provide in direct terms for defamation online. The IT Act does provide that though the ISPs would ordinarily be liable for the abuse of services provided by them, they may be excused if it is "proved that the offence or contravention was committed without their knowledge or that they had exercised all due diligence to prevent it." This is in keeping with global trends which hold that while ISPs should be encouraged to develop some kind of supervisory mechanism, however, due regard must also be given to the physical difficulties of censoring each and every statement on the Internet. It should be noted that in India both civil remedies (under tortious liability) and criminal remedies (under the India Penal Code) are available to the victim. However, whilst the remedies maybe available enforcing the same is next to impossible. The possible conflict of jurisdiction could put paid to any attempt to sue the publisher or salvage relief in Indian courts, or for that matter in most of the world.
Recent case in law in American, English and Australian Courts has shed some light to the various approaches possible in resolving this issue.
In Blumenthal v. Drudge, Matt Drudge wrote and transmitted his “Drudge Report” in which he alleged that a new White House recruit, Sidney Blumenthal, had a history of spousal abuse. Drudge transmitted the report from Los Angeles, California, by e-mail to his direct subscribers and posted both his headline and the full text on his Worldwide Website. He then transmitted the text but not the headline to America OnLine, which, in turn, made it available to AOL subscribers.
The next day, after receiving a letter from Mr. Blumenthal’s lawyer, Drudge retracted the story through a special edition of his report posted on his Website and e-mailed to his subscribers. Mr. Drudge e-mailed the retraction to AOL, which immediately posted it on its service. Drudge later publicly apologized to the Blumenthals but, nonetheless, the Blumenthals sued both Drudge and AOL. Regarding AOL’s liability, the judge said that while it appeared to the Court that AOL in this case had taken advantage of all the benefits conferred by Congress in the Communications Decency Act, and then some, without accepting any of the burdens that Congress intended, the statutory language is clear: AOL is immune from suit, and the Court therefore must grant its motion for summary judgment.
However, with regards to Matt Drudge (who, as author, could not claim immunity under the Act) who had applied to the US District Court for the District of Columbia for a motion to dismiss or transfer the case for want of personal jurisdiction over him (a resident of California).the Court said that “The legal questions surrounding the exercise of personal jurisdiction in “cyberspace” are relatively new, and different courts have reached different conclusions as to how far their jurisdiction extends in cases involving the Internet. Generally, the debate over jurisdiction in cyberspace has revolved around two issues: passive web sites versus interactive web sites, and whether a defendant’s Internet-related contacts with the forum combined with other non-Internet related contacts are sufficient to establish a persistent course of conduct. As one court has explained:
At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it, is not grounds for the exercise [of] personal jurisdiction. The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.
Zippo Mfg. Co. v. Zippo Dot Com. Inc., 1997.
. . .
Despite the attempts of Drudge and his counsel to label the Drudge Report as a “passive” web site, the Court finds this characterization inapt. The Drudge Report’s web site allows browsers, including District of Columbia residents, to directly e-mail defendant Drudge, thus allowing an exchange of information between the browser’s computer and Drudge’s host computer. . . . The constant exchange of information and direct communication that District of Columbia Internet users are able to have with Drudge’s host computer via his web site is the epitome of web site interactivity.
. . .
The Court held Matt Drudge accountable in District of Columbia for matter that he transmitted from the state of California.
In Australia in Dow Jones & Company Inc v Gutnick [2002] HCA 56 defamation action was brought by Melbourne mining magnate Joseph Gutnik, who argued that the article published by financial publishers Dow Jones which could be read on the internet by people who knew him in Melbourne. Australia's high court has ruled that the financial publishers Dow Jones can be sued in the Australian state of Victoria over an article that appeared on their website. This ruling has created a precarious position, where you have a single publisher in the centre and strands running to every jurisdiction that adopts this standard, each one a potential lawsuit with different standards of evidence and different defences.
From the above case one can find out two different approaches for tackling a similar problem. The classifications of the websites for the sake of determination of jurisdiction by Americans Courts into three kinds, namely active, passive and a middle ground leads to many new questions. What exactly constitutes the “middle ground” is a very subjective matter open to interpretation. Additionally will other countries in which American entities are being sued follow a similar approach of classifying websites to determine the issue of personal jurisdiction?
Further on it must be noted that while it is possible for a foreign company or resident to be sued in India, enforcing the decree maybe an all together different prospect. A plaintiff may encounter difficulty with enforcement or collecting the damages. If defendants doesn’t have Indian assets or a steady income from Indian sources, the plaintiff may be forced to pursue the defendants where they are domiciled. American courts, for example, may be reluctant to enforce an Indian judgment in a case where the judgment would not be available in US courts (perhaps because of the Communications Decency Act). US courts’ reluctance is more pronounced where there would be a constitutional or first amendment argument available to the defendants on the facts.
While the judgment in Gutniks case may not hold good the world over it is highly likely to be followed in other Commonwealth countries. It is unlikely to be followed, however, in the USA, which has a far more liberal law of defamation.
In the 1999 English High Court case of Godfrey v. Demon Internet Ltd, an ISP (Internet Service Provider) was found liable in defamation after failing to remove defamatory remarks in a posting to a Newsgroup forum following a request to do so by the plaintiff who was alleged to have been the author of the posting. The comments in the posting were obscene and defamatory of the plaintiff and he denied being the author. He therefore requested their removal but the defendant company failed to do so. The High Court concluded that, since the defendant company knew about the defamatory content of the posting, they could not avail themselves of the protection of s. 1(1) of the English Defamation Act 1996 which provides that no person who was not the author, editor or publisher of the statement complained of and he took reasonable care in relation to its publication, and he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement would be guilty of defamation. While the Court concluded that the defendant company was not a “publisher” as defined in the Act it concluded that the company did nothing once it was notified of the allegedly defamatory nature of the posting it could not rely on the defence. This approach seems to be in consonance with Indian law. But even here a curious situation would arise if the material was posted on the server of an ISP outside England.

In India under Sec. 501 of the Indian Penal Code “whoever prints any matter, knowing or having good reason to believe that such matter is defamatory, would be liable to imprisonment of two years, or fine, or both." Therefore ISP’s, online websites of newspapers and magazines could be held liable for publishing defamatory on their websites, through email or any other means on the Internet.
So far, in India, there has not been much litigation related to defamation on the internet. In India's first cyber defamation court hearing, Jogesh Kwatra, an employee of SMC Pneumatics (India) Pvt. Ltd., sent anonymous and highly derogatory emails to his employers and subsidiaries of the company around the world. In a landmark order, Justice J D Kapoor of the Delhi High Court passed an ex-party ad-interim injunction prohibiting Kwatra from sending any further emails, and from publishing, transmitting or causing to be published any derogatory or defamatory information. The quantum of damages is yet to be decided. This case when finally heard could open the flood gates for defamation on the internet in India. This though is not a certainty. The difficulties of jurisdiction and lack of legal awareness amongst Net users in the country could stymie any possible litigation. So far there is no Indian case law on publication of defamatory material in a foreign jurisdiction.
From these international case laws one can clearly make out that, while there maybe absence of legislation to deal with the problem defamation on the Internet, the problem itself is ubiquitous. The problem is not confined to Western Countries only. With proliferation of the internet in India there is a distinct possibility of it becoming serious problem in our country too. So far as India is concerned the approach of the Australian Court would be considered in consonance with the principals of India law with respect to questions to jurisdiction. However, till there are clear and universally observed principles as far jurisdiction and other related matters suing for defamation on the internet is a very difficult and daunting prospect when it comes to matters of international jurisdiction.
Various international conventions such as the Universal Declaration of Human Rights, the European Convention on Human Rights recognize the right to reputation along with other fundamental rights and seek to enforce and protect the same. But the current conflict in laws of defamation and more importantly jurisdiction render this the right to reputation, though internationally recognized, illusory. Unless the all countries of the world come together and reach a consensus, like on the issue of Intellectual Property Rights, and form a new codified law that aims at protection of the right to a reputation, the right will be without a remedy.
Hi akshaykp,

That's quite a large essay you posted. I am not sure if anyone will go through it with a fine tooth comb because it is so long.

What might help, however, is that when you do post something large you break it up a bit. Show some more white space. Leave spaces between the paragraphs.

Just glancing at pieces of it there and there, it looks reasonably well written.

MountainHiker
good work!

Well done..