Libel, slander and online defamation – What not to say when on the Internet

Author’s Note

You upload statuses, stories, and comments. You roast your friends and your celebrities. But do you ever stop and think of the legal consequences of defaming someone online?

This post discusses, in brief, the legal consequences of defaming someone online.

Table of Content

1. What is  online defamation?
2. What Constitutes to be a Defamation
3. Libel and Slander
4. Who is liable?
5. How to get away with defamation
6. Punishment for defamation

What is online defamation?

A general defamation case involves publishing a false statement about someone, or an organization that damages someone’s reputation in the community.

Defamation can be libel (published) or slander (oral or visual representation).

Generally, libel is more damaging than slander in the offline environment. But, with online defamation, the damage is equal in both types of defamation.

What Constitutes to be a Defamation

Essential ingredients of a cause of action for defamation.

1. The Statement must be defamatory

The statement made by the defendant must be false. The case of defamation does not get filed if the statement published was true.

1. Malice Intention

The defendant should have the knowledge that stating this statement would harm his reputation in the community and intended to do so. (Except done in good faith)

1. The statement must refer to the plaintiff

Through the statement made by the defendant, it should be clear that it has been referred to the plaintiff. The burden of proof is on the person who claims that he has been defamed (plaintiff). He should prove without any reasonable doubt that the statement referred to him. It is not necessary that a definite pointer is made towards the defendant, nor is it necessary to be proved that the plaintiff intended to refer to him. It is enough for the plaintiff to show that any person to whom the statement was published thought that the plaintiff was being referred.^[1]

When a statement is made for a group of people, it is difficult to prove that it referred to as an individual member. For example, “all lawyers are thieves” brings no cause of action against any individual lawyer.

1. The statement must be communicated by the defendant

The prerequisite of the defamation is the publication of the false statement. Here, ‘publication’ merely means ‘communication’ to the third person. It does not stand as defamation if it was communicated to the plaintiff himself. It should at least harm his reputation in front of a third person.

Libel and Slander

Libel refers to permanent defamatory statements, which are rather in written format and widely broadcasted.^[2] The ‘permanence’ requirement does not mean forever but rather it means that the communication of the statement lasted for more than a longer time till the original message is communicated.

Eg – A skywriting can even constitute libel since the writing takes time to disperse.

A libel is committed through Emails, posts on the internet comments on a post, world wide web, discussion groups, bulletin boards.

Slander refers to a defamatory statement made through oral or spoken format. Slander is a non – permanent effect than libel.^[3] It is important that the statement is false and was intended to damage the reputation of the plaintiff in front of a third person, a society, or an organization.

Illustrations: A states a false statement to B in front of his junior co-workers that B is trading illegally to get the company on top. Here A harmed B’s reputation through spoken words.

Slander is committed through live videos, tagging the person on the post in the online media.

Determining liability^[4]

1. The author of the published defamatory sentence online – The Person who actually made the statement is held liable first. If this defamatory statement is repeated, reshared by another person without privilege or without permission, he will be held liable.^[5]
2. Service provider or the intermediary. If the party is acting as a transmitter, i.e. in any way passing it to a third party even after knowing the defamatory nature of the material.^[6] Although Section 79 of the IT Act, 2000 does not make intermediaries liable in certain cases if they perform their duties prescribed by the central government in the act.

The online portal, website, blog site which was a medium through which the content was published will also be held liable for allowing the content or comment to be published in the site for defamation

When do they get away with Defaming someone^[7]

1. Truth

Truth is a complete defense against defamation. If the statement which is claimed for defamation is true, then it does not come under the ambit of defamation. But the burden of proof that the statement is true lies on the defendant. When on the internet, an individual should say or post anything which he believes is true.

1. Fair comment

If an individual is commenting fairly on a matter of public interest, it falls under the defense of defamation. This defense is based more on public policy and allows people to comment on or criticize without any wrong intention in the matters where the public is legitimately interested.

How would we determine it as a fair comment

Before commenting on anything on the internet, one must understand the requirements of fair comment.

1. Public Interest

The comments should be made in the matter where the public is legitimately concerned and interested. For example matters of state affairs^[8], local authorities and public institutions^[9], Public entertainment^[10], books^[11], and administration of justice.^[12] These matters are open to public discussions and criticism.

Under the Ninth Exception of Section 499 of the Indian Penal Code, 1860 it is said that it is not defamation if the comment was made for the protection of the general interest of the public under good faith.

1. Comment rather than fact

A comment is an expression of one’s opinion based on their beliefs. The manner of expression also indicates an opinion.

Illustration – if I say “A is a disgrace to human nature” indicates more of an allegation than a comment. Whereas, “ A murdered his wife and such people are a disgrace to human nature” is more on the comment side.

1. Basis of truth^[13]

The comments should be based on true facts.

1. Privileges

Individuals in certain cases are protected from defamation claims. Certain statements were made just because they need to be said at that time even if it later proves as a false statement. It should be in the public good and good faith.

There are two types of privileges existing:

1. Absolute – Enjoyed by the parliamentarians and judicial officials. It is effective no matter what the defendant’s motivation was.
2. Qualified – covers situations in which an individual is obliged morally, socially, or statutorily to communicate information. But if it is proven that the defendant had a malice intention in doing do, the privilege does not stand as a defense.^[14]

Punishment for defamation

1. Section 499 of the INdian penal code defines defamation but Section 500 IPC, 1860 punishes the person guilty for defamation with imprisonment up to two years, or fine, or with both.
2. Section 469 IPC, 1860 “Whoever commits forgery, (intending that the document or electronic record forged) shall harm the repu­tation of any party, or knowing that it is likely to be used for that purpose, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine”.
3. Section 66A of the Information Act, 2000 Defaming a person through the internet would be punished for sending grossly offensive material for causing insult, injury or criminal intimidation and would invite a jail term of three years and fine.
4. Section 79 of IT Act, 2000 lays down the circumstances where the intermediaries would be held liable if they do not follow guidelines precribed in the act such as not informing the government or agency about the unlawful act.

Edited by Fatema Lunawadawala

1. E. Hulton & Co. v. Jones, 1910, AC 20, 23: (1908 – 10) All ER Rep 29 (HL). ↑
2. S.K.Sudaram, re AIR 2001 SC 2374. ↑
3. Gray v. Jones, (1939) 1 All ER 798. ↑
4. Meril Mathew Joy and Shubham Raj, Defamation on social media – What can you do about it?, Laxology (02 May 2020, 8:30 PM). https://www.lexology.com/library/detail.aspx?g=d3075f4d-afb5-4920-bf59-26cf5d054ab8 ↑
5. Frommoethelydo v. Fire Ins. Exhange (1986) 42 Cal.3d 208, 217 ↑
6. Cardozo v. True, 633 (Fla.App. 1977). ↑
7. Madhavi Goradia Divan, Facets of Media Law, 2nd Edition, pg 138 (2013). ↑
8. Watson v Walter (1873) All ER Rep. 105. ↑
9. Cox v Feeney (1863) 176 ER 445 ↑
10. London Artists Ltd. v. Litter (1969) 2 All ER 193 ↑
11. Strauss v Francis (1866) 176 ER 926 ↑
12. Lewis v Levy (1858) All ER Rep 404 ↑
13. Kemsley v Foot (1952) 1 All ER 501 ↑
14. Raynolds v Times Newspapers Ltd (1998) 1 All ER 961. ↑