SLANDER, LIBEL AND INTERNET INTERMEDIARIES – EVOLVING THE INDIAN LEGISLATIVE

FRAMEWORK

The internet today is a dynamically expanding medium which brings, along with the
exciting ease of informational access, new boundaries and challenges open to
definition and dispute. The convergence of old and new - with earlier wrongs finding
new scope in the World Wide Web - throws up a world of unseen legal challenges.
One such perceived challenge that requires discussion is the liability of internet
intermediaries such as ISPs (Internet Service Providers) in tort law, specifically the
tort of defamation in a variety of jurisdictions, examining the issues and
contradictions in the world positions, with a focus on finding a workable India-
specific framework through legislative changes. The last becomes especially
important in the view of the need for responsible development and a contextualisation
of the fundamental freedoms of Article 19. The intermediaries examined here will
essentially be blog-hosting sites, or social networking sites – any location provided
for storage that is not a publisher in the business of creating original content.

The first major question that requires understanding is why new legislative provisions
are necessary for a tort that has always been in existence, and the governance of
which is largely uncodified. The answer to this is found in the nature of the internet, a
few distinctive features of which create problems in the specific realm of the law
relating to defamation with intermediary liability. These include: geographical
indeterminacy, level of control exercised by the intermediary, nature of the
intermediary, hyperlinking and republication, publishing of comments on a specific
site, use of exclusion of liability clauses, confusion of jurisdictions and the
anonymity/low economic capacity of original content creators. All these issues create
a scenario where traditional applications of defamation no longer apply.

A decision will also need to be taken about which jurisdiction must be followed, with
the US and the UK taking wildly divergent positions – largely because of the United
States adoption of s. 230 of the Communications Decency Act, which provides a
broad and strong, though not absolute, protection of internet intermediaries, while the
UK has no such compunction. In the UK, in line with the generally prevalent
European position, service providers are endowed with the duty to remove or block
access to defamatory material that they host once they have been given notice of the
same, and they may be sued if they refuse to do so/do not do so within a reasonable
period of time. However, the normally litigious US considers this as constituting an
unreasonable burden on service providers and is antithetical to free speech.

The Indian position is as yet undeveloped, with very little case law on the point.
However, the question does deserve a non-academic answer, considering the high
level of importance it is given in an Indian scenario (Defamation in India, unlike most
other places, is considered a criminal as well as a civil offence under s. 499 and 500
of the Indian Penal Code). Section 79 of the IT Act of 2000 was recently amended to
the effect that no person providing any intermediary service shall be liable under the
said act if there is an offence under the provisions of the act providing he lacked
knowledge of contravention and acted in good faith. However, it is submitted that the
exemption provided is too broad based and goes to the extent of rewarding lack of
knowledge. To evolve a more specific framework requires deep analysis that will be
focused on through the course of the paper.