Saturday, February 28, 2009

Blogging, Defamation and SLAPP cases

The recent refusal of the Supreme Court to come to the aid of D.Ajith, facing harassment from Shiv Sena which has filed a criminal complaint against him alleging criminal intimidation and outraging religious feelings, has stirred the blogger community. (See Bloggers can be nailed for views). The case comes close on the heels of the recent amendment of the I.T.Act, even though the FIR against Ajith was registered at Thane Police Station in August 2008, prior to the amendment.

According to the recent amendment of I.T.Act, as explained in this Manoj Mitta's story, an intermediary or a host on the internet is not criminally liable for the comments posted by others, if the intermediary allowed the alleged comment to be expressed unintentionally or failed to remove it from the site, after it is pointed out.

Ajith was the host of the community site which he created on Orcut against Shiv Sena, and the members of the community were free to express their views. Ajith argued that his was a community site, and the contents were meant only for members. The Supreme Court did not get into the merits of his contentions, before rejecting his petition praying quashing of the FIR against him. The High Court had granted him anticipatory bail. Bloggers united against the SC's refusal to come to Ajith's rescue.

In this post, Lawrence Liang is unhappy with the Chief Justice for declining relief to Ajith on the understanding that Shiv Sena alleged defamation against Ajith. The Sena did not allege criminal defamation, but alleged criminal intimidation and outraging religious feelings. One doesn't know whether Liang's conclusions will be different if he knew that the complaint pertained to S.506 and 295A of IPC. Still, Liang's explanation of the law on defamation, and his comparison of the CJI's view to that of Anatole France’s will be read with interest. His conclusion, in any case, is relevant:

"So rather than seeing this as an issue of the privilege of bloggers v. newspapers, it might make sense to locate the history of criminal defamation within the larger context of free speech as it affects different kinds of practitioners. And it might make sense for bloggers to also get a little organized in their responses to censorship of bloggers, because this is indeed one of those cases where an attack on one will eventually be an attack on all."

9 comments:

Anonymous said...

VV, in this context, the Avnish Bajaj case (Delhi HC) is also interesting. One of the issues was whether E-Bay could be liable for obscene ads inserted onto its platform by a third party. As you will be aware, the law relating to obscenity bears close resemblance with the law relating to defamation (publication etc.) The issue before the COurt was whether E-Bay "caused" obscee material to be published. Mr. jaitley and Mr. Luthra senior counsel for the accused contended that "Cause" requires a positive action; and in that sense E-bay does not "cause" publication - much like when I send you material on gmail; gmail facilitates, but does not "cause".

The Delhi HC rejected the argument in what is probably the first case of the kind under the IT Act. (I believe the law applicable was pre-amendment; though I am not too sure about this)

B Shantanu said...

Venkatesan,

I would like to invite you and your readers to please comment on this post:

http://satyameva-jayate.org/2009/02/25/blogs-comments-liability/

It has already raised some fairly interesting points.

Thanks.

Lawrence Liang said...

Dear Venkatesan

Thanks for your insightful post. I was relying on the Times of India article which had reported it as defamation, but my conclusion would certainly remain the same even if it were a 295A case, or I would say even more so if it were a 295A case since that is the one of the most lethal tools being used for harassment by religious groups of all denominations

Regards

Lawrence Liang

tarunabh said...

can't the bloggers come up with some interesting and effective way to register their protest, a la pink chhaddis?

Anonymous said...

How they expect the Supreme Court to quash the case.He has been granted anticipatory bail.The best way is to challenge the misuse of 295A and ensure that free speech and constitutional rights are protected irrespective of media
or technology.That is a tough task
but there are no shortcuts.We need
more debate on provisions of IPC and IT Act and new information and communication technologies.Perhaps the best solution at this juncture would be to try for a stay on further proceedings in the case.

K.V.DHANANJAY said...

Under what provision of Law did this individual approach the Supreme Court? At any rate, he had an anticipatory bail from the Kerala High Court and what provision of our Constitution authorises a citizen to invoke the jurisdiction of the Supreme Court to secure a summary judgment against a criminal complaint that has gone unanswered before a Court of first instance? I am curious.

Notwithstanding the fact that bloggers would love to ask the 'Supreme Court' to find in their favour, bloggers have no justification to assume that the Supreme Court has a duty to intervene here. Legally or constitutionally, theres no such duty invested in the Supreme Court to intervene under these circumstances.

Should D.Ajith be under imminent threat of injury to his person or to his liberty or should there be a justification for a change of venue, he could always ask for an adequate remedy before an appropriate Court.

Bloggers cannot ask for immunity from prosecution for speech they fail to justify under the existing law. And existing law offers extensive protection to Bloggers like Ajith.

V.Venkatesan said...

Ajith approached the SC under Article 32.

Talha said...

There are two things I want to speak about.First, if the judiciary has a general duty by its very nature to protect individuals from harassment by way of abuse of process, there is no reason why this duty should not be extended to the Supreme Court specifically for bloggers.

Secondly, while it is generally true that people should not be allowed the advantage of legal protection if they cannot justify their action under the existing law. In the present case, there is thus, as other bloggers have pointed out - a need to review the existing law, and the judiciary has the duty to treat it as a 'living instrument' if Parliament is not forthcoming in ensuring that technology does not outgrow the law.

If I have understood the facts correctly, given the advances of technology to identify "who" and convenience of electronic posting - it is pertinent to question also the fixation on liability on people who manage communities/groups on website.

K.V.DHANANJAY said...

Article 32 of the Constitution! To secure a summary judgment dismissing a criminal complaint filed before a court of first instance and one which has not even been answered at.

I do not see any omission on the part of the Supreme Court to intervene under theses cirsumstances.

I wish to further add that bloggers in India seem to be too keen to draw selectively from American jurisprudence that supports their theroies.

I wonder if they acknowledge, say, this latest news from Fastcase -

"Korbel sues over postings on Craigslist - Wine giant accuses anonymous critics of defamation; case could test free speech on Internet"

"In a case that could test the limits of free speech on the Internet, Sonoma County's Korbel Champagne Cellars is suing anonymous critics on a Craigslist message board, saying their false statements are hurting the century-old company's reputation."

"The postings accuse Korbel of punishing employees who reported sexual harassment. They also contend the winery is plotting to cut down redwood forests on its Guerneville property."

"'They are completely and absolutely false,' said Terry Fahn, a Korbel spokesman."

"Korbel is seeking damages and an injunction barring the unidentified writers from posting libelous comments on the popular Web site. The company will not say if it has obtained the names from Craigslist."

"Defamation has become a hot issue with the explosive growth of the Internet, which gives ordinary people a chance to post comments anonymously to a worldwide audience."

And, as reported by SANTA ROSA PRESS DEMOCRAT,

"Korbel wants Comcast to identify anonymous critics"

"Korbel Champagne Cellars will ask a Sonoma County judge next week to make Comcast Corp. identify Internet customers who criticized the wine company in a Web forum."

"It’s the latest twist in a case that could test the limits of free speech on the Internet."

"Korbel sued the anonymous critics last year for defamation, saying their comments damaged the century-old business."

"The postings in a Craigslist forum last year accused Korbel of punishing employees who reported sexual harassment. They also contended the winery was plotting to cut down redwood forests on its Guerneville property. Other posts alleged Korbel bribed law enforcement and court authorities to keep the company out of trouble."

"The charges are false, said Korbel spokesman Terry Fahn. They’ve damaged Korbel’s reputation, according to its lawsuit filed in Sonoma County Superior Court."

"The suit seeks an injunction and unspecified damages."

"Defamation suits based on anonymous Web comments are becoming more common with the explosion of Internet traffic."

"Lawsuits threaten to chill anonymous speech online, said Ann Brick, an attorney for the American Civil Liberties Union of Northern California."

"'If people have to worry about having their identities revealed, they are going to be reluctant to join the discussion,' she said. 'There is a real potential to stifle free speech on the Internet.'"

"Korbel worked with Craigslist to remove the comments, but wouldn’t say whether the popular online bulletin board revealed the Internet addresses of the posters."

"While Craigslist won’t comment on the case, its Web site says it may disclose its users’ Internet addresses in court cases."

"Korbel has determined the unnamed posters are customers of Comcast’s Internet service, according to court papers. On March 4, Korbel will ask Superior Court Judge Gary Nadler to order Comcast to turn over their names."

"Comcast would comply with such a court order, but only after notifying its customers that their identities are being sought, said Comcast spokesman Andrew Johnson. Customers can then go to court to fight the release of their names."

"'Our policy is to give our customer notice and sufficient time to decide whether to contest the disclosure,' Johnson said."

"If the customer decides to fight the proposed court order, Comcast withholds identifying information until the matter is resolved. If the customer doesn’t choose to fight, then Comcast will reveal their identity, he said.
“We will disclose whatever we have that is responsive,” Johnson said."

"Korbel’s attorney, Robert O’Brien, couldn’t be reached for comment. Korbel’s lawsuit said the postings are part of a conspiracy to defame the winemaker."

"The case shows that Internet users should be careful what they say in anonymous Web forums, said Matt Zimmerman, an attorney for the Electronic Frontier Foundation, a San Francisco nonprofit that defends free speech online."

"'Even if you think you are speaking anonymously, you are leaving digital footprints that could ‘out’ you,' he said. 'You could still be held liable.'"

"Judges should be cautious about ordering identities revealed in such defamation cases, Brick said. Korbel should be required to show the comments were truly defamatory and that the business was actually damaged, she said."

"'There’s a real potential for abuse,' she said. 'It’s important for courts to act carefully before stripping away that protective anonymity.'"