Blogging and Defamation

Dr. B.N. Neelima*

The internet has heralded an era of freedom of expression, unprecedented in human history and only with the push of a button, writers now have access to a global audience. But with this new media also came the facility of attacking anyone instantly with a global distribution. Before the internet, a person’s efforts to defame another were limited to their own social network. Now, at no cost, anyone can go on to the Internet and publish defamatory information. Individuals, institutions and businesses suffer defamation to their reputation and goodwill, often from anonymous text or posters, or those with a virtual identity, claiming to be someone they are not. And the scope of the damage is global.

Nothing is more valuable to a person than his/her reputation.  That is the reason, in the case of public figures or organizations, defamatory statements rarely go unchallenged.  While the goal in a defamation action can be to recover damages, it may not often be the primary goal. The value of a defamation action is to gain back lost reputation.  On the internet, there are several forums of information exchange that could become a minefield for defamatory statements. These include blogs, usenet groups, bulletin boards, emails, chat rooms, etc. Among all the above mentioned fora, it is probably the blogs that have become extremely popular, next only to the email, as a potential instrument of information exchange. But the email has been considered limited in its scope, addressed to only a handful of persons. A blog on the other hand, has a global audience.

Participatory journalism; personal media

The traditional form of mass media relies on enormous investments in terms of physical infrastructure and specialized personnel to collect and disseminate news. Though it still enjoys credibility among readers and viewers, it also faces the criticism of neglecting the voice of the people and focusing on issues unimportant to them. These media are criticized for filtering divergent views, and preventing some markets and viewpoints from being served. By contrast, the new age journalism represented by blogging in virtual space, allows anybody to be a journalist. With the initial investment of a computer, an internet connection, and a free blogging program, one can post stories that can be immediately accessed internationally on the Worldwide Web. This open access reduces the power of potentially biased gatekeepers and ensures coverage of many different viewpoints. The risk of misinformation is also lessened thanks to the active scrutiny of millions of bloggers, each with their own specialized information. The new age blogging has therefore witnessed a definitive shift from centralized producers and dissemination of news to a more horizontal and democratic network of citizen journalists. Today, blogging and journalism coexist, influence, and shape one another. It is being felt that professional news media must now share this space known as the press, the mass-dissemination of discourse on matters of public interest, which for the past century has been almost its exclusive domain with activists, non-profits, and random individuals, who have set up their own web logs and websites.

Legal issues

The phenomenal growth of blog sites has not been accompanied by a corresponding growth in related legislation and the case laws are still emerging. While the internet has provided a new media for people to express their most significant, and inconsequential thoughts and opinions to the entire world, many of the authors on these blog sites, including established journalists, may not be aware of the legal issues involved in blogging. What might be freedom of expression to a blogger could be infringement of a copyright or trademark, misappropriation of a trade secret, or even defamation to another.

The legal issues that most often concern bloggers are freedom of speech and expression, copyright and intellectual property law, morality and decency, and evolving perceptions of ‘cyber libel’.

However, among all the above issues, defamation is arguably the most complex area of information law, one that is evolving and that involves considerable uncertainty for online authors, and those who suffer the risk of defamation.

Future of reputation

In recent years, defamation or libel in blogs has become one of the hot topics of internet law. This is because it has been found that the users of the internet are more likely than ordinary citizens to publish defamatory statements.

While examining the legal aspects of defamation in blogs, it is important to comprehend that blogs are inherently transnational in nature. Because of the international connectivity of the internet, its speedy transmission of huge amounts of data simultaneously to multiple destinations, and general lack of respect for national borders, it is extremely easy for an individual to make a defamatory comment on a blog, which might be read by millions of people in other national jurisdictions.

Very few journalists who have their own blogs are aware of the defensive strategies or knowledge of what speech might be legally actionable. Where defamatory statements cross national boundaries, inevitably problems of international private law are invoked, with difficult questions raised such as what country (or countries) will have jurisdiction to hear any action for damages raised, what country’s law should govern the action (the choice of law question) and if a decree is obtained, how can it be enforced if the defender lives outside the jurisdiction of the court (as will frequently be the case)? Those libeled on the internet may find then that their case is not the simplest to pursue. By way of comfort, however, internet libel defenders may also be dismayed to find that they can be sued in the courts of multiple countries to which they have little or no connection, and where the law applied is foreign to them in the extreme.2

There are also several kinds of people who may be involved in the blogging process. There are the Internet Service Providers (ISPs) such as CompuServe, who provide access to the internet on payment basis. There are intranets which are accessed by the members of a particular organization, and there are companies that allow their employees and clients to access the internet. It is important to know who is likely to be sued for damages in case of a defamation suit. Since the journalists’ blogs are not owned by the newspaper or broadcast media organizations, it is only the individual journalist who will be liable to be tried, just like any other blogger posting defamatory statements. While blogging in cyberspace thrives on the freedom of expression, many bloggers might unknowingly commit acts of defamation. Since living in a cyber world means that one is exposing oneself to the entire world, the threat of damage to reputation increases, since the blogger posts his messages in the privacy of his home and may not feel very inhibited in making defamatory statements. There is also no one to caution him as the publication is published by only one person and does not pass through many hands, as in the case of traditional media. A traditional publisher, such as a newspaper, TV station or book publishing house, is likely to have both the resources and the foresight to take legal advice, and a system of gate-keeping, to avoid incurring exactly such legal liability. The only advantage that bloggers have is that the readers could let him know immediately of a defamatory statement, yet one among his readers could also be his plaintiff. Publication on the internet is meant to cause damage much more severe than that in print or broadcast media as the former reaches millions of people.

Blogging is also more about expressing an opinion than news writing. Most bloggers tend to link to someone else’s work and then comment on it. But merely labeling a statement as an “opinion” does not qualify it to become one. Courts look at whether a reasonable reader or listener would understand the statement as asserting a statement of verifiable fact. (A verifiable fact is one capable of being proven true or false.) This is determined in light of the context of the statement. A few courts have said that statements made in the context of an internet bulletin board or chat room are highly likely to be opinions or hyperbole, but they do look at the context to see if it is likely to be perceived as a true statement by the readers. Bloggers may also plead that they are also not liable for someone else’s comments on their blogs.

In the case of blogs, the court is also likely to examine the general setting and format of the blog as well as the context of the links through which the user accessed the particular entry. Next the court would look at the specific context and content of the blog entry, analyzing the extent of figurative or hyperbolic language used and the reasonable expectations of the blog’s audience.

Other means of expression in the cyberspace may also be a forum for acts of defamation. These include usenet and other discussion groups that are involved in converses of myriad topics. Bulletin boards may also prove to be potential arena of defamatory statements. Email is yet another popular means of communication. Once the email is forwarded to other people, and contains defamatory statements, it becomes fertile ground for action for defamation.

In defamation law for print and broadcast media, liability is sometimes considered to extend beyond the defamer himself (for instance, the writer of a libelous newspaper column) to the “publisher” of the material (in the previous example, the newspaper running the column). The idea of holding publishers responsible for libelous material in traditional media has been thoroughly tested and defined in court; there are clear precedents for determining who is liable for defamatory statements in these media. On the internet, however, such issues are considerably more nebulous.

Defamation is a serious offence in India; it’s both a civil wrong as well as a criminal offence, and the aggrieved party can initiate either a civil suit or file a criminal complaint, or both. Filing a defamation case is a particularly useful SLAPP strategy, a neologism that stands for ‘Strategic Legal Action against Public Participation’ and signifies all manner of legal action initiated to harass those working on public interest issues

In India, Chapter XXI (Section 499) of the IPC exclusively talks of defamation: ‘Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said . . . to defame that person.’ An essential ingredient for defamation as defined under Section 499 of the IPC is ‘publication’. It is difficult to define narrowly what constitutes ‘publication’ on the net. Can emails be considered ‘publication’ when personal correspondence is not. But emails can be used to send defamatory emails to millions of people worldwide. Also, who is to be sued in case of defamatory statement on a bulletin board? Where does the liability lie if there is defamatory material posted on a bulletin board? Is the Internet Service Provider (ISP) liable under Section 501 of the IPC, which makes the publisher/printer of defamatory material, the prime offender. If we were to juxtapose the penal law to the present case, the ISP would be held liable but under the IT Act, 2000, the ISP has been exonerated from liability under Section 79 as long as he can prove that the offence/contravention has occurred without his knowledge and that had exercised due diligence to prevent the commission of such offence/contravention.

The emerging jurisprudence in the world requires that bloggers will have to be very careful before they type and push the publish button. By virtue of the Indian cyber law, ISPs are liable for all third party content including defamatory data and they would be required to remove the defamatory material from the sites the moment they become aware of it. Publishers and Internet Service Providers will, therefore, have to exercise extreme caution to prevent exposure to libel or defamation litigation.

As technology evolves, increasing number of compelling issues dealing with cyber space are coming forth that require continuous examination and appropriate amendment of cyber laws all over the world. As of today, issues impacting cyberspace can be divided into seven topic areas: freedom of expression, intellectual property, privacy, safety, electronic commerce, equity, and jurisdiction. While much has been happening in all these areas, freedom of expression and intellectual property are the two fields that have seen the most action – at least with regard to cases and statutes. Among several issues inherent in the freedom of expression, defamation takes centre stage on the internet, with blogs and authors mushrooming on the internet. Caution is often not exercised by these novice authors in presenting information and commenting on people and institutions that have a global reputation. The threat of facing a defamation suit thus looms large over blog authors who need to tread with caution. Given the global nature of the internet and the varied nature of laws in various countries, the approach to tackling defamation suits is also a major challenge to most courts today. Several questions of regulation and enforcement have been raised regarding the global online defamation issues. It is also a major challenge for legislators and jurists to see to it that new laws and recent case decisions are enforced in the freewheeling world of cyberspace.

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