On Blogs, Comments, Liability and Being Sued
This is a quick post or more accurately, a collection of snippets in reaction to recent news about a bloggerin Kerala being refused protection against summons issued by the High Court in Maharashtra over comments posted on an Orkut group managed by him.
To be honest, I was a bit surprised when I read that a Supreme Court “…Bench comprising Chief Justice K G Balakrishnan and Justice P Sathasivam refused to protect a 19-year-old Kerala boy, who had started a community on Orkut against Shiv Sena, from protection against summons received from a Maharashtra court on a criminal case filed against him…” [ Hat Tip: Ashok for the link]
The Bench is reported to have remarked:
We cannot quash criminal proceedings. You are a computer student and you know how many people access internet portals. Hence, if someone files a criminal action on the basis of the content, then you will have to face the case. You have to go before the court and explain your conduct.Â
This stand raises a host of issues…Unfortunately I do not have time to go into details right now but here are some thoughts/excerpts from various resources on the internet that may help you form your own views.
First, a reassuring excerpt from Electronic Frontiers Foundation (more relevant to US):
You have the Right to Allow Reader’s Comments Without Fear. In Barrett v. Rosenthal, EFF is working to establish that Section 230, a strong federal immunity for online publishers, applies to bloggers.
This is not just one ruling. There have been other rulings too e.g. this US 2006 that recognizes site owners cannot be held liable for site comments.
For almost everyone who writes a blog, I would recommend this excellent primer on Immunity for Online Publishers Under the Communications Decency Act that concludes with these practical suggestions:
If you passively host third-party content, you will be fully protected under Section 230.
If you exercise traditional editorial functions over user submitted content, such as deciding whether to publish, remove, or edit material, you will not lose your immunity unless your edits materially alter the meaning of the content.
If you pre-screen objectionable content or correct, edit, or remove content, you will not lose your immunity.
If you encourage or pay third-parties to create or submit content, you will not lose your immunity.
If you use drop-down forms or multiple-choice questionnaires, you should be cautious of allowing users to submit information through these forms that might be deemed illegal.
Note that the advice is mainly from a US perspective and may or may not protect you elsewhere/in other jurisdictions. Also the situation may be different in other countries. For e.g.
…a Hamburg court has ruled that forum owners should have unlimited liability, and are co-culpable for, any comments or discussions that take place on their sites, even if posted by third parties (eg. users) and without the forum owners knowledge.
“… Specifically, the court found that the forum operator could be found co-culpable by merely providing a platform for an inadmissible comment. In other words, the operator does not have to agree with the content or have entered the content directly. Furthermore, it does not matter whether the content came from the operator or from external parties, nor does it matter whether the forum provider has any knowledge of the contents. All that matters is that the forum operator provide its own website for the propagation of said content. The judges did, however, say that liability could be prevented if the operator of the website specifically states that the content of a particular comment does not represent its own opinion; it does not suffice if the forum provider generally states that the opinions in user comments are not its own.”
“In addition, the court found that there was grounds for liability because Internet forums are a journalistic-editorial platform as specified in the revised Section 54 of the German Broadcasting Agreement (RStV), which stipulates that editors must check the content, origin and veracity of messages published with the utmost reasonable due diligence…”
To help the case for freedom of expression, Atty-at-Work has suggested some standards that could be adpoted by bloggers and online publishers:
1. Anyone who feels aggrieved with a comment posted in a blog must demand from the blog owner that the offending comment be removed or deleted. This could be done through the blog’s “Contact Us†feature or through a comment.
2. If the blog owner refuses to remove the objectionable comment, then he/she could be included in the suit for libel, when proper. In such event, the blog owner, even if he/she is not the author of the comment, could not claim that he/she “does not have actual knowledge, or is not aware of the facts or circumstances from which it is apparent, that the making, publication, dissemination or distribution of such material is unlawful or infringes any rights subsisting in or in relation to such material.â€
Of course, contrary arguments could be made, but the discussions above are more consistent with freedom of speech and expression. It is true that freedom of speech is not a license to commit libel, but a blog owner should not be made liable for comments made by other persons, unless that blog owner is fully apprised of the offensive nature of the questioned comment. To hold otherwise would have the effect of stifling the robust exchange of ideas.
My starting point on this is:
- As long as the blogger or publisher is taking reasonable care to edit/delete or modify offensive remarks/comment(s), he/she should not be held liable for them (this can be defended by citing freedom of expression)
- As long as there is no evident (or demonstrable) malice, lawsuits alleging defamation should not be entertained
- A blogger must respond to suggestions/requests to delete, amend/modify content or remarks/comments that have been found offensive, hateful, inaccurate or mis-leading when they are brought to his/her attention. Note that I am saying “must respond” and not “must agree”. If however he/she does not agree with the request(s)/suggestions, it may become difficult to cite immunity from further action by the aggrieved party
- Please note that “Guest Posts” can be tricky since the blogger/publisher can be held liable although the author may be someone else (just as a book publisher is, for a book published by him/her)
I am pretty sure that more ideas will emerge as I give this some more thought. But please do add your own views, suggestions and comments. This matter is important to everyone of us who values freedom and liberty.
Related Posts:
On Artistic Freedom, Censorship and ResponsibilityÂ
Some of the comments to this post
On Husain, Khajuraho and moral policing
Will Arundhati Roy pl. stand up for Francois Gautier?Â
Additional reading: Is your blog exposing you to legal liability? by Lawrence Savell from which this thought-provoking excerpt on “Defamation“:
A major issue in the blog context is defamation. Although definitions vary from state to state, generally speaking a defamatory statement is a false and disparaging statement about another that causes injury to reputation (or in some cases causes emotional distress). It is a communication that exposes people to hatred, ridicule (more than a simple joke or satire/exaggeration) or contempt; lowers them in the esteem of others; causes them to be shunned or injures them in their business or calling.
Qualifying your language (with less than absolute words like “may”) may reduce liability risks somewhat. Should you determine that a mistake was made and a false derogatory statement was posted on your blog, a prompt correction/clarification of prominence comparable to the original should help reduce potential damages. Plus, it furthers the goal of providing accurate information to your readers.
May a blog operator be held liable for defamatory statements posted to the blog by a third party? One influential court has recently said no. On Nov. 20, in Barrett v. Rosenthal, the Supreme Court of California ruled that, pursuant to the Communications Decency Act of 1996, “plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source of the statement,” — i.e., the third party who posted the statement on the operator’s blog. The court “acknowledge[d] that [its] recognizing broad immunity for defamatory republications on the Internet has some troubling consequences.” It remains to be seen to what extent other courts will follow the California Supreme Court’s lead, and/or whether Congress will step in and revise the law.
Defenses to a defamation claim include truth, the “fair reports privilege” and the fact that the statement was one of opinion/rhetorical hyperbole. Truth is a complete defense, and it is usually sufficient if there is “substantial truth” or the “gist” is accurate, even if minor details are off. A key protection for law blogs, the fair reports privilege protects fair and accurate reports of judicial, legislative or executive proceedings and records. The official source must be identified, the report should reflect the entire record/proceeding and denials of a civil complaint should be summarized.
It used to be the case that “opinion” was virtually completely protected from being the basis for libel liability. However, the scope of the exception has been narrowed by more recent court decisions. Calling something an opinion does not make it so, and words like “I think” or “I believe” do not necessarily assure protection for what follows. A statement may be actionable to the extent it implies a false assertion of fact. Nevertheless, statements may be protected if they are truly opinion and are not capable of being proven either true or false
.
Hi Shantanu,
Are you referring to the same incident, as suggested by this URL?
http://www.hindujagruti.org/news/6347.html
If yes, then the details are conflicting.
regards,
RV
Ravindranath: The Times of India report seems to be about something else…[ the link is in the post ]
I do not think this is connected to that.
Shantanu,
This is a very serious issue in my opinion. I am not sure what kind of messages were posted on orkut forum about shivsena which led to this action.
It is not just about defamation or libel, but criminal case for hurting public sentiments under 259(A) (religious sentiments?)? If you read the wording of 259(A), it is very ambiguous. If your words from the post (Jesus & Ganesha) hurt or insult someone’s religious sentiments, then can an FIR be filed against you? Can anyone post some expert legal opinion (Indian Penal Code) on this topic?
This is not surprising – compare the Supreme Court’s stand that truth is no defence in a contempt of court proceeding. As long as a post is in “parliamentary” language, I see no problem with it even if I disagree totally with it. This is what freedom of speech is about. And if it is “sensitive” issue…all the more reason that debate be allowed!
Shantanu:
As a blogger, one in India would be tempted to allow access only to registered readers hereafter! Which gives too much power to the blogger and too much concentration of the possibility of every commenter being traced.
I also think Supreme Court judges would do well to pull their fingers out and start using the web to understand its ‘unwalled garden’ nature before seeking to make pronouncements on it which expose their inability to keep up comprehensively.
Hi Shantanu,
I am curious to know your reaction or if you have more information regarding applicability of 295(A) against individual bloggers.
I’m not sure you or your readers are aware of how article 295(A) was used recently in Calcutta. If you already know this news, then pardon me for repetition:
http://www.independent.co.uk/news/world/asia/editor-arrested-for-outraging-muslims-1607256.html
..
The editor and publisher of a major Indian newspaper have been arrested for “hurting the religious feelings” of Muslims after they reprinted an article from The Independent. Ravindra Kumar and Anand Sinha, the editor and publisher of the Kolkata-based English daily The Statesman, appeared in court yesterday charged under section 295A of the Indian Penal Code which forbids “deliberate and malicious acts intended to outrage religious feelings”.
http://www.independent.co.uk/news/world/asia/editor-arrested-for-outraging-muslims-1607256.html
..
And if you are curious about the article itself, here it is:
http://www.independent.co.uk/opinion/commentators/johann-hari/johann-hari-why-should-i-respect-these-oppressive-religions-1517789.html
The same 295(A) was now used by Shiv Sena against the Kerala boy. It has been used in the past against cricketer Ravi Shastri by Bajrang Dal when he had said about eating beef.
(http://cricketnext.in.com/news/ravi-shastri-in-beefeating-row/22447-13.html)
So to repeat the question again, can someone file an FIR against you if they think their religious sentiments were hurt by your or commenters words in any article related to hinduism or christianity or islam. Thanks for your response on this topic.
Atheist: I am trying to get more information on this but based on what I have read so far the answer to your question appears to be a “Yes” i.e. someone can file an FIR against me/a blogger if they feel/think that their religious sentiments have been hurt by my/a blogger’s (or a commentator’s) words in any article related to Hinduism, Christianity or Islam and if such words were deliberate, malicious and intended to outrage religious feelings.
The tricky bit (I feel) is determining what is/was deliberate and/or malicious…
The implications of this – as you have rightly said – are serious and potentially far-reaching.
More on this, hopefully soon.
Can other readers please share their thoughts too?
Hi Shantanu,
I am reposting here the comments I posted on my blog for the sake of others:
Once the legal case start then they may not be able to establish malicious intent when the case goes all the way through. But immediate non-bailable arrest without warrant and being charged with a criminal offense (not civil) before the court case is something I am not able to digest!! All this if someone’s religious feelings or public sentiments are hurt!!
In addition to editors of Statesman getting arrested for republishing the Independant article, look at the some other cases filed under 295(A):
– Ravi Shastri for saying that he ate a beef dish even though he’s Hindu.(http://therationalfool.blogspot.com/2006/12/bulls-biltong.html )
– Getting arrested for publishing a santa banta jokes online?(http://timesofindia.indiatimes.com/Cities/Mumbai/Sikhs_ask_cops_to_ban_Sardar_jokes_on_Net/articleshow/1776258.cms)
– Getting arrested and thrown in jail for 50 days for posting some images of Shivaji?(http://desicritics.org/2008/02/05/070202.php)
Bloggers need to be ready to react for such an event – resources-wise (financially or time). It looks like it is better to be wise than speak out. Freedom of speech is an illusion … especially when the notion of public religious sentiments are concerned.
The interpretation of what is deliberate or malicious seems very loose. I hope more people post their response or better still someone with legal background can throw more light into this matter.
@Atheist:
Section 295(A) is part of the fraudulent secularism foisted on us by Nehru and his ilk. Actually, Gandhi is probably more to blame for this state of affairs than Nehru. And, this is one of the reasons that Dr Ambedkar refused to include the word “secular” in our constitution.
Critical comment of any religion(s) should be covered by freedom of speech. But, in India, they have criminalised it – so, when people like you and me criticise religion, we should do it with the full awareness that a criminal complaint can be slapped under the “guise of hurting religious sentiment”. Such is the great republic of India.
Couple of points:
1. You can get bail for a non-bailable warrant, too, including anticipatory bail – the term is a misnomer. The difference lies in some procedures, I believe (not sure, but will check)
2. Our criminal code is based upon and drawn down from the code written by the british, which was used to keep control over Indian citizens ….. post-independence, our great politicians did not think it necessary to change the Criminal code, ab initio – why should they, after all, since they could now use it to persecute their enemies. This is one of the reasons that I have been advocating a complete overhaul of the criminal code, as part of our discussions on the Freedom Team.
3. The key thing about all of these warrants is not to get frightened but to engage a lawyer before hand, if you think you are writing “non-conventional” stuff. There are some lawyers that will take up such cases pro-bono – find them out.
Cheers
Hello Patriot,
Thanks for the information about non-bailable warrant. Here is a link which catches up with the history of 295(A):
http://jurisonline.in/2008/01/limitations-protectionism-article-191a-revisited/
—-
The background and history of section 295A of IPC which punishes insult to religion are interesting. It was enacted in 1927 after the judgment of the Lahore High Court in what is popularly known as the Rangila Rasool case.[27] A tract, Rangila Rasool, was published in which there were offensive references to the Prophet Mohammed’s personal life. The High Court took the view that the prosecution which was launched under section 153A was not legally sustainable because the writing could not cause enmity or hatred between different religious communities though it was certainly offensive to the Muslim community. There was an outcry from the Muslims. As well as an unreasonable demand about sacking Justice Dalip Singh who had delivered the judgment (he was, incidentally, a Christian), there was a plea for a change in the law.
The report of the Select Committee which dealt with the enactment of section 295A in the IPC is significant. The Committee emphasised that the essence of the offence is “that the insult to religion or the outrage to religious feelings must be the sole, or, primary, or at least the deliberate and conscious intention.â€[28] The Committee were impressed by an argument to the effect that an insult to a religion or to the religious beliefs of the followers of a religion might be inflicted in good faith by a writer with the object of facilitating some measure of social reform by administering such a shock to the followers of the religion as would ensure notice being taken of any criticism so made. We have therefore amplified the words ‘with deliberate intention’ by inserting reference to malice, and we think that the section which we have now evolved will be both comprehensive and at the same time of not too wide an application.
——
It is really ironic that now Muslims, Hindus (SS/Bajrang Dal) and Sikhs have used it for different reasons. The definitions of deliberate intent and malice are so loose.
If anyone reads the article on independent for which the editors of Statesman got arrested, he/she will see that it has no swear words and no different than the material you would find in any other blog (including this one).
So this applies not just to people who equally question all religious ideas (like atheists/agnostics) but also to people from religion A writing controversial stuff about religion B. If your words “hurt religious sentiments” then you can be arrested.
I hope people don’t ignore this as applicable only to atheists/agnostics. This is a very very serious issue. Just see how from previous examples how loosely it can be employed as a political/publicity tool.
Shantanu,
Please post your thoughts when you get any information on this topic. Can disclaimers be posted to reduce such complaints of hurt religious feelings based on one’s blog?
-HA
It would have been great if Indian courts had put their foot down the first time such an incident happened. But since minorities have been appeased (was there an incident before ‘The Satanic Verses’ being banned on the grounds of hurt religious sentiments?), that has opened the door for all other religious communities to be offended too – and who can blame them? Why deny them what is made available to others? Equality for all.
More re. SC’s stance that truth is no defence in a conetmpt of court proceedings:
See http://www.mainstreamweekly.net/article461.html which was written in 2007.
However, “Parliament has now intervened and radically changed the law by Act 6 of 2006 by amending Section 13 of the Contempt of Courts Act, 1971 which states — “Notwithstanding anything contained in any law for the time being in force … (b) the court may permit, in any proceedings for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bonafide†(http://indefenceofliberty.org/story.aspx?id=714&pubid=440).
If this happened in 2006, it is strange why the article published in 2007 does not refer to it. In any case, it seems the judiciary is still not convinced (http://www.hindu.com/fline/fl2420/stories/20071019502203200.htm).
I have often wondered if we in India truly understand the concept of free speech. Free speech is apparently guaranteed by our constitution although, with some qualifications . It can be somewhat curtailed by what people find offensive . Based on who is protesting, books can be banned and movies censored etc.
It seems that the citizens of India themselves don’t know what free speech is or if they do, they don’t consider it an important value.
Free speech is not only speech we find pleasant, amusing or in support of our dearly held ideals and beliefs; free speech also includes speech which challenges our beliefs, offends our sensibilities and angers us. When we only want speech that appeals to us, and when we seek to throttle and silence speech that offends us, we find that we will eventually lose our rights to all free speech.
Unfortunately, currently our Indian media also seems uninterested in raising the alarm to the dangers of losing this right.
Arun Shourie rightly points out in one of his books (I think it is “Indian Controversies”) that when books are banned to pander to a minority, then it becomes difficult to deny other special interest groups their demands.
It is funny that free speech can be curtailed if religious sensibilities are hurt. There is not a day that goes by that Barkha Dutt and NDTV doesn’t offend my religous or cultural sensibility. Should I then have the right to sue them?
I think we can all learn a lesson from President Bill Clinton when asked about the Danish Cartoon incident. He basically states that people have to learn to let go and ignore what other’s say. After all, as kids say “Sticks and stones may break my bones, but words can never hurt me”.
@ Atheist: I think disclaimers are generally helpful but of course they are not bullet-proof.
Still collecting some views on this…
Will update as I learn more…
The way our constitution is drafted, it is faulty to begin with. The premise is that we have only those rights that have been bestowed by the constitution. The right to freedom of speech and expression is provided with so many caveats that practical purposes the state decides what you can say or not. Following from it other laws are used to silencing the voice. Now, on the other hand, for e.g., US has a freedom of expression clause drafted in the manner that the freedom exists and that the government can only put restrictions only for certain purposes, the net result is that government cannot (except for child pronography) regulate the content but only its delivery and that too in the public interest such as while pronography cannot be banned but one cannot put it up in a public square. This important distinction between the US and Indian constitutions goes to the heart of many issues. For eg, there is not concept of hurting someone’s feeling with your opinion in the US but it is a common occurrence here in India. This does not however remove the risk of defamation or libel if one were to publish something which is not true. The common law applies here. Whether on the internet or otherwise, one has to responsible for what one says. Truth is a defence is any such cases.
Well said, Harapriya.
I’m trying to understand this issue – please add/correct:
1. There are laws against defamation of parties based on certain (religious, other) grounds.
2. Shiv Sena, on the basis of these laws, filed charges against Ajith.
3. Ajith tried to have those charges dismissed.
4. Supreme Court refused to dismiss those charges.
I’m not sure how Supreme Court’s decision is an assault on freedom of expression – it just implies that Ajith has to appear and answer those charges in the court, and if the judges find that those charges by Shiv Sena don’t apply, then those charges will be dismissed. Ajith’s petition to the Supreme Court seems to have tried to bypass the law – in the sense, that the law doesn’t apply to comments/contents on his blog.
The problem seems to be the specific laws in the book on the basis of which Shiv Sena filed those charges, and not Supreme Court’s decision to not dismiss those charges. What’s of concern is the implication if the court finds those charges valid and punishes Ajith, but to imply that bloggers are above such laws seems a bit problematic to me.
Perhaps I am missing a piece from the picture?
Please read this:
http://www.gauravonomics.com/blog/shiv-senas-orkut-campaign-the-limits-to-freedom-of-expression-in-an-intolerant-india/
At the very least, we should see this case as part of Mumbai and Pune police’s crusade against inflammatory Orkut communities. Sixteen Orkut users have been arrested in the last two years on charges of criminal intimidation and hurting religious sentiments, and one of them spent 50 days in police custody based on a mistake in identifying an IP address!
@Patriot. Thanks. Check out my blog at
armchair-punditry.blogspot.com and the blog on VHP.
One more curious case of “hurt religious sentiments”. Thankfully no arrests here.
http://timesofindia.indiatimes.com/India/Ban-elephant-as-an-election-symbol-Hindu-organisations-to-EC/rssarticleshow/4200664.cms
@kaffir
yes, I agree with you. That is my understanding also, and that is why I was little less concerned. However, that does not mean we can condone such lawsuits which curb our basic rights.
In fact, if I read the report correctly, the police brought charges only after the shiv sainiks started rampaging cyber -cafes and threatened them to block orkut (which i guess led to the google execs handing over details of the orkut user). It’s curious why the supreme court did not take such actions into account. So basically anyone who can afford to hire goons and create havoc can arm-twist the law to curb others’ fundamental rights? It seems more like might is right in this case. Can atheists like me file a lawsuit for being offended by displays of religious symbols ? Can I file a lawsuit against the Shiv sena for offending my non-religious sensibilities? I don’t think so.
Btw, the very first comment on this page about hindu jagurti being able to shut down an anti-HJS site is disconcerting to me. Are ISPs legally allowed to shutter sites that receive complaints from others claiming hurt sentiments ? I guess that depends on the terms and conditions but can any legal action be taken to prevent ISPs from shutting down sites. Has it ever happened in India or the US? What about people who host their blogs on free blog providers like wordpress or blogger ?
Here is what I found on wordpress’s termsof service
http://en.wordpress.com/tos/
“the Content is not libelous or defamatory (more info on what that means), does not contain threats or incite violence towards individuals or entities, and does not violate the privacy or publicity rights of any third party;”
and here is a link to online defamation law at blogger’s legal rights
http://www.eff.org/issues/bloggers/legal/liability/defamation
Kaffir, Harpriya, Atheist and Nastik: Thanks for your links and thoughts…I will post a comment on this later today…(once I have fully woken up!)
Thanks.
@ Kaffir (#17): I think a few points need elaboration…
You are right that Shiv Sena felt aggrieved by certain comments on a group moderated (?) by Ajith.
However instead of gunning after the author(s) of these comments, it sued Ajith (the owner/moderator) of the group on the premise that as a moderator/owner, he is equally (or solely) responsible for the content on his group.
What this translates into is this: If you write something that is deemed hateful by someone on this blog, instead of you being sued, I – as the blog owner – will be held equally (or solely) responsible for the hurt cause due to the publication of such comment(s).
This is where the discussion gets interesting because it potentially opens the door for site moderators/blog owners to be sued as well (which is – if I understand correctly – not the case in the US).
Even at the level of common sense, it is hard to apportion equal (or sole) blame for hateful content on the publisher (rather than the author).
I am not aware of the details of Ajith’s petition but the key question is can the publisher/blog owner be sued for comments on his/her blog?
I agree that bloggers cannot (and should not) consider themselves above the law but to harass bloggers for comments left on their site(s) by others/readers seems a bit heavy-handed to me.
What do you think?
***
All: There is fine line between “offensive content” and hateful content (or malicious content) which appears to be getting blurred…This concerns me even more.
Still waiting on some legal opinion.
Meanwhile from a post on this issue from Law and Other Things:
See also this post on Kafila
***
@ Nastik: Thanks for the EFF link…It is very useful but (I am afraid) unlikely to be taken into consideration in India.
This is an extract from Harapriya’s comments on a separate post.
I am including it here as a placeholder (and a reminder) for me to respond later…(am currently travelling with only intermitten internet access and hence there may be some delay)
*** Comment by K Harapriya ***
@Shantanu. I realize that one has to be careful what one says . However I have a quick question–which country’s laws apply here? Where you reside, where I reside or where the person who gets offended by comments on the web resides? I would like some clarification. Thanks.
Claim of defamation is a commonly used threat against journalists and bloggers.
In India, the old British statutes of criminal defamation continue to exist. The modern thinking is that civil remedies for defamation are adequate. There is no need to put someone in the hands of police and behind the bars for having spoken or written defamatory words.
Now, here is a hot recent news from Maldives. Maldives has decriminalised defamation. It is no longer a criminal offense.
IFEX.ORG: Maldives decriminalises defamation
This seems to be an effort driven by the UN. It is likely that other countries will follow suit. Singapore has had the Attorney General stepping in to defuse some criminal defamation suits involving private parties. So this is a trend and you should be thankful that the UN is driving it, and India will soon have to join the trend.
However, the Indian Police continue to live in the dark ages. There are several examples, one is how Indian Police (unsuccessfully) tried to stop a US Citizen from posting Mohamed cartoons: Notice to US Citizen from Mumbai Police. There are other instances of Indian Police meddling in Orkut and blogspot communities.
There should be a movement from Indian bloggers to follow the example of Maldives and other progressive countries in matters of defamation.
Thanks A. I was not aware of the news re. Maldives…Also the ham-handed attempt by the Cyber Cell re. the cartoons
From Free to criticize religions but not with hate: Court:
MUMBAI: In a significant ruling, a three-judge bench of the Bombay high court on Wednesday held that in India, criticism of any religion — be it Islam, Hinduism, Christianity or any other — is permissible under the fundamental right to freedom of speech and that a book cannot be banned on those grounds alone.
However, the criticism must be bona fide or academic, said the court…
Delivering the landmark verdict on Wednesday, the court …held that, “in our country, everything is open to criticism and religion is no exception. Freedom of expression covers criticism of religion and no person can be sensitive about it.”
…
A person may have a right to say a particular religion is “not secular”, said the HC, but it cautioned against rabid contents “reeking of hatred for a particular community” and “malafide exercise to stir communal passions”.
So, if any religious text (say belonging to a certain religion X) professes hatred for believers of other religions (non-X), or towards certain sects (held to be “within X”), will HC ban such a religious text ?
Would be interesting to know.
@ reader’s comment.
your query would be answered by the Culcutta Quran petition. The wikipedia link is given below. Draw your own conclusions.
Cheers!!!
Sridhar
http://en.wikipedia.org/wiki/The_Calcutta_Quran_Petition
Bloggers are vulnerable to legal approaches. The blogger(author) could be placed on notice for comments made by readers (potential liability for comments).
The following is recorded under “common law” jurisdiction which means India included:
Education Provider vs bloggers
The “Anton Piller” is a court issued search order in British derived legal systems… a most powerful pre-action discovery aid.
A brief excerpt from ‘I will implicate Sonia Gandhi in the 2G case’ by Sheela Bhatt (February 12, 2011):
He (Dr Subramanian Swamy) tells us, “There is no defamation law for a public person. I have won all the cases filed against me. Most people in political life are ignorant they don’t know anything they just sit in drawing rooms and make guesses they go to cocktail parties and gossip when Jayalalitha filed hundreds of defamation cases against me, I came to the Supreme Court and read the law.
The United States Supreme Court in 1964 has given a judgment that if a person in public life decides to sue for defamation then the onus is on him to prove that the charges levelled are false. Normally, if you are not in public life the defamer has to prove that charges are true. Here the burden is reversed.
Recently, Karunanidhi issued me a notice I tore it up his notice in public before the cameras and threw it in dustbin.”
He adds, “The law protects me. This is in the public domain out of ignorance people keep giving opinions and discourage you. I speak bluntly. I get irritated to see people’s ignorance. I don’t speak diplomatically.”
Excerpts from How ‘private-censorship’ is making online content disappear, quietly by Pallavi Polanki Dec 15, 2011
..
In what should deeply worry users of the Internet, an under-cover investigation by an Internet research company reveals how privately administered censorship – prescribed under the IT rules to intermediaries to limit their liability – is having a “chilling effect on free speech.†The yet-t0-be published investigative report by Bangalore-based Centre for Internet and Society (CIS) is available with Firstpost.
As part of the under-cover investigation a CIS researcher sent ‘takedown notices’ (requests to remove content online) to seven major websites quoting liberally from the IT rules.
The seven websites (the draft report does not name them) comprised two search engines, an online shopping portal, a website which disseminates news, two websites that disseminate news and allows user-generated comments to be published below articles, a website which offers multiple services such as news, search and shopping.
Note that each of the seven websites is an intermediary – merely receiving, storing or transmitting information. Disturbingly, of the seven websites to which takedown notices were sent, “six over-complied despite there being apparent flaws in the notices.â€
…
The terms such as ‘objectionable’, ‘hateful’, ‘disparaging’ and ‘defamatory’ are not defined anywhere in the Rules.
The takedown notice did not state the cause of action or establish the author of the takedown notice as an affected person. “After approximately 72 hours, it was noticed that instead of removing just the one comment as identified in the takedown notice, Intermediary-B had removed all 15 comments published below the newspaper article,†states draft report.
…
Should they not have acted more responsibly by rejecting flawed takedown notices and defended the freedom of expression of their users?
Speaking to Firstpost, Pranesh Prakash, Programme Manager, CIS, said, “They should have. Google’s self-reported compliance rate of 51 per cent shows that they are probably over-stepping the law in order to appease the Indian government’s requests. Given that 71 percent of the requests were for ‘government criticism’, their removal of 51 percent of the material indicates that they removed at least some of the requests they received for ‘government criticism’. While it is impossible to say more without having greater details about the requests, I believe it is fair to say that requests for removal of ‘government criticism’ should generally not be acted upon.â€
A brief excerpt from a recent article in WSJ:
The protections for Internet firms are fairly clear in Section 79 of the 2008 law, known as India’s I.T. Act Amendments. An “intermediary,†or Internet firm, “shall not be liable for any third party information, data or communication link.†There are several caveats, of course – the company can’t initiate or solicit the harmful post and can’t coordinate with the offender. Under the rules that India put into place last April to implement the act, companies must remove material that is “grossly harmful, harassing, blasphemous, defamatory†as well as anything “ethnically objectionable, disparaging†or “otherwise unlawful in any manner.â€
Internet companies and civil society advocates weren’t happy with those guidelines, finding them far too draconian and subjective. But at least the law required that the companies be notified of such content and be given a chance to remove it within 36 hours. (The punishments for not removing offensive content within 36 hours would depend on the underlying laws governing that content in India; in general, prison time and fines would both be possible.
Useful piece of information (emphasis added):
New Delhi A Delhi court has refused to direct the Delhi Police to register an FIR against Anna Hazare and his team members for allegedly disrespecting the national flag during their anti-graft protest in August 2011.
“In the complaint, nothing has been mentioned or submitted during arguments as to why FIR should be registered in the matter,” Metropolitan Magistrate Anil Kumar said on a private complaint for registration of FIR against Team Anna.
“I am of the considered opinion that if the entire evidence is within the reach of the complainant and no custodial interrogation or discovery of any fact is required then registration of FIR is not required to be ordered,” he added
http://ibnlive.in.com/news/court-rejects-plea-for-fir-against-anna-team/228607-3.html
Somewhat related: India sets up nationwide snooping programme to tap your emails, phones Reuters | Jun 20, 2013.
Placing this here for the record: Defamation litigation: a survivor’s kit By Subramanian Swamy. From 2004 but still relevant, I think!
Some tweets on Defamation Law by â€@Spread_Law (Pl read in reverse order; i.e. the one at the bottom is the first tweet):
No action under #DefamationLaw can be taken if a person is making a comment in good faith believing it to be true.
No action under #DefamationLaw can be taken against a person who is making a fair comment in public interest. This includes criticism
No action under #DefamationLaw can be taken against a person if he is speaking the truth. Truth is the biggest defence under defamation law
Following tweets on various grounds on which a person can claim his defence under #DefamationLaw
1. Statement must be defamatory 2 It must be false 3 Statement must refer to the person aggrieved 4 Statement must be communicated to others
Following tweets on Essential Elements of Defamation #DefamationLaw
Section 499 of Indian Penal Code deals with defamation. In this case, person seeking action must prove that the accused intended to defame
Person defamed can seek remedy both under Civil and Criminal law. Can file civil suit for damages or move to court for criminal action
Defamation can b Libel or Slander.Libel is when a person is defamed by way of writing, printing,picture etc. whereas Slander is spoken words
Defamation is publication of the false statement by a person which lowers the reputation of another in the eyes of others