The use of social media has revolutionized the way people interact with each other and the way information is shared and accessed. This ease of communication has given way much freedom for people to interact without any hindrances. Internet and social media have definitely made lives better and more connected than ever. However, the onset of these two things has also given rise to the number of libelous allegations because of the increase of digital publications of defamatory statements. The number of trolls and the people who misuse the information in the wrong ways has been ever increasing.
Generally, the victims of social media defamation may seek to sue the host or the internet service provider of the website that posted the defamatory statement about the victim. The reason behind suing the internet service provider is the philosophy of deep pockets. This implies that the internet service providers or website hosts are presumed to have more money and hence will be in a better position to pay the claims. However, in the United States, the Communications Decency Act has specifically exempted internet service providers from most of the defamation claims.
The UK Supreme Court in a recent case, Stocker v. Stocker, considered the question of whether social media as a casual mode of communication brings with it a different kind of ordinary, reasonable reader? The Court observed the following:
The fact that this was a Facebook post is critical. The advent of the 21st century has brought with it a new class of reader: the social media user. The judge tasked with deciding how a Facebook post or a tweet on Twitter would be interpreted by a social media user must keep in mind the way in which such postings and tweets are made and read. Readers of Facebook posts do not subject them to close analysis. They do not have someone by their side pointing out the possible meanings that might, theoretically, be given to the post.
This decision is a sensible development of the standard of ‘ordinary, reasonable reader’, given the ambiguous nature of social media interaction.
In New Zealand, the host or creator of an online page (example: A Facebook page) may be held liable for statements posted on their page by someone unknown to the host. The reason that New Zealand upholds this policy is because of the very basic idea that the host holds all the power and thus can control all the contents of the page he/she has created. The idea of ‘host responsibility’ is further emphasized with the existence of features on social media sites such as Facebook that notify the host as soon as someone posts, publishes or displays something on the page. This immediately gives the host the opportunity to handle and deal with any potentially defamatory sentences. The host may be held liable if such potential defamatory content is not removed from the internet within a reasonable amount of time.
Chapter XXI of the Indian Penal Code deals with defamation in India. Section 499 of the Indian Penal Code,1860 states that a person who uses some words spoken or intended to be read, by signs or visible representation to make or publish any imputation about a person in order to harm their reputation is guilty of defamation in India.
Section 500 of the IPC states that a person who is liable under Section 499 would be punished with simple imprisonment for up to 2 years, with fine or both. Within the meaning of publication, posting any defamatory statement on a social media network, website, forum or bulletin board is also considered as defamation in India.
Section 66A of the Information Technology Act, 2000 was quashed by the Supreme Court of India. The section stated that sending any ‘offensive’ message to a computer, mobile or tablet is a crime, however, the meaning of the word ‘offensive’ remained unclear. The Government started using the provision to suppress people’s freedom of speech and expression.
In the case of Shreya Singhal v. Union of India, Two girls were arrested by the Mumbai Police in 2012 for posting their comments on the death of Shiv Sena Bal Thackery’s on Facebook. The case was filed against the police for it was felt that police had abused the power they had in hand by invoking Section 66A of the Information Technology Act, 2000 and contended that the freedom of speech and expression was violated. The SC agreed with the petitioners that none of the grounds contained in Article 19(2) were capable of being able invoked as legitimate defenses to the validity of Section 66A of the Information Technology, 2000.
In the case of Clay Corporation v Colter, a car dealer terminated an employee with cancer for having inappropriate relationships with other employees. The employee’s manager was aware of her condition at the time of recruitment. After the employee was terminated, her brothers started aggressive social media campaigns on platforms like Facebook, persuading people to prevent buying and making deals with a company that discriminates against people who have cancer quoting their sister. The car dealer filed a defamation suit against the brothers for having interfered with prospective business opportunities. The Court held that the statements published by the brothers had no evidentiary or factual support and that they had to pay damages for severely and adversely affecting the dealer’s business.
In the case of Jack Munroe v. Katie Hopkins, the petitioner Ms. Munroe, a transgender chef, and a food blogger, alleged defamation against defendant journalist Ms. Hopkins in respect of two tweets out of which one was in respect of the vandalization of the memorials commemorated in reverence to the women who took part in World War II and the indulgence of the plaintiff in this vandalization. A feud took place between the two over the social media platform. The High Court of England and Wales found the defendant to be liable for defamation and ordered her to pay damages.
In the case of Pritchard v. Van Nes, the plaintiff, Mr. Pritchard a school teacher, and the defendant, Ms. Van Nes, were neighbors who clashed on many occasions. The plaintiff requested the defendant to turn off the backyard waterfalls because it disturbed his family’s sleep during the night to which the defendant failed to fulfill the request. To document the madness, the plaintiff took photographs and videos using his smart-phone. This sent Ms. Van Nes into a rage and she took to her Facebook page to vent. The insinuation that defendants behaved inappropriately by taking pictures of her family including her daughters was made explicitly and accused the plaintiff to be a pedophile. As a teacher, the accusation of pedophilia is especially damaging to his confidence and led only to negative gossip and social disaster amongst neighbors and parents of students at his school. The Court found Ms. Van Nes was liable for her defamatory comments pointing out that her comments were potentially viewed by all her 2,059 Facebook friends, as well as the friends of those friends. Ms. Van Nes’ privacy settings on Facebook allowed her defamatory post to be potentially viewed by the entire Facebook universe as her profile wall was completely public.
In the case of Isparta v. Richter, a South African Court awarded damages to the plaintiff for the defamatory comments made on Facebook about the defendant. The questions that confronted the judge were whether the alleged defamatory statements did indeed relate to the plaintiff and whether the comments, individually or collectively, could be considered defamatory. The issue of whether the “tagging” of another user of Facebook makes that user liable for the defamatory comments of the tagger is also addressed in the case.
In this era of advanced use of technology, crimes also find different means of creeping into the system. With care and caution, these crimes need to be strictly addressed.