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For whom the troll tolls: Social Media and Criminal Defamation

It was a quiet and relaxed day for me after hectic work for a few days.  Mobile phone and laptop also got the much needed rest as I ventured out for shopping and a movie with family. Only towards late evening, while I was on my way to the terminal to travel to another state, I saw an alert from one of the fellow bloggers about a tweet circulating since morning where I have been quoted. I could read the post only after I started my journey. To my surprise I found that someone has posted a tweet in Hindi along with my photograph. The person who done it wanted to project that Shri Arvind Kejriwal, Hon Chief Minister of Delhi didn’t ‘work’ in IRS. The tweet said that I have made some comments about the work culture of Shri Arvind Kejriwal (which would put him in poor light), when he was working in the Civil Services. To give an impression of genuineness, the person had picked up one of my photographs from Google and attached to his post. Within hours, hundreds of persons shared it spicing up with their own comments without realizing that it was absolutely false information.

The moment I got access to the internet in my laptop, I responded to the abusive, false and defamatory post that could tarnish the reputation of a political leader. I also warned all those people who share the false post in Facebook and WhatsApp. I posted as follows:

Sibichen Mathew
Dear All
 It has come to my notice that thousands of persons are sharing an incorrect, defaming and abusive tweet originated from @malangmistry misusing my photo and tarnishing the reputation of Shri Arvind Kejriwal, Hon CM of Delhi. I do not know anything about his past work culture as I have never worked along with him. A complaint has been already filed in this regard. Kindly avoid sharing that post appearing in Facebook, Whatsapp, Twitter and other social media. Please report it as malicious. Those who share that post are warned that such propagation would invite adverse legal action. Please help me in stopping the propagation of such false message by criminal minds in case you see that in the social media. The person who posted the original tweet has given an apology.

Apology follows

After seeing my strong response, the person who created the content apologized posting the following tweet.
 “I am extremely sorry sir to bother you. Already deleted the tweet. Sorry for the inconvenience. That was just for the troll”. (Emphasis added by me)

But what is the use of tendering an apology when the abusive content created by the person has reached thousands of people who might believe it to be true?

What does he mean by ‘troll’? 

Though in its noun form it means an ugly cave-dwelling creature, in internet language it means the following as per Urban Dictionary.
‘One who posts a deliberately provocative message to a newsgroup or message board with the intention of causing maximum disruption and argument.
A person who, on a message forum of some type, attacks and flames other members of the forum for any of a number of reasons such as rank, previous disagreements, sex, status, etc.
A troll usually flames threads without staying on topic, unlike a "Flamer" who flames a thread because he/she disagrees with the content of the thread.
In its noun form it signifies a member of an internet forum who continually harangues and harasses others. Someone with nothing worthwhile to add to a certain conversation, but rather continually threadjacks or changes the subject, as well as thinks every member of the forum is talking about them and only them. Trolls often go by multiple names to circumvent getting banned.’ (Source)

From the above it is clear that the person who posted the content was doing it deliberately not only to harm someone but also to ensure that the false message is spread to maximum number of people. To circumvent banning, the troll took different forms under different names in various social media. The perpetrators of the crime thus knew very well the serious consequences of spreading such false messages misusing someone else’s photo to tarnish the reputation. For whom the troll tolls? What is the gain? Many times there are organized groups behind these to derive commercial, social or political mileage.

Helplessness showed by Cyber Cell stating that Section 66A is not in statue!

This incident is a fit case for criminal action and the local cyber police was contacted to prefer a complaint. Though they accepted the complaint, I was told about the lack of teeth in the Information Technology Act of India (IT Act) to tackle crimes like this after the Hon Supreme Court struck down section 66A of the IT Act. At present, skeletal officials in the Cyber Crime cells focus on cyber-financial crimes, on priority.

When the Supreme Court struck down the Section 66A of the Information Technology, many celebrated it by shouting that the right to free speech has been finally protected, without ever realizing that they or their close ones could be victims of crimes that could be tackled with that section. 
Instead of striking down the section altogether, it would have been better if it was modified to mitigate any draconian consequences of it in the light of a few past incidents by removing certain words like ‘annoyance’, ‘ill will’ etc so that the case will not be booked for trivial, harmless acts.

Recent landmark decision of the Supreme Court

It is an interesting coincidence that, just after three days of the incident happened in my case, the apex court has given a land mark decision that seeks to protect the reputation of a person. On a batch of petition filed by BJP leader Subramanian Swamy,  Congress Vice President Rahul Gandhi and Delhi Chief Minister Arvind Kejriwal who challenged the constitutional validity of Section 499 (Criminal Defamation) and Section 500 (Punishment for Criminal Defamation), the Supreme Court upheld the validity of these sections. The court held that "Right to free speech is not absolute. It does not mean freedom to hurt another's reputation which is protected under Article 21 of the Constitution".  This decision has underscored the necessity of authorities to render speedy justice in the cases filed on offences related to criminal defamation. 

Attorney General Mukul Rohatgi in his submission to the apex court stated that 'reputation of a person is neither metaphysical nor a property in terms of mundane assets but an integral part of his sublime frame and a dent in it is a rupture of a person’s dignity, negates and infringes fundamental values of citizenry right. Thus viewed, the right 36 enshrined under Article 19(1)(a) cannot allowed to brush away the right engrafted under Article 21, but there has to be balancing of rights'.

Supreme Court held as follows on May 13, 2016:
One cannot be unmindful that right to freedom of speech and expression is a highly valued and cherished right but the Constitution conceives of reasonable restriction. In that context criminal defamation which is in existence in the form of Sections 499 and 500 IPC is not a restriction on free speech that can be characterized as disproportionate. Right to free speech cannot mean that a citizen can defame the other. Protection of reputation is a fundamental right. It is also a human right. Cumulatively it serves the social interest. (See the full judgment here)

Social media and criminality

In an era of vibrant social media, its increasing popularity coupled wth irresponsible use in an unregulated environment result in not only unlawful activities but also actions that result in harming the reputation of people. As per section 79(3) of the Information Technology Act, government or its agency can ask the website intermediary to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner. Also as per section 69A, the government can block access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource, if they are unlawful.

However, in cases were individual’s reputation is intentionally harmed by posting content that is false, the concerned individual has the right to seek support of the police and judicial remedy directly. However, cyber cells of police departments are not equipped with competent personnel and resources. They also show helplessness stating that section 66A is no longer in the statute. In the light of the apex court judgment, it is necessary that police authorities and other agencies take cognizance of the complaints related to criminal defamation invoking provisions of IPC more seriously and ensure early redressal.

During the course of hearing in the above cited case filed by Subramanian Swamy and others, it was reported to the bench comprising Justice Dipak Misra and Justice Prafulla C. Pant that in India, unlike in other countries, it takes 10 to 20 years to decide the cases filed against criminal defamation. It is true that there is a huge back log in disposing various types of cases in Indian courts. But that is not a justification for not having an important judicial remedy.

Another argument against the criminial defamation provisions is that they are anachronistic, colonial and irrelevant at present. If that is so, the message they are conveying is that in post colonial world, people can speak and write whatever they want in the name of free speech. Yes, people can use the freedom guaranteed under Article 19 of the constitution. But they should not push content that they know to be false and defaming. In that case, it is a crime and the investigation, trial and punishment should follow.

We are proud of both our print and televison media because of the sufficient restraint they have showed in delivering content. We also have a robust regulatory environment and ombudsman system both in print and in visual media. But the social media is unregulated and any person can be a publisher. It is dynamic and the content can  be manipulated anytime from anywhere using and misusing technology by unidentifiable persons. Thus any false and malicious content can go unchecked and can become viral in minutes. This has serious consequences for individuals and could also disturb the peace in society.

Incidents that attract the provisions of criminal defamation have become rampant and many go unreported because the victims are discouraged to pursue the cases citing the legal and procedural complexity and the inordinate delay in redressing the complaints. Sections 499 and 500 of IPC should continue as effective statutes to protect the ordinary victims. It can no longer be seen as scandalum magnatum - one that aimed to protect the reputation of lords and aristocrats. I wish the enforcement agencies and courts give equal priority to secure one’s reputation as they do for their life and wealth.

Views are personal.Comments welcome.

                                                                        © Sibichen K Mathew

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