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Supreme Court on Liability of Bloggers

February 24, 2009

While I still dont have a copy of the order/ judgment, there have been news reports about the Supreme Court holding that a person who starts a blog/ community page cannot claim that it was a community page and not meant for public consumption. I will update this the moment I get hold of the order, but just wanted to flag this for the moment, because of the serious implications that it can have. While bloggers and web content have always been subject to the same rules that determine other forms of publication, there are a number of issues and questions involved in the liability of online content, including whether the author of a blog can be held liable for comments / posts by others.

This for instance could be  dependent on interpretation of ‘publishes’ in Sec. 499 of the IPC.

The petition was for quashing the criminal proceedings against him, and this is very common in defamation cases. When someone files a defamation case to harass you, one of the remedies is to approach the high court under Sec. 482 of the Code of Criminal Procedure where the complaint can be quashed if there is no prima facie case.

The principles, relevant to our purpose are :

(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.

(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.

So in a case of defamation, they will go into questions of whether or not a prima facie case exists under Sec. 499.

The DNA reports that the order holds that he can be liable for comments by others, but we will need to see the order before we can say this is conclusive.

Just for information, the sections that he has been charged with are primarily for defamation and outraging of religious sentiment

499.     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, except in the cases hereinafter expected, of defame that person.

295A. Deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs: — Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of  2[citizens of India], 3[by words, either spoken or written, or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to 4[three years], or with fine, or with both.]

From Times of India

A 19-year-old blogger’s case could forever change the ground rules of blogging. Bloggers may no longer express their uninhibited views on everything under the sun, for the Supreme Court said they may face libel and even prosecution for the blog content.

It will no longer be safe to start a blog and invite others to register their raunchy, caustic and even abusive comments on an issue while seeking protection behind the disclaimer — views expressed on the blog are that of the writers.

This chilling warning emerged as a 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.

Petitioner Ajith D had started a community on Orkut against Shiv Sena. In this community, there were several posts and discussions by anonymous persons who alleged that Shiv Sena was trying to divide the country on region and caste basis.

Reacting to these posts, the Shiv Sena youth wing’s state secretary registered a criminal complaint at Thane police station in August 2008 based on which FIR was registered against Ajith under Sections 506 and 295A pertaining to hurting public sentiment.

After getting anticipatory bail from Kerala HC, Ajith moved the Supreme Court through counsel Jogy Scaria seeking quashing of the criminal complaint on the ground that the blog contents were restricted to communication within the community and did not have defamation value. He also pleaded that there was threat to his life if he appeared in a Maharashtra court.

A computer science student, Ajith pleaded that the comments made on the blog were mere exercise of their fundamental right to freedom of expression and speech and could not be treated as an offence by police.

Unimpressed, the Bench said, “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.”

17 Comments leave one →
  1. February 24, 2009 3:35 PM

    shouldn’t fair comment apply? if so, how bad is this news?

    • Lawrence Liang permalink
      February 24, 2009 5:03 PM

      Its never about the substantive merits of the case, more about abuse of process, file complaints so that you keep running around defending yourself. Its now called the Sena Hussain gambit

  2. February 25, 2009 3:05 AM

    This is frightening, i’m halfway around the world but this could set a bad precedent. i hope Ajith is not penalized for allowing people to express their views, legitimate it seems, i mean what next!?

  3. Sohail Hashmi permalink
    February 25, 2009 11:16 PM

    An aside on this debate is the alacrity with which all manner of outfits become spokespersons for an entire community, religion, state or even the nation.

    can’t one legally question the claims of this or that mahant, self styled guru, mullah, a small time politician, an aspiring local neta and what have you to speak on behalf of a much larger set of people.

    if my sentiments, insignificant as they are, are purportedly hurt by an act or utterance of an individual, i would be within my right to take recourse to legal redress, but why do courts take cognisance of such pleas, when the appear in the garb of a collective voice, ( who has given them the right to speak for the collective) when all they are trying to do is to air their own sense of being hurt

  4. February 25, 2009 11:46 PM

    The judgement is not about the defamation case itself. It was a request to quash the case in Thane, because Ajith didn’t think that he needed to defend himself. The SC has said – oh no, you do need to defend yourself, and you as a moderator of a public community may be held responsible (the “may be” part will be decided by the Thane court)

    So the judgement on whether there was defamatiion (Libel) or a violation of 295a will be dependent on the Thane court.

    Ajith has also said he is afraid of going to Thane as he’s a student and will be targeted. If he files a request to transfer, the SC or even the HC is likely to consider and okay a transfer.

    But yes, while the order itself may be ok, what the judge said is dangerous – that a moderator MAY be held liable for the views of a community.

  5. anuj bhuwania permalink
    February 27, 2009 12:30 AM

    Just wanted to clarify that in a case like this, there is
    no judgment. It was a fresh writ petition listed for the
    first time on monday 23rd feb in CJI’s court. The petition was dismissed in the admission stage itself and Notice was not issued. So there
    will only be a one-line order saying “petition dismissed” or something
    like that. And obviously, there being no judgment, this will not serve as legal precedent for other such cases .
    I was there in court when this was being argued. The CJI’s oral comments have appeared extensively in the press, and his remarks on the nature of internet, are quite notable.
    The supreme court is certainly aware of the menace of such criminal defamation cases. In fact, I was present during a long session of interaction between the supreme court judges and the media last year (organised at the behest of the CJI himself), where a principal complaint of the journalists was regarding such vexatious criminal cases in far-off places.
    On another note, may be, if it was a case asking for transfer of the proceedings to another state, instead of quashing the proceedings itself, it might have fared a different fate. Or so one hopes.

  6. February 27, 2009 1:26 AM

    Aqseer: I concur. Lawrence: Don’t you think the point Aqseer is making is about the spirit of the law and the one you are making is about the letter; surely, one doesn’t have to dsiagree with the spirit of defamation law to point out the problems with its misuse?

    Deepak: I wonder how valid is Ajith’s fear of going to Thane. I wonder if a court will buy that.

    Anuj: That’s a very important note. It’s amazing how legal reportage misinforms rather than informs thanks to editors’ pressure to sex up every small off-the-cuff remark by judges. This was seen a lot in the Mandal II case recently. The ToI article Lawrence quotes in full does not use the word “order” or “judgement” at all. Note the clever language: “A 19-year-old blogger’s case could forever change the ground rules of blogging.” ‘Could’ is the operative word here. Which means it could not. Just as well.

    Lawrnce: The four criteria you quote seem fair enough; surely the CJI must have aplied them before dismissing the petition to quash the case in Thane?

  7. Aditya Nigam permalink*
    February 27, 2009 10:33 AM

    Thanks Anuj for clarifying this. BTW, you might like to see this link in a Hindi blog (teesra khamba) which refers to your comment at some length.

  8. anuj bhuwania permalink
    February 28, 2009 5:03 PM

    Wow! Internet is amazing. Thanks Aditya.

  9. March 5, 2009 11:22 PM

    Hello, I am the administrator of the Bloguerlaw blog devoted to legal analysis of the blogosphere. It would be very interesting if we could read the sentence to comment on the post. It would be possible. Thank you.

  10. Equadia permalink
    May 4, 2009 8:19 PM

    ehh.. really like it

  11. shakil siddiqui permalink
    August 6, 2009 12:22 AM

    Honble SC verdict is to be respected,however Ajith should come forward and contest the case so that bloggers can know their restrictions.Anonymous comments can be ignored and a healthy debate on a subject sould be encouraged.

  12. abeer permalink
    March 16, 2011 12:04 PM

    Hi Lawrence,
    I am a law student from Mumbai and am unable to find a copy of this judgment. Can you please guide me to get a copy of this Judgment.

Trackbacks

  1. Global Voices Online » India: Court Ruling Against Bloggers
  2. India: Court Ruling Against Bloggers | Internet Filtering Monitor
  3. Here’s what India’s Communications and IT Minister thinks about online freedom « Kafila
  4. Updated: Get Ready for India’s Blogger Control Act « Kafila

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