Supreme Court on Liability of Bloggers
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.”