When was the last time your fingers ached to type out a blog post with no-holds-barred criticism? Did you feel an urge to lace your post with abusive language because the incident shook you up so badly, you almost lost your temper? Whatever be the issue, make sure you have sufficient backing of data for your view, be it a technical report or even media clippings, or else your post might invitate a legal notice.
As a medium of unbridled expression of ideas and criticism, blogs were heralded as the ultimate venue to express individual and group ideas. The seemingly independent comments are not that free — blog posts are subject to libel.
Blogs came to the limelight as it helped readers express their comments. Often, comments on the incidents were from the person directly involved or those who witnessed a procedure. Unlike traditional media, the comments were not edited and got feedback from the readers directly. When a blogger, often biased or with lack of right information, publicly offends the interests of a person or firm by churning out posts, he becomes susceptible to defamation charges. Abusive language adds fire to the fury.
Wikipedia has an entire section to list defamation cases against bloggers. "Several cases against bloggers have been brought before the national courts concerning issues of defamation. The courts have returned with mixed verdicts," the page states. According to Blog Herald, there are 1.2 million registered bloggers in India. A study posted in WATBlog.com says 14% of the registered bloggers actively update their blogs with regular posts. Of the 21.4 million net users in India, a staggering 85% (about 18 million people) regularly check blogs, says data compiled by online research solutions consultancy JuxtConsult. Though lesser in number in the global scenario, India has instances where bloggers had to face legal notice for defamatory posts.
Recently, there were reports on an IBM employee Gaurav Sabnis resigning his job, allegedly for a blog post questioning the validity of MBAs offered by IIPM, who was a major user of IBM laptops. The incident had created a flutter among bloggers then, leading to online debates. Reportedly, one of the protesters Varna Sriraman also had to face a warning from the B-school.
Defamation is a baseless statement that is harmful to one’s reputation, and published due to negligence or malice. Libel is a written defamation. A publication to one other than the person defamed or a baseless argument concerning the complainant tending to harm his/her reputation must be there to establish a defamation charge.
There are no specific clauses in our law for blogs, but the Information Technology Act-2000 (ITA-2000) recognises electronic documents as equivalent to written ones for the purpose of law. The Indian Evidence Act has also been suitably amended by the ITA-2000 to provide for presentation of evidence of electronic documents or as certified print-outs. Blog posts, being electronic documents regularly posted by the owner of the blog, comes under this ambit.
Cylawcom.org, which lists the legal issues in blogging, says that whether the material published is inappropriate is a matter of interpretation and it has to be seen in the context of the persons who are likely to access the page.
"If the blog is accessible publicly, then we can say that any person including a minor, who is more likely to be depraved or corrupted, may visit the blog and view the same," the website says. "If the blog is accessible only for a group, such as sociologists or criminologists who are studying the impact of Internet on the society, then there is a possibility to argue that the post is for academic discussion among persons who are unlikely to be corrupted."
Truth is a major defence to defamation claims, but truth may be difficult and expensive to prove in the case of bloggers.
Comments in the opinion section of websites or those made in chat rooms might be exempted as opinions. But blogs lack that alibi. Here also, the context matters. You cannot say, "It is my opinion that they made the software after stealing my idea."
Pseudonyms do not help avoid defamation charges, as there are ways to trace the origin of the posts. In the case of Gaurav Sabnis, the complainants were successful in tracking his details although he had hidden his identity.
Another blogger Pradyuman Maheshwari had to shut down his blog Mediaah! after a legal notice, for open criticism against The Times Of India. The complainant was miffed over posts in his blog that criticised the top brass of the firm and its activities, without evidence. This instance also had its share of online discussions, and was featured in many websites advocating freedom for journalism and expression of ideas.
"In a blog, the owner takes on the responsibilities of both the writer and the publisher. To the extent he allows readers to add comments on his blog space, he is like an ‘editor’ of a publication." says Na Vijayashankar, a Bangalore-based e-business consultant and cyber law expert. "He is therefore responsible for defamation both for his own writings and the comments published in his blog space."
The debate on whether bloggers should keep their posts clean of criticism has evoked both moderate and extremist views. Though all agree that a ban on expression is completely undesirable, a majority still advocate for unbridled language. Tim O’Reilly, internet pioneer widely credited with coining the term Web 2.0, had recently come up with a bloggers’ code of conduct, only to face an avalanche of protest from bloggers.
"Many people have written to say that they have no compunctions about deleting unpleasant comments. But I believe that there is a strong undercurrent on the internet that says that anything goes, and any restriction on speech is unacceptable. A lot of people feel intimidated by those who attack them as against free speech if they try to limit unpleasantness," says Tim O’Reilly in his website radar.oreilly.com. "It’s ridiculous to accept on a blog or in a forum speech that would be seen as hooliganism or delinquency if practised in a public space," he adds.
"I don’t think that a universal or national code of conduct is practical. It’s tough to police blogs," says Amit Agarwal, author of Digital Inspirations blog, and wildely regarded in the internet as India’s first professional blogger. "Posts written by an Indian commenting on an incident in Japan in a blog hosted in the US is tough to be nailed under a law. At most, the affected person can demand an apology from the writer, if traced, or ask the service provider to block the blog," he says. "We all agree that speaking ill of others is bad, but framing a strict code of conduct is like tying the hands of the blogger," he adds.
Mr Vijayashankar disagrees with the view. "Freedom of speech does not guarantee freedom to defame anybody. The remedy for this should be to educate the bloggers and make them more responsible."
The blog-ban put by the government after the recent bomb blasts in Mumbai highlights the need of a regulatory framework, ideally an association of bloggers. Though the ban was criticised by many, the purpose of checking hate messages and rumours also had many takers.
"Neither a blanket censor nor laissez-faire blogging is desirable. The regulation should ideally be through a ‘self regulatory process,’ where blog owners decide to follow a certain ethics," says Mr Vijayashankar.
The solution lies in the hands of a blogger who bothers to think before he types. Though comments are free, facts are always sacred for every media, even blogs.