Territorial Jurisdiction in cases of defamation over the internet

Introduction
In this 21st Century, internet has made its reach to even the remotest areas. As per Global Digital
2019 Report, there were 4.4 Billion internet users in January 2019. 1 Talking of India, it is
estimated that by the end of 2019 the country will have over 657 Million internet users.2 This
widespread reach of the internet has facilitated News and Media Publications to circulate all
across the globe within a matter of few seconds and clicks.

It is not a denying fact that the internet has made our lives so much easier. However, as Pablo
Picasso said that ‘every positive value has its price in negative terms, the genius of Einstein
leads to Hiroshima’3 the same is with internet. In our case, the internet facilities the delivery of
various important news and publications across borders, so thus its facilities the defamatory
publications, resulting in an increase of defamation disputes. Live example being Anil Ambani
vs Mukesh Ambani,4 a case filed by Anil Ambani for damages Rs.10,000 Crore for some
libelous statements made by Mukesh Ambani in an interview to NY Times. However, the case
was later withdrawn.

The increase in the online defamation cases comes as a new challenge for the both the courts
and the lawyers. It has resulted in changes which had effects both within and outside the
territorial borders. The very first issue which arise in the online defamation cases, is about
jurisdiction. There are a number of questions that needs to be addressed such as at what place
the defamation Occurs? What kind of jurisdictional problems occurs in such cases? Where do
exactly the publication of maternal on the internet take place? And many other.

In this paper, an effort has been made to find answers to all of these above-mentioned questions.
Through the help of various research paper, case laws and various online sources available.
However, the paper only deals with laws relegating to India and is restricted to problems
occurred in determining the territorial jurisdiction in online defamation cases.

What Is Defamation? It’s Nature & Elements

Code of Civil Procedure, 1908 does not define Defamation, however we can take the definition
of defamation from Section 499 of Indian Penal Code, 1860 which states that whoever, by

1
WE ARE SOCIAL (WAS), SIMON KEMP, Digital 2019: Global Internet Use Accelerates,(January 30, 2019),
available at https://wearesocial.com/blog/2019/01/digital-2019-global-internet-use-accelerates (Last visited
on July 08, 2019).
2
PTI, Internet users in India to reach 627 million in 2019: Report, The Economic Times (internet)
March 06, 2019.
3
Good Reads, Quotes by Pablo Picasso, available at https://www.goodreads.com/quotes/46188-every-
positive-value-has-its-price-in-negative-terms-the (Last visited on July 08, 2019).
4
Business Standard, Five defamation cases that rocked corporate India, November 22, 2016, available at
https://www.business-standard.com/article/companies/five-defamation-cases-that-rocked-corporate-world-
116112200499_1.html (Last visited on July 08, 2019).
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, to defame that person.5

Defamation could be both written or oral. Written defamation, typed material/ printed material/
images, is called Libel, and a spoken defamation is called slander.6

Section 499 also talks about exceptions. Which includes ‘imputation of truth 'which is require
for the ‘public good 'and thus has to be published, on the public conduct of government
officials, the conduct of any person touching any public question and merits of the public
performance.7

Defamation under Civil Law in our country is governed by English Common law rules, thus
for defamation action under the civil law of torts to be successful, the four essential elements8
are to be proved before the adjudicating authority-

1. Statement must be defamatory in nature,

2. It should refer to the plaintiff,
3. It should be published and
4. The statement must be false.

If any of the above-mentioned conditions are missed, then defamations will not occur. The
same can be confirmed from the Delhi High Court decision in the famous case of Prof. Imtiaz
Ahmad v. Durdana Zamir9.

Defamation is considered both as a criminal as well as a civil offence in India. The same has
been confirmed by the Indian judiciary in the cases of Asoke Kumar Sarkar v. Radha Kanto
Pandey10 and Narayana Ayyar v. G.Veerappa Pillai.11 The remedy for Civil Defamation is
covered under the law of Torts. In the case of Civil Defamation, the person defamed can move
to either High Court or subordinate courts and seek for monetary compensation from the
accused from the damages caused.12

Territorial Jurisdiction of Online Defamation Cases

5
Indian Penal Code, 1860, §499.
6
Hello Counsel, Defamation: Civil & Criminal, available at
https://www.hellocounsel.com/defamation-civil-criminal/ (Last visited on July 15, 2019).
7
Indian Penal Code, 1860, §499.
8
LawFirms, Elements Required for Defamation, available at https://www.lawfirms.com/resources/personal-
injury/libel-and-slander/elements-required-defamation.htm (Last visited on July 12, 2019).
9
Prof. Imtiaz Ahmad v/s Durdana Zamir, 2009 SCC OnLine Del 477 : (2009) 109 DRJ 357
10
Asoke Kumar Sarkar And Anr. vs Radha Kanto Pandey And Ors. AIR 1967 Cal 178, 1967
11
Narayana Ayyar vs G. Veerappa Pillai AIR 1951 Mad 34, (1950)
12
News 18, How MJ Akbar's Defamation Suit Against Priya Ramani May Play Out in Court Today, October 18,
2018, available at https://www.news18.com/news/india/how-mj-akbars-defamation-suit-against-priya-
ramani-will-pan-out-in-court-1912345.html (Last visited on July 17, 2019).
The Delhi High court making reference to the availability of publication on the internet
determined the scope of its jurisdiction in the case of Frank Finn Management Consultants v.
Subash Motwani13 under Section 19 of the Code of Civil Procedure, 1908. This case was over
damages for publishing libellous information, in this case the defendant argued that since the
publication of the libelous material did not occur in the forum hence, the court did not have
any jurisdiction under Section 19 of Code of Civil Procedure, 1908. The court in order to reach
on conclusion held that by putting the magazine on the world of internet, the said material
cannot be said to be for circulation within a limited geographical area only and shall be
concluded to be having circulation all over India.

Inernet is spreading like a wildfire, and it is daily changing the relationship between law and
technology, the Indian legal system, quite helplessly is ever since trying to catch-up. Recently
in the case of M/s Future Gaming and Hotel Services Pvt Ltd v. Malayala Manorama & Ors14
Supreme Court passed an order starting that in the cases of online Defamation courts could
assume jurisdiction in any place where the impugned material is accessed.

In the above-mentioned case, the petitioner has filed a case under Chief Judicial Magistrate at
Gangtok against Defendant who in his newspaper published an article on 22nd April 2015,
both offline and online which petitioner claimed to have defamed his Company. The Defendant
protested and filed a petition under Article 482 of Cr.P.C before the H.C for quashing the
complaint.15 High court on the quashed the complaint on the basis of lack of ‘Territorial
jurisdiction’. The Petitioners knocked the doors of Supreme Court under Special Leave
Petition, on which Supreme court set aside the decision of the Sikkim High Court and the
division bench of AK Goel, J. and UU Lalit, J. said that courts can assume jurisdiction in any
place where the defamatory material is accessible.16

The Law
Section 19 of the Civil Procedure Code, 1908 talks about that ‘where a suit is for compensation
for wrong done to the person or to movable property, if the wrong was done within the local
limits of the jurisdiction of one Court and the defendant resides, or carries on business, or
personally works for gain, within the local limits of the jurisdiction of another Court, the suit
may be instituted at the option of the Plaintiff in either of the said Court.17
In our legal system, we will find a lot of case laws in which courts have interpreted Section 19
of the Civil Procedure Code, 1908 widely in offline defamation cases, they have used to it

13
M/S Frank Finn Management vs Mr Subhash Motwani, 2008 SCC OnLine Del 1049 : ILR (2009) 2 Del 158 :
(2008) 154 DLT 95 : (2008) 106 DRJ 921
14
M/S. Future Gaming And Hotel vs Malayala Manorama, Crl.M.C. No.02 of 2016
15
The Code of Criminal Procedure, 1973, §482.
16
Indian Constitutional Law and Philosophy, Guest Post: On Free Speech and Jurisdictional Issues in Online
Defamation Cases, September 24, 2018, available at https://indconlawphil.wordpress.com/2018/09/24/guest-
post-on-free-speech-and-jurisdictional-issues-in-online-defamation-cases/ (Last visited on July 17, 2019).
17
The Code of Civil Procedure, 1908, §19.
extend the territorial jurisdiction to not only Courts at the place where the defamatory statement
is first made and published, but also where it is subsequently published, circulated and read.
The Best example here will be the case of Dr. Subramaniam Swamy vs Prabhakar S. Pai, 18 the
defamatory statement was made at a press conference hosted in Chandigarh but the same was
also covered by the Indian Express in Bombay. The court in this given case held that ‘as the
consequence of the statement occurred at Bombay, therefore the offence of defamation is
complete in Bombay as a result of which Both the Bombay and Chandigarh Courts will have
jurisdiction to try the suit.
Similar in P.lankesh v. H Shivappa,19 the Karnataka High Court held that ‘it cannot be said that
the act of publication comes to an end as soon as one issue of the newspaper is released at one
place, if the defamatory imputation is made available to public at several places then the offence
is committed at each such place. Though the first offence may be committed at the place where
it is printed and first published, it gets repeated wherever the newspaper is circulated at other
place’

The Law in the Online World

Our Courts have been using the same laws for determining jurisdiction in online defamation
cases, which results in a lot of issues. In fact, the Delhi Court in 2016 itself in the case of
Frankfinn Aviation Services Pvt Ltd v Tara Kerkar20 has applied the same rule that jurisdiction
would be at both places, where the defamation takes place and where the defamatory material
is transmitted through internet.
Our courts time and again have failed to appreciate the inherent distinctions between traditional
media and new digital media by allowing the assumption of jurisdiction by any court situated
at a place where the website may be accessed. This has allowed individuals to create territorial
jurisdiction in online defamation cases as per their convenience across the country.
Consequently, this provision has been systematically used to harass journalists, authors and
other individuals, who are forced to travel to remote locations at great personal expense.

Lessons from Abroad [ Pending EDIT FROM BELOW] / Conclusion

In fact, it was in response to similar issues arising out of the online dissemination of speech
such as forum shopping and stifling of free speech that foreign jurisdictions such as the United
States evolved restrictive tests to determine “personal jurisdiction” (or, the court’s jurisdiction
over the parties in a suit) in online defamation cases. The Due Process Clause of the Fourteenth
Amendment permits a court to exercise personal jurisdiction (even where a long arm statute
exists) “over a foreign defendant when (1) that defendant has purposefully availed himself of
the benefits and protections of the forum state by establishing `minimum contacts’ with the

18
Dr. Subramaniam Swamy v. Prabhakar S. Pai And Another 1983 (2) BomCR 129
19
P. Lankesh And Another vs H. Shivappa And Another 1996 (1) ALT Cri 231, 1994 CriLJ 3510, ILR 1994 KAR
2410, 1994 (4) KarLJ 295
20
Frankfinn Aviation Services Pvt. vs Tara Kerkar & Ors., 2016 SCC OnLine Del 4641
forum state; and (2) the exercise of jurisdiction over that defendant does not offend `traditional
notions of fair play and substantial justice.’ Sufficient minimum contacts will give rise to either
specific or general jurisdiction. General jurisdiction exists when a defendant’s contacts with
the forum state are unrelated to the cause of action but are `continuous and systematic.’ Specific
jurisdiction arises when the defendant’s contacts with the forum ‘arise from, or are directly
related to, the cause of action.’” (Revell v. Lidov at paragraph 20) The mere accessibility of
data hosted on a website in the forum state has consistently been held to be insufficient by both
standards for the forum court to assume jurisdiction. The court, therefore, determines
jurisdiction based on different criteria such as the active or passive nature of the website (as
per the “Zippo Sliding Scale”, for example, established in the case of Zippo Manufacturing Co
v. Zippo Dot Com Inc.), or, by applying the “effects test” (established in Calder v. Jones, to
adjudge whether the effects caused by an defamatory article in the forum state were specifically
directed and intended towards it as to confer jurisdiction upon it).

The 2002 decision of the United States Court of Appeals, Fifth Circuit, in Revell v. Lidov is a
good illustration of the application of these concepts. The brief facts are as follows: Revell (a
resident of Texas) sued Lidov (a resident of Massachusetts) and Columbia University (whose
principal office were in New York City) in the Northern District of Texas for defamation
arising out of Lidov’s authorship of an article that he posted on an internet bulletin board hosted
by Columbia. The district court dismissed Revell’s claims for lack of personal jurisdiction over
both Lidov and Columbia as it found the website to be “Zippo-passive”. When this decision
was appealed before the Circuit Court, the issue to be determined was whether the operation
of an internet site supported the minimum contacts necessary for the exercise of personal
jurisdiction. It was held that owing to both the low level of interactivity of the website, and
inapplicability of the “effects” test, specific personal jurisdiction could not be established in
Texas. It was observed that “the post to the bulletin board here was presumably directed at the
entire world, or perhaps just concerned U.S. citizens. But certainly it was not directed
specifically at Texas… As these cases aptly demonstrate, one cannot purposefully avail oneself
of ‘some forum someplace’; rather, as the Supreme Court has stated, due process requires that
‘the defendant’s conduct and connection with the forum State are such that he should
reasonably anticipate being haled into court there.’” Similarly, it was held that general personal
jurisdiction could not be established as the “maintenance of a website is a continuous presence
everywhere in the world” and does not amount to a “substantial” contact.

It is also interesting to note that while Indian courts have continued to apply traditional
jurisdictional rules in online defamation cases, they have increasingly turned to the progressive
US standards in trademark infringement disputes. For example, in the landmark case of Banyan
Tree Holding (P) Limited v. A. Murali Krishna Reddy & Anr, the Court held that it had
jurisdiction over the defendant but it did not get attracted merely on the basis of interactivity
of the website which is accessible in the forum state, but on the basis that viewers in the forum
state were specifically targeted by the Defendant Website. In an extensive analysis of tests
adopted by different jurisdictions to assume territorial jurisdiction, Justice S. Muralidhar went
to the extent of noting that “While courts have more readily applied the ‘effects’ test in
defamation cases [see Remick v. Manfredy, 238 F.3d 248 (2001); Noonan v. Winston Comp.,
135 F.3d 85, 91 (1998)]; Revell v. Lidov, 317 F.3d 467 (5th Cir. 2002) there have been
problems in its application to trademark infringement cases” (paragraph 25). This progressive
approach to determine jurisdiction has been reiterated in several High Court decisions such as
the 2017 decision of the Delhi High Court in Federal Express Corporation v Fedex Securities
Ltd. & Ors.

Justice Brennan in the US Supreme Court decision of NAACP v. Button famously remarked
that freedom of speech needs “breathing space to survive”. Adopting a regressive approach
towards jurisdictional issues arising out of online speech inhibits exactly that. It is hoped that
the Indian Supreme Court on a suitable occasion in the future will deliberate on these
arguments, and step up to protect this freedom from being choked.