Analysis of Cybercrime Law - Essay Example

?Cyber Law - Critically examine the proposition that the current law pertaining to defamation is ill-suited to deal with derogatory comments and material distributed via the Internet, and that the changes proposed in recent years, including the current Defamation Bill, are unlikely to make any significant difference to the present unsatisfactory situation. In this cyber age, social networking has become an extremely popular way of interacting with people and expressing own views and opinions. However, it is imperative for users to know how free expressions can cause unsavory consequences, including getting into legal problems. Internet has a huge impact on both professional and personal lives of users. There is common belief that anyone can write anything while online. On the Internet, exaggerated forms of behavior are not uncommon and people tend to harass or ridicule others who do not agree with their views. However, it is not right to assume that damaging someone’s reputation in a public forum cannot be contested in a court of law. Considering the growing tendency among people to defame others including employees have induced governments and courts to extend laws and regulations that encompass derogatory comments made on social networking sites and other traditions forms of media. Defamation of others by way of slanderous comments is not a new thing and has been in practice for many decades, but this has been enhanced by the development of the Internet as a social medium. While negative comments published in the newspapers or broadcasted on the TV have a limited shelf life, those made on blogs and online social forums can remain in the websites for many years. The Internet is a medium that provides freedom of speech and expression to all individuals including the common people in the global level. The Internet thus is a democratic way of communication in a user-friendly, efficient and cost-friendly manner. Social networking sites like chat rooms and blogs are places to freely express one’s opinions. In spite of the Internet’s facility of freedom of speech, it is often being misused.1 Defamation is a term that has been used from Middle Ages that meant a person’s reputation so evil that it could put a man on trial. In this modern era, the term defamation is used when there is attack on a person’s good name or reputation. A complaint can be brought for defamation “based on a false statement, spoken (slander) or written (libel) that exposes a person to hatred, contempt, or ridicule, or which causes a person to be shunned or avoided, or which has a tendency to injure that person in his or her occupation.”2 Since communication done online is mostly done in written mode, online defamation claims fall under the category of libel law. In order to prove defamation various factors have to be considered. Firstly, it has to be proved that the statement concerned invades the reputation of the plaintiff which means the statement is defamatory. Secondly, the statement must make reference of the plaintiff. Thirdly, the statement must be communicated to a third person. Fourthly, the defendant has no valid defence.3 As social networking sites and blogs are increasingly becoming a common occurrence, it also increases the possibilities of people committing intentional or unintentional defamation or libel. The easy accessibility of online forum to ordinary citizens have made defamation a common phenomenon. Before the advent of online communication, people who were not engaged in media related activities did not have to worry about defamation or libel. The traditional modes of expressions like newspapers or televisions are responsible for their contents that are broadcasted. Similarly, one needs to be aware of the comments that he or she posts or distributes over the Internet to avoid defamation or libel.4 There are numerous online activities that are considered illegal. Making threats or comments that attack another individual or organization on a social networking site can be considered as expression of hatred towards the individual or organization. Such comments can also provoke violence against that individual or organization. Posting harmful comments or derogatory images on someone else’s social networking site is another risky behavior that can result in lawsuit. It is also illegal to post negative comments or views on blogs about products or services. A person can fall in legal trouble if he or she posts video or still images of illegal activities conducted by self as such images can be used as evidence against the person in court. Another cyber crime is posting images of children engaged in sexual activities. One common occurrence of cyber crime is downloading or distributing pirated music and movies or copyright materials without permission. It is considered as stalking if a person consistently sends messages or tries to contact another person who does not want to maintain contact with the former.5 In the current times, the law is ill-suited to deal with derogatory comments and material distributed via the Internet. The advantages of cyber law are very little when compared to the danger it can cause. Under the present criminal law, a person is entitled to 4 to 6 years imprisonment if the person is found guilty of printing or making libelous comments against another person. However, under the cyber crime bill, people who post derogatory comments or views on social media can be imprisoned for up to 12 years. Also, under the present criminal law a person can sue against another person in the area where he or she has read the derogatory comments about self in the printed material. However, it is not clear if the same is applicable to cyber crimes. The most criticized disadvantage of cyber crime bill is that intelligence bureaus like National Bureau of Investigation etc can access inordinately into people’s personal email accounts and social network profiles.6 It is not easy to win an online defamation case because of the writer’s advantage of staying anonymous. To successfully win an online defamation case it is necessary that the plaintiff must be able to expose the identity of the publisher or writer of the offending statement. Secondly, the plaintiff must be able to prove that the statement is not true and is written with the intention of attacking his or her reputation. It is very difficult to track down the person responsible for posting the defamatory statement on the Internet. However, it is possible to find out the details of the computer that was used to publish the statement. If the computer is a public one, it becomes even more difficult to trace the culprit. With growing popularity of computer uses in Internet cafes, libraries and public places, identification of the person responsible for posting the defamatory statement has become almost impossible.7 To win defamation law suits, it is not sufficient for the plaintiff to prove that his reputation has been tainted. The person also has to prove that the derogatory statement posted online is false, and the person who has posted it has been negligent in determining the authenticity of the statement, and the plaintiff has suffered financial losses for such statement.8 A certain disadvantage that is faced by cyber laws is the government’s indifferent attitude regarding the Internet. Unlike the other communication mediums like the television and radio which are subject to rigorous government regulations, the Internet is essentially an unregulated form of communication medium. Internet is the most commonly used medium by the social activists and minority groups to express their views against governments and corporate bodies. In cases where governments attempt to block transmission of comments of the activists, the latter has the option of moving their sites to offshore servers. This enables the activists to transmit their messages uninterrupted.9 Another principle disadvantage in cyber law is that the Internet is not governed by international laws. Every country has its own set of rules and regulations regarding cyber security. If a person gets attacked by derogatory statements posted online, then in order to take legal action he or she will have to do so in his or her own country, and that country’s legal system will access the complaint. It is sometimes argued whether a derogatory statement made online “is considered by the law to be published in the country of origin or in the country where it is read.”10 In the latter case, if a defamatory article is posted on US web serve and is read in Victoria, then the defamed person can take legal steps in Victoria and the person’s claim will be governed by the Victorian defamation laws.11 This aspect of cyber law can be disadvantageous for a person who resides in a country having weaker defamation laws. The current cyber law focuses on increased defamation posts on networks and the need for “appropriate legislative frameworks for enhancing, preserving and promoting cyber security.”12 In the last few years there has been an increase in the risk of cyber security breaching; hence the current law emphasizes not only on formulating policies to curb such incidents to preserve cyber security, it also focuses on creating cyber security culture among the Internet users worldwide. The idea is to emerge with effective and compulsory provisions which would help promote and preserve cyber security while using computers, Internet, and other communication devices.13 Defamation Bill 2012-2013 The purpose of the current Defamation Bill is “to ensure that a fair balance is struck between the right to freedom of expression and the protection of reputation.” It focuses on a number of key areas – 1) the claimant has to provide proof of extensive damage suffered before suing for defamation, 2) there is enhanced protection to website operators that host user-generated content, providing they abide by the regulations to help the claimant to resolve disputes, 3) there are new statutory defences of honest opinion.14 The Bill proposes that any defamatory statements will be removed if the author cannot be traced. This proposal has been criticized because it seems to be intruding on freedom of speech online. The current proposal suggests removal of all materials that may apparently seem defamatory, but may be lawful under certain circumstances. So the need is to place a more severe condition for materials to be removed. According to reports there is a demand that the Bill should implement a clear public interest defence so that under certain circumstances one can publish matters without the fear of getting sued.15 Conclusion The growing importance of the Internet cannot be undermined. It is not only an easy and cost-friendly mode of communication and expression of views, but is also source of news and information. The accessibility of the Internet to all people including the common population allows every individual to make his or her opinions heard by hundreds or even thousands of other users. The Internet is not new in the world of libel and defamation. The laws of libel and defamation are applicable in the virtual world with the same enforcement as in the real world. However, cyber laws including current defamation bill cannot entirely stop publication of derogatory comments and materials online because of difficulty of identifying the offender. References 1. Adrian Nemes, ‘Cyber crime law has disadvantages’ Daily Star (Bacolod city, 25 September 2012) accessed 16 February 2013 2. Dean Ellinson & Blake Dawson Waldron. ‘Internet and the law’ (May 2002) 14(2) Legaldate 4 3. Eric Eden, ‘Libel & Defamation in the Information Age’ (Upenn) accessed 16 February 2013 4. Eugene Clark, Cyber Law in Australia (Kluwer Law International 2010) 5. Jonathan Rosenoer, Cyber Law: The Law of the Internet (Springer 1997) 6. Julie Dare, ‘Online Defamation: A Case Study in Competing Rights’ (Murdoch, 2004) accessed 16 February 2013 7. ‘Online Defamation and your Rights’ (reputationhawk) accessed 16 February 2013 8. ‘Online social networking: could what you’re doing be illegal’. (ACMA, 25 July 2012) accessed 16 February 2013 9. Pavan Duggal, ‘Important cyberlaw trends in 2012’ Business Standard (New Delhi, 11 January 2012) accessed 16 February 2013 10. Reid Goldborough. ‘Warding Off Internet Legal Woes’ (30 April 2001) 13(19) Community College Week 15 11. ‘Summary of the Defamation Bill 2012-2013’. (Parliament) < http://services.parliament.uk/bills/2012-13/defamation.html> accessed 16 February 2013 12. Vivek Sood, Cyber Law Simplified (Tata McGraw-Hill 2001) 13. Wesley Johnson, ‘Clearer public interest defence needed in Defamation Bill, reports say’ The Telegraph (12 December 2012) accessed on 16 February 2013 Read More