Supreme Court of India Comes Down On Bloggers

An anonymous reader writes "The Indian Supreme Court has ruled that bloggers cannot shelter under an escape clause such as 'Any views expressed are solely those of the writers' to exercise freedom of speech in discussions and statements online. The ruling comes in response to an anti-defamation case filed against a 19 year old student's Orkut community, commenting upon the right-wing political organization Shiv Sena. This organization is based in the western state of Maharashtra and has been responsible for inflammatory speeches and numerous attacks upon non-Maharashtrians." The article does not make it entirely clear whether the student owner is himself accused of defamatory speech, or only commenters posting on his site. His defense that an Orkut community is not equivalent to a public forum was denied.

Re:Is this so different than the U.S?

[commodore64_love]

Yeah but most libel suits in the U.S. get thrown-out because they have no merit. This sounds like that type of case.

Re:Precedence

[takshaka]

Is there a way for a judge to declare something illegal while letting a guy off the hook if he genuinely had no way to know for sure?

The judge can suspend the sentence [wikipedia.org].

Re:Oh Boy

[damburger]

Some people have already taken that step in their dissatisfaction with the Indian government; there is a substantial Maoist insurgency in the countryside in some parts of India.

Naturally the government isn't taking this lying down. They have, apparently having spent their school history classes smoking behind the bike sheds, recruited a brutal right-wing militia to put down the communist uprising.

Re:Oh Boy

[slashdotlurker]

Except that their commie uprising has little to do with freedom of speech in their constitution.

Re:Freedom and Shackles are not compatible

[elrous0]

The U.S. was never conceived to be any such thing. The first amendment (along with the other 9) was only tacked on to the Constitution because the Federalists knew it was the only way to achieve popular ratification of the Constitution--with its stronger, more centralized government. They didn't give a shit about the ideology behind this amendment, it was designed purely to appease a suspicious populace. If you want a good example of how little the Federalists really thought of "free speech," you need only look at the Sedition Act [constitution.org], passed just a few years later at the behest of Federalist President John Adams--which outlawed any form of public criticism of the President or U.S. government.

Re:Is this so different than the U.S?

[againjj]

I think the significance of the ruling is that it stated that forums of this type were public and so subject to libel proceedings, as opposed to private and thus immune as Ajith claimed. The article was not clearly written, but that is what I got out of it.

Re:Oh Boy

[bhagwad]

True. It is hard to fire a judge here. However, the courts and specially the Supreme Court is seen to be one of the saviors of India because they are not afraid of the political classes.

Also, the judge who delivered this judgment was no less than the Chief Justice himself. Thing is, he hasn't said that what the blogger said was wrong. He says that the blogger is responsible for what he writes.

I'm disturbed by this. I believe the Internet should be a place where anyone can say anything. This will only increase anonymous blogging. On the other hand, I would be very hesitant to trash the judiciary as it's one of the few pillars of Indian society that is keeping corrupt politicians from doing whatever the hell they want.

Re:Free speech vs. defamation

[pjt33]

IANAL, much less an Indian one, but on the assumption that Indian defamation law is based on English defamation law then it's defamation to make claims of fact (as opposed to opinion) which injure a person's good name (so they have to have one) and which you cannot prove to be true. In the case of published defamation the person who made the claim and the publisher would both be liable. I think they're going for the blogger as the "publisher" of comments made by third parties on his blog.

Re:issues are unclear

[belmolis]

Supreme Court of India cases are on-line, at http://judis.nic.in/supremecourt/chejudis.asp [judis.nic.in]. However, I can't find this case. Maybe I've missed it, or maybe the decision is too recent and hasn't yet been posted.

Re:Free speech vs. defamation

[BaronHethorSamedi]

OK, full disclosure: I don't know anything about defamation law in India. I can only speak to defamation in the United States.

Standards for defamation will vary by state, but very generally it amounts to making a about someone that causes some measurable harm to their reputation, employment prospects, or exposes them to public hatred or obloquy.

In U.S. law, this gets murky because we have the First Amendment. The First Amendment guarantees free speech, but doesn't generally give you carte blance to tell scurrilous lies about people. However, the U.S. Supreme Court in New York Times v. Sullivan [wisc.edu] set the bar a little higher if you're a public figure trying to bring a defamation suit. If you are such an individual (politician, celebrity, etc.), you have to prove that the statement was made with "actual malice," meaning it was made with knowledge of falsehood or reckless disregard for the truth. If you're not a public figure, you don't have to prove that the defaming party knew what he said was false, although he can assert truth as a defense to your claim.

So to answer your question, sarcasm (probably) wouldn't be enough under U.S. law, and if you're a political organization, you almost certainly wouldn't have a good case.

Re:Free speech vs. defamation

[belmolis]

This isn't a defamation case in the usual sense. The guy is charged under an Indian law that criminalizes divisive speech.

Re:Precedence

[belmolis]

This is possible in the US under limited circumstances. It's called a "suit for declaratory judgment". One of the few situations in which it is possible is when someone wants a court to declare that a product does not violate a patent.

In general, however, this is not possible. The US court system was explicitly set up to prevent it. Article III, section 2, clause 1 of the Constitution empowers the courts only to hear cases involving "actual controversy". This has been interpreted as preventing the courts from issuing opinions by reference from the government (in some countries the government can ask the Supreme Court to decide on the constitutionality of a proposed law before enacting it) and as preventing most similar private requests for an opinion. Whether this provision is a good idea or not is another question.