The Mumbai Police’s cybercrime division has arrested advocate Vibhor Anand for allegedly spreading fake conspiracy theories in connection with the deaths of actor Sushant Singh Rajput and talent manager Disha Salian.
He has also been accused of trying to defame Maharashtra Chief Minister Uddhav Thackeray and Tourism Minister Aditya Thackeray through his Tweets, Youtube videos and social media posts.
The advocate has been accused of violating provisions of the Indian Penal Code, 1860 (IPC) and the Information Technology Act, 2000 (IT Act). The offences that he has been accused of include defaming the image of a dead person, public mischief and obscenity.
But what do these offences entail, and how can Anand’s alleged spreading of misinformation be tied to them? And are there any lessons to be learnt from how this case has been built?
The accusation of criminal defamation appears to be the main plank of the Mumbai Police’s case against Anand. This offence is perhaps the key to tackle similar attempts at spreading misinformation and fake news, given such theories tend to target individuals or groups and are often made without any substantiation.
What is criminal defamation?
Damaging a person’s reputation may be considered as a criminal offence of defamation under Section 499 of the IPC.
If you deliberately make or publish any claim about someone, with the intention to harm his/her reputation, this can be considered as criminal defamation.
A person’s reputation is harmed when other people’s opinion about a person goes down because of a claim or accusation. A person can be degraded by a statement if such a statement:
lowers the person’s moral or intellectual character; or
lowers the person’s character in respect of his caste or occupation; or
lowers the credit of that person; or
results in a belief that the person’s body is disgusting or disgraceful.
Anyone may be punished for defaming a person if they make an accusation knowing that it will harm the reputation of the person. The target of defamation could also be a collection of people such as a company, association, etc. It is possible to defame someone through spoken or written words, signs, etc.
Is the freedom of speech restricted by criminal defamation?
Every citizen has the fundamental right to freedom of speech and expression, provided by Article 19(1) of the Constitution. You might think that making a statement about another person is part of your right to free speech. However, the right to speech can be restricted for certain reasons.
In Subramanian Swamy v. Union of India, the Supreme Court stated that criminal defamation is a reasonable restriction on free speech, because the protection of reputation is a fundamental and human right.
The Court confirmed that the right to reputation is a part of everyone’s fundamental right to life under Article 21 of the Constitution. It held that the society is a collection of individuals, and what affects individuals also affects the society, as a whole. Hence, it is valid to treat defamation as a public wrong.
What is the punishment for criminal defamation?
The punishment for committing criminal defamation is imprisonment for up to two years and/or a fine.
Does the law punish defamation of a person who is deceased?
In this case, Vibhor Anand has also been accused of defaming the image of a dead person, particularly Disha Salian, regarding whose death he was reported to have posted several lurid theories.
Interestingly, the law does cover punishment for defaming the dead. A person can be punished for defamation if he/she makes a claim that would harm a dead person’s reputation, with the intention of hurting the feelings of the deceased’s family members.
Explanation 1 to Section 499 of the IPC expressly acknowledges this, and therefore, allows the family members of legal representatives of the dead person to file a criminal complaint regarding such a defamatory statement.
If a person is accused of defamation, what are the defences they can claim?
The offence of criminal defamation has certain exceptions. Sometimes, even a statement that affects the reputation of another person is not considered to be defamatory.
For example, it is not defamation to claim anything which is true about another person, when the statement needs to be made or published for the sake of public good. Essentially, a person cannot be punished for criminal defamation if his/her statement is truthful and made for the sake of public interest or public good. Whether the statement is made for public good or not is a question of fact, and can be decided by the court based on the circumstances of the case.
All people are allowed to express sincere opinions about the conduct of public servants in performing official duties. Similarly, it is not defamation to genuinely express an opinion about the merits of a case which has been decided by a court, or about the conduct of any person as a party, witness or agent in such a case.
The offence of defamation does not apply when a genuine opinion is sincerely expressed about the merits of any public performance of an artist or author. When an author’s work is submitted to the judgement of the public, any person can express sincere opinions about the work without risking a charge of defamation.
For example, an actor or singer who appears on a public stage submits his acting or singing to the judgment of the public, and any member of the audience can express opinions about the performance.
Section 505 of the IPC deals with the offence of public mischief. The FIR against Anand includes an alleged offence under Section 505(2) of the IPC, again, another key provision in tackling misinformation – with a caveat.
This provision of the law punishes any person who publishes or circulates a statement containing rumours or alarming news, if the person does this with an intention of creating or promoting hatred between different communities (or if their statement is likely to do so).
Essentially, it makes it an offence for someone to make statements which intentionally encourages hatred between different religious, racial, linguistic, regional, or caste-based groups (or which are likely to do so).
Thus, if it is proved that Vibhor Anand deliberately published rumours or alarming news with the intention of promoting enmity between different groups (or knowing that it was likely to do so), he may be punished under Section 505(2) of the IPC.
The punishment is imprisonment for up to three years and/or a fine. Further, if the statement is made in any place of worship or in any assembly engaged in religious worship/religious ceremonies, the period of imprisonment may extend up to five years.
While this provision looks like one of the most apt ones to deal with spreading fake news and misinformation, the intent requirement, and the need for the harm caused by it to be connected to a group/community of some sort, means it cannot be used in all circumstances.
Publishing Obscene Material and Insulting Women
The IT Act was enforced to govern transactions and communications that happen through an electronic form, such as social media posting – which is, of course, crucial in the spreading of misinformation in these times.
Vibhor Anand had been posting several social media links and statements where he allegedly spread misinformation regarding Disha Salian and the cause of her death. The complaint against Anand has termed his social media posts as grossly obscene in nature and said that they outraged the modesty of a woman.
Under Section 67 of the IT Act, a person can be punished for electronically publishing or transmitting any lewd/lustful material, or material which tends to corrupt the people who access it. Anyone who publishes such obscene material in an electronic form can be punished with imprisonment for up to three years, along with a fine which may extend to five lakh rupees.
Moreover, Section 509 of the IPC punishes any person who deliberately seeks to insult the modesty of a woman through words, sounds, gestures etc. The punishment for doing so is imprisonment for up to three years, along with a fine.
Will We Need an Improvement to This Patchwork of Law?
It remains to be seen whether Vibhor Anand’s arrest will actually result in his conviction for the abovementioned offences.
As can be seen from this case, there is no specific provision that can be invoked to deal with the spreading fake news (Section 54 of the Disaster Management Act deals only with false news in the context of a particular disaster).
The patchwork of legal provisions under which Anand has been arrested also exhibit the vulnerabilities of this approach, as they all require very specific kinds of intent to be proved. Be it criminal defamation or the promotion of enmity, these laws only punish a person who has deliberately acted with such purpose.
The question to think about is whether these laws are sufficient to address other factual situations where intention might not be evident, but where the damage and alarm suffered by citizens is still of substantial magnitude.
In an age where we can access information too easily through multiple sources, Indian laws, in future, might have to provide more clarity on misinformation and associated offences.
(Sruthakeerthy Sriram is a Research Fellow at Nyaaya, an initiative to provide comprehensive information on various legal topics, covering most aspects of the law that people interact with in their daily lives. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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