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Criminalise @LutyensInsider, decriminalise defamation

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Asmita Bakshi
Asmita BakshiJun 12, 2015 | 20:47

Criminalise @LutyensInsider, decriminalise defamation

Let me begin by stating the bleeding obvious — harassment online is rampant and taking it to the authorities is essential for its deterrence.

Recently, BuzzFeed India editor Rega Jha (@RegaJha) posted screenshots of messages she received from random men on Twitter who among other lewd requests, sent unwarranted — pardon my French — dick pics. This naming and shaming by Jha who blurred the picture (I thank you profusely) and not the names, was welcome and many cheered her for calling out the perpetrators of such vile harassment. However, there was also the customary "if you make your DMs open, this is bound to happen" guy (meet @smookeabowl). Though, in his defence, this line of thought is also pretty offensive to men, considering he's basically implying that they'll toss their genitals in the general direction of any chat window with an active "send" button. No amount of explaining that instead of women having to change their privacy settings on Twitter, men should crank up their own and keep themselves to themselves, made him change his stand.

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Even more recently, journalist Swati Chaturvedi filed an FIR against the anonymous handle @LutyensInsider for continued harassment on Twitter. This sends a strong message. And at some level, I think we're all thankful that someone stood up for all of us to say, "Behave yourself online or", for the last time today, please pardon my French, "we'll haul your vicious, sexually harassing ass to court". It even proved to be effective, since the guy who anonymously ran the account deactivated it and is likely to not create any trouble again (also because battling harassment charges cuts into precious attack-time on the internet, I hear).

Chaturvedi filed charges under sections 354A (sexual harassment and punishment for sexual harassment), 354D (stalking) and 499 (criminal defamation) of the Indian Penal Code (IPC). Here's the thing: while registering the first two charges sets an important and positive precedent against online harassment, the last one is problematic.

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A few months ago, we celebrated the striking down of the archaic section 66A of the Information Technology (IT) Act. Trolls with DPs of eggs rejoiced because it was the first time they heard the word "law" and learned that there exist numbers other than 1984 and 2002. The rest of us rejoiced because it was regressive and more than a "reasonable restriction" on free speech as guaranteed by the Constitution. Furthermore, it was being misused by people in power, leading to arbitrary arrests for expressing opinions, resulting in vexatious litigation, and curbing the ability to think and opine freely on the internet.

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Invoking defamation, as it exists in the IPC and the related process in the Code of Criminal Procedure (CrPC) today is similar in that it draws no distinction between opinion and fact. None of the exceptions enumerated in section 499 can be used as defence until the actual trial begins, which means the accused may be arrested on the charge of merely expressing an opinion which some other person considered defamatory. So there is no check on the allegations whatsoever until the commencement of a trial. This is far from being a "reasonable" restriction on free speech. And if the repercussions of section 66A were anything to go by, this can be used and misused in much the same fashion.

Quite simply, if a politician reads a tweet/post expressing an opinion against him, (or his cows) — the person posting it can be hauled up for criminal defamation and will have to deal with possible arrest and a criminal trial before he can even begin to defend the charge. Sounds all too familiar, doesn't it?

For those concerned that the right to protect one's reputation is pertinent - and indeed it is - defamation already exists as a civil wrong (or a private wrong), where it serves as a more reasonable and measured restriction on freedom of speech. The remedies therein are damages by way of compensation. And while "interrogatories and discoveries" are permissible in civil law (example: procuring a copy of the document the person accused of defamation alleges is fraudulent, from the person accused), there is no such allowance in criminal law.

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Also stop to consider that this is a law introduced in our system by the British. Now consider that the British themselves (and Singapore, the country strict enough to fine you for chewing gum) has decriminalised the offence, after London once being known as the "libel capital". It is imperative therefore that defamation is examined on its constitutional validity. (And also because if we do something about it soon, Arvind Kejriwal and Nitin Gadkari can stop going to court every four days and settle their petty disputes like the true blue Dilliwalas they now are and just say tu bahar mil and get on with their lives.)

Ironically, criminal defamation has often been invoked against journalists and the press, and a large percentage of the fraternity (and Subramanian Swamy) has stood to decriminalise it. So it's surprising (and presumably ignorant) that many media reports mention the slander/defamation charge, instead of others in their headlines, while covering Chaturvedi's story.

The trouble criminal defamation creates for the media is that the publication of a single article by a media house can lead to multiple criminal cases, and as mentioned previously, this can be initiated on just about any claim or statement someone finds "defamatory" — the rigours of a criminal trial must be endured to finally shake off the charge. Just to get an idea, the Tamil Nadu government filed 125 cases of defamation against The Hindu between 2003 and 2006. A hundred and twenty five. That's a whopping 12.5 times the number ten, which incidentally is the permissible percentage on disproportionate assets.

In an environment where women are continuously attacked and abused — both on the internet and in real life — it is important that they take a stand and the perpetrators are brought to book. I do not undermine the action taken by Chaturvedi, I applaud it and am even grateful for ridding our mentions tab of at least one despicable cretin with the sensitivity of a teaspoon (I'm sure others will follow).

So, to be clear, my dear @LutyensInsider and assorted brethren, or whatever name you go by now, this is not a piece in your defence. It is a piece against defamation as a criminal offence. You are still a number of expletives which I would state here explicitly, but I think I've exhausted my "pardon my French" coupon for the week.

Last updated: June 12, 2015 | 20:47
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