Online Defamation: What Can You Do About It?

Key Takeaways

1. Save the evidence first: Take screenshots and preserve the post, profile, URL, date and other details before the content is deleted or edited.
2. Do not respond in anger: Avoid threatening or abusive replies that could create another dispute or weaken your position.
3. Report the content: Use the platform's reporting and grievance mechanisms to flag fake, abusive or unlawful content. India's cybercrime portal also provides options to report online abuse and suspicious social-media identifiers.
4. Take legal advice when the harm is serious: Depending on the circumstances, available remedies can include legal notices, injunctions and claims for damages.
5. Cyber Retail Insurance adds another layer of protection: Certain personal cyber policies include social media and media liability and cyberbullying/loss-of-reputation covers, subject to the policy terms.

What Is Online Defamation?

Online defamation occurs when a person makes a defamatory statement via social media, website, email, messaging apps or other online means. This could include posting a false and damaging comment about someone’s professional abilities on Instagram, spreading a slanderous message about a person on X or sending a dishonest WhatsApp message to colleagues.

The essential elements of defamation are that it involves some form of publication and concerns a person or entity. According to Section 356 of the Bharatiya Nyaya Sanhita (BNS), an imputation made with the intention to harm or with knowledge that it is likely to harm the reputation of a person or entity is defamatory unless it falls under an exception.

When Can a Fake Post Be Seen As Defamation?

A damaging post, review or comment being untrue or offensive is not enough to automatically classify it as legally defamatory. This is because several key elements need to be present:

What Was Said: It must contain an imputation concerning a person or entity.

Whether It Was Published: A statement that was kept private and never shared with any third party cannot be considered published.

How It Affects Reputation: It must meet the legal definition of defamation and fall under the criteria outlined in the BNS.

Exceptions: The BNS states that some statements are protected or do not qualify as defamation, including certain types of truthful statements of public interest and good-faith opinions in specific contexts.

This is why a customer review or opinion should not automatically be seen as defamatory just because it is negative.

Common Examples of Online Defamation

Online defamation can occur in a variety of ways, including:

• Fake Social Media Posts: A person or entity publishes false claims or allegations about an individual’s personal or professional life via a social media post or account.
• Fake Reviews: A person posts a fabricated review concerning a business, service or professional ability with the potential to damage the reputation of that person or entity.
• Edited Images and Videos: An altered image or video is shared in a manner that presents untrue information about a person or entity.
• False Messages and Emails: A WhatsApp message, email or other online communication contains false allegations or accusations sent to colleagues, customers or other business contacts.
• Impersonation: A person creates a fake social media account or website using another person’s name, likeness or identifying factors and posts content that appears to originate from that person. In some cases, this may also constitute a cyber offence.

What Should You Do If Someone Posts Fake Content About You?

1. Preserve Everything

Before reporting or asking for removal, take screenshots, the link, profile details, usernames, dates and copies of any messages or emails. Attempt to save the content precisely as it appears. Also, the National Cyber Crime Reporting Portal asks complainants to provide relevant evidence and, if available, personal details of the suspect such as social-media handles or web links.

2. Avoid an Angry Public Response

It may be tempting to respond immediately, but an emotional reaction could do more harm than good. Don’t threaten the poster, reveal personal information or make unsubstantiated accusations in turn. Keep your response factual, or refrain from commenting while considering your options.

3. Report the Content to the Platform

Most reputable platforms offer reporting tools for abusive, impersonating or otherwise unlawful content. India's National Cyber Crime Reporting Portal also offers links for reporting online abuse directly to social-media intermediaries such as Facebook, Instagram, X, WhatsApp, Telegram and YouTube.

4. Consider a Legal Notice

When fake content is significantly damaging your reputation or livelihood, consult a lawyer who deals with defamation and online disputes. Depending on the circumstances, a legal notice, request for takedown or injunction and claim for damages may be appropriate. As Brabners suggests, preserving evidence, acting quickly and obtaining specialist legal advice are crucial steps in countering online defamation and harassment.

5. Report Other Cyber Offences

If the fake content involves impersonation, fraud, threats, stalking, account hacking or another cyber offence, you may also report the incident through the National Cyber Crime Reporting Portal. This allows citizens to report suspect website URLs, social-media URLs, phone numbers, email IDs and other identifiers.

Also Read: Ways to Protect Yourself from Cyber Crime

What Does Indian Law Say About Online Defamation?

India’s laws have adapted to online communications. Section 356 of the Bharatiya Nyaya Sanhita, 2023 defines defamation broadly enough to include imputations made by words, signs, visible representations and publication in any manner. It also makes several exceptions, including truth or opinion expressed in the public interest and other good-faith opinions.

This means that not every unpleasant or critical social-media post will constitute defamation - the legality depends on the contents and context of the particular message. This article refers to Section 499 of the IPC because it was written before the BNS came into force. When referring to the Indian legal framework in an up-to-date article, Section 356 of the BNS is the appropriate choice.

Can Cyber Retail Insurance Help With Online Defamation?

Cyber Retail Insurance, also known as Personal Cyber Insurance, can offer an extra layer of financial security by covering certain cyber-related losses or liabilities that might arise from an online incident. Depending on the policy, the cover may extend to social media and online-related risks, cyberbullying and reputational damage. It is intended to provide support in financial loss scenarios specified in the policy wording, but not to prevent the incident. The insurance may also cover expenses related to managing certain cyber events. Please note that the extent of cover will depend on the wording of the policy, limits, exclusions and any terms and conditions that apply.

How Can You Reduce the Risk of Online Defamation?

You cannot control what other people post, but there are several steps you can take to mitigate the risks and consequences of false content. Keep your social-media accounts secure by enabling multi-factor authentication and adjusting privacy settings to restrict who can view your information.

It is also important to keep an eye out for your name, company name or brand online, so that you can take action against impersonators, fake profiles and defamatory posts as soon as possible after they appear. Most importantly, do not share or reshare unsubstantiated claims just because they are about someone else. Spreading defamatory content can cause further issues.

What Should You Keep as Evidence?

If you believe that a post is defamatory, be sure to retain:

• Screenshots of the post and any comments
• The full URL
• Username and profile URL
• Date and time of publishing
• Copies of any relevant emails or messages
• Evidence of impersonation, should one be involved
• Evidence of financial or professional harm
• Details of people who received the content, where relevant

The National Cyber Crime Reporting Portal specifically asks complainants to provide supporting evidence and relevant suspect identifiers where available.

The Bottom Line

While online defamation can unfold quickly, it typically helps to exercise caution and restraint. Save the evidence, avoid further engagement, report the content and consult a lawyer if the content is causing serious reputational or financial harm. In the case of suspicion of impersonation, fraud or other cyber offence, report the incident through the appropriate channels. Cyber Retail Insurance offers an additional layer of protection for specific cyber risks, including social media/media liability and cyberbullying or loss of reputation, based on the applicable policy wording.