HOW TO PROTECT YOUR REPUTATION: BNS DEFAMATION GUIDE

This article is written by Kimaya Anavkar, a T.Y.LL.B. student at Kishinchand chellaram Law College.

Keywords: Social Media Defamation, Section 356 BNS, Bharatiya Nyaya Sanhita, Indian Law, IT Act, Section 79, Libel vs. Slander, Intermediary Liability, Community Service

ABSTRACT:

This article provides a detailed analysis of social media defamation in India under the new legal framework. It examines the laws governing false statements on platforms like Instagram and X (Twitter), clarifying how Indian law treats online defamation as a criminal offense under Section 356 of the Bharatiya Nyaya Sanhita (BNS) and as a civil wrong. We explore the crucial distinction between Libel vs. Slander, classifying social media posts as libel. The article outlines the two paths for legal remedy: civil suits for damages and criminal prosecution, noting the new punishment option of community service under the BNS.

Critically, it analyzes the “safe harbour” protection for platforms under IT Act Section 79 and the valid defenses (exceptions) retained in Section 356. This guide details the step-by-step legal action for victims, guided by landmark judgments and new procedures under the Bharatiya Nagarik Suraksha Sanhita (BNSS).

INTRODUCTION: WHAT IS SOCIAL MEDIA DEFAMATION?

At its most basic level, defamation is the act of communicating a false statement about a person that harms their reputation. It is an attack on their good name, designed to lower their standing in the estimation of right-thinking members of society, or to expose them to hatred, contempt, or ridicule.

Social Media Defamation is simply this same legal wrong, but amplified and executed on digital platforms. This includes:

• A false post or caption on Instagram or Facebook.
• A malicious comment on a YouTube video.
• A defamatory tweet or reply on X (formerly Twitter).
• A forwarded rumour or message in a WhatsApp group.
• A false allegation made in a LinkedIn article.

What makes social media defamation so much more severe than traditional forms is its unique nature:

• Virality and Speed: A defamatory statement can be “published” to thousands of people around the globe in seconds with a single click.
• Permanence: Unlike spoken words, digital content is persistent. A defamatory post can be screenshotted, archived, and resurface years later, causing continuous harm.
• Reach: The “publication” (a key legal ingredient) is not limited to one or two people. It is broadcast to a wide, undefined audience, leading to widespread reputational damage.

This is not just “online drama”; it is a serious legal wrong. Under the new Bharatiya Nyaya Sanhita (BNS), 2023, the offense of criminal defamation is defined in Section 356(1). This section makes it a crime to make or publish any imputation (false claim) about a person “by words either spoken or intended to be read, or by signs or by visible representations” with the intention of harming their reputation, or knowing that it’s likely to cause such harm.

Social media defamation is the publication of a false statement of fact, in a permanent (libelous) digital form, to a third party, which harms a person’s reputation.

LIBEL VS. SLANDER: A DEEPER DIVE

In law, the courts (or ‘the law’) do not treat all defamatory statements equally. The primary distinction comes down to the form of the communication, which traditionally separates defamation into two categories:

• Slander: This is defamation in a transient (temporary) form, such as spoken words, sounds, or gestures. Historically, people (or ‘courts’) considered slander less serious because the spoken word is fleeting and reaches a limited audience.
• Libel: This is defamation in a permanent or recorded form, such as in writing, print, or pictures. Courts have always treated libel more seriously because they see the written word as more deliberate, permanent, and capable of wider circulation, thus causing more significant and lasting harm to a reputation.

Where Does Social Media Fit?

This is where the distinction becomes critical for online activity.

• Written Posts: Any social media post, comment, caption, or tweet is written and published in a permanent digital format. This is the classic definition of libel.
• “Grey Areas” (Videos, Reels, Voice Notes): What about a defamatory YouTube video, an Instagram Reel, or a forwarded WhatsApp voice note? These are spoken (like slander) but are also recorded and published in a permanent form (like libel).

The legal consensus is that because these forms are permanent and can be infinitely distributed, courts treat them as libel. The core issue is not the mode (speaking vs. writing) but the potential for harm. A viral video or voice note has the same, if not greater, potential for lasting damage as a written article.

Therefore, for all practical purposes, the legal system (or ‘courts’) treats social media defamation as libel. This is significant because, in a civil case, libel is often “actionable per se,” meaning the court presumes the victim suffered damages, and the victim does not have to prove a specific financial loss.

THE TWO LEGAL PATHS IN INDIA: A DETAILED COMPARISON

When you are a victim of defamation, Indian law provides two distinct legal remedies. These are not mutually exclusive; you can pursue both at the same time. The choice depends on your primary goal: do you want compensation, or do you want the offender to be punished?

(a) The Civil Path: A Suit for Damages (Law of Torts)

This is a civil wrong, where the primary goal is to obtain monetary compensation (damages) for the harm caused to your reputation.

• Objective: To compensate the victim and, in a sense, “repair” the reputational damage with a monetary award.
• Who Files: The victim (the “Plaintiff”) files a civil suit in a civil court (like a District Court or High Court, depending on the value of the claim).
• Burden of Proof: The standard is “Balance of Probabilities”. The plaintiff only needs to prove to the court that it is more likely than not (e.g., a 51% chance) that their claims are true. This is a much lower standard than in a criminal case.
• Key Elements to Prove:
  • The statement was false and defamatory.
  • It was “published” (i.e., communicated to at least one third person).
  • The statement clearly referred to the plaintiff.
• Remedy/Outcome: If successful, the court will award damages (money) to the plaintiff. The court can also issue an injunction, which is a formal order directing the defendant to remove the defamatory content and stop repeating it.

(b) The Criminal Path: Prosecution for an Offense (Bharatiya Nyaya Sanhita)

This path treats defamation as a public wrong—a crime against society. The primary goal is to punish the offender for their act.

• Objective: To punish the wrongdoer for committing a crime and to deter others from doing the same.
• Governing Law: This is now governed by Section 356 of the Bharatiya Nyaya Sanhita (BNS), 2023.
• Who Files: The victim files a private complaint before a Judicial Magistrate. The procedure for this is laid out in the Bharatiya Nagarik Suraksha Sanhita (BNSS).
• Burden of Proof: The standard is “Beyond a Reasonable Doubt”. This is the highest standard in law. The prosecution must prove the defendant’s guilt so conclusively that there is no “reasonable” doubt left in the mind of the judge.
• Key Element (Mens Rea): Unlike a civil suit, a criminal case requires proof of malicious intent (mens rea). The complaint must prove that the accused published the statement “intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person”.
• Remedy/Outcome: If the accused is found guilty, the punishment under Section 356(2) BNS is simple imprisonment for up to two years, or a fine, or both, or the new alternative of community service.

WHAT ARE THE DEFENSES TO DEFAMATION? (THE EXCEPTIONS)

Not every insulting statement is illegal. Section 356 of the BNS itself, just like the old law, provides several “exceptions” that can be used as a defense in a criminal case. If the person who made the statement can prove their post falls under one of these, it is not considered defamation.

Key defenses include:

• Truth for the Public Good: If the statement is true and was made for the benefit of the public, it is not defamation. Simply proving it’s “true” isn’t always enough; it must also serve a public good.
• Fair Comment on Public Conduct: You are allowed to express an opinion in good faith about the conduct of a public servant in their public duties or the conduct of any person regarding a public question.
• Fair Reporting of Court Proceedings: Publishing a substantially true report of a court’s proceedings is not defamation.
• Opinion on a Public Performance: Expressing a good-faith opinion on the merits of any performance (like a book, movie, or song) that the author has submitted to the public’s judgment is protected.
• Imputation Made in Good Faith: This includes accusations made in good faith to an authorized person, statements to protect one’s interests, or cautions given for someone’s welfare.

WHAT ABOUT THE PLATFORM’S LIABILITY? (SECTION 79 IT ACT)

This is a common question: If someone defames you on Facebook, can you sue Facebook?

The answer is generally no, thanks to Section 79 of the Information Technology (IT) Act, 2000.

• “Safe Harbour”: This law provides a “safe harbour” for “intermediaries” (which includes social media platforms, search engines, and internet providers).
• What it means: An intermediary is not legally liable for any third-party information, data, or content (like a user’s post) that it hosts.
• The Big Condition: They get this protection only if they follow “due diligence” and remove unlawful content upon receiving “actual knowledge”.

The landmark case of Shreya Singhal v. Union of India (2015) clarified what “actual knowledge” means. The Supreme Court ruled that a platform is only required to take down content when it receives a formal court order or a notification from the government. A simple legal notice from an individual is not enough to make the platform legally liable for non-removal.

LANDMARK CASES IN ONLINE DEFAMATION

• Subramanian Swamy v. Union of India (2016): This case upheld the constitutionality of criminal defamation (formerly under the IPC, now contained in BNS Section 356). The Supreme Court ruled that the right to reputation is a part of the fundamental Right to Life (Article 21).
• Swami Ramdev v. Facebook Inc. (2020): This case demonstrated the power of Indian courts over global platforms. The Delhi High Court ordered Facebook, Google, and others to remove defamatory content related to Swami Ramdev not just from Indian servers, but on a global basis.
• Dharambir Khattar v. Union of India (2021): This case clarified that posting defamatory material on social media can attract both civil and criminal liability.

HOW TO TAKE LEGAL ACTION FOR SOCIAL MEDIA DEFAMATION

If you are a victim of online defamation, follow these steps:

1. Collect Evidence (Immediately): This is the most crucial step. Take clear screenshots of the defamatory post, the comments, and the URL. Record the profile of the person who posted it and the timestamps.
2. Report to the Platform: Use the platform’s built-in reporting tool to report the post for harassment or false information.
3. Send a Legal Notice: Have a lawyer draft and send a formal legal notice to the person who made the post. This notice will demand an immediate removal of the content, an unconditional apology, and may also claim damages.
4. File a Complaint: If the offender does not comply, you have two main options:
   • File a Criminal Complaint: You can file a private complaint before a Magistrate under Section 356 of the BNS. The procedure for this is now governed by the Bharatiya Nagarik Suraksha Sanhita (BNSS). The BNSS also has specific provisions for handling electronic evidence, such as seizing devices or summoning digital records.
   • File a Civil Suit: You can file a civil suit in a civil court to claim monetary damages for the harm to your reputation.
   • Contact the Cyber Crime Cell: You can also file a complaint with the police’s Cyber Crime Cell.

CONCLUSION: THE EVOLVING BALANCE OF SPEECH AND REPUTATION

The law governing social media defamation is, at its core, a difficult but essential balancing act. It seeks to reconcile two fundamental rights that often clash in the digital age: the Right to Freedom of Speech and Expression under Article 19(1)(a) and the Right to Reputation, which the Supreme Court has affirmed as a core component of the Right to Life under Article 21.

The shift from the IPC to the Bharatiya Nyaya Sanhita (BNS) signals an important evolution, though not a revolution. By retaining the offense of criminal defamation in Section 356, the legislature has reaffirmed that the right to reputation is a value that the state will protect with criminal sanctions. However, the introduction of “community service” as a punishment is a significant and progressive step. It moves away from purely punitive measures (like imprisonment) and embraces a reformative and restorative justice model. This new alternative allows the justice system to hold an offender accountable in a way that is constructive, forcing them to contribute positively to the society whose norms they violated, rather than simply isolating them.

Despite these legal frameworks, the challenges remain immense. The very nature of the internet—anonymity, borderless jurisdiction, and the sheer virality of content—makes enforcement incredibly difficult. Identifying a perpetrator behind a fake profile or holding a foreign entity accountable for content seen in India presents high practical hurdles. Furthermore, the “safe harbour” protection for intermediaries under Section 79 of the IT Act means that platforms are often shielded from liability, placing the full burden of action on the individual victim.

For law students and legal professionals, this field remains one of the most dynamic and challenging. The BNS provides a new tool, but the underlying battle is unchanged. You must be prepared to navigate a landscape where digital evidence is fleeting, perpetrators are often anonymous, and the law must constantly race to keep up with technology. Ultimately, protecting one’s reputation in the digital age requires a sharp understanding of these new laws, a mastery of civil and criminal procedures, and a keen awareness of the ever-present tension between fundamental rights.

References

1. The Bharatiya Nyaya Sanhita (BNS), 2023
2. The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
3. The Information Technology Act, 2000
4. Shreya Singhal v. Union of India (2015)
5. Subramanian Swamy v. Union of India (2016)
6. Swami Ramdev v. Facebook Inc. (2020)
7. Dharambir Khattar v. Union of India (2021)

FREQUENTLY ASKED QUESTIONS (FAQS)

1. What is the biggest change in the new law (BNS) for defamation?

The biggest change is in the punishment. Section 356(2) of the BNS now includes “community service” as a possible sentence, in addition to or instead of the traditional fine or simple imprisonment of up to two years. This marks a significant shift towards reformative justice. The offense itself (Section 356(1)) and its defenses remain largely the same as the old IPC 499.

2. What is the time limit for filing a defamation case?

This is a very important point. The limitation period is different for civil and criminal cases and remains unchanged:

• Civil Defamation: You have one year from the date the defamatory content was “published” (posted online) to file a civil suit.
• Criminal Defamation: You have three years from the date of the offense (the posting) to file a criminal complaint.

3. Is a defamatory message in a private chat or a closed WhatsApp group also defamation?

Yes. “Publication” only requires the statement to be seen by one person other than the person being defamed. If you send a defamatory message about ‘Person A’ to ‘Person B’ in a private chat, you have “published” it. If it’s in a closed group, you have published it to every member of that group, which can make the damages even higher.

4. Am I liable if I just “like” or “share” a defamatory post?

• Liking: This is a grey area, but it’s less likely to be considered “publication” on its own, though it could be used to show malicious intent.
• Sharing/Retweeting: Yes, absolutely. Sharing or retweeting a defamatory post is considered a new “publication” of that statement. You can be held just as liable as the person who originally wrote it.

5. What’s the difference between “trolling” and “defamation”?

“Trolling” is a broad term for online harassment, which can include insults or offensive language. “Defamation” is a specific legal wrong. An insult (e.g., “You’re an idiot”) might be trolling, but it may not be defamation as it’s often seen as vulgar abuse rather than a false statement of fact that harms reputation. However, if the trolling involves making false factual claims (e.g., “This person is a cheat and steals from their company”), it crosses the line from trolling into defamation.