A (resident of Delhi) uploads a defamatory post on his Twitter account against B (resident of Kolkata). The post is read by persons in Kolkata, Delhi, Kanpur (where B has an industrial unit) and Imphal (with which neither A nor B have any connections). Where can B institute a suit for defamation? If the metaphorical “jurisdictional net” is cast too wide to cover Imphal, B could institute a suit against A at a place where the former has not suffered any reputational harm. On the other hand, if the “net” is too narrow to cover only Delhi, B would be deprived of his valuable right to bring a suit at all such places where he enjoys a reputation i.e. at Kolkata and Kanpur. To settle this conflict, the present essay suggests an approach which links the plaintiff's reputation with the place where he has his “centre of interests” for the purpose of determining territorial jurisdiction.
Defamation has two main ingredients: first, there should be a statement injurious to a person's reputation; and second, that statement should be communicated to a person other than the plaintiff.2 This second requirement is commonly referred to as “publication” and is a sine qua non of defamation. In the specific context of cyber defamation, “publication” implies that the defamatory statement has been read/accessed/downloaded by a third person.3 Since a defamatory statement put on the internet has the potential to be accessed by a wider audience, the question of which court will exercise jurisdiction has been dealt with differently in different countries.
In India, the lack of a uniform test to decide jurisdiction has given rise to divergent views being expressed by courts. For instance, in two cases of “publication” of defamatory statement over the internet when neither the plaintiff nor the defendant resided in Delhi, one Bench of the Delhi High Court exercised territorial jurisdiction whereas the other refused to do so.4 The need, therefore, is to bring in uniformity and predictability to ensure that, on the one hand, the plaintiff should have an adequate remedy against cyber defamation, while on the other hand, the defendant should not be dragged to remote jurisdictions to defend a defamation suit. In order to bring predictability on this issue, there is a need to define territorial jurisdiction as a function of the plaintiff's activities within such territory.
The exercise of territorial jurisdiction in personal actions against the defendant is covered by Sections 195 and 206 of the Civil Procedure Code, 19087 (CPC). Section 19 has three ingredients: firstly, it applies where “wrong” was done to a person or movable property; secondly, it applies only when the place where “wrong” was done is different from the place where defendant is domiciled;8 and thirdly, where the second ingredient is satisfied, the plaintiff has the option to sue the defendant either at the place of the latter's domicile or where the “wrong was done”.
Since defamation is a personal wrong, suit for defamation will be covered by Section 19. The “wrong” referred to in Section 19 is the “publication” of the defamatory statement, because “publication” gives rise to a cause of action.9 Therefore, the plaintiff will have the option to institute a suit for defamation either where the defendant is domiciled (irrespective of the place of “publication”) or at each such place where the “publication” is made.
In Escorts10 and Ajay Pal Sharma v. Udaiveer Singh,11 the Delhi High Court was faced with a situation of cyber defamation where “publication” was made at several places, including the place of defendant's domicile (outside Delhi). The Court came to the conclusion that the plaintiff had no option except to sue at the place of defendant's domicile because the choice under Section 19 is available only when no “publication” was made at the place of the defendant's domicile. In the author's opinion, this view is incorrect. In cyber defamation, “publication” is made across various jurisdictions and each “publication”/circulation would give rise to a new cause of action at that place.12 Therefore, domicile of defendant can also be one of the places where “publication” was made. If domicile of defendant is also one of the places where “publication” was made, Section 19 will not apply because the second ingredient of Section 19 (as noted above) is not satisfied.13 The Delhi High Court failed to consider that even where Section 19 does not apply, the plaintiff can still have recourse to Section 20, which is in the nature of a residuary provision.14 By virtue of Section 20, the plaintiff can institute a suit either at the place where the defendant was domiciled, or where the cause of action arises (i.e. where “publication” was made).15 Therefore, Section 19 is merely an extension of the principle enshrined in Section 20.16 The same is also evident from the fact that Section 19 was introduced for the first time in the Civil Procedure Code, 1877 to clarify the principle of Section 20, whereas Section 20 had been in the Codes of 1859 and 186117. Therefore, where domicile of defendant is one of the places where defamatory statement was published, the plaintiff's option will not be restricted to instituting suit at only the place where the defendant is domiciled; instead, he will have the option to institute a suit at all such places where the “publication” was made, including the defendant's domicile. This is the narrowest “jurisdictional net” that the plaintiff can cast for the defendant.
Greater difficulty arises when considering the widest possible “jurisdictional net” that the plaintiff can cast for the defendant in a defamation suit. In a defamation suit, “publication” gives rise to a cause of action and signifies the “wrong” done to the plaintiff.18 Therefore, every court within whose territorial jurisdiction “publication” is made will have jurisdiction in a defamation suit. However, when the same principle is extended to internet “publication”, the act of dragging the defendant to court in remote jurisdictions, merely because someone in that jurisdiction accessed the statement over the internet, will amount to abuse of process.19 Therefore, jurisdictions in which the plaintiff can sue for cyber defamation have to be narrowly defined. One of the ways to do this would be to lay down a test which considers factors more than mere “publication”. In this regard, since courts in India do not have a definitive test to determine the issue of jurisdiction in cyber defamation cases,20 it will be apposite to refer to the approach adopted by the courts in other countries when faced with similar issues.
In personal actions against the defendant, courts in the US have (i) general jurisdiction over all defendants domiciled within the State; and (ii) case-linked jurisdiction over non-domiciled defendants. A court in the US has case-linked jurisdiction over a defendant domiciled in another State only if such exercise of jurisdiction comports with fair play and justice.21 The twin conditions of fair play and justice would be met only if the defendant has some “minimum contacts” with the forum State.22 In defamation cases, these “minimum contacts” between the defendant and the forum State are established if the defendant focuses the defamatory material towards such State. In other words, if the defendant intended to cause harm to the plaintiff in a particular State, he has established “minimum contacts” there, and such State will have the jurisdiction to try the defendant.23
Whereas courts in India have applied iterations of the “minimum contacts” test in passing-off disputes,24 the context in which the “minimum contacts” test has been devised by the US courts is different from the Indian context. In the US, exercise of jurisdiction over non-resident defendants in cyber defamation cases has constitutional “due process” undertones. The objective of “minimum contacts” enquiry is to protect the liberty of the non-resident defendant, and not to safeguard the plaintiff's interests.25
On the other hand, the exercise of territorial jurisdiction in the UK is a simple question of the place where cause of action arises. In the UK, “publication” of a defamatory statement implies that such statement has been “seen, read and comprehended”.26 The act of “publication” of defamatory material is enough to provide cause of action, and it is not necessary for the plaintiff to prove that the “publication” had caused him any damage.27 The only limitations on this approach are the considerations of forum non conveniens and abuse of process, which are sparingly alluded to by the UK courts. This proclivity of UK courts to exercise jurisdiction in cyber defamation cases has given rise to the issue of “libel tourism”.
In the EU, the court where the “harmful event (has) occurred” has jurisdiction in defamation cases.28 In the absence of a definition, the courts have devised their own mechanism to discern the place where the “harm has occurred”. EU courts investigate into what is the “centre of interests” of the plaintiff. Since the plaintiff's reputation will be “most strongly affected” at the place where it has its “centre of interests”, that is, the place where the “harmful event has occurred” for establishing jurisdiction under Article 7(2).29 For the “centre of interest” analysis, therefore, the link between the plaintiff and the forum State is relevant.
Narrowing the “jurisdictional net” in India
As per Section 19, the moment a defamatory material is read/accessed/downloaded by a third person, that constitutes “publication” and is enough to confer jurisdiction on all fora where such “publication” is made. However, in the context of cyber defamation, this approach would even confer jurisdiction to courts in remote areas which have no connection with either the plaintiff, the defendant or the subject-matter of the defamatory material.30 Suing the defendant in such jurisdictions would amount to harassment31 and abuse of process.32 In order to narrow down the ambit of Section 19 in light of the near universal reach of the internet, only a civil court which has some connection with the plaintiff/defendant should exercise jurisdiction in cyber defamation cases.33 In furtherance of this, the author is proposing a three-stage test.
First, if the defendant resides within the jurisdiction of the court, that, in itself, would confer jurisdiction over the defendant, irrespective of where “publication” was made.34 Second, if the defendant does not reside within the jurisdiction of the court, there must be “publication” within such jurisdiction in the sense that the defamatory material must have been read/accessed/downloaded by at least one person.35 Third, where the second limb is satisfied, the court will enquire whether the plaintiff has any links with the territory. This inquiry can be modelled on the “centre of interests” analysis. The court will infer a link between the plaintiff and the territory only if the plaintiff has his “centre of interests” in that territory. For natural persons, it can be the domicile of the plaintiff or the place where she has other close links in the form of professional ventures or bonds of family/friendship.36
For legal persons, “centre of interests” can be wherever the plaintiff has its profit-making/professional/business/non-profit ventures. Therefore, the “centre of interests” enquiry will be based on objectively identifiable facts instead of subjective intentions of where the defendant wanted the damage to be done. Needless to say, the plaintiff can have multiple “centres of interests”, and he can sue at each such place provided the defamatory material has been “published” at such place. The second and the third limbs (as stated above) have to be conjunctively satisfied for the exercise of jurisdiction.
Even though the territorial jurisdiction analysis in India is not rooted in due process inquiry, exercise of jurisdiction by a court over a non-resident defendant should, nevertheless, be just, fair, reasonable, and predictable. Exercise of jurisdiction merely because the defamatory material was read/accessed/downloaded within the territorial jurisdiction of the court would cast a wide net for the non-resident defendant. Such a wide jurisdiction would be susceptible to abuse. The better alternative would be to narrow down the jurisdiction of courts to territories where the “publication” has been made and where the plaintiff has its “centre of interests”.
2. In this essay, person against whom defamatory statement has been made is referred to as “the plaintiff”, and the author of the defamatory statement as “the defendant”.
8. The word “domicile” is used in the generic sense in this essay, and includes residence, place of business/profession.
18. Illustration (b) to S. 19 CPC.
20. Indian courts, instead rely on a totality of circumstances of each case while interpreting “wrong done”. See G.I. Retail (P) Ltd. v. Goomo Orbit Corporate & Leisure Travels (I) (P) Ltd., 2020 SCC OnLine Mad 21424.
21. This is the requirement enshrined in the due process clause of the US Constitution. Some States also have “long-arm statutes”.
23. This test has come to be known as the “effects test”.
26. Gutnick v. Dow Jones & Co. Inc., 2001 VSC 305.
28. Art. 7(2) of Regulation No. 1215 of 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
33. G.I. Retail (P) Ltd. v. Goomo Orbit Corporate & Leisure Travels (I) (P) Ltd., 2020 SCC OnLine Mad 21424; Indian Potash Ltd. v. Media Contents & Communication Services (India) (P) Ltd., 2009 SCC OnLine Del 4410.
34. Ss. 19 and 20 CPC.