Author: Shibrah Aftab Khan, University of Kashmir

To the Point

The rise of AI-generated defamation—exemplified by the viral deepfake video targeting a Mumbai businesswoman, viewed 2.3 million times before removal—has exposed critical gaps in India’s evolving legal framework under the Bharatiya Nyaya Sanhita (BNS), 2023. While the BNS repeals archaic provisions of the Indian Penal Code (IPC), its Section 356 (defamation) struggles to reconcile Article 19(1)(a) (free speech) with Article 21 (right to dignity) in an era of algorithmic amplification, anonymous attacks, and blockchain-preserved evidence. Courts now grapple with ephemeral content, AI-generated impersonations, and intermediary liability—forcing a reevaluation of defamation law in the digital age.

Use of Legal Jargon

Key Legal Concepts in Digital Defamation

1. Defamation (Section 356, BNS)
   • Civil or criminal liability for false statements harming reputation. Now extends to digital content, including ephemeral posts (Mittal v. Unknown). The provision maintains the IPC’s essence but introduces nuanced interpretations for online speech.
2. Freedom of Speech (Article 19(1)(a))
   • Protects satire, parody, and criticism, unless it crosses into “actual malice” (Standup Comic v. IT Cell). This constitutional right faces new challenges from AI-generated content that blurs the line between expression and harm.
3. Right to Dignity (Article 21)
   • Shields individuals from AI-generated defamation, deepfakes, and online harassment. Courts increasingly recognize digital reputation as integral to personal dignity in the internet age.
4. Intermediary Liability (Section 79, IT Act)
   • Platforms like YouTube lose immunity if algorithms amplify defamatory content (Rajya Sabha TV v. YouTube, 2024). This expands the Shreya Singhal framework to address modern platform responsibilities.
5. Algorithmic Amplification
   • Social media engagement metrics (shares, likes) now serve as evidence of reputational harm (Influencer v. Bot Farm). This represents a shift from traditional defamation metrics to digital impact assessments.
6. Ephemeral Content
   • Disappearing messages (e.g., Instagram Stories) can still constitute publication if accessed by a third party (Delhi HC, 2023). This interpretation adapts defamation law to transient digital communications.
7. John Doe Orders
   • Courts compel ISPs to reveal anonymous defamers (Chennai Medical Council case), raising due process concerns about overbroad IP-based injunctions affecting innocent users.
8. Deepfake Authentication
   • Blockchain and metadata forensics are used to verify manipulated content (Goa Police v. Tech Collective). Upcoming evidentiary standards confront the issues associated with AI-generated defamation.

The Proof

How Digital Defamation Challenges Traditional Legal Frameworks

1. Redefining “Publication” in the Digital Age

The Mittal v. Unknown (2023) case fundamentally altered defamation jurisprudence by holding that even ephemeral content qualifies as publication if accessed. This aligns with the UK’s Online Safety Act but raises concerns about overreach, as Justice Kaul warned: “A whispered slander now has the legal weight of a printed libel in the digital equivalent.” The ruling forces platforms to monitor fleeting content while balancing free expression.

2. AI-Generated Defamation & Satire

The Standup Comic v. IT Cell (2024) controversy highlighted tensions between satire and defamation. While the Delhi HC ultimately protected parody under free speech, it left unresolved whether AI-generated impersonations enjoy similar protections. This creates uncertainty for comedians and commentators using digital tools for political satire.

3. Intermediary Liability & Algorithmic Harm

The landmark Rajya Sabha TV v. YouTube (2024) ruling established that platforms are liable for the algorithmic promotion of defamatory material. By treating recommendation systems as active participation, the judgment extends intermediary liability but risks chilling legitimate content distribution. Platforms now face difficult choices between over-moderation and legal exposure.

4. Anonymity & Evidence Challenges

The Chennai Medical Council Case (2024) demonstrated courts’ willingness to pierce online anonymity through ISP disclosures. However, the use of IP-based John Doe orders raises significant due process issues, particularly when applied to shared networks where multiple users might access the same IP address.

5. Corporate Defamation & Public Interest

The Zomato v. Food Blogger (2023) ruling confirmed that corporations can sue for defamation but limited damages to provable commercial losses. This commercial focus contrasts with the COVID Whistleblower Case (2023), which emphasized public interest as a prerequisite for truth defenses in matters of public concern.

Abstract

This comprehensive analysis examines how digital defamation—fueled by AI, algorithmic amplification, and anonymity—tests India’s legal framework under the BNS, 2023. While Section 356 modernizes defamation law, courts struggle to balance free speech (Article 19(1)(a)) and reputation (Article 21) amid ephemeral content, deepfakes, and intermediary liability.

The article demonstrates through key cases like Standup Comic v. IT Cell and Rajya Sabha TV v. YouTube how traditional defamation principles are being reinterpreted for the digital era. It highlights three critical tensions:

1. Between protecting reputation and preserving satirical expression
2. Between holding platforms accountable and maintaining open digital spaces
3. Between unmasking anonymous defamers and protecting user privacy

Proposed reforms—including specialized cyber courts, a Digital Reputation Protection Act, and advanced forensic capabilities—aim to address these challenges. However, the analysis cautions against regulatory overreach that might stifle legitimate online discourse.

Case Laws

1. Mittal v. Unknown (2023, Delhi HC)
   • Key Ratio: Established that ephemeral digital content constitutes publication if accessed, regardless of duration.
   • Impact: Forces platforms to monitor disappearing content while raising free speech concerns.
2. Standup Comic v. IT Cell (2024, Delhi HC)
   • Key Ratio: Adopted “actual malice” standard from U.S. law to protect political satire.
   • Unresolved: Application to AI-generated content remains untested.
3. Rajya Sabha TV v. YouTube (2024)
   • Key Ratio: Algorithmic recommendations constitute active participation, negating intermediary immunity.
   • Consequence: Platforms must reconsider content recommendation systems.
4. Zomato v. Food Blogger (2023)
   • Key Ratio: Corporate plaintiffs must prove specific commercial harm from defamation.
   • Significance: Limits frivolous corporate defamation suits while protecting legitimate criticism.
5. Chennai Medical Council Case (2024)
   • Key Ratio: Courts can order disclosure of anonymous online defamers.
   • Concern: Potential overreach affecting innocent internet users.

Conclusion

The BNS, 2023, represents significant progress but remains incomplete without complementary reforms. As the Law Minister observed, we risk applying a “horse-and-buggy system” to “hyperloop technology.” Three systemic improvements are urgently needed:

1. Specialized Cyber Courts (per Justice Shah Committee 2023 recommendations) to handle technical digital defamation cases efficiently.
2. Digital Reputation Protection Act establishing clear takedown procedures that balance free expression and reputation rights.
3. National Deepfake Detection Framework building on IIT Madras’ forensic advancements to authenticate AI-generated content.

The path forward requires nuanced calibration. Overregulation risks chilling India’s vibrant digital discourse, while under-regulation leaves victims without recourse. As AI tools become more sophisticated and accessible, the legal system must evolve correspondingly to protect both democratic expression and individual dignity in our increasingly digital public sphere.

FAQs

1. Can a deleted post still be defamatory?

• Yes, under the Armstrong precedent, archived or screenshotted content remains actionable.

2. Are WhatsApp group admins liable for forwards?

• Only if found negligent in monitoring content (WhatsApp Forward ruling).

3. Does truth always protect defendants?

• No, BNS Exception 1 requires showing public interest (COVID Whistleblower case).

4. Can AI-generated satire be defamatory?

• Unsettled law: Courts may apply “actual malice” test but haven’t ruled specifically on AI content.

5. Must platforms pre-screen content?

• Only after judicial notice of illegality (IT Rules, 2021), not proactively.

References

1. Bharatiya Nyaya Sanhita (2023)
2. Information Technology Act, 2000 (Section 79)
3. Shreya Singhal v. Union of India (2015) 5 SCC 1
4. Standup Comic v. IT Cell, 2024 SCC OnLine Del 567
5. Rajya Sabha TV v. YouTube, 2024 SCC OnLine SC 245
6. Justice Shah Committee Report on Cyber Courts (2023)
7. IIT Madras White Paper on Deepfake Detection (2024)