Digital platforms have changed the speed, reach and permanence of communications. A statement may be published to a large audience within minutes, reproduced by other users, indexed by search engines and preserved even after the original post is removed. These characteristics make online defamation disputes factually complex. The legal analysis, however, still begins with the content of the imputation, the context of publication and the applicable statutory and civil principles.
The current criminal provision
Since 1 July 2024, criminal defamation is addressed by Section 356 of the Bharatiya Nyaya Sanhita, 2023 (BNS). It covers an imputation concerning a person made or published by spoken words, words intended to be read, signs or visible representations, where the person making it intends to harm reputation or knows or has reason to believe that it will do so. The provision also contains explanations concerning imputations about deceased persons, companies, associations and collections of persons.
Section 356 contains exceptions that must be considered carefully. They include, subject to their stated conditions, truth where publication is for the public good, good-faith opinions on specified public conduct or public questions, substantially true reports of judicial proceedings, and good-faith cautions. The existence of an exception is not established merely by describing a post as an opinion or by asserting that it is true. The statutory conditions and the evidence supporting them matter.
Section 356(2) provides for simple imprisonment up to two years, or fine, or both, or community service for defamation. Section 222 of the Bharatiya Nagarik Suraksha Sanhita, 2023 generally requires a complaint by a person aggrieved before a court takes cognizance of an offence under Section 356, subject to the provision’s stated exceptions and procedure.
Civil defamation and online material
Criminal proceedings are not the only possible route. Civil defamation claims may seek remedies such as damages or injunctive relief, depending on the facts and applicable principles. The precise cause of action, parties, territorial jurisdiction, limitation and interim relief require separate assessment. A critical review, allegation of misconduct, repost or private message should not be classified in isolation; its meaning, audience, context, veracity, intention or applicable defence, and resulting harm may all be relevant.
Who is responsible for online content?
The original author or publisher of an allegedly defamatory statement is analytically distinct from an intermediary that hosts or transmits user content. Section 79 of the Information Technology Act, 2000 provides a conditional safe-harbour framework for intermediaries, subject to statutory requirements. In Shreya Singhal v. Union of India, the Supreme Court read down the “actual knowledge” requirement in Section 79(3)(b) in the context of a court order or notification by the appropriate Government or its agency, rather than requiring intermediaries to adjudicate every private complaint on their own.
That decision does not mean that every platform or every user is automatically immune. The intermediary’s role, statutory due diligence, the nature of the content, the applicable rules and the circumstances of notice or court directions must be considered. The person who created or republished the content may face a separate analysis from the platform that made it available.
Preserving evidence
Digital evidence should be preserved promptly and carefully. Relevant material may include the complete URL, account or profile details, date and time, the full post or thread, surrounding context, comments, shares, original files and available metadata. Screenshots are useful but should not be the only record where the content may be edited or removed. A reliable capture process, preservation of original devices or files, and appropriate steps for obtaining platform or electronic records may become important in proceedings.
A measured response
Before responding publicly, a person affected by an online statement should consider preserving the evidence, identifying the original publisher, assessing the context and avoiding a retaliatory post that may create a separate dispute. Depending on the circumstances, available steps may include a platform complaint, a carefully framed legal notice, civil proceedings or a criminal complaint. The choice should be based on the legal ingredients, evidence, urgency and practical objective, not solely on the number of views or the emotional impact of a post.
Online publication does not create a separate, consequence-free legal space. At the same time, not every harsh comment, criticism or disputed opinion amounts to defamation. A sound assessment requires the statutory language, applicable exceptions, constitutional context, evidence and the precise role of each participant to be examined together.