Social Media Defamation and Cyber Bullying in India — Legal Remedies and How to File a Complaint

This article is for educational and legal awareness purposes only. It does not constitute legal advice or solicitation. Please consult a qualified advocate for advice on specific legal matters.

Introduction

Online defamation and cyber bullying engage both civil and criminal remedies. This article explains the substantive offences under Section 356 BNS, the IT Act 2000 provisions, the intermediary takedown framework under IT Rules 2021, the procedure for civil and criminal action, and the constitutional limits — in particular Shreya Singhal v. Union of India, (2015) 5 SCC 1, which struck down Section 66A IT Act and remains the operative constitutional limit on online speech restriction.

What is “Defamation”?

Defamation is the publication of a statement that lowers a person in the estimation of right-thinking members of society generally or causes a person to be shunned or avoided. Online defamation occurs where the medium of publication is the internet — a social media platform, a blog, a messaging application, an online news portal, or a comment thread.

Defamation in India is both a tort (giving rise to civil liability) and an offence (under the criminal law). The two are independent — a victim may pursue both.

Criminal Defamation — Section 356 BNS

Section 356 of the Bharatiya Nyaya Sanhita, 2023 — the successor to Sections 499 and 500 of the IPC — defines and punishes defamation.

Section 356(1) — Definition

Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes in any manner any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said to defame that person.

The four “Explanations” and ten “Exceptions” carry over substantially from Section 499 IPC. The exceptions include:

Imputation of truth that public good requires to be made or published;
Public conduct of public servants;
Conduct of any person touching any public question;
Publication of reports of proceedings of courts;
Merits of case decided in court or conduct of witnesses and others concerned;
Merits of public performance;
Censure passed in good faith by person having lawful authority;
Accusation preferred in good faith to authorised person;
Imputation made in good faith for protection of interests;
Caution intended for good of person to whom conveyed or for public good.

Section 356(2) — Punishment

Punishable with simple imprisonment for a term which may extend to two years, or with fine, or with both, or with community service. Where the defamation is by printed or other electronic means in any form intended for sale (Section 356(3)), additional liability arises.

The constitutional validity of criminal defamation was upheld by the Supreme Court in Subramanian Swamy v. Union of India, (2016) 7 SCC 221.

Procedural Particulars

Defamation under Section 356 BNS is non-cognizable, bailable, and compoundable. A complaint must be filed before a Magistrate of First Class. The complainant is required to be present and lead evidence. The procedure is the warrant-case procedure under Chapter XIX of the BNSS where the offence is triable as such, or the summons-case procedure otherwise.

Limitation

Under Chapter XXXIV of the BNSS (Limitation), the limitation period for taking cognizance of an offence punishable with imprisonment up to three years is three years from the date of the offence. For defamation, the cause of action arises at each fresh publication. In the online context, where the offending content remains online and continues to be republished by being viewed and shared, the cause of action is often treated as continuing.

Civil Defamation

A defamed person may file a civil suit seeking:

Damages — for injury to reputation, hurt feelings, and loss of business or income consequent on the defamation;
Permanent injunction — restraining the defendant from continuing or repeating the defamation;
Mandatory injunction — requiring the defendant to remove the offending content and to publish an apology.

The civil action is governed by the Code of Civil Procedure, 1908. Jurisdiction is exercised by the District Court (or High Court, depending on the value of the relief sought). Court fees are payable on the damages claimed.

In R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632 — the Auto Shankar case — the Supreme Court recognised the right to privacy as a facet of Article 21 and balanced it against the freedom of the press under Article 19(1)(a). The Court held that no one has the right to publish anything concerning the private affairs of another (his family, marriage, procreation, motherhood, child-bearing, and education) without his consent — but the press has a right to publish what is in the public record.

The civil law of defamation in India broadly follows the principles of the English common law of defamation, including the defences of truth, fair comment, qualified privilege, and absolute privilege.

Information Technology Act, 2000 — Provisions Relevant to Online Defamation and Cyber Bullying

Section 66E — Violation of Privacy

Capturing, publishing, or transmitting the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, is punishable with imprisonment up to three years or fine up to two lakh rupees, or both.

Section 67 — Publishing or Transmitting Obscene Material in Electronic Form

Publishing or transmitting, in the electronic form, any material which is lascivious or appeals to the prurient interest, or which has the tendency to deprave and corrupt those who are likely to read, see, or hear the matter contained in it, is punishable with imprisonment up to three years and fine up to five lakh rupees on first conviction.

Section 67A — Publishing or Transmitting Sexually Explicit Material

Punishable with imprisonment up to five years and fine up to ten lakh rupees on first conviction.

Section 67B — Publishing or Transmitting Material Depicting Children

Applies to material depicting children in sexually explicit act. Punishable with imprisonment up to five years and fine up to ten lakh rupees on first conviction.

Where the act referred to in Section 43 (unauthorised access, downloading, virus, denial of service, etc.) is committed dishonestly or fraudulently, the act is an offence under Section 66, punishable with imprisonment up to three years or fine up to five lakh rupees, or both.

Section 66C — Identity Theft

Fraudulent or dishonest use of the electronic signature, password, or any other unique identification feature of any other person — punishable with imprisonment up to three years and fine up to one lakh rupees.

Section 66D — Cheating by Personation by Using Computer Resource

Punishable with imprisonment up to three years and fine up to one lakh rupees.

Cyber Bullying and Stalking under the BNS

The BNS contains provisions directly relevant to cyber bullying and stalking:

Section 78 — Stalking. A man who follows a woman and contacts, or attempts to contact, her to foster personal interaction repeatedly despite a clear indication of disinterest by such woman, or monitors the use by a woman of the internet, email, or any other form of electronic communication, commits the offence of stalking. Punishable with imprisonment up to three years on first conviction, and up to five years on second or subsequent conviction.
Section 75 — Sexual harassment. Includes showing pornography against the will of a woman, demand or request for sexual favours, or making sexually coloured remarks.
Section 351 — Criminal intimidation. Threats to cause injury to person, reputation, or property.

A single online act of harassment frequently engages multiple sections — defamation under Section 356, stalking under Section 78, criminal intimidation under Section 351, and Sections 66E, 67, or 67A of the IT Act, depending on the content.

Shreya Singhal — The Constitutional Limit

In Shreya Singhal v. Union of India, (2015) 5 SCC 1, the Supreme Court struck down Section 66A of the Information Technology Act, 2000 as unconstitutional. Section 66A had criminalised sending, through a computer resource or communication device, any information that was “grossly offensive” or “menacing” or that the sender knew to be false but sent for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will.

The Court held that Section 66A suffered from vagueness and overbreadth, violated Article 19(1)(a), and was not saved by Article 19(2). Despite the clear holding, FIRs continued to be registered under Section 66A for many years — the Supreme Court issued repeated directions to State Governments and Director Generals of Police to stop registering cases under the struck-down provision. Section 66A is no longer in force. If you see a complaint or FIR invoking Section 66A IT Act, that is an unconstitutional invocation and is liable to be quashed.

In the same judgment, the Court read down Section 79(3)(b) of the IT Act and Rule 3(4) of the Information Technology (Intermediary Guidelines) Rules, 2011, holding that an intermediary’s liability is triggered only upon receiving “actual knowledge” by way of a court order or a notice from the appropriate government agency that unlawful content is being hosted, and that the intermediary is required to expeditiously remove or disable access to such content. The Court rejected the position that any private complaint to the intermediary triggered an obligation to take down content.

Intermediary Takedown — IT Rules 2021

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (the “IT Rules 2021”) prescribe the framework for intermediary liability. Key provisions for takedown:

Rule 3(1)(b) — Intermediaries must publish their privacy policy, rules and regulations, and user agreement that prohibit users from hosting, displaying, uploading, modifying, publishing, transmitting, storing, updating, or sharing specified categories of unlawful information (including obscene, defamatory, racially and ethnically objectionable, threatening, or otherwise unlawful information).
Rule 3(1)(d) — On receipt of actual knowledge by way of an order by a court or notification from the appropriate government or its agency, the intermediary shall not host, store, or publish unlawful information.
Rule 3(2)(b) — In respect of non-consensual intimate images (any content depicting the individual in a nude or sexual act or impersonating an individual), the intermediary is required to act on a complaint within twenty-four hours.
Rule 3(2)(a) — In respect of other categories of complaints, the intermediary’s grievance officer is required to acknowledge the complaint within twenty-four hours and dispose of it within fifteen days.

Significant social media intermediaries (those with more than fifty lakh registered users in India) have additional obligations: appointment of a Chief Compliance Officer, a Nodal Contact Person available 24x7 for coordination with law enforcement, and a Resident Grievance Officer. These officers must be Indian residents and based in India.

The constitutionality of the IT Rules 2021 — particularly the provisions on traceability of originators of messages and on online news media — has been challenged in several High Courts. Some provisions have been stayed by interim orders. The doctrine on intermediary takedown is therefore in active evolution.

How to File a Complaint — Step-by-Step

1. Preserve Evidence

Take dated screenshots of the offending content showing:

The full URL of the post or profile;
The username, display name, and verification status of the account;
The full text of the post and any associated images, videos, or audio;
The number of likes, shares, and comments (showing the reach);
Any responses or amplification by other accounts.

Use the “permalink” feature where available (right-click on the timestamp on most platforms) to capture the canonical URL.

2. Report on the Platform

Use the platform’s report function. Most platforms allow complaints categorised as harassment, hate speech, impersonation, intimate image abuse, threats, or defamation. The platform may remove the content, suspend the account, or require additional information. Keep a record of the complaint ID and the platform’s response.

3. Issue a Legal Notice

A formal legal notice to the offender, sent by the complainant’s advocate, articulates the alleged defamation, demands removal of the content, and seeks an apology and damages. The notice may also be sent to the intermediary, citing the IT Rules 2021. In a number of cases, a well-drafted notice — particularly accompanied by the threat of an injunction — is sufficient to secure takedown.

4. Report on the Cyber Crime Portal

The National Cyber Crime Reporting Portal at cybercrime.gov.in accepts complaints relating to online defamation, identity theft, impersonation, and harassment. The portal generates a complaint reference number and routes the complaint to the appropriate cyber cell.

5. File an FIR

Where the offending content engages a cognizable offence under the BNS or the IT Act, the police are obliged to register an FIR. Most cyber cells have jurisdiction over offences committed through digital means; the district cyber cell at Lucknow or the State-level UP Cyber Crime Police Station are the primary forums.

If the police are reluctant to register the FIR, escalate under Section 173(4) BNSS (written complaint to the Superintendent of Police) and Section 175(3) BNSS (application to the Magistrate).

6. Civil Suit and Injunction

Where damages or injunction are sought, file a civil suit before the competent civil court. An interim injunction under Order 39 of the CPC may be sought to restrain further publication pending trial. Indian courts have, in appropriate cases, granted John Doe (also called Ashok Kumar) injunctions against unknown anonymous publishers, requiring intermediaries to block the offending content and to disclose subscriber information.

7. Approach the High Court

Where the offender is a public figure or a journalist, and the matter raises serious questions of free speech, the High Court may be approached under Article 226 of the Constitution. Conversely, where the complainant is a public official seeking to silence legitimate criticism, the High Court may quash a defamation complaint under Section 528 BNSS.

Defences Available

A person charged with defamation may rely on:

Truth in the public interest — under the First Exception to Section 356 BNS, imputation of truth made for public good is not defamation. Both truth and public good must be established.
Fair comment — a comment on a matter of public interest, based on facts truly stated and made without malice.
Absolute privilege — statements made in legislative or judicial proceedings.
Qualified privilege — statements made in the course of a duty or interest, without malice (subject to the law of qualified privilege).
Consent — where the complainant consented to the publication.

For online publication, additional defences may arise where the defendant did not know, and had no reason to know, that the content was being uploaded or that it was defamatory.

Constitutional Limits — Article 19(1)(a) and Article 19(2)

The right to freedom of speech under Article 19(1)(a) of the Constitution is subject to reasonable restrictions under Article 19(2), which include public order, decency, morality, defamation, incitement to an offence, and contempt of court. Any restriction on online speech must satisfy the proportionality test laid down in Modern Dental College v. State of M.P., (2016) 7 SCC 353 and in the Anuradha Bhasin v. Union of India, (2020) 3 SCC 637 line of authority on internet restrictions.

In Indibily Creative Pvt. Ltd. v. State of West Bengal, (2020) 12 SCC 436 and in subsequent cases, the Supreme Court has reiterated that the State’s power to restrict speech online must be exercised within constitutional bounds, with reasoned orders and due process.

Practical Takeaways

Online defamation and cyber bullying are addressed by both civil and criminal remedies. The two are concurrent.
Section 66A of the IT Act is unconstitutional and cannot be invoked — Shreya Singhal v. Union of India. If a complaint or FIR invokes it, that is a strong ground for quashing.
For non-consensual intimate images, the IT Rules 2021 require intermediaries to act within twenty-four hours. Use this remedy first.
Preserve evidence by way of dated screenshots and URLs before reporting. The content may disappear before law enforcement reaches it.
For substantial damages or systemic harassment, a civil suit with interim injunction is often more effective than a criminal complaint.
Consult a qualified advocate to assess the strategy — platform takedown, civil suit, criminal complaint, or a combination.

Useful Resources

Disclaimer: The information provided on this website is for general legal awareness and educational purposes only. It does not constitute legal advice, advertisement, or solicitation. No reader should act or refrain from acting based on this information without seeking professional legal counsel. Advocate Akhil Singh and this website are not liable for any actions taken based on the content provided herein.