If you are stuck in such a situation, here is what to do.

Mr. Rohan Mehra, a young tech entrepreneur based in the bustling city of Amodhpur, founded a digital platform named ‘VentureConnect’. This platform was designed to be a hub for the startup community, connecting innovators, investors, and employees. As VentureConnect gained traction, Rohan and his team considered introducing a new feature: a system for users to post ratings and reviews of startup founders, C-suite executives, and the companies themselves. The idea was to bring transparency to the ecosystem, similar to review platforms in other industries.

However, before launching, Rohan grew concerned about the potential legal ramifications. He worried that negative reviews, even if genuine, could lead to legal notices, accusations of harassment, and expensive defamation lawsuits from powerful founders and their legal teams. Unsure if the feature was worth the risk, he sought legal guidance on how to structure the platform to protect his company from liability while still fostering an open and honest community.

Advice in such cases

For entrepreneurs like Rohan who are creating platforms that involve user-generated content, especially reviews, it is crucial to build a legally sound framework from the outset.

• Robust Terms of Service: Draft clear, comprehensive, and legally enforceable Terms of Service (ToS) and User Agreements. These documents should explicitly state that users are solely responsible for the content they post and that they grant the platform a license to display it. It should also outline prohibited content, such as hate speech, harassment, and knowingly false statements.
• Content Moderation Policy: Establish a transparent content moderation policy. This should detail how your platform handles flagged content, what constitutes a violation, and the process for appeals.
• Notice and Takedown Mechanism: Implement an efficient ‘notice and takedown’ procedure as mandated by Indian law. This allows individuals who believe they have been defamed to report the content, which you must then assess and potentially remove to maintain your ‘safe harbour’ protection as an intermediary.
• Allow Right of Reply: A key feature, as Rohan planned, is to allow the person or entity being reviewed to post a public response. This demonstrates fairness and can often de-escalate conflicts by allowing both sides of the story to be heard.
• User Verification: While allowing anonymity can encourage honest reviews, consider a basic level of user verification to deter malicious actors and create a more accountable environment.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think

Applicable Sections of Law

The legal landscape for online platforms in India is governed by several key statutes.

• Bharatiya Nyaya Sanhita (BNS), 2023: Section 356 of the BNS defines and punishes the offence of defamation. It covers both libel (written defamation) and slander (spoken defamation). For a statement to be considered defamatory, it must be published with the intent to harm, or with knowledge that it will harm, the reputation of a person. Platforms hosting such content can be implicated if they fail to act after being notified.
• Information Technology Act, 2000: Section 79 of the IT Act provides ‘safe harbour’ protection to intermediaries (like review websites) from liability for third-party content. However, this protection is conditional. The platform must observe due diligence and comply with the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which includes promptly removing unlawful content upon receiving a court order or a notification from a government agency.
• Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023: The procedure for filing a criminal complaint, police investigation, and trial for defamation would be governed by the provisions of the BNSS.

If you are the complainant

If you are the platform owner (the complainant in a potential future case against a malicious user, or the respondent in a case filed by a reviewed person):

• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think
• Be Proactive: Design your platform’s review system, ToS, and privacy policy in consultation with a lawyer to minimize legal risks from the start.
• Maintain Records: Keep meticulous records of user agreements, content submission data (like IP addresses and timestamps, as per data retention policies), and all communications related to content removal requests.
• Respond Professionally: If you receive a legal notice, do not ignore it. Have your legal counsel review it and draft a formal response. Avoid engaging in public arguments or making emotional statements.

If you are the victim

If you are a founder or a company that has been defamed on such a platform:

• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think
• Document Everything: Take clear, dated screenshots of the defamatory reviews and comments. Note down the URLs.
• Use the Platform’s Tools: First, use the platform’s reporting mechanism to flag the content as defamatory. Also, use the ‘right to reply’ feature to present your side of the story calmly and factually.
• Send a Legal Notice: Your lawyer can send a formal legal notice to the platform and, if the reviewer’s identity is known, to the reviewer as well. This notice will demand the immediate removal of the content and may also seek an apology and damages.
• File a Complaint: You can file a criminal complaint with the police or a private complaint before a Magistrate under Section 356 of the BNS. You can also file a civil suit for damages to claim monetary compensation for the loss of reputation.

How the police behave in such cases

When approached with a complaint of online defamation, the police response can vary. Initially, they might view it as a non-urgent matter or suggest it’s a civil dispute. However, if the complaint is well-founded, they are obligated to act. They will likely register a First Information Report (FIR) and begin an investigation. A key part of this involves issuing a notice to the intermediary platform to preserve the data related to the offending user account and to furnish details like IP address, email, and phone number used for registration, which can help in identifying the accused.

FAQs people normally have

What evidence is required?

To build a strong case for defamation, you will need:

• Digital evidence of the defamatory content (screenshots, archived web pages).
• The specific URL where the content was published.
• Proof that the statement refers to you or your company.
• Evidence of publication (i.e., that it was seen by third parties).
• Proof of harm to your reputation, which can include witness testimony, evidence of business loss, or professional setbacks directly linked to the defamatory post.
• Any communication with the platform or the reviewer regarding the content.

How long will the investigation take?

The duration of a police investigation and subsequent legal proceedings can be lengthy. Tracing an anonymous or pseudonymous user can take several weeks or months, depending on the cooperation of the platform and other service providers. The entire legal process, from filing a complaint to a final court decision, can easily take several years due to the backlog in the Indian judicial system.

Advocate Sudhir Rao, Supreme Court of India