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

Mr. Akash Verma, a young professional, recently came across a news report about a High Court case in a major metropolitan city. The court had ordered an individual to stop posting comments that were allegedly derogatory against a company called ‘Edutech Innovations Pvt. Ltd.’. The individual had used terms like “fraud” and “scam” to describe his experience with the company’s educational services. This news concerned Mr. Verma, as he had recently faced a very unsatisfactory experience with a prominent corporate entity and was planning to share his feedback on a professional networking platform to alert others. He was worried that his honest, yet negative, review could lead to a defamation lawsuit against him, potentially harming his professional reputation.

Advice in such cases

Navigating the line between honest criticism and defamation is crucial. If you find yourself in a similar situation, here is some general advice to follow:

• Stick to the Truth: The most powerful defense against a defamation claim is truth. Ensure that every statement you make is factually accurate and can be backed by evidence.
• Use Objective Language: Avoid overly emotional or abusive language. Instead of saying “the company is a scam,” describe the specific issue. For example, “The service I received did not match the features advertised, and my requests for a refund as per their policy were denied.”
• Focus on Facts, Not Opinions: Base your review on your personal experience. State what happened, when it happened, and how the company responded. Avoid making broad, sweeping generalizations about the company’s character or intentions.
• Preserve Evidence: Keep a meticulous record of all your interactions with the company. This includes invoices, emails, chat transcripts, photographs, and any other communication that substantiates your claims.
• 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 primary law concerning this issue is defamation, which is covered under both civil and criminal law in India.

• Criminal Defamation (Section 356 of the Bharatiya Nyaya Sanhita, 2023): The BNS, which has replaced the Indian Penal Code, defines defamation as making or publishing any imputation concerning any person with the intention of harming, or knowing that it will harm, their reputation. However, the law provides several exceptions. For online reviews, the most relevant exceptions are:
  • Imputation of Truth for Public Good: If the statement is true and its publication is for the public good, it is not considered defamation. An honest review warning other potential customers can fall under this exception.
  • Good Faith Opinion on Public Performance: Expressing a good faith opinion on the conduct of any person touching any public question, and respecting their character so far as it appears in that conduct. A company’s service offered to the public is a matter of public performance.
  • Imputation Made in Good Faith for Protection of Interests: A statement made in good faith to protect your own interests or the interests of another person, or for the public good, is also an exception.
• Civil Defamation: This is based on tort law. The defamed party can sue for monetary damages. Here too, truth, fair comment, and privilege are valid defenses. In cases like the one Mr. Verma read about, companies often file a civil suit seeking an injunction (a court order to stop the person from making further statements) and damages.

If you are the complainant

If you are a company or an individual who believes they have been defamed by an online review, you can take the following steps:

• Send a Legal Notice: The first step is usually to have a lawyer send a legal notice to the person who posted the review. The notice typically demands the removal of the defamatory content, a public apology, and sometimes compensation for the harm to reputation.
• File a Civil Suit: If the notice is ignored, you can file a civil suit in the appropriate court. You can ask for a temporary and permanent injunction to restrain the person from making further defamatory statements and also sue for monetary damages.
• File a Criminal Complaint: You can also file a private criminal complaint before a Magistrate under Section 356 of the BNS.
• 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.

If you are the victim

If you have posted a review and received a legal notice or a court summons, it is crucial to act promptly:

• Do Not Ignore It: Ignoring a legal notice or court summons can have serious consequences. The court might pass an ex-parte order (an order passed without hearing your side) against you.
• Gather Your Evidence: Immediately compile all the documents, emails, and other evidence that prove the truthfulness of your review and the facts of your experience.
• 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. An experienced advocate can draft a legally sound reply to the notice, explaining that your review is not defamatory but rather a statement of fact and fair comment made in good faith. If a suit is filed, your lawyer will represent you and build your defense based on truth and the exceptions to defamation.

How the police behave in such cases

Criminal defamation under Section 356 of the BNS is a non-cognizable offence. This has a significant implication on police involvement. A non-cognizable offence means the police cannot arrest a person without a warrant from the court. Furthermore, they cannot begin an investigation on their own initiative. The aggrieved party (the company or person who feels defamed) must file a private complaint directly with a Judicial Magistrate. The court will then examine the complaint and the preliminary evidence, and if it finds sufficient grounds, it will issue a summons to the accused person. The police’s role is generally minimal to non-existent unless the court directs them to conduct an inquiry into the matter. Therefore, you do not need to worry about immediate police action for posting a negative review.

FAQs people normally have

• How can I write a negative review that is legally safe?
  Focus on facts, use neutral language, and avoid personal insults or sweeping accusations like “scam” or “fraud.” Describe your specific experience and back it up with evidence. Frame it as your personal experience and opinion based on that experience.
• What makes a court grant an injunction against a reviewer?
  A court may grant a temporary injunction if the company (the plaintiff) can show a prima facie case that the statements are false and defamatory, that irreparable harm will be caused to their reputation if the injunction is not granted, and that the balance of convenience is in their favour. Using unsubstantiated, malicious, and abusive language increases the chances of an injunction being granted.
• Is it better to communicate with the company privately first?
  Yes. It is often advisable to first try and resolve the issue directly with the company through their official channels. This not only gives them a chance to rectify the problem but also creates a paper trail of your attempts to resolve the issue, which can serve as strong evidence of your good faith if the matter goes to court.

What evidence is required?

To defend against a defamation claim, the strength of your case depends on your evidence. You should have:

• Proof of Transaction: Invoices, receipts, or bank statements showing you purchased the product or service.
• Communication Records: All emails, text messages, chat logs, or call recordings of your conversations with the company’s representatives.
• Product/Service Evidence: Photos or videos of the faulty product or evidence of the deficient service.
• Policy Documents: A copy of the company’s terms of service, refund policy, or advertisements that you relied on.
• Witnesses: If someone else witnessed your experience, their statement can be valuable.

How long will the investigation take?

Since defamation cases are primarily handled through the courts rather than by police investigation, the timeline can be lengthy. There is no fixed “investigation” period.

• Civil Cases: A civil suit for defamation can be a prolonged process, often taking several years to reach a final verdict due to procedural requirements, evidence presentation, and appeals. However, a hearing for a temporary injunction can happen relatively quickly, within a few weeks or months of filing the suit.
• Criminal Cases: A criminal complaint also follows a long judicial process. From the filing of the complaint, recording of preliminary evidence, summoning the accused, framing of charges, trial, and final judgment, the entire process can take many years to conclude.

Advocate Sudhir Rao, Supreme Court of India