False. Damaging. Online. Permanently removable.

Defamation Law in India: BNS s.356 (formerly IPC 499/500) and the IT Act

Indian defamation law provides both criminal and civil remedies against false and damaging online content. Section 356 of the Bharatiya Nyaya Sanhita, 2023, which replaced Sections 499 and 500 of the Indian Penal Code from 1 July 2024, defines defamation as making or publishing any imputation concerning a person, intending to harm — or knowing or having reason to believe that such imputation will harm — the reputation of such person. Section 356(2) prescribes simple imprisonment of up to two years, or fine, or both, or community service. The Supreme Court upheld the constitutional validity of criminal defamation under IPC 499/500 in Subramanian Swamy v. Union of India (2016), confirming it as a reasonable restriction on free speech under Article 19(2).

In the digital context, defamatory content published online is additionally covered under the Information Technology Act, 2000. Section 66A (struck down in Shreya Singhal) no longer applies, but Sections 67 and 67A address publishing obscene or sexually explicit material electronically, while the IT (Intermediary Guidelines) Rules 2021 require platforms to acknowledge and decide complaints within fixed deadlines. Section 79 of the IT Act provides intermediaries with conditional safe harbour — a protection that is lost when they fail to act on a court order or government direction, or fail to observe the due diligence the Rules require.

RepuLex works both tracks at once. A legal notice from our partner law firm tells the content creator that the statements expose them to a civil suit and to a criminal complaint under BNS s.356, while a grievance complaint starts the platform's statutory clock under the IT Rules. Neither creates liability by itself; together they give the creator and the platform a clear reason to act before a court order compels it.

Identifying and Documenting Defamatory Content

Not all negative content constitutes defamation. For a statement to be legally defamatory, it must be a statement of fact (not opinion), it must be false, it must be published to a third party, and it must cause damage to the subject's reputation. RepuLex begins every engagement with a rigorous legal assessment that evaluates the content against these four elements, ensuring that any legal action taken stands on solid grounds.

Documentation is critical for defamation cases. Our forensic documentation process captures the content as it appears online — including screenshots with timestamps, URL archiving through legally recognised tools, WHOIS records for the publishing domain, and metadata extraction where possible. This documentation serves as evidence in legal proceedings and is preserved in a format that meets the requirements of the Bharatiya Sakshya Adhiniyam, 2023 on electronic evidence (Section 63, formerly Section 65B of the Indian Evidence Act, 1872).

We also assess the ten exceptions to defamation in BNS s.356(1), carried over from IPC Section 499. These include truth published for public good, fair comment on public conduct, and opinions on the merits of legal proceedings. Understanding these exceptions is essential — content that falls within an exception cannot be successfully challenged as defamation, and RepuLex advises clients transparently when content is likely protected by these exceptions.

The RepuLex Process for Defamation Content Removal

Once the legal assessment confirms actionable defamation, RepuLex initiates a multi-pronged removal strategy. The first step is issuing a formal cease-and-desist notice to the content creator — identifying the defamatory statements, citing the specific provisions of law violated, demanding immediate removal, and setting a deadline for compliance. This notice is drafted and issued by advocates of our partner law firm, practising before the Delhi High Court.

Simultaneously, we issue takedown notices to the hosting platform under the IT (Intermediary Guidelines) Rules 2021. The Rules require every intermediary to run a grievance mechanism. When a platform receives a valid complaint identifying specific defamatory content, it must resolve the grievance within seven days, and it must act on a court order within three hours under Rule 3(1)(d). We prepare the complaint with all necessary documentation — the content in question, the legal analysis, and the specific rules violated.

If the content creator and platform do not act, the matter escalates to court. This includes criminal complaints under BNS s.356, civil suits for damages and injunctive relief, or applications for interim injunctions under Order XXXIX of the Code of Civil Procedure, all filed in the client's name by our partner law firm, which handles the litigation from filing to enforcement of the court order.

Criminal vs Civil Defamation: Choosing the Right Path

Criminal defamation proceedings under BNS 2023 s.356 (formerly IPC 499/500) are initiated through a private complaint before a Judicial Magistrate of the first class, under Section 222 of the BNSS. The advantage of criminal proceedings is the deterrent effect — the threat of imprisonment and a criminal record is often sufficient to compel the content creator to remove the content and issue an apology.

Civil defamation suits, filed under the tort of defamation, seek monetary damages and permanent injunctions. Civil proceedings are appropriate when the primary objective is compensation for damage caused and a court order preventing future publication. The standard of proof in civil cases (balance of probabilities) is lower than in criminal cases (beyond reasonable doubt), making it easier to establish the claim.

RepuLex advises on the most effective approach based on the specific circumstances — the severity of the defamation, the identity of the content creator (known vs anonymous), the platform hosting the content, and the client's primary objective (removal, damages, or both). In many cases both tracks run together, filed by our partner law firm in the client's name: the criminal complaint addresses the offence while the civil suit seeks removal and compensation.

Handling Anonymous Defamation and Unmasking Authors

A significant portion of online defamation is published anonymously or under pseudonyms. Identifying the author is often necessary for effective legal action. Author identification runs through several channels: disclosure requests to the platform; a John Doe suit, filed by our partner law firm, in which the court can direct the platform to disclose IP and account data; and a complaint to the Cyber Crime Cell for criminal investigation.

The first-originator rule in the IT (Intermediary Guidelines) Rules 2021, Rule 4(2), does not reach defamation: it applies to significant messaging platforms, on a court order or a Section 69 order, only for serious offences such as those touching the security of the State, public order, or sexually explicit and child sexual abuse material. In a defamation matter the route to an anonymous author is a court order in a civil suit directing the platform to disclose account and IP data, after which the identified individual can be held to account.