In this blog, the author has illustrated the various cases of online harassment and the various challenges faced due to the loopholes in the law.
The online harassment of women is a serious catastrophe of our time. It's a process of victimizing the section that we are vowing to improve the conditions of. One of many facets of its increasing heinousness can be rationed with our indifference, if not complacence, to such machinations. Gender-specific harassment is no novel and the "online world" is no exception. A girl on her social media account could hardly be spared of the vulgar, vindictive, and undesirably malicious material. Dreadful it might appear, in a survey conducted by The Hindu[1], eight out of the ten surveyed have faced online harassment. It was noted that 'in 42% of the cyberbullying cases and in nearly half of all instances of cyberstalking where the victim was a woman, the perpetrator was a stranger'. Girls in metropolitan cities were found to be comparably more vulnerable. In a different survey it was pointed out that with the increase in internet users, Cyberbullying has increased drastically with more than 36 percent rise in the last one year. It would be sinister not to consider it a failure of State but not being political what this piece tries to put forth is a descriptive study of online harassment by delineating on two most common offenses: Cyberbullying and Cyberstalking, the preventive measures, and existing legal remedies.
CYBERBULLYING and CYBERSTALKING
Bullying may be defined as an act done to create repeated trouble for the other party from which the doer gains some sadistic pleasure. It might include threatening, disparaging the status of, or controlling the other person in any possible way. Normally, the term has been used in the context of workplace, schools, and colleges it also has other implications. The notion that cyberbullying is an on-campus offense does not hold water anymore. Its effects can linger, impacting the on-campus educational environment for both victims and bullies[2]. When the same act is done in cyberspace, it is referred to as cyberbullying but with a difference. The arch difference between the two lies with the identification of the wrongdoer, while in the 'real' world it is normally identifiable; in cyberspace, the 'anonymity' camouflages the identity. Let's have a detailed perusal.
Cyberbullying-
"is when one person or a group of people try to threaten, tease or embarrass someone else by using a mobile phone or the Internet”[3].
Cyberbullying can be done directly to an individual by sending them insults or threats via email, instant messaging, or text messaging[4]. It is common enough to make people not notice it and even if they have then not to report it. For this reason, a majority of cases are unreported. since there is not a lot of awareness about bullying in many schools, many teachers and parents have no idea their kids are being beaten or stalked and videos posted online[5].
Cyberstalking is difficult to put in words. No working definition has been constructed, perhaps because cyber gender harassment has been relegated to the shadows of our thinking[6]. One facet of online harassment is denigration which includes positing photos, texts or any kind of information by the perpetrator in cyberspace accessible to the third person. In this manner Cyberbullying and Cyber-harassment are interchangeable. Cyberstalking is a kind of cyber harassment. Cyber harassment could be said to be 'the main motive behind cyberstalking'.[7] "Cyberstalking" is defined as a crime where the stalkers use the internet or any other electronic device to stalk someone[8]. An interesting finding is that in the majority of cases the stalker is a friend or acquaintance[9]. The notoriety is no alien to India; last year a youth was arrested for cyberstalking his classmate[10], a few years back an activist was portended with rape threats on her social media[11]. Cyberstalking is broadly gender-specific with '4 out of 5 cyberstalking victims are women'[12]. It not only ruthlessly destroys freedom but could prove to be a good reason for suicide. A study shows that the victims suffered panic attacks, nervous breakdowns, anxiety, helplessness, and posttraumatic stress disorder.[13]
THE CONUNDRUM OF ANONYMITY
The second thing is 'Anonymity', the most contested part of the discussion. Anonymity differentiates physical attacks from the virtual ones. When encountering a 'real world', even a stranger is likely to be traceable as he is who he is but the same is not true for the virtual world making it difficult to trace the perpetrator. A lacuna is created due to a lack of jurisdiction as the stalker might even belong to another country where the laws of India won’t apply. They may use computers that are not their own or claim that they were not the source of the message, but that someone else used their computer.[14] A study found that the long-term impact of cyber bullying is greater than with traditional bullying’[15]. It, therefore, heightens the gravity of vulnerability. While it may be possible to track down the culprit through the expenditure of time and resources, the difficulty in identifying the culprit makes punishment even more challenging[16]. The problem also lies in the application of preventive as well as punitive measures. Law cannot punish someone untraceable.
PRECAUTIONS AND REMEDIES
It is shamefully acceptable that there is no panacea available for cyber harassment and if it will ever be in the future, a collaboration of human psychology and law would be essential. In Majeesh K Mathew v. State of Kerala, the Kerala High Court observed that commenting sexually explicit content against a woman on social media amounts to sexual harassment. We in India have no specific legislation against cyber harassment. The remedy lies in umbrageous India Penal Code, 1860 (“IPC”) where section 354D, added after gruesome Nirbhaya rape case of 2013, defines "stalking". The section explicitly relates to women only. Section 292 and section 507 of the same Act define "obscenity" and "criminal intimidation by anonymous communication" respectively. The latter deals with the 'anonymity' that we have discussed earlier. Section 509 punishes "word, gestures or act intended to insult the modesty of a woman" but here again an insightful perusal negate "cyber" involvement as 'cyber-stalkers can easily escape the penalty under this section as word cannot be spoken, gesture cannot be seen and sound cannot be heard'[17]
Information Technology Act, 2000 (“IT Act”) sounds credible to an extent, the provisions are:
Section 67 says, Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it..shall be punished….” The punitive remedy is a jail term extendable to three years and a fine extendable to five lakh. The impugn section is often criticized for uncertainty and vagueness[18]. Section 67A, added in 2008, deals with "sexually explicit" content and section 67B addresses the stalking of children below 18 years. Section 66E, and also section 345C of IPC, deals with “voyeurism”. Section 66E, IT Act is for “any person” whereas for 345C victim must be a “woman”.
Laws, although competent, are often prone to misuse by authorities. Section 67, IT Act has been grossly misused for curtailing political speech and censorship[19]. Often, local police do not consider the online harassment to be a crime, don't know what to do with the evidence or to whom they should escalate the report, or simply don't think they can do anything about "virtual" harassment[20]. There have been many instances where the need for effective legislation was felt as it becomes very difficult for the enforcement agencies to deal with such cases.
PREVENTIVE STEPS AND SUGGESTIONS
· Like bullying, cyberbullying should also be dealt at the root levels with imparting ethics of morality, peace and fraternity among students, workers and 'bosses'. Parents should keep a check on the online activities of children. Schools and workplaces should start, if already haven't, the counseling programmes and peer-to-peer interaction sessions. Cyberstalking should also be dealt with in the same way with full confidentiality.
· When on the internet one should be cautious when making "friends" and should avoid interacting with strangers and sharing personal information. Everyone should choose a username that is gender-neutral or the e-mail ids should be a combination of characters and phrases that are meaningless[21].
· Softwares such as Netnanny, Accountable2You, which restricts certain adulterated websites from access and give parents access to regulate it.
· All Internet Service Providers should deploy an efficient ‘complaint and action’ mechanism with an amicable understanding between investigative authorities like police and service providers. It would help in locating and arresting the movements of the perpetrator quickly.
References: [1]The Hindu, Most common forms of harassment were abuse and insults, reveals survey, October 05, 2017, available at https://www.thehindu.com/news/national/8-out-of-10-indians-have-faced-online-harassment/article19798215.ece (Last visited on 6 April, 2020) [2] Ari Ezra Waldmane, Are Anti-Bullying Laws Effective 103 Cornell L Rev Online 86 [3] B.S. Shivashankar and Aswathy Rajan ,A Critical Analysis of Cyber Bullying in India-with Special Reference to Bullying in College, International Journal of Pure and Applied Mathematics 1811 (2008) [4] Melissa Luhtanen and Lisa Ellis, Cyber Bullying: Bullying through Technology, 33 LawNow 14 (2009) [5] Waldmane, Supra note 2, at 92 [6] Danielle Keats Citron, Law's Expressive Value in Combating Cyber Gender Harassment, Michigan Law Review 373 (2009) [7] Ms. Heena Keswani, CYBER STALKING: A CRITICAL STUDY, April – June, 2017 Bharati Law Review 131 (2017) [8] Id. at 131 [9]Tatiana Begotti and Daniela Acquadro Maran, Characteristics of Cyberstalking Behavior, Consequences, and Coping Strategies: A CrossSectional Study in a Sample of Italian University Students, 22 May 2019 available at file:///C:/Users/Lenovo/Downloads/futureinternet-11-00120-v2.pdf (Last visited on 15 April 2020) [10] India Today, Man held for cyberstalking ex-classmate in Hyderabad, May 26 2019, available at https://www.indiatoday.in/crime/story/stalker-arrested-hyderabad-1534979-2019-05-26 (Last visited on 15 April 2020) [11]Piaysree Dsgupta, Rape threats to Kavita Krishnan: Does Internet belong to the cyberbully?, available at https://www.firstpost.com/tech/news-analysis/rape-threat-to-kavita-krishnan-does-the-internet-belong-to-the-cyber-bully-2-3624599.html (Last visited on 15 April 2020) [12] Centre for advanced research in digital forensics and cybersecurity, Online Harassment And Cyber Crimes Against Women – An Insidious Menace January 24, 2019 available at https://www.ardcindia.org/online-harassment-and-cyber-crimes-against-women/ (Last visited on 15 April 2020) [13] Joanne D. Worsley , Jacqueline M. Wheatcroft, Emma Short , and Rhiannon Corcoran, Victims' Voices: Understanding the Emotional Impact of Cyberstalking and Individuals' Coping Responses April-June 2017: 1–13 SAGE, available at https://journals.sagepub.com/home/sgo9 (Last visited on 15 April 2020) [14] Luthaene and Ellis, Supra note 4 at 15 [15] Scott Meech, Cyber Bullying: Worse than traditional bullying? I May, 2007 available at https://www.techlearning.com/news/cyber-bullying-worse-than-traditional-bullying (Last visited on April 2020) [16] Krupa A Patel, Cyberbullying: What's the Status in England 13 San Diego Int'l LJ 589 (2012) [17] Keswani, Supra note7 at 138 [18] The Wire, Route 67: How the IT Act's Section on Obscenity is Being Misused to Violate Digital Freedom, 29 November, 2017 available at https://thewire.in/gender/victorian-censorship-research-finds-section-67-act-grossly-misused (Last visited on 15 April, 2020) [19] Asia Times, India’s Digital Obscenity Law is being grossly misused: Report 9 December, 2017 available at https://asiatimes.com/2017/12/indias-digital-obscenity-law-grossly-misused-report/ (Last visited on 16 April 2020) [20] Emma Marshak, Online Harassment: A Legislative Solution 54 Harv J on Legis 503 (2017) [21] Keswani, supra note 7 at 145
Submitted by:
Anirudh Tyagi,
Dr. Ram Manohar Lohiya National Law University
(Images used for representative purpose only)