Law and Society

The legal position of online harassment in India: Analysis, Critique and the way ahead.

INTRODUCTION:

The greatest gift to mankind from the scientific community has been the invention of information technology and the associated communication technologies in the last decade of the 20th century. With the increase in access to these advancements, there are certain risks involved around aspects of online harassment.

Online harassment is on the rise in India, with eight out of 10 surveyed reporting to have encountered some form of online harassment, cyberbullying and cyberstalking, according to a survey conducted by global cybersecurity firm Norton by Symantec. In 2017, Norton commissioned a survey through Morar HPI, an insight, strategy and creative consulting firm with a sample size of 1,035 adults aged 18 and over. “In India, the extent of online abuse is extremely alarming. Our new research shows that more extreme types of online abuse include physical violence (45%), cyberbullying (44%), and cyberstalking (45 per cent) are immense,” said Ritesh Chopra, Country Manager, Norton by Symantec, in a statement [1].

Social media is used as a means for communication and interaction among people across the globe, but the cybercriminals are using it as a medium to commit offences related to privacy, defamation, and misrepresentation of identity or cheating by personation, obscenity, sending offensive messages etc. Many people have fallen prey to these offences due to lack of awareness [2].

“We accept cybercrime because of ‘learned helplessness’,” said Joseph LaBrie, PhD, associate professor of psychology at Loyola Marymount University. “It’s like getting ripped off at a garage – if you don’t know enough about cars, you don’t argue with the mechanic”. It is hence important for people to be aware of such cases and be prepared.

PSYCHOLOGICAL AFTERMATH:

Not only is the harassment on social media criminal in nature but has a severe impact on the victim and in certain cases people close to the victim. Research shows that current forms of cyber-attacks can have psychological impacts. Depending on who the attackers and the victims are, the psychological effects of cyber threats can even compete with those of traditional terrorism. Victims of online attacks and crime can suffer emotional trauma which can lead to depression. There is also some evidence of limited symptoms of Acute Stress Disorder (ASD) in victims of crime in online virtual worlds, such as some anecdotal accounts of intrusive memories, emotional numbing and upset from victims of virtual sexual assault. Cyber-attacks can often lead victims to feelings of outrage, anxiety, a preference for security over freedom, and a lack of interest in adopting new technology due to loss of trust in cyber. The victim can go into stages of grief, suffer from anger or rage. In some cases, victims may even blame themselves and develop a sense of shame; sextortion is a good example of this given how it initially starts. As a general rule, about half of the victims may not contact anybody, although about a quarter will try to take any action on their own, even though they are only avoiding those websites in the future. [3].

THE LAWS REGARDING PROTECTION AGAINST ONLINE HARASSMENT IN INDIA:

The prominent laws regarding online harassment are the IT Act, 2000 and Indian Penal Code, 1860 which have provisions to deal with harassment. The IT Act, 2000 is based on the United Nations Model Law on Electronic Commerce, 1996 (UNCITRAL Model) recommended by the General Assembly of United Nations by its resolution dated 30 January 1997[4]. However, the Model Law on Electronic Commerce (MLEC) aims to promote and encourage electronic commerce by providing national policymakers with a collection of globally accepted rules aimed at eliminating legal barriers and the legal predictability of electronic commerce [5].

IMPORTANT LAWS:

Provisions to take action against cyber-crime are provided in the IT Act and IPC. Sections 65 to 78 of the IT Act 2000 deals with the offences and punishment, among which Sections 66 and 67 deal with offences related to computer and punishment for publication or transmission of obscene content in electronic form. Section 67A deals with punishment for publishing or transmitting of material containing sexually explicit act, etc in electronic form. The IT Act’s section 66A gave some protection against cyber-stalking but the provision was slashed by the Supreme Court of India in the landmark case of Shreya Singhal vs Union of India. Section 66A ostensibly intended to deal with messages of a “grossly offensive” or “menacing character,” or circulation of false information with the intent to cause “annoyance, inconvenience, danger, obstruction, insult, injury.” But it was so poorly drafted, and with such few procedural safeguards, that it became a tool abused by those in positions of power to stifle dissent or even mild criticism.

Provisions of the IPC which can be exercised on cyber-crimes are: Section 354A which deals with sexual harassment and its punishment. Where in section 354C provides for the offence of voyeurism that is not necessarily sexual harassment online but can be applied in certain situations. Section 354D talks about stalking which is the only provisions which specifically includes the use of internet in the provision. Section 499 covers the offence of defamation which includes publication which can be online.

If someone commits offence as stated in any of the sections above the person will be charged under these sections and will be punished accordingly. The punishment may be imprisonment or fine or both as stated in the sections or as the court may deem fit.

SCHEMES:

Along with the laws ministry of home affairs has approved a scheme named CYBERCRIME PREVENTION AGAINST WOMEN AND CHILDREN (CCPWC) SCHEME [6].

The main objective of CCPWC Scheme is to have an effective mechanism to handle cybercrimes against women and children in the country.  The scheme has a total estimated outlay of Rs. 223.198 crores.

COMPONENTS OF THE CCPWC SCHEME

  1. Online Cybercrime reporting Unit
  2. Forensic Unit
  3. Capacity Building Unit
  4. Research & Development Unit
  5. Awareness Creation Unit

Under the scheme, the components will provide a portal to report cybercrime, analyse the evidence according to the evidence act and IT act. The scheme itself will look after the capacity building, research and development and cybercrime awareness with the help of the components which have their designated role.

ANALYSIS OF THE LAWS IN USA AND UK

Laws in United States of America [7]

All electronic communications in the US are regulated by the Federal Communications Commission. Social Media proliferation like other countries has been a matter of concern in the United States as well. While the strong protections of the US Constitution and the Bill of Rights have resulted in very little government-mandated filtering or censorship, the internet became highly regulated as it expanded and developed in the United States.

The Computer Crime and Intellectual Property Section (CCIPS) of the United States Department of Justice is responsible for implementing the Department’s national strategies in combating computer and intellectual property crimes worldwide. In 1986, Congress passed the Computer Fraud and Abuse Act (CFAA). This law has been amended and expanded as internet technology has advanced, and it continues to form the basis for federal prosecutions of computer-related criminal activities. Other relevant federal statutes include the Electronic Communications Privacy Act (ECPA), the Identity Theft Enforcement and Restitution Act of 2008 (ITERA), Digital Millennium Copyright Act and Communications Decency Act etc.

US Federal law has provisions against online harassment which criminalises the use of electronic communication or interactive computer services to cause fear and distress. In addition to criminal federal law, there are two main civil offences at the federal level which may be applicable to cases of online harassment. The first potential route of civil redress is through defamation law, second being copyright law.

Laws in United Kingdom [7]

Social media regulation in the United Kingdom is also a matter of great concern. A range of UK laws is currently being used to regulate the content of tweets and other online messages. At the moment, there is no particular consistency as to which laws will be used to regulate which messages. It appears to depend on what evidence is available. The House of Lords Select Committee on Communications has said that legislations currently in existence, including the Communications Act 2003, the Malicious Communications Act 1988 and the Protection from Harassment Act 1997, are enough to ensure that criminal offences committed using social media can be adequately prosecuted. In the UK, the Data Protection Act 1998 provides that businesses may process personal data if they have obtained the informed consent of the user.

The way ahead:

In numerous occasions, the existing legal system and framework have revealed meagreness while tackling emerging cyber-crimes done through social media. There’s no doubt that the existing laws and regulations seem sufficient to deal with all the cyber crimes but what is needed is the efficient and effective enforcement of the laws by the appropriate authorities. In this connection, the judiciary should also play an important role in order to make the application of laws more stringent to check cyber-crime.

The reason why social media regulation in the UK and US is relatively far better than ours because of a relatively better legislative framework touching on the issues which arise in social media. There are numerous corresponding legislations and regulations which effectively control the mischief which arises primarily at social media. These legislations are not media legislation but these are corresponding legislation which effectively trap and regulate the mischief that arises at a social media forum.

What Can be a possible solution to control the rise in cybercrimes is that the parliament can bring all the laws related to cybercrime under one umbrella and legislation can be passed for better understanding with efficient execution. There should be a dedicated framework for prevention, monitoring and enforcement. Also, a separate judicial system to deal specifically with these cyber crimes can be created.

Endnotes:

  1. https://indianexpress.com/article/technology/tech-news-technology/online-harassment-on-the-rise-in-india-mumbai-leads-4873955/
  2. Nagarwal, Narender. (2019). Social Media Crime in Digital World -A Critique through Law, Policy and Practice. 10/1. 34. https://www.researchgate.net/publication/336749325_Social_Media_Crime_in_Digital_World_-A_Critique_through_Law_Policy_and_Practice
  3. https://ui.adsabs.harvard.edu/link_gateway/2019arXiv190913256B/arxiv:1909.13256
  4. Majeesh K. Mathew vs. State of Kerala and Ors. (20.06.2018 – KERHC): MANU/KE/1334/2018, ILR2018 (3) Kerala583
  5. https://uncitral.un.org/en/texts/ecommerce/modellaw/electronic_commerce#:~:text=The%20Model%20Law%20on%20Electronic,legal%20predictability%20for%20electronic%20commerce.
  6. https://www.mha.gov.in/division_of_mha/cyber-and-information-security-cis-division/Details-about-CCPWC-CybercrimePrevention-against-Women-and-Children-Scheme
  7. http://shodhganga.inflibnet.ac.in:8080/jspui/bitstream/10603/122738/12/12_chapter%204.pdf

This post is authored by Harshwardhan Khawale who is a 4th-year law student from ILS Law College, Pune.

http://hdl.handle.net/10603/122738

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