Black And White Sides Of Cyber Laws For Women In India

Divya Verma & Aditi

Abstract

Where on the one hand the cyber world has proved many advantages in the whole world, on the other hand, there are many disadvantages of the cyber world too. These disadvantages can be concluded from the well raised figure of the cybercrimes, alarming in the whole world. India is one of the victims in this cyber world. Cyber world in India is affecting a huge proportion of women as compared to men. With widely spread technology every second, one woman in India gets tricked to be a victim of cybercrimes and the online platform is now the new platform where a woman’s dignity, privacy and security is increasingly being challenged every moment. Some of the major well-known cybercrimes have put thousands of women into various health issues such as depression, hypertension and women suffer from anxiety, heart disease, diabetic and thyroid ailments due to e-harassment. Cyber stalking, Defamation, cyber pornography, email spoofing, phishing and trolling contributes to major cybercrimes. Computers and other mobile devices have evolved greatly, and more information can be shared on the net than before. The digital age has enabled not only texts to become longer and accessed by many people, but also pictures.

Jessica Logan is a teen who committed suicide after her nude pictures were posted on the internet and were circulated among her fellow students in Cincinnati. Even in a world full of cybercrimes, do we Indians have an effective administration system for these crimes? Whether India is dealing with these cybercrimes in an effective manner or not can be concluded with the suicide of Jessica Logan.

Introduction

In a world full of technology where on one side, people are making their lives easier through one click of the mouse, they are not much aware of the harms which this spreading of technology is causing to their daily lives. In developing countries like India, technology is getting its own precious place, which can be concluded from online shopping and some social networking sites which involve data privacy. Where on one side of the cyber world people are satisfied with spreading of technology due to its resulting in making way of life easy and comfortable, the other side reflects the victimization of the same people through the spreading of the same technology. The NCRB report 2016 states that in 2016 there have been 48,31,515 incidences of crime in India under IPC as well as SLLs, which is 2.9% more than the crime incidences of 2015. Of these total crimes, the number of cybercrimes is 12317 which form 0.25% of the total crimes. This is inclusive of cybercrimes against women. The cybercrime incidences have increased at a rate of 6.3% during 2015-16 and 20.5% during 2014-15. The number of cybercrimes in India in 2014 and 2015 have been 9622 and 11592 respectively. There is no parity in the 1st National Dialogue on Gender-based Cyber Violence percentage variation of crime rate in general and cybercrime rate with cybercrimes increasing at a much faster rate and still forming a meagre percentage of total crimes in India.

The object of the IT Act is crystal clear from its preamble which shows that it was created mainly for enhancing e-commerce hence it covers commercial or financial crimes i.e. hacking, fraud, and breach of confidentiality etc. but the drafters were unaware about the safety of net users.

The increasing reach of the internet, the rapid spread of mobile information, and the widespread use of social media, coupled with the existing pandemic of violence against women and girls, has led to the emergence of Cyber violence against women and girls as a growing global problem with potentially significant economic and societal consequences.[1]

Crimes Against Women

Every second, one woman in India gets tricked to be a victim of cybercrimes and the online platform is now the new platform where a woman’s dignity, privacy and security are increasingly being challenged every moment. In cybercrimes against women, the effect is more mental than physical while the focus of the laws ensuring women’s security is more on physical than mental harm. Some major crimes are:

  1. Cyber pornography
  2. Cyber stalking
  3. Morphing
  4. E mail spoofing
  5. Cyber defamation

Cyber Laws for Women in India: The White Side for Women In India

Information technology Act is a biggest support system for all the women who are victim of this cyber world. The Act offers many effective provisions for safety of women from cybercrimes. There are few provisions of Indian Penal Code also, which are dealing with same problem. These provisions can be concluded as follows:

  1. Section 66 and 66A: Section 66 of the IT Act deals with the computer-related offences and the punishment for those who had been committing such offences is: Section 66A- Punishment for sending offensive messages through communication service, etc Any person sends any information that is grossly offensive or which he knows to be false or causing annoyance or danger or inconvenience or mislead the addressee etc., by means of a computer resource or a communication device, shall be punishable for the period of 3 years and with fine.
  2. Section 66B: Dishonestly receiving stolen computer resource or communication device with punishment up to three years or one lac rupees as fine or both.
  3. Section 66C: Electronic signature or other identity theft like using others’ password or electronic signature etc.
  4. Section 66D: Cheating by personation using computer resource or a communication device shall be punished with imprisonment of either description for a term which extend to three years and shall also be liable to fine which may extend to one lac rupees.
  5. Section 66E: Privacy violation – Publishing or transmitting private area of any person without his or her consent etc. Punishment is three years imprisonment or two lac rupees fine or both.
  6. Section 66F: Cyber terrorism – Intent to threaten the unity, integrity, security or sovereignty of the nation and denying access to any person authorized to access the computer resource or attempting to penetrate or access a computer resource without authorization.
  7. Section 72: Punishment for breaching privacy and confidentiality.
  8. Section 72A: Punishment for disclosing information during lawful contract.
  9. Section 441 IPC: This section deals with criminal trespassing
  10. Section 354D: This section deals with stalking. It defines ‘stalker’ as a man who follows a woman and tries to contact such woman, monitors every activity undertaken by women while using digital media

Case Laws

The first ever conviction in India for cyber pornography, was in Suhas Katti v. State of Tamil Nadu, decided by a Chennai court in 2004.[2]The woman, a divorcee, complained of the case to the police about a man who was sending her obscene, defamatory and annoying messages in a Yahoo message group, after she turned down his proposal for a marriage. The accused opened a fake email account in the name of the woman, and forwarded emails received in that account. The victim also received phone calls by people who believed that she was soliciting for sex work. The police complaint was lodged in February 2004 and within a short span of seven months from the filing of the First Information Report, the Chennai Cyber Crime Cell achieved a conviction. Katti was punished with two years’ rigorous imprisonment and fined Rs. 500 under S. 469 IPC (forgery for the purpose of harming reputation), one year’s simple imprisonment and Rs. 500 for offence under S. 509 IPC (words, gestures or acts intended to insult the modesty of a woman) and two years’ rigorous imprisonment and Rs. 4000 for offence under S. 67 of IT Act 2000(punishment for publishing or transmitting obscene material in electronic form).

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Yogesh Prabhu v. State of Maharashtra, decided by the Additional Chief Metropolitan Magistrate M.R. Natu.[3] In 2009, the woman initially chatted with Yogesh Prabhu online. When he made a marriage proposal to her, she turned it down. Thereafter, she stopped responding to his messages as she found his behaviour suspicious. She also removed him from her friends’ list. However, Prabhu continued to keep an eye on her profile and her whereabouts, and stalk her through the internet. Some months later, she received mails from an unknown email account, containing obscene images and video clips. She initially ignored them, but when the obscene mails did not stop, she lodged a police complaint, and the Cyber Crime Investigation Cell took over the investigation. Internet Protocol (IP) address of the computer was traced to a Vashi firm where Yogesh Prabhu worked. The cyber cell filed a 200 paged charge sheet in September 2009, after which the trial began. During the trial, eight witnesses, including the aggrieved woman, Prabhu’s colleagues, cyber experts and police officials were examined by the Public Prosecutor. The magistrate’s court convicted Prabhu under S. 509 IPC (words, gestures or acts intended to insult the modesty of a woman) and S. 66E of the Information Technology Act, 2008 (punishment for violation of privacy). This was because the cyber stalking provision – S. 354D of the IPC – was enacted in 2013 and could not be applied retrospectively to a crime committed in 2009.

Saddam Hussain v. State of M.P., the accused had outraged the modesty of the victim, video recorded the same on his phone and used the same to blackmail her. A criminal complaint was lodged under S. 354D IPC (stalking), S. 507 IPC (criminal intimidation by an anonymous communication) of the IPC and S. 66A of the IT Act (which has subsequently been struck down as unconstitutional in Shreya Singhal v. Union of India).[4]A petition was filed before the Madhya Pradesh High Court for quashing on the basis of a compromise arrived at between the woman and the accused. The High Court refused to quash the proceedings, stating that the offences were against the society at large and a personal compromise between the parties would not affect the continuation of the prosecution. This case indicates that courts treat cyber stalking and cyber bullying as very serious offences.

Loopholes Under Indian Cyber Laws: The Black Side For Women

A research conducted by Feminism in India (FII) and part of Freedom House Hyperlinkers on ‘Violence online in India: Cybercrimes against women and minorities on social media,’ has found that nearly 50 per cent of women in major Indian cities have experienced online abuse.

According to National Crime Records Bureau, India’s agency for collecting and analyzing crime data, cybercrimes are described as “A new class of crimes is rapidly increasing due to extensive use of Internet and IT enabled services”. A UK-based organization working towards ensuring online safety for women and the LGBTQ community, says that online abuse is anything that causes distress and harm, which includes trolling and defamation.

FII’s research found that 36 per cent of women, who experienced online harassment, took no action at all and 28 per cent said they intentionally reduced their online presence after suffering online abuse. While 30 per cent said they were not aware of laws to protect them from online harassment. Women were surveyed from major Indian cities such as Delhi, Mumbai, Bangalore, Chennai, Hyderabad and Kolkata. 58% of respondents reported having faced online aggression of some kind in the form of trolling, bullying, abuse or harassment.

On May 18, 2016, former Indian Minister for Women and Child Development, Maneka Gandhi, stated that the online abuse and trolling of women in India should be treated the same way as violence in the real world. The next day, the Home Ministry announced that they plan to launch a portal named “Cyber Crime Prevention against Women and Children” (CCPWC) that will allow Indian women to post complaints about online harassment.[5]

Incidents Never Taken Seriously

Media Cases Reported by FII’S Report

In 2012, multiple Twitter users threatened Indian writer, poet and activist Meena Kandasamy after she discussed a beef-eating festival in the southern city of Hyderabad using her personal Twitter account (The Hindu community consider cows sacred). Kandasamy was threatened with acid attacks and televised gang rape. Kandasamy is Dalit, a lower-status group according to the Hindu caste system, and the festival was organized by a marginalized caste group.

In 2013, Indian journalist Sagarika Ghose was threatened with rape by Twitter users who discovered and published her daughter’s name and school.[6]Ghose said the tweets came from right-wing nationalists targeting “liberal and secular women.” Ghose subsequently stopped sharing her personal views on Twitter.

In 2015, Media One Group journalist V.P. Rajeena from the southern state of Kerala, published a personal account of child sexual abuse at a Sunni religious school in the southern city of Kozhikode on Facebook. Over 1,700 Facebook users shared her account, but it also attracted abuse from members of the Muslim community, many of whom reported her Facebook account for violating community guidelines, with the result that it was temporarily blocked.[7]

In a series of incidents in 2015, Facebook users attacked Indian social activist Preetha G. Nair, first for criticizing G. Sudhakaran, a leader of the Communist Party of India, and then India’s late President APJ Abdul Kalam.[8]Trolls attempted to hack her account, created a fake Facebook profile depicting her as a sex worker, and directed sexualized abuse at her children. Facebook temporarily suspended her profile after one of her abusers reported her for violating their real name guidelines, since Preetha had withheld her last name, which indicates her caste.

The IT Act included some penalties for economic crimes committed online, but failed to address cybercrime against individuals. This is one of the biggest loopholes in cyber laws for women in India. Amendments to the law passed in 2008 regulated more illegal cyber activities, including distribution of images depicting child sexual abuse. Some of the biggest loopholes in Cyber laws which promote the cybercrimes against women are:

  1. Cyber stalking under Indian criminal law is simply criminal intimidation with no separate provisions. This was made clear in a case wherein the victim Ritu Kohli received obscene calls from every part of the country as Manish Kathuria, her online stalker had distributed her number through a chat website. Delhi Police slammed a case under S.509 of Indian Penal Code (outraging modesty of a woman). A computer or internet is hence simply used as means to carry out stalking and harassment but cyber stalking is not considered a crime independently. Ritu Kohli Case was India’s first case of cyber stalking, in this case Mrs. Ritu Kohli complained to police against a person, who was using her identity to chat over the Internet at the website http://www.micro.com/, mostly in Delhi channel for four consecutive days. Mrs. Kohli further complained that the person was chatting on the Net, using her name and giving her address and was talking in obscene language. The same person was also deliberately giving her phone number to other chatters encouraging them to call Ritu Kohli at odd hours. Consequently, Mrs. Kohli received almost 40 calls in three days mostly on odd hours. The said call created a havoc in personal life of the complainant. Consequently, IP addresses was traced and police investigated the entire matter and ultimately arrested the offender. A case was registered under the section 509, of IPC and thereafter he was released on bail. This is first time when a case of cyber stalking was reported.
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Similar to the case of email harassment, Cyber stalking is not covered by the existing cyber laws in India. It is covered only under the ambit of Section 72 of the IT Act that perpetrator can be booked remotely for breach of confidentiality and privacy. The accused may also be booked under Section 441 of the IPC for criminal trespass and Section 509 of the IPC again for outraging the modesty of women.

  • No Separate Records: The NCRB report 2016 states that in 2016 there has been 48,31,515 incidences of crime in India under IPC as well as SLLs, which is 2.9% more than the crime incidences of 2015. Of these total crimes, the number of cybercrimes is 12317 which form 0.25% of the total crimes. This is inclusive of cybercrimes against women. The cybercrime incidences have increased at a rate of 6.3% during 2015-16 and 20.5% during 2014-15. The number of cybercrimes in India in 2014 and 2015 have been 9622 and 11592 respectively. It is a staple of anguish that there has been unembellished under-reporting of cyber-crimes i.e. online harassment of women and child sex abuse in the India. National Crime Records Bureau (NCRB) of India does not maintain any separate record of cyber-crimes against children and woman. Even with the alarming rate of the rise in cybercrimes against women, there is no separate record provided by NCRB to conclude the figure of the cybercrimes against women. A separate record can lead a conclusion in a better manner, and may affect our concerned authorities to take appropriate measures.
  • No Reporting In Major Cases: Official statistics maintained by the National Crime Records Bureau (NCRB) about cybercrimes record very low levels of incidence of technology-mediated VAW. In 2014-15, according to NCRB, only about 10% of cybercrimes reported for this period pertain to offences against women/ offences of a sexual nature[9]. However, considering that the majority of victims of technology-mediated VAW prefer not to seek legal recourse due to prevailing cultures of victim-blaming and shaming, the number of cases registered under the law has shown a decline of 46.1% over 3 National Dialogue on Gender-based Cyber Violence the average of five years (2008-12) and an increase of 156.7% over the year 2012. Again, a decline of 14.9% was registered in the same crime head during 2015 as compared to 2014 when it was 47. In 2015, 40 cases were registered and it became 38 in 2016. In West Bengal, no cases were registered under this act in 2016. The all India conviction rate of the Indecent Representation of Women’s (Prohibition) Act,1986 was 37.3% in 2016. According to the reports of NCRB, these things are very much conclusive.
  • No effective remedy provided to the past cases
  • lack of appropriate proceeding system in reports of cyber crimes against women
  • Inadequacy among laws
  • No Separate Legislation For Cyber Crimes Against Women:  Cybercrimes against women are reported in Information Technology Act only. This legislation is not a complete formula for providing an effective remedy to women. The Act only provides few provisions which deal with women. This is not a complete solution for the huge prevailing problem.
  • Section 66e: Section 66E, which talks about one of the serious cybercrimes in nature i.e. violation of privacy, is attached with an element of CONSENT. It is sorted that not only reporting of the case is essential but strict action against the accused is also essential. However, Section 66E leads to punishment of violation of privacy with image of private area of body and publishing that without anyone’s consent. Publishing anyone’s private images is not an important matter as compared to consent according to Section 66E. Element of consent leads to release of the accused even after commission of such a heinous crime.
  • Section 67: The language of Section 67 is interesting to observe. Here, we find the state in a paternalistic role controlling sexual behavior of the population. The perspective of the law is not protecting dignity or security of women; rather the focus of the law is to control propagation of images that may lead people to have an uncontrolled sexual life. The use of the words ‘lascivious’ and ‘prurient’ interest shows the negative approach of the state towards sexuality. Women’s bodies are regarded as a medium that has the power to deprave and corrupt people. Both these sections are aimed at controlling obscenity in internet. Most instances of cybercrimes against women are booked under these two provisions. In West Bengal in 2016, 64 cases were registered under Section 67A of the IT Act of which 29 are from Kolkata. Of the pending cases under the same section, there was conviction in 9 cases and acquittal in 45 cases[10],which shows that the rate of conviction is very poor.
  • Section 499 And 507:  Online verbal harassment and abuse that does not involve sexually explicit content is not adequately addressed. Sections 499 and Section 507 of the IPC pertaining to criminal defamation and anonymous criminal intimidation cover only those acts of trolling that contain personal threats, and fail to address generalized, misogynistic abuse. Similarly, acts of doxing that do not involve the circulation of sexually explicit imagery and are unaccompanied by intimidation/ slander are not covered. Though the IT Act does have a provision which criminalizes hacking (Section 66), it does not explicitly mention hacking for the purpose of doxing.

Recommendations and Conclusion

Reformation of Legal Provisions: It is essential to reform some of the legal provisions prevailing in India to cope up with the situation, especially with IPC. (a) The existing provision on hate-speech must be amended so that it covers generalized, misogynistic abuse offline and online. Section 153A of the IPC attempts to check speech that incites hatred “on grounds of religion, race, place of birth, residence, language etc.” and “doing acts prejudicial to maintenance of harmony”. In its current form, this provision has two critical drawbacks. Firstly, it fails to acknowledge that different groups, castes, and communities are not on an equal footing and therefore does not adequately account for misuse by dominant sections of society. Secondly, it does not address hate-speech linked to two other key markers of a person’s identity: gender identity and sexual orientation. Section 153A could be re-framed to cover gender-based hate-speech, in a manner that does not enable its invocation/ misuse by self-styled men’s rights groups.  Section 509 of the IPC needs to be changed so that it adequately covers all online and offline acts that constitute a criminal breach of privacy. In this attempt, we can take a leaf out of Section 354C of the Criminal Law (Amendment) Act 2013 that moves away from the notion of womanly modesty to a physical privacy framework, in addressing voyeurism.

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 New Effective Legislation to be adopted: The introduction of new legislation that specifically deals with technology-mediated VAW is guided by the school of thought that online contexts create new structures of communication and socialinteraction. Presently, the cases for VAW in cyber world are reported in IT ACT only. There is only a small portion of IT act which deals with the cybercrimes against women which is not sufficient to deal with the situation.

Law enforcement agencies fail to recognize that online VAW is as grievous as offline VAW. Women’s rights groups highlight that despite trainings on gender sensitization, in their response tocomplaints about technology-mediated VAW, the police engage in victim blaming and/ortrivialization of the offence. Stop dismissing reports of sexualized or gender-based abuse because they take place on the internet.

Facebook should revisit its real-name policy and make it more flexible, especially for marginalized genders and sexualities, journalists, and whistle-blowers under threat. Right to privacy and anonymity are fundamental rights and Facebook must uphold them. Harassment continues despite the requirement, yet victims fear it can be used against them.

 Implement the law against individuals responsible for inciting and carrying out online violence against women and marginalized communities, regardless of their political or religious agenda.

Some Remarkable International Efforts

In the UK, in April 2015, it became a criminal offence with maximum two years imprisonment to share private sexual photographs or videos without the subject’s consent providing the intent of causing distress to those targeted. In September 2016, it was announced that more than 200 people had been prosecuted since the law came into effect.[11]

Meanwhile in 2016, France adopted the ‘Digital Republic Law,’ which entails a harsher sanctioning of those found guilty of revenge porn. Under new legislation perpetrators face a two-year prison sentence or € 60 000 fine.

Similar provisions were enacted by a German court, which in 2014 made it illegal to store intimate photographs of a former partner after they have called for their deletion.

Research and Interventions

In 2009, the U.K. launched The National Centre for Cyber stalking Research (NCCR), which aims to provide research and analysis into the prevalence, motivations, impacts and risk assessment of cyber VAWG. In 2011, the Centre published the results of a study on the prevalence, nature and impact of cyber stalking[12]and is currently conducting a survey investigating the impact and prevalence of revenge porn.

Subsequently in 2015, a helpline for victims of revenge porn was established, receiving almost 2 000 calls in its first six months.

In July 2017, Slovenia launched the project ‘CYBERVAW’, which aims to develop awareness-raising and education activities that spread a clear message of zero tolerance to VAWG, with a specific focus on prevention of gender-based cyber violence and harassment as a form of VAWG.

Reasons for Growth of Cyber Crimes in India

The transcendental jurisdiction of Internet causes a major threat to the society in the form of cybercrime. The main victims of this transgression can be considered women and children. The study shows that we have 52 million active internet users in India which reached at 71 million in the year 2009. Among them, working women net users are 8 percent and 7 percent non-working women in the year 2009 and 37 percent usage of all users accessing internet through cybercafé.  It is a very common phenomenon that the important information of the net surfer is being disclosed easily by the owners of cybercafé and then it is used for illegal purposes. Although acquaintance with technology is a positive aspect that can be considered important for the development of any country, but at the same time, it is becoming the source to increase the crime rate with technology against the weaker sections of the society.

Object of IT Act as reflected from the Preamble reflects that it only deals with financial crimes in a wide manner. Most of the cybercrimes other than e-commerce related crimes are being dealt with by these three sections. Cyber defamation, cyber pornography, email spoofing, cybersex, hacking and trespassing into one’s privacy is very common nowadays but IT Act is not expressly mentioning them under specific sections or provisions[13]. Whereas IPC, the Criminal Procedure Code and the Indian Constitution give special protection to women and children, for instance, modesty of women is protected under Section 506 and rape, forceful marriage, kidnapping and abortion against the will of the woman are offences and prosecuted under IPC. Indian constitution guarantees equal right to live, education, health, food and work to women. But the same modesty of women seems not to be protected in general, except for Section 67 which covers cybersex in Toto.

Section 75 of the IT Act deals with the offences or contravention committed outside India but it is not talking about the jurisdiction of the crimes committed in the cyberspace, specially the question of place for reporting the case arises when the crime is committed in one place, affected at another place and then reported at another place. Although in the most of the cases, for the matter of territorial jurisdiction, Criminal Procedure Code is being followed.


[1]UN Broadband Commission for Digital Development, Cyber Violence Against Women and Girls: A World-Wide Wake-Up Call, (November 19, 2019),http://www.unwomen.org//media/headquarters/attachments/sections/library/publications/2015/cyber_violence_gender%20report.pdf?vs=4259.

[2]Suhas Katti v. State of Tamil Nadu CC No. 4680 of 2004.

[3]Prasanto K Roy, Why online harassment goes unpunished in India, (13 May, 2017, 4.30 PM), http://www.bbc.com/news/world-asia-india- 33532706

[4]Shreya Singhal v. Union of India AIR 2015 SC 1523.

[5] Sneha Johari, Updated: On Maneka Gandhi saying that online trolling of women will be treated as violence,Medianama (May 19, 2016), http://bit.ly/2aXbr5y.

[6] Divya Arya, Why are Indian women being attacked on social media?BBC, (May 8, 2013), http://bbc.in/2bk99kH.

[7]VP Rajeena, What sparked the madarsa controversy? What did VP Rajeena write?”India Today (November 26, 2015) http://bit.ly/2bk9GEC.

[8]Aarefa Johari, Facebook policies allow trolls to target women, says group fighting sexist online abuse,Scroll, (August 24, 2015), http://bit.ly/2aWqv30.

[9]From 2015 NCRB stats: 5.2 % (606 cases) of all cyber-crimes reported this year deal with insult to the modesty of women and 5.1 % (588cases) of all cyber-crimes reported deal with sexualexploitation
http://ncrb.nic.in/StatPublications/CII/CII2015/chapters/Chapter%2018-15.11.16.pdf

[10]National Crimes Record Bureau, Crime in India 149, (November 19, 2019), http://ncrb.gov.in/StatPublications/CII/CII2016/pdfs/NEWPDFs/Crime%20in%20India%20-%202016%20Complete%20PDF%20291117.pdf.

[11]Crown Prosecution Service, Violence against women and girls: Crime report 2015-16,11 (November 19, 2019),http://www.cps.gov.uk/publications/docs/cps_vawg_report_ 2016.pdf.

[12] Maple, C., Shart, E., Brown, A., Cyber stalking in the United Kingdom: An Analysis of the ECHO Pilot Survey. University of Bedfordshire. (November 19, 2019), https://www.beds.ac.uk/__data/assets/pdf_file/0003/83109/ECHO_Pilot_Final.pdf.

[13]Abhimanyu Behera, Cyber Crimes and Law In India,XXXI, IJCC 19 (2010).