With the blessings of Information and Communication Technology, the digital age is benefiting billions across the world. The entire world has become a global village. Internet has proved to be the greatest invention to mankind. However, the transcendental jurisdiction of Internet has caused the major threat to the society in the form of cybercrimes. Women and children are the main victims of this transgression. According to Jeet Shobhana, “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 cyber café.” This paper attempts to address the gravity of cyber obscenity as a gross violation of women’s liberty and freedom. It tries to address the judicial meaning and interpretation of the term, ‘obscenity’; loopholes concerning the law on the subject and provides suggestion thereto
Indian Constitution gives equal status to women by conferring upon them right to equality under Article 14. This right is further improved upon by conferring special provisions under Article 15 (3) of the Constitution by providing reservations to women in matters of employment and education. In 1992, the Constitution was amended to reserve 33 percent of the seats in favour of women in panchayats and municipalities. These legal provisions are regarded as a major step for the socio-economic empowerment of women in India. Nevertheless, the status of equality has been still a myth to millions of women. Even today, they are victims of various forms of violence or harassment within houses, in the educational field and at work places. Further, with the advent of technology, the victimization of women has increased posing a major threat to the security of their person as a whole in the form of cybercrimes. We are now in the midst of a third major revolution in human civilization. First there was the agricultural revolution, then the industrial revolution and now we are in the information revolution.
Online gender harassment
India enacted its Information Technology Act in 2000 and thereafter amended the said Act in 2008 to combat cybercrimes. However, issues pertaining to online sexual abuse of women still remains untouched under the said Act. Cyber spaces have become havens for cyber criminals. Women are the most vulnerable targets in the internet. They have been victimized more specifically in the social networking websites. Apart from women, there are millions of men and children who are also the victims of cybercrimes. The major type of cybercrimes which are directed against women are harassment via emails, cyber stalking, cyber pornography, obscenity, defamation, morphing and email spoofing. Various factors could be attributed towards online victimization of women. In majority cases, offenders target the victim for sexual purposes. Cyber sexual abuse can even be witnessed in the form of cyber pornography or cyber obscenity. Cyber obscenity includes pornographic websites, pornographic online magazines and the internet to download and transmit pornographic pictures, photos and writing. The photographs of women are used, morphed and distributed in the internet with obscene postures. The offender may even part messages using filthy language. Cyber obscenity can even be practiced by way of hacking the victim’s profile. The original photographs posed in the original profile are morphed and the profile name and information, as well as the morphed photographs, are used to send obscene messages to the victim’s friends or to the general public. The offender may hack her profile and send open invitations for having sex with her. Even the pornographic materials can be reproduced more easily on new media like hard disks and CD-ROMs.
Incidents of online abuse
In India’s first case of cyber stalking was reported in the year 2000 wherein the Crime branch arrested Manish Kathuria, a 30 year-old-software engineer for harassing a woman by chat on internet. He used obscene and obnoxious language and distributed her residence phone number inviting people to chat with her on the phone. As a result of which the lady kept getting obscene calls from everywhere and people promptly talked dirty with her. In the state of shock, she called the Delhi Police and reported the matter. The Police traced the culprit and slammed a case under Section 509 of the Indian Penal Code for outraging the modesty of the woman. Women’s photographs were flashed on porno portals along with their mobile numbers. In 2008, a fast track court in Chennai sentenced a well-known orthopedic surgeon to life imprisonment in a case relating to taking obscene pictures of women and uploading them on the Internet. The doctor manipulated his women patients in various ways forcing them to exhibit sexual poses before the camera.
Furthermore, offence of cyber obscenity is not just restricted to women as its victims, but children have also become a part and parcel of it either as culprits or as victims. In Delhi, a School student was teased by his class mates for having a pockmarked face. He was tired of the cruel jokes so he decided to get back at his tormentors and scanned photographs of his classmates and teachers, morphed them with nude photographs and put them on the website that he uploaded onto a free web hosting service. The father of one of the class girls featured on the website came to know about this and lodged a complaint with the Police who took immediate action. Few years back, the Hindustan Times broke the disturbing story about an explicit MMS being circulated among students of Delhi’s top schools. This clip showed a Class XI student performing oral sex on her classmate. The video had traveled widely over the Net, through MMSs and was available in CDs in shops across Delhi. It had triggered shock and moral outrage among parents and generated debate over the propriety of allowing cell phones in schools. The above cited illustrations clearly reveal the fact, how easy accessibility of digital technology to children have proved to be a greatest disadvantage of Information technology.
Law pertaining to electronic media and cyber obscenity
Concerning the law pertaining to the offence of cyber obscenity, S.67 and S.67A of the Information Technology Act, 2000 are the first provisions dealing with obscenity on the internet in India. These sections deal with obscenity in electronic spheres and provide punishment for publishing or transmitting obscene materials in electronic form. Punishment for publishing or transmitting of material containing sexually explicit act etc., in electronic form extends from three to seven years of imprisonment and fine ranging from five to ten lakh rupees. However, it must be noted that the test to determine offence of cyber obscenity as per the Information Technology Act, 2000 has identical ingredients as provided under Section 292 of the Indian Penal Code, 1860. Even the term ‘indecency’ can be interpreted so as to fall within the preview of the definition of obscenity. Also, the legal understanding of pornography and obscenity have often overlapped with each other.
The Code in specific does not lay down any test to determine obscenity. It merely prohibits the sale or distribution or exhibition of obscene words, etc. in public places. Hence, this test would involve investigation of whether the tendency of matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort is likely to fall. This test is similar to the test put forth in the ruling of R. v. Hicklin wherein, the Court held that “a publication or content is obscene if it tends to produce lascivious thoughts and arouses lustful desire in the minds of substantial numbers of that public into whose hands the book is likely to fall. Hence, the freedom of speech and expression are restricted in the interest of decency and morality.” However, the Supreme Court is of the opinion that there is no fixed standard to determine what is moral and what is decent. The standard of morality varies from time to time and from place to place. The Courts observation cannot be discarded since birth control which was once considered immoral is now considered moral and a means to control over population. Similarly, kissing or hugging scene in Indian cinema has now come to be tolerated by urban viewers but countryside viewers still do not approve such film scenes.
The Supreme Court again in the year 2007 while recognizing the right to adult entertainment, reviewed the position of law on obscenity and summarized the test regarding obscenity. As per this test the picture of a woman in nude/semi-nude is not per se obscene unless there is something in it which would offend the taste of an ordinary decent minded person. The court was more referring to the content. In the sense, the content is regarded as obscene only when treatment of sex becomes offensive to public decency and morality, judged by the prevailing standards of morality in the society. The Court did not define pornography, neither did it explain the meaning of sexually explicit content, but from the explanation for understanding the meaning of obscenity, it is clear that not all contents which have some sexual flavor can be regarded as obscene. In this way, the meaning or interpretation of obscenity can be subjective depending on the culture. Even the definition of ‘decent minded person’ would also differ as per culture. In this way, obscenity can take various shades. Cyber obscenity being one among several others. According to Citron, cyber hate speech and verbal sexual abuse targeting women is more distressing than other forms of online offences
Although film and media is a part and parcel of the right to exercise freedom of speech and expression as per Article 19 of the Constitution, the obscene scenes in several Indian movies have attracted the attention of social activists who claim that it is an infringement of women’s right. They activists claim that by wearing vulgar clothes and by performing obscene scenes the modesty of woman is at stake. According to them, obscenity in cinema serves no social purpose. Nevertheless this debate, several girls who wish to be a part of Indian cinema meet producers, directors, camera men who assure them that they will give them a break and then in the process they are sexually exploited. Casting couch syndrome is common in the film industry. One such illustration on the subject was a case of a lady who was assured a break in a movie only if she entertained a man. The man being a close friend of the producer. Accordingly, she entertained the producer’s friend in a hotel room. When they were engaged in the act, a blue film was shot and in turn the same film was exhibited in theaters. When she came to know that the blue film was released in theaters she filed a suit in the court for defamation. Thus, obscenity on a whole was prevalent even before the arrival of cyber age. The only difference being, arrival of cyber age provided wider scope for distribution of obscenity in few seconds. Cyber obscenity has not overruled or defeated obscenity in general. Obscene events and incidents do take place even outside the preview of cyber world.
Sometime back there was a news item in a popular news channel wherein an actress was asked to wear a mini skirt and climb the ladder for shooting a particular scene. She was assured for no obscene scenes. Accordingly, she climbed the ladder. But the director knew exactly from which angle the scene had to be shot. So he started shooting the scene from the bottom of the ladder when she started climbing the ladder. She filed a complaint to the Police stating that the director had fraudulently shot the obscene scene. Women activists had made a hue and cry out of this issue.
In 2008, the Indecent Representation of Women (Prohibition) Act came into effect to include such acts of representation of women, which did not fall within the ambit of obscenity. But matters pertaining to cyber obscenity are still not included in the said Act. The Act focuses only on print media. It does not have sufficient powers to deal with the electronic media, the internet and mobile phones. This shows online sexual abuse or harassment is not taken that seriously as other forms of abuses. Till today the legal trend in this sphere has proved to be ineffective in assuring fair justice to women. Even the judiciary has not adequately considered the ways in which woman can be abused and subjected cyber obscenity. Thus, the victimization of women still continues in silence.
Legal impediments towards the safety of women
The main reason for the increased number of cyber-crimes against women in India is mainly due to lack of legal security. The State and law enforcement authorities are accountable to take effective measures to curb cyber obscenity. Stringent laws and implementation procedures need to be introduced. Debarati and Jaishankar have written extensively on cyber socializing and victimization of women in India. According to them, at times there are not enough female cyber cells, no female judges and female cops to deal with the situation. Also, most such crimes go unreported because women either fear or feel embarrassed to report their case to the police on account of family prestige and societal stigma. Humiliation, mental torture, stress, depression aggravates the situation. On account of delayed justice, people have lost faith in the law enforcement authorities. Lack of legal awareness makes it more complex. Further, most women overlook the privacy rules and regulations listed on the social networking websites. In fact, women can help regulate cyber obscenity by becoming vigilant about their rights and by ensuring safety measures prescribed by the various social networking websites. Popular websites like for instance, Facebook, in their privacy policies provide wide options to exercise all the safety measures like locking the album, hiding profile visitors, banning unwanted contacts, removing unwanted messages from one’s scrapbook for users etc. At the same time, one should also bear in mind that, most of the popular websites declare their privacy policies that they will not take any responsibility for any sort of harassment caused to the users by other users. They provide safety tips in the menu bar and warn the users that their profile may be deleted if it is reported that they are harassing other users by creating hate operations and soliciting pornography. Therefore, women should register on the social networking websites only after reading the privacy policies or after being aware of the safety precautions of such websites. In most cases, negligence serves as a root cause for women being often trapped and victimized in incidents of cyber obscenity. Majority of the women join the social networking websites without checking the safety regulations. Situation worsens when the abuser is anonymous, leaving no scope to trace who he is and why is he abusing. Laws in India do not directly acknowledge many of the offences like cyber bullying, cyber eve teasing, cyber harassment, cloning of profile etc. in the Information Technology Act, 2000. The ignorance and less importance does prevail even under the Public International Law. The Convention on Cybercrime, also known as the Budapest Convention on Cybercrime or the Budapest Convention, is the first international treaty trying to address cyber crime by harmonising national laws, improving investigative techniques, and increasing cooperation among nations. However, is does not include any provisions pertaining to cyber obscenity in relation to women. Thus, generally the lack of uniform or universal laws, covenants and rules have boosted the growth of online women harassment.
In conclusion, it can be stated that proper implementation of laws along with public awareness and education of women concerning their rights and legal remedies can play a crucial role in eradicating cybercrimes from our society. Such crimes cannot be curbed solely by enacting laws. Also, only looking from the angle of protection of the social mores would also not suffice. The digital technology has grown faster than the laws governing the technology. Hence the existing laws fall short to tackle the situation. The menace of cybercrime is not just restricted to India, but to the whole of world. Hence, there is a need for coordinated and integrated effort on part of the world community.