In this article, Chandrima Khare of Rajiv Gandhi National University of Law, Punjab discusses laws Punishing Cyber Stalking and Online Harassment.

Introduction

India has not only bagged one of the top ranks for having the highest number of internet users, but we also ace the statistics of global sexual harassment. The harassment faced by women online mirrors the image of harassment faced by them in the physical world. A survey conducted by Feminism in India underscored that 50% of women in major cities of India have faced online abuse. What is more striking is that instances of cyberstalking against men are on a surge. Experts have opined that the ratio is 50:50 vis-a-vis the instances of cyberstalking faced by men and women.

Cyber Stalking and Online Harassment

How British Crime Survey defines stalking

  • The British Crime Survey defines stalking as two or more incidents causing distress, fear, or alarm, of obscene or threatening unwanted letters or phone calls, waiting or loitering around home or workplace, or following or watching, or interfering with, or damaging personal property carried out by any person.
  • Cyberstalking is a criminal practice whereby a person uses the internet, cell phone, and/or any other electronic communication device to stalk another person.
  • The perpetrators are involved in the destruction of data or equipments, solicitation of minors for sexual purposes, threats, or any other form of offensive behaviour committed repeatedly.
  • The offenders make use of email, social media, chat rooms, instant messaging or any other online media to harass the victim.

How Forbes defines online harassment

  • Forbes defines online harassment or cyber harassment as repeated online expression amounting to a “course of conduct” targeted at a particular person that causes the targeted individual substantial emotional distress and/or the fear of bodily harm.

Online Harassment under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013

Online harassment also encompasses sexual harassment which is defined under section 2(n) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013 as unwelcome

  • physical contact and advances; or
  • a demand or request for sexual favours; or
  • making sexually coloured remarks; or
  • showing pornography; or
  • any other unwelcome physical, verbal or non-verbal conduct of sexual nature;

What can constitute online harassment?

  • Public actions or threats
  • False accusations of defamatory nature
  • Hacking or vandalising the sites of the victim
  • Sexual remarks
  • Publish materials so as to defame a person
  • Personally targeting the victims of crime
  • Ridicule or humiliate a person in order to gang up against him

Legal Provisions on Cyberstalking and Online Harassment

Punishment for cyberstalking and online harassment under the Indian Penal Code

  • Section 354 D of the Indian Penal Code which was added by the Criminal Law (Amendment) Act 2013 specifically proscribes the act of stalking as Whoever follows a person and contacts, or attempts to contact such person to foster personal interaction repeatedly, despite a clear indication of disinterest by such person, or whoever, monitors the use by a person of the Internet, email or any other form of electronic communication, or watches or spies on a person in a manner that results in a fear of violence or serious alarm or distress in the mind of such person, or interferes with the mental peace of such person, commits the offence of stalking.
  • The victim can also additionally file a case of defamation (Section 499, IPC) against the offender. The section has bailed out those acts of stalking which are performed for the purpose of preventing and detecting crime by a person who has been entrusted with such responsibility by the state. Also, instances where pursuing such conduct was reasonable or where the person was authorised under any act cannot allude to the offence of stalking.
  • Section 354A of IPC punishes offence of sexual harassment with 3 years of imprisonment and/or fine.
  • Section 354C criminalises the offence of Voyeurism. It is defined as the act of capturing the image of a woman engaging in a private act, and/or disseminating said image, without her consent. The section prescribes 3 years of imprisonment for the first conviction and 7 years of imprisonment on second conviction along with fine.
  • Section 503 punishes criminal intimidation as threats made to any person with injury to her reputation, either in order to cause alarm to her, or to make her change her course of action regarding anything she would otherwise do/not do. The offences under S. 499 and S. 503 are punishable with imprisonment which may extend to two years, and/or fine.
  • Section 509 of IPC comes to your rescue if someone is constantly bugging you with derogatory verbal abuse because of your gender. The section provides that any person who utters any word or makes any sound or gesture, intending that such word, sound or gesture be heard or seen by a woman and insult her modesty, shall be punished with one-year imprisonment and/or fine.
  • Section 507 punishes criminal intimidation by an anonymous communication with a term which may extend to two years of imprisonment. Vengeful posting of images or videos of rape victims is punishable with imprisonment which may extend to two years and fine under section 228a of IPC.

The Information Technology Act, 2008

The IT Act of 2008 does not directly deal with the offence of stalking.

Section 72 of the Act is used to deal with the offence of stalking which reads as follows: Any person who, in pursuant of any of the powers conferred under this Act, rules or regulations made thereunder, has

  • secured access to any electronic record, book, register, correspondence, information, document or other material
  • without the consent of the person concerned
  • discloses such electronic record, book, register, correspondence, information, document or other material to any other person shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.

Section 67 prohibits and punishes with imprisonment extending up to three years and fine for the first conviction and to five years and fine upon second conviction, the publication, transmission and causing of transmission of obscene content.

Section 67A has culled out a special category called material containing a ‘sexually explicit act’. The publication, transmission or causing of transmission of such material is punishable with imprisonment extending up to five years and fine for first conviction and to seven years and fine upon second conviction.

Section 66A of IT Act, 2008 provides:

Any person who sends, by means of a computer resource or a communication device

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.

This section was struck down in Shreya Singhal v. Union of India in 2015 as it

arbitrarily, excessively and disproportionately invaded the right of free speech and was so wide that any opinion on any subject would come under its ambit.

How to lodge a complaint

The Information Technology Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, any police officer, not below the rank of a Deputy Superintendent of Police, or any other officer of the Central Government or a State Government authorised by the Central Government in this behalf may enter any public place and search and arrest without warrant any person found therein who is reasonably suspected or having committed or of committing or of being about to commit any offence under this Act. (Section 80)

Cybercrimes do not have a jurisdiction as these crimes committed without any barrier of boundaries. So, you can report a cyber crime to the cybercrime units of any city irrespective of the place where it was committed.

  • Cyber Cells: Cyber Cells have been established to provide redressal to the victims of cybercrime. These cells function as a part of the criminal investigation department and specifically deal with internet related criminal activity. If you do not a cyber cell at your place of residence, then you can file an F.I.R in a local police station. You can also approach the commissioner or the judicial magistrate of your city, if by any reason you are unable to file an F.I.R. Any police station is bound to register an F.I.R., irrespective of its jurisdiction.
  • Online Grievance Redressal: Police is the most notorious law enforcement agency in India when it comes to dealing with women victims. Even when women have easy access to a police station, they hesitate in reporting the incident to them, under the fear of being harassed and being made to suffer additional ordeal. As a result, such crimes committed against women remain swept under the rug and women continue to bear the brunt of harassment. So, women who do not want to come out in the open can file a complaint against stalking at the National Commission for Women. The Commission takes up the matter with the police and expedites the investigation. In cases of serious offences, the commission can set up an inquiry committee to probe into the matter and conduct spot inquiry, collect evidence, and examine witnesses, summon accused and police records, etc to further the investigation.
  • Report to the websites: Most of the social media websites where users make their accounts provide a reporting mechanism. These websites are obliged under the IT (Intermediary Guidelines) Rules, 2011 to act within 36 hours to disable information related to offending content. The intermediary shall have to preserve such information and associated records for at least ninety days for investigation purposes. The affected person can bring to the knowledge of the intermediary, any offending content which is hosted, stored, or published on his computer system, in writing or through email signed with electronic signature.
  • Report to CERT: The Information Technology Amendment Act 2008 has designated the Indian Computer Emergency Response Team (CERT-IN) as the national nodal agency for tackling the issues occurring in tow with computer security threats. They issue guidelines on the procedure, prevention, reporting, and response to cyber incidents, among other functions.

What can be reported to CERT?

Both the users and System Administrators can approach CERT-IN to report about computer security incidents and vulnerabilities. CERT-IN is at your disposal to provide technical assistance if the users experience any the following violations:

  • Email related issues viz. mail bombing, spamming etc.
  • Processing and storing data by unauthorised use of a system
  • Making changes into the software characteristics, system hardware or firmware without obtaining the consent of the owner or without the knowledge or instruction of the owner
  • Attempt to obtain unauthorised access to a system or data contained therein. Attempt includes both successful and failed attempt
  • Disruption or denial of service

How to report incidents to CERT-IN

You can report an incident to CERT by sending them an electronic mail, calling them, or filling up a form available on their website, or by fax.

  • Through Website: You can also report the incident on the website of CERT-IN by filling up an incident-reporting form. Try to fill all the details as it will help CERT to understand the gravity and nature of the incident and

        and assist in recovery as desired by you.

  • Through Electronic Mail: The CERT-IN email address for reporting incidents is [email protected]‖. For all other inquiries and correspondence, write to ―info @cert-in.org.in‖.
  • Through Telephone and Fax: Contact CERT-In on +91-11-24368572. Incident report can be faxed to CERT-In at +91-11-24368546.
  • Postal Address: Indian Computer Emergency Response Team (CERT-IN), Ministry of Electronics and Information Technology, Government of India, Electronics Niketan, 6, CGO Complex, Lodhi Road, New Delhi 110003, India.

DOs and DON’Ts

  • As cyber crimes are committed in a virtual world, it becomes difficult to collect evidence against the offender. So, do not immediately delete the photos, mails, or any other information sent by the stalker as this can help the investigators to trace the trail of his online activities and track him.
  • Cyberstalkers can easily hide evidence of their online activity, so preserving his evidence via printouts or screenshots can come very handy.
  • Report the incident to the website in question.
  • File a First Information Report to enable commencement of the investigation of the cyber crime.

Important laws relating to Cyber Stalking and Online Harassment one must know

Sl. No.                              Offences     Sections
1. Printing etc. of grossly indecent or scurrilous matter or matter intended for  blackmail Sec. 292 A IPC
2. Making sexually coloured remarks, guilty of the offence of sexual harassment. Sec. 354 A IPC
3. Offence of Stalking Sec. 354 D IPC
4. Sending defamatory messages by email Sec. 499 IPC
5. Criminal intimidation by an anonymous communication Sec. 507 IPC
6. Word, gesture or act intended to insult the modesty of a woman Sec. 509 IPC
7. Punishment for violation of privacy Sec. 66E IT Act, 2008
8. Publishing or transmitting obscene material in electronic form Sec. 67 IT Act, 2008
9. Publishing or transmitting of material containing sexually explicit act, etc. in electronic form Sec. 67 A IT Act, 2008
This is not a comprehensive list.

The International Journal of Science, Technology, and Management (issued on 4th April 2017) gave some useful links to report objectionable content to Social Media intermediaries like Facebook, Yahoo etc.

Facebook

https://www.facebook.com/policies/?ref=pf ii. https://www.facebook.com/about/privacy Ms. Ankhi Das, Facebook India, Public Policy Director Building No. 14, Raheja Mindspace, HiTech City, Main Road, Vittal Rao Nagar, Hyderabad, Andhra Pradesh, India E-mail id: [email protected],[email protected] and [email protected]

Yahoo India

Mr Robin Fernandes, Sr.Executive Compliance Building 12, 6th Floor, Solitaire Corporate Park, Guru Hargovindji Marg, Andheri (E), Mumbai 400 093 Tel: + 91 22 3308 9600 ,+ 912233089652 Mobile: +91 8452049536 Fax: +91 22 3308 9700 E-mail id: [email protected]

YouTube and Google India Pvt. Ltd. https://www.youtube.com/t/contact_us https://support.google.com/youtube/topic/2803240 ?hl=en&rd=1 Ms. Gitanjli Duggal, Legal Director, DLF Cyber City, Tower 8C. 9th floor, Gurgaon – 122002. E-mail id:[email protected]; [email protected] Apple India Pvt Ltd.

19th floor, Concorde Tower C, UB City, No. 24, Vittal Mallya Road, Bangalore 0560001 India E-mail id: [email protected], [email protected]

Microsoft Corporation (I) Pvt. Ltd.

Ms. Madhu Khatri Associate General Counsel, Microsoft Corporation India Pvt. Ltd. 10th Floor, Tower B & C,DLF Building No.5 (Epitome), Cyber City, DLF Phase III, Gurgaon, 122002 Fax: 91-124-4158888 Dial toll-free: 1800 102 1100 or 1800 111 100 E-mail id: [email protected]

Twitter https://support.twitter.com/articles/80586 E-mail id: [email protected] ; [email protected]

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1 COMMENT

  1. Nice Article sir.. however to the best of my knowledge, as per the 2008 Amendment, powers under section 80 have been given to any police officer not below the rank of ‘Inspector’. Please correct me if I’m wrong.

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