Cyber Forensics
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This article is written by Saurabh Kaushik, pursuing Certificate Course in Advanced Criminal Litigation & Trial Advocacy from Lawsikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Zigishu Singh (Associate, LawSikho).

Introduction

Cyberstalking, as the name suggests, is related to stalking that takes place online, as the term “cyber” suggests – relating to or characteristic of, the culture of computers, information technology, and virtual reality. Stalking means to pursue or approach stealthily, “a cat stalking a bird.”

In the beginning, one does not even realise that they are being stalked. Like a cat stalking a bird, the stalkers are quite careful about it. Initially, everything will be like sunshine and rainbows; stalkers initiate normal, amicable conversations to lay the trap, and once the victim starts responding to them, they would realise that they are being stalked online.

Cyberstalking is different from physical stalking. Here there is no direct communication with the victim. But the impact is just as intense as offline/ physical stalking. People are suffering from various mental health issues as an impact of being stalked.

The offence of cyberstalking as defined under Section 354D(1)(ii) of the Indian Penal Code is based on the principle of “nipping in the bud”, as the only requisite for the culpability under the said section is a man who “monitors” that’s it and nothing more is required. The intention of the legislature is to make the act of monitoring per-se punishable, as they realise that if this constant monitoring is not stopped, then it will lead to more serious offences, like sexually coloured remarks, sexual exploitation, defamation, criminal intimidation, outraging the modesty of a woman and other cybercrimes.

As the numbers of internet users are increasing like anything in India, it is essential to have a dedicated redressal mechanism to deal with this ever-growing menace of cyber-stalking which is affecting our mental health.

This article deals with what is cyberstalking, how it is different from offline-physical stalking, how the act of cyberstalking can lead to more serious offences against women and children and what measures are being taken by the Government of India and other stakeholders, as well as suggestions as to what other measures can be added. 

What is stalking?

General definition -pursue or approach stealthily, “a cat stalking a bird”

Offline Stalking- 354D(1)(i) Indian Penal Code,1860. Any man who follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman.

Online Stalking- 354D(1)(ii) Indian Penal Code,1860. Any man who monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking.

Acts which do not constitute the offence of stalking either offline/online, despite being acts of constant pursuing, if done because of the following reasons as provided under the proviso to 354D Indian Penal Code,1860.

i) It was pursued the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or

(ii) It was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or

(iii) In particular circumstances such conduct was reasonable and justified.

Liability for stalking under Section 354D(2) Indian Penal Code,1860

On first conviction -Whoever commits the offence of stalking shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and

On a second or subsequent conviction -be punished, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.

The offence of offline stalking differs from the act of online stalking as per the above-said provisions

To constitute the offence of offline stalking under Section 354D(1)(i) of the Indian Penal Code, 1860  there must 3 acts, 2 by the man and 1 by the woman as follows:-

1st act by man- there should be an act of pursuing by the man for the woman.

2nd act by man- after following, either contacts or attempts to contact the woman, with the purpose to foster personal interaction repeatedly. 

Here personal interaction refers to friendship and not sexual interaction, otherwise, if it is for sexual interaction, then it would attract culpability under section 354A for sexual harassment.

Repeatedlythe act of following and contacting or even trying to contact has to be repeated, an isolated act would not be considered as ‘repeatedly’.

3rd act (not literally 3rd in chronology) by the woman- 

The woman must have clearly indicated disinterest, implying that, if the woman hasn’t shown clear disinterest, that too by unambiguous indication to the man who is following, contacting and/or trying to contact her, then the offence of offline/physical stalking would not be constituted.

All these three (3) requisite ingredients have to take place, two by the man and 3rd by the woman, then only the combined act would amount to stalking under section  354D(1)(i).

To constitute the offence of online- cyberstalking under Section  354D(1)(ii)-

The only mentioned requisite is “monitoring” and nothing else is required. Here the woman is not required to show disinterest. This offence of stalking is based on the concept of nipping in the bud, which is to stop (something) immediately so that it does not become a worse problem. The act of monitoring itself is so serious that it has been made the only component to constitute the offence of cyberstalking under the said section, as the intention of the legislatures was that it needs to stop at the moment of just “monitoring”.

Other associated offences with the offence of cyber-stalking are as follows

Under the Indian Penal Code

354A Sexual harassment

A man committing any of the following acts—

a demand or request for sexual favours; or

showing pornography against the will of a woman; or

making sexually coloured remarks shall be guilty of the offence of sexual harassment

Sec 499 Defamation.

Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Sec 503 Criminal intimidation.

Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of anyone in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.

Sec 509 Insulting the modesty of a woman.

Any word, gesture or act intended to insult the modesty of a woman.—Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman,

Offences in Information Act, 2000

Section 67– Punishment for publishing or transmitting obscene material in electronic form

Section 67A– Punishment for publishing or transmitting of material containing the sexually explicit act, etc., in electronic form

Section 67B– Punishment for publishing or transmitting of material depicting children in the sexually explicit act, etc., in electronic form

How to file a cyber-stalking complaint

Registration of written complaint 

The victim must register her written complaint to their native cyber-cell in the city. If there is no cyber-cell in the city, then they can approach the local police station with the written complaint to have their complaint registered. The written complaint must contain all the known sequence of events along with the id and email of the alleged stalker.

In case of non-acceptance of the written complaint

In case of non-acceptance of the written complaint by the police authorities, one can approach the Commissioner of police for directing the police officers to register the complaint.

If the Commissioner of Police also fails to do his job, then one can approach the area judicial magistrate either for seeking directions for the concerned police authorities to register the complaint or the person can also ask the magistrate to directly take cognizance of the written complaint.

Right for legal assistance

On reaching the police station with the written complaint, the woman is entitled to legal counsel who can help her to file a case.

Privacy of the complainant

The statement of the woman must be taken down by the women police officers or in their presence to make the complainant comfortable while narrating her ordeal and also the identity of the victim must be kept secret.

Why the Registration of cyberstalking complaints must be promoted?

The offence of cyber-stalking is based on the rationale of “nipping in the bud”

The offence of criminal conspiracy as under Section 120B Indian penal code, 1860 is also based on this same rationale of “nipping in the bud”, and for culpability under the said section, meeting of minds is sufficient for doing an offence and no further acts reus (actual act) is required in furtherance of the meeting of minds(conspiracy) committed. As the act of conspiracy itself is so dangerous to the society that the legislature has made this meeting of minds per se culpable.

Registering of complaints will act as a deterrent to  not only the culprit of the cyberstalking but also for  others

The Registration of a complaint will act as a deterrence for not only the culprit of the cyberstalking but also for the society, as the culprit will be discouraged from committing the same act again, as the liability/punishment for cyberstalking for the second or subsequent act is greater than the first act of staking. Also, the others will get the message equally loud and clear that this cyberstalking attracts penal provisions and serious liabilities.

The social stigma which would otherwise be there in cases of offline/physical staking is not there in the cases of cyberstalking

Generally, when the physical staking takes place, and the woman thinks of reporting the said incident,  she also thinks of the social stigma attached to it. That is, how people will react to it, people will discourage her from proceeding with the complaint as the belief is that such things are routine, she will be told that if she reports the matter then the accused will do more harm to her, nobody will marry her if the incident becomes common knowledge, and her parents and family will restrain her from going out. But these things are unlikely to occur as a result of cyberstalking, as this act happens on the internet and nobody will ever come to know that the complainant has been ever stalked, not even her family if she chooses not to disclose it.

Suggestions as to how the growing menace of cyberstalking can be curtailed by the following

Government of India

The government should consider a pan India helpline for assisting in issues related to cyber-crimes (stalking) like 112. 

As the numbers are drastically growing for internet users and the majority of the users are not aware as to how to address this very serious prevailing issue of cyberstalking, there must be a number that can not only answers the FAQs regarding the issue at hand but also counsel that any stalking must be reported otherwise it may boost the morale of the offenders and may result in more serious offences as mentioned above.

The reason for the Pan- India helpline is that the issue of cyberstalking is not bound to be addressed by the territorial limitations of a particular place. 

Number 112 is a  centralised Emergency Response Support System (ERSS), working round the clock, tending to complaints of all nature from the public. Instead of dialling different helpline numbers such as police (100), fire force (101) and ambulance (112), the public can now call on 112 for quick, unified response services. The ERSS project is in line with the recommendations of the Justice Verma committee in the backdrop of the 2012 Delhi gang-rape case. 

Social media companies 

All social media platforms have their redressal mechanisms to deal with the cyberstalking complaints but they must be apparent as the warning mentioned on a cigarette pack, that is, there should be a dedicated window like advertisements running 24X7 on these platforms, which tell step by step as to how to make a complaint and also the legal consequences one may face.

Schools

Schools must conduct awareness camps on the school premises, and not only students but parents must also be invited and make sure that they also take part in those camps.  The curriculum must primarily include: 

  1. How to file complaints in such cyberstalking matters, and
  2. What consequences one has to face if anyone indulges in such activities, not only legal but also career-wise.

Cyberstalking must be discussed by the school teachers with the parents during the parents’ teacher’s meeting, to apprise the parents of the new age reality where children are facing the threat of cyber-bullying. Parents must make their children comfortable so that they can talk to their parents and teachers if they are facing or ever face cyberbullying or stalking.

There must be a help desk in the schools to address the issues related to cyberstalking. So that students can approach that desk when they need it. 

Schools must take stringent actions against those students who engage in cyber-stalking. They must be suspended, and their names must be put on the notice board to set the example as a deterrence for others.

Individuals can keep in mind the following while using the internet

  1. Protect all of your electronic gadgets with passwords and a finger lock and change them on a regular interval so that no one can hack them.
  2. Maintain your privacy on social media platforms,
  • Never mention your personal information and family information on social media and always make your account private and keep the data set to ‘close friends’ only.
  • Never update your current location or places you are visiting on social media and also, remove events you are about to attend in future.
  • Never add unknown persons to your social media account to increase your number of followers.
  1. Things to keep in mind while logging in:
  • Always use the secured site for browsing information and making payments.
  • Always remember to log out from any website or application when you are not using it.
  1. And if you find anything wrong, take the screenshots and log the complaint as soon as possible.

Conclusion

There is a saying, that is “Nothing is more powerful than an idea whose time has come”. So does the accessibility to the internet is what whose time has come. But like every new change or growth, the internet too comes with its own advantages and disadvantages. So it is better to first understand the technology and then use it accordingly with utmost care, otherwise such a powerful thing will make us prey in the hands of others. 

The government of India has made rules specifically dealing with social media platforms and has also declared privacy as a fundamental right by the apex court. Now the challenge to curb the menace of cyber-stalking is quintessential for all the associated stakeholders.

All said and done, to actually handle the issue at hand, that is to stop / control the act of cyber-stalking, it is imperative that the  victim/s decide to raise their/his/her voice (written complaint) at the appropriate forum, otherwise all the measures which have been put in place to curb this would prove to be futile.  Even if all the above mentioned suggestions would be implemented, nothing would  bring change.  

With the increasing use of internet and the social media, the acts of cyber-stalking/bullying are causing serious mental issues to the people who are suffering from the same, like; depression and anxiety, low self-esteem, academic issues, suicidal thoughts and self-harm, humiliation at the hands of others.

So keeping in mind the consequences of cyber-stalking and the intention of the legislature, which has made this act an offence based on the principle of “nipping in the bud”, let’s take a pledge that we as a citizens of this country would raise our voices to curb the menace of cyber-stalking.

References

  1. https://devgan.in/ipc/section/354D/
  2. https://www.thebetterindia.com/45671/stalking-india-women-complaint-online/
  3. https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&sectionId=46125&sectionno=354D&orderno=398
  4. https://www.latestlaws.com/bare-acts/central-acts-rules/ipc-section-354a-sexual-harassment-and-punishment-for-sexual-harassment
  5. https://indiankanoon.org/doc/1041742/
  6. http://devgan.in/ipc/?a=ipc&q=intimidation
  7. https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&sectionId=46297&sectionno=509&orderno=573
  8. https://www.itlaw.in/section-67b-punishment-for-publishing-or-transmitting-of-material-depicting-children-in-sexually-explicit-act-etc-in-electronic-form/
  9. https://112.gov.in/about
  10. https://www.mha.gov.in/sites/default/files/NERSGuideline_2100815.pdf

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