This article is written by Himanshu Mahmuni, a student of Government Law College, Mumbai. This article analyzes the concept of sexual harassment in digital space and its difference from a physical one, its constitutes need of specialized law and lastly investigation and remedies available.
The widespread use of the internet has led to a tremendous increase in participation in digital space, especially due to the COVID situation. As the space is used to access information, it has equally exposed users to be a victim of sexual harassment. The greatest disadvantage of virtual sexual harassment is the difficulty to trace back the perpetrator because of its feature of being anonymous. The victims often feel powerless and don’t even bother to register a complaint against online sexual harassment and even if they register there is the very little impact that is seen. Out of every ten people, eight experience online harassment of some kind or another.
There are around 41% of women among those who face sexual harassment in the digital space. Major forms of harassment reported are abuse and insults, malicious gossip and rumours, malicious comments or threats on social media, trolling and attacks or abuse from a coordinated group. The Indian laws fail to frame differentiated provisions to combat such harassment and majorly depend on the amendment and current provisions in the various acts.
This article focuses on the discussion of how virtual sexual harassment is different from the physical one, the constituents of sexual harassment, the need for a specialized digital sexual harassment code and what are the investigation and remedies available to the victims.
Difference between physical and virtual sexual harassment
Sexual harassment was defined by the courts in the Vishakha verdict. This case explained the term ‘sexual harassment at the workplace and put forth Vishakha guidelines and norms for the same. The definition was an inclusive definition that includes unwelcome sexually determined behaviour whether directly or by implication as,
- Physical contact and advances;
- A demand or request for sexual favours;
- Sexually coloured remarks;
- Showing pornography;
- Any other unwelcome physical or non-verbal conduct of sexual nature.
By the above explanation, physical sexual harassment can be defined as unwelcome sexual advances which can be verbally, non-verbally, or physically which includes touch.
Digital sexual harassment is termed as Technology-Facilitated Gender-Based Violence where digital space such as social media is used to cause harm. The 2018 United nations report of the Special Rapporteur on violence against women, its causes and consequences on online violence from a human rights perspective lists out various ways in which women are sexually harassed in online space. The list includes harassment, networked harassment, image-based sexual harassment and doxing. Online harassment may not include the aspect of physical touch of the act but the behaviour of the perpetrator leads to the same intention in both forms.
The difference in physical and virtual sexual harassment only consists of the physical element. The impact of harassment can be mentally the same in both cases. People are now spending more time on digital platforms, consequently, they have become more prone to be harassed online. Where the perpetrator is identifiable in the physical harassment as the presence is necessary to be harassed, it is not the same in digital space. The anonymity in digital space makes it difficult to identify the perpetrator due to its nature.
Constituents of sexual harassment in digital space
A proper set of laws against sexual harassment in digital space is missing in current legal provisions. There is a sudden need for a proper framework for such crimes with an instantaneous increase in the consumer space. Some of the provisions about it are mentioned in the Indian Penal Code, 1908 (IPC) and Information Technology Act, 2000 (IT Act). Some of the important crimes currently present in it are:
Disturbing images of women
Section 345C of IPC punishes offences where disturbing images of women engaged in private acts without consent are taken. It is not a crime if pictures are shared online with the consent of women, but sharing of pictures for which mere consent to take the picture was given constitutes a crime. Such offences under IPC are punishable for imprisonment up to 3 years which can increase up to 7 years and a fine.
Section 66E of the IT Act punishes the act of voyeurism in cases of violation of privacy. The act shall knowingly or unknowingly, without consent, violate a person’s privacy by:
- Taking photos of private areas of a person, or
- Sending such photograph to someone else, or
- Publishes such photographs,
is considered to be a crime punishable with imprisonment of up to 3 years and a fine which may extend to two lakh rupees.
Section 67A of the IT Act punishes the crime of publishing or transmission sexually explicit material online with imprisonment of up to 5 years and a fine which may extend to ten lakh rupees. The punishment for repeated or subsequent convictions for such offences is punishable with imprisonment of up to 7 years and a fine which may extend to ten lakh rupees.
Section 67B of the IT Act punishes publishing or transmission of material depicting children in sexually explicit acts, etc. in online mode is punishable with imprisonment of up to 3 years and a fine which may extend to two lakh rupees.
Circumstances, where a person’s privacy is violated, include the circumstances in which the person is ensured that his disrobing will not be captured or at least expected that their private areas will not be seen by the public.
Sharing obscene messages
Section 354A of IPC deals with the sharing of obscene pornographic or sexually explicit material to a woman without consent. Such an act is considered sexual harassment through social media and punishable under IPC. The perpetrator of such crime shall be punishable with imprisonment of up to 3 years, or fine or both.
Section 292 of IPC punishes the offence of sell, distribution, public exhibition or in any manner puts into circulation or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever. Such offence is punishable with an imprisonment of a term of 2 years and a fine which may extend up to two thousand rupees. Committing similar repeated or subsequent offences is punishable with imprisonment of 5 years and a fine which may extend up to five thousand rupees.
Section 294 of IPC punishes offences of any obscene act in any public place, or sings, recites or utters any obscene song, ballad or words, in or near any public place. Such offences are punishable with imprisonment of 3 months or a fine or both.
Unlike physical stalking, online stalking usually goes undetected due to anonymity in the digital space. That makes it difficult to catch the perpetrators. There are no dedicated legal provisions to nab online stalking in any of the laws. Section 72 of the IT Act deals with the penalty for breach of confidentiality or privacy. It punishes the release of another person’s information online without his permission with imprisonment up to 2 years or a fine of one lakh rupees or both.
Recent cases of sexual harassment in the digital space
- Recently a software engineer based in Hyderabad was arrested by the cyber wing of Mumbai Police based on a complaint of Indian cricketer, Virat Kohli’s manager. The arrest was made because of the rape threat given by the perpetrator to the 10-month daughter of Virat as an outrage against Team India’s loss in a cricket match against Pakistan in the T-20 world cup. The person was booked under the following sections:
- Section 354A (IPC)- Outraging modesty,
- Section 506 (IPC)- Criminal Intimidation,
- Section 500 (IPC)- Defamation,
- Section 67 (IT Act)- publishing or transmission of obscene material, and
- Section 67B (IT Act)- Sexually explicit material against children in e-form. If the person is convicted under the IT Act, he may face an imprisonment of up to 5 years and/or a fine which may extend up to ten lakh rupees.
- A Karnataka High Court senior advocate, Indira Jaisingh, filed a contempt of court and sexual harassment case against a man who allegedly appeared semi-naked during a virtual hearing of Karnataka HC.
- In another incident, a class XI boy was booked under harassment for flashing in an online coding class. On asking the motive of his actions to the boy he replied “just for the heck of it,”. The boy was well versed in coding and took necessary precautions to not get caught. However, a screenshot by the instructor of his background helped the police to catch the boy and he was later booked under sections of the POCSO Act.
- The online consultation services of doctors are not safe from harassment either. Women doctors working on the online websites that provide 24X7 consultation services such as Practo and Dhani have been facing sexual harassment from patients. Inappropriate actions such as groups of men calling women doctors, stalking on social media, asking for personal numbers are being constantly carried by the perpetrators. The telemedicine consultation regulations need the patient and the registered medical practitioner (RPM) to know each other’s identity.
- According to an Amnesty report, a woman politician in India receives on an average 113 problematic or abusive tweets per day. Online abuse belittles, demean, intimidates women, which as result silences them. Muslim women politicians face abusive online threats more frequently and severely, which accounts for 55% of most aggressive trolling towards Muslim women politicians.
- Let’s look at the prominent case of State of West Bengal v. Animesh Boxi (2018) where the defendant, Animesh Boxi, was accused of uploading intimate photos and videos of his former girlfriend on pornographic websites. He was found guilty under Section 66E, Section 67 and 67A, Section 66C of the IT Act along with sections 44, 354 and 509 of the IPC. He was sentenced to imprisonment for a period of five years and charged with a fine of Rs. 9000. The court observed that the victim has suffered injury to her reputation and any physical injury was necessary to charge with sexual harassment, voyeurism, stalking and criminal intimidation. The case holds historic significance because it is the first of its kind to convict a case of revenge porn and be punished with harsh punishment.
- Next is the judgement of Shubham Bansal v. The State (Govt of NCT Delhi) (2019), where the accused created a fake Facebook profile under the name ‘Nidhi Taneja’ and shared the number of the victim through it. An FIR was lodged against the accused under the provision of annoyance, insult, and harassment. The accused made an application to drop the proceedings against him under Section 66A of the IT Act and Section 509 of IPC. Delhi High Court refused the application and ordered to refrain from accepting further applications till the magistrate issues any directions.
In a similar case of Jitender Singh Grewal v. The State of West Bengal (2018), the accused created a fake Facebook account and uploaded the victim’s obscene pictures from it. The accused filed for a bail application after charges were filed against him. The trial court rejected the application and Calcutta High Court also upheld its decision. The above attitude of courts in both cases show the seriousness of the crime.
- In another horrifying incident, popularly known as the ‘Boys Locker Room’, images of girls were shared by the boys without their consent and objectified them with sexist comments on an Instagram group named ‘Bois Locker Room’. Apparently, the girls on whom comments were passed were minor and this reflects the rape culture in our society. The Delhi Commission of Women (DCW) issued a notice to Instagram and Delhi High Court under the complaint of sharing objectionable pictures of minor girls and planning illegal acts such as rape. Further, a PIL was filed in Delhi High Court to seek a Special Investigation Team (SIT) or Central Bureau of Investigation (CBI) into the matter.
Role of POSH
The Vishakha guidelines acted as a base to formulate the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The POSH rules make it mandatory to bring in measures that prevent and redress such harassment at the workplace. A working place where the number of employees crosses over 10, an Internal Committee (IC) shall be formed to deal with sexual harassment complaints. The IC is responsible to conduct enquiry and funding the guilt or innocence of the accused. The workplace has an inclusive definition which also includes online platforms such as zoom and other online meeting instruments.
As the pandemic has moved the office to Work From Home (WFH), the role of POSH has also adapted to protect the victims from distant workplace harassment through digital mediums. The changing nature of harassment may include being on videos at odd hours, unwanted advances through chats, emails, and other platforms that constitute sexual harassment. TCS received 27 complaints, Infosys reported 25 complaints, Wipro reported 43 complaints in FY21 in spite of the WFH feature. There needs to be awareness training for the employees to raise the complaints and report them through the POSH act.
The terms defined in the POSH Act have broad meaning to protect and empower women from sexual abuse. The definition of the terms ‘workplace’’ and ‘sexual harassment have the words included to make the Act more inclusive and interpret broadly. In the case of Apparel Export Promotion Council v. A.K. Chopra (1999), the Supreme Court enlarged the definition of sexual harassment from traditional understanding to unreasonable interference in the work performed to create an intimidating or hostile work environment. The policies of all the companies are made by themselves in line with the act to protect their employees. The FMCG major launched a refreshed POSH policy in September quarter 2020 that is gender-neutral and LGBTQ+ inclusive.
The concept of Sexual Harassment electronic Box (SHe-Box) is also provided by the government to provide single window access to every woman for registration of complaints. There needs to be a sexual tone to the online advances to be included in the POSH guidelines. In the case of Prasad Pannian v. The Central University of Kerala and Ors, (2020), the Kerala High Court (HC) upheld that sexual harassment at the workplace shall start from an express or implied sexual advance or unwelcome behaviour with the sexual tone behind it. In the case of Jahid Ali v. Union of India, (2017) the Delhi High Court held that the messages sent in the online mode that of sexual overtones or derogatory nature by the employer to co-worker amounts to sexual harassment. The legal provisions in the POSH Act and the liberal interpretation of the courts are successful in protecting people from sexual harassment in digital space. Thus the POSH guidelines protect the victims from harassment at the workplace in digital space or WFH scenarios.
Need of a specialized digital sexual harassment code
There is no specialized code for digital sexual harassment. The Information Technology (Amendment) Act, 2018 made certain cybercrimes punishable. The IT Act as a whole fails to introduce any deterrent provisions for the prevention of crimes and only punishes certain crimes after its commitment. There is an increase in digital harassment cases but a very low conviction rate. The following can be considered as reasons for the need for a new code.
Scarcity of existent laws
Digital harassment has become a trend in this updated world and increased complexity. However, lawmakers are unable to keep up with the ever-increasing scope of digital crimes. The punishment for certain digital sexual harassment doesn’t even exist for conviction. The current laws are outdated and need constant updates on the laws on current as well as future aspects of crimes.
The existing laws fail to consider digital harassment to be equally harmful to the harassment done in a protected setting. The current statutes provide deterrent remedies for harassment taking place at a workplace or such protected settings, but harassment done by an unknown person on a digital space such as social media lacks any remedy from separate statutes.
The new technical issues and obstacles in digital space are left unaddressed. The evidence in the case of digital harassment is always in electronic form. The evidence should be judged and scrutinized by an expert. The digital evidence must go through tests to be labelled as authentic and admissible in the courts. This process makes evidence collection difficult. There is a high possibility of a technical malfunction of digital software and also its fabrication.
Thus to deal with the digital sexual harassment cases, there needs to be more improvement in the technology which processes such cases. The provisions related to evidence must be covered by the current or new law, if enacted, according to the modern technological aspects.
The conflict between IPC and IT Act
The number of provisions is scattered over different Acts and not inclusive of all possible atrocities. The crimes are prosecuted based on the provisions given under the IPC and IT Act. The provisions are not sufficient to give justice to all the victims of a crime of such dynamic nature. The breach of privacy and stalking provisions have been used by victims of revenge porn in India. Our current legal framework lacks the statute to prosecute the crime of revenge porn and no legal remedies or provisions have been presented to remove images published online like revenge porn. The provisions overlap each other in both Acts and create a conflict of enforceability. Some of them are listed below.
Sections 67, 67A, and 67B of the IT Act prescribe punishment for publishing or transmitting obscene material in electronic form. The punishment varies from imprisonment up to 3 years to 7years and a fine from Rs. 5 lakh to Rs. 10 lakh, as discussed above. Similarly, Sections 292 and 294 of the IPC are applicable on selling, distributing, publicly exhibits or in any manner circulating or possessing any obscene book, pamphlet, paper, drawing, painting, representation or figure and punishes the offences from a range of imprisonment of a period from 2 years to 5 years and fine from Rs. two thousand to Rs. five thousand.
Section 66B of the IT Act prescribes punishment for dishonestly receiving any stolen computer resource or communication device, that is imprisonment of up to 3 years and a fine of up to Rs. 1 lakh. Section 411 of IPC punishes the crime of dishonestly receiving stolen property for a term of imprisonment of up to 3 years or fine or both. No maximum limit of fine is provided.
As observed some of the provisions overlap the other in both the acts and it is difficult to settle on a period of punishment since both provisions give separate punishments. These differences also bring out the question of whether the offences should be categorized as compoundable, cognizable, and bailable or not.
Investigation and remedy
Most digital sexual harassment goes unregistered because the victims are usually women who are sceptical or ignorant to initiate complaints against it. The various places to lodge a complaint are:
- Cyber Cells– It can be an alternative to filing an FIR at a police station. These cells are specialised in the investigation of cybercrimes. In case there is no cyber cell, an aggrieved person can register the complaint at the local police station.
- The National Commission for Women– This body does not register a complaint but helps the victim of online harassment to deal with the police. The commission can catalyze the inquiry by conducting spot inquiries, collecting evidence, interrogating witnesses and summoning the accused to expedite the investigation.
Even after setting up commissions, people do not opt to register the complaint because of the high cost for investigation or lack of time to invest in it. Moreover, it is also reported that investigating agencies are unable to solve 80% of the cybercrime due to lack of equipment. There are certain quick remedies offered by social media sites themselves. The action plan is based on three basic actions as a part of the initial strategy to reduce exposure to unwelcome messages. It includes:
- Identify- The crimes need to be identified at the nascent stage and not ignored. No reaction or response is advisable to such material.
- Block- The strongest action that can be taken to stop the person is the action to block the person.
- Report- The user may report the message to a social media platform that investigates the messages and may even delete or suspend the account.
The victim can further choose to file a complaint against the perpetrator to the legal authority. If the victim is still sceptical about the complaint, the option of filing a Public Interest Litigation (PIL) is open to the victim. PIL is a method to secure public interest by the availability of justice to socially-disadvantaged parties.
The rise of internet usage has bought its risk with it, one of them is sexual harassment in the digital space. Sexual harassment only lacks physical touch or sense in virtual mode, otherwise, it has the same mental impact on the victim to traumatise. This has created hostility towards strangers and ignorance among victims to speak against the crimes. This gives a chance of escape to the perpetrators without conviction. The legal provisions have more room for improvement for the addition of rights of people which can be more inclusive. There is a need for a separate law to govern the ethical behaviour in the digital platforms too.
People are also seen as hesitant to complain against such crimes whose primary reason is a lack of awareness to do so. This ignorance encourages the abuser to misuse his freedom of speech to commit even horrible crimes if not stopped at the initial stages. The investigation and remedy suggested are not satisfactory but enough to start an initiative towards an inclusive set of laws and must seek justice through various means, one of which suggested is through PIL. Consumers are needed to be made aware of their rights to fight against such perpetrators and avoid being a victim of sexual harassment in digital space.
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