This article is written by Vedant Saxena from Rajiv Gandhi National University of Law, Punjab. It focuses on 3 main aspects: the fine line between roasting and cyberbullying, the threats of cyberbullying, and the competence of the Indian laws in countering modern threats.
Table of Contents
Netflix’s 13 Reasons Why, a household name in the category of teen drama, has been a major hit but has also stirred up quite a bit of controversy. The series is centred around the themes of student bullying, cyberbullying and suicide. It may have received major backlash for its “dark and harsh” portrayals, but it resonates with an important message and purpose. The show depicts how cyberbullying could shatter a person’s confidence and reputation, and bolster symptoms of depression and self-harm. It also depicts the importance of reaching out for help.
Cyberbullying occurs when the internet is administered as a medium for making other people uncomfortable. Everything that bullies do in real life, ranging from mocking people to threatening or harassing them, could be done in cyberspace. Moreover, nowadays, a new trend of cyberbullying has emerged, under the garb of ‘roasting’.
Roasting is an activity wherein mostly a comedian makes light-hearted jokes on a particular subject. It is not done with an intention of harassing or degrading the reputation of any person. However, when jokes become utterly offensive, roasting ends and cyberbullying begins. Humour as an art surprises us, grabs our attention, and diverts us from our stress. That is why humour is a slippery subject, and it is pretty hard to define what humour exactly is. This might be the reason why many of us fail to demarcate the difference between humour and bullying.
The transition from roasting to cyberbullying
Roasting is conducted by a large number of charity organizations. In such cases, acclaimed personalities often agree to get themselves roasted, in order to garner funds. A similar kind of charity event had been organized by a comedy group ‘AIB’ in December 2014. Actors Arjun Kapoor and Ranveer Singh had given their consent on appearing on the show. The event was an overall success, managing to notch up around 40 lakhs for charity.
The video of the event was uploaded by the AIB in January 2015. However, a huge controversy emerged when some people claimed that the video contained vulgar and obscene content. In February 2015, an activist, Santosh Daundkar, filed a complaint before a court here seeking direction to police to lodge a First Information Report (FIR) against AIB’s founders and the show producers and celebrities who took part in it. They were booked under Sections 292 and 294 of the Indian Penal Code.
There exists a very fine line between a joke and an intentional insult, i.e., between roasting and cyberstalking. A joke may easily turn hurtful towards someone’s sentiments, or be considered obscene, or may also provoke riots. Therefore, people need to be held accountable for a joke that is in poor taste, or disrespectful.
Article 19(2) of the Constitution gives the state the right to impose reasonable restrictions on the right to freedom of speech expression, on grounds of public order, health, security, contempt of court, decency, morality, sovereignty and integrity of India, etc. Roasting that exceeds the bounds of such restrictions, cannot be shaded under the umbrella of Article 19. A person may also be booked under Section 295A of the Indian Penal Code, if he commits a malicious act, with an intent to outrage religious feelings or any class by insulting its religion or religious beliefs. Such sections are further discussed under the laws of cyberbullying.
The threats of cyberbullying
Cyberbullying is a much bigger threat than traditional bullying. Firstly, cyberbullies usually transmit or publish demeaning texts or pictures as anonymous entities. With their identity hidden away behind the fine walls of cyberspace, tracing the bullies becomes a gruelling task. Secondly, in physical bullying, the people who witness bullying are the ones in close proximity to the people involved. However, a cyberbully may publish a humiliating picture or post an offensive comment involving the victim, which may well be witnessed by everybody. Thirdly, physical bullying typically ends once the victim is removed from the negative social situation.
However, smartphones, laptops and other devices have made it possible for people to communicate with each other at all hours and from nearly any location. Cyberbullies may be able to torment their victim twenty-four hours per day, seven days per week, making it difficult for the victim to escape it by going home or even changing schools. Therefore, cyberbullying is a greater detriment to the victim’s reputation and confidence.
Types of cyberbullying
Cyberbullying may range from sending mildly mocking texts, to transmitting or publishing offensive material concerning the victim.
Cyberstalking is a serious form of cyberbullying, which involves stalking the victim in cyberspace. The stalker may harass the victim by sending threatening texts, transmitting obscene content or publishing offensive posts involving the victim.
The very first cyberstalking case to be reported in India was back in 2001, which involved 32- year old Ritu Kohli receiving emails from an unknown source. Initially, she did not pay much heed to the emails. But later on, when the fraudster began threatening to publish morphed pictures of her online, she couldn’t help but report the matter to the Delhi police. Fortunately, they managed to trace the accused, namely Manish Kathuri, by deciphering his IP address.
It was later discovered that the accused, apart from hacking into the victim’s email account and acquiring her pictures, had additionally impersonated her in various chat rooms, sharing her images and contact details with random entities. He was charged under Section 509 of the IPC, for outraging the modesty of a woman. Ever since dozens of cases involving online harassment have been reported. The Indian Penal Code and the Information Technology act contain provisions to deal with such cases.
True to its literal meaning, masquerading in the context of online harassment involves the bully/stalker drawing a veil before his identity while harassing the victim.
Sometimes one may manage to obtain access to another person’s social media account. In such cases, the outcome may range from mildly offensive, to traumatizing. Black hat hackers, also known as ‘crackers’, are fraudsters involved in breaking into computer systems, websites and social media accounts. The person may post or transmit offensive content and pass it off as the victim. This is done either to merely harass the victim or to induce him into performing a specific task. In the case of State of West Bengal v. Animesh Boxi, the accused took possession of some private and obscene photographs of the victim by hacking into her phone, blackmailed her by threatening to upload the stolen pictures and videos on the internet and subsequently uploaded her private pictures and intimate videos onto an obscene website.
The District Court of West Bengal convicted the accused under Sections 354A, 354C, 354D, 509 of the IPC and sections 66C and 66E of the IT Act. The court held that the offence under section 354D of the IPC is proved as the victim was not only stalked online but also suffered from ‘virtual rape’ every time a user of the openly accessible global website viewed the video. The court commented that deterrence was one of the prime considerations for convicting the accused and an inadequate sentence would do more harm than justice, as it would undermine public confidence in the seriousness of the issue.
Anti-cyber bullying laws in India and the growing problem of their gender-biasness
Section 354D of the IPC
Section 354D in the Indian Penal Code defines the term ‘stalking’. A man is said to be stalking a woman, when:
- He follows her and tries to talk to her despite her clear cut indications to the contrary.
- He keeps a watchful eye on her activities in cyberspace, which includes the internet, email or any other form of electronic communication.
The second point clearly signifies that this section encompasses instances of cyberstalking. For instance, if a man is repeatedly sending text messages to a woman against her wishes, who has given a clear indication of her disinterest, he could be made liable under section 354D. Furthermore, it is not necessary that vulgar messages should have been sent to a woman.
- Relief under this Section is only available to women. Although its lopsided identity was relevant at the time of its framework, things have certainly changed a great deal now. The Bureau of Justice Statistics reported in a revised 2012 study that women are more likely to experience stalking, including cyberstalking, than men whereas men and women tend to face harassment, including cyber-harassment, in equal measure.
- Cyber harassers attempt to diminish male victims’ manliness by falsely accusing them of being gay. Some harassers impersonate men on dating sites and claim an interest in anal rape. They defame men by accusing them of being rapists, which greatly impacts their career and ties with people. English novelist and poet James Lasdun’s experience is a clear cut demonstration of this point. Lasdun was riddled with accusations that he had arranged a student’s rape, had slept with his students and had stolen his stalker’s work. With Lasdun being Jewish, people made a number of anti-Semitic comments. His former student, his stalker, sent the accusations in e-mails to his publisher, literary agent, his employer, and various magazines.
- In May 2017, there had been reports of Mumbai-based entrepreneur Vijay Nair being stalked and harassed by his female acquaintance. He had said that she employed several numbers in texting him, often international ones. What drew public attention was Nair’s assertion that despite evidence of the woman’s involvement in cyberstalking him and harassing him online, the legal recourse available to him was negligible.
- Cyberlaw expert and Supreme Court lawyer Karnika Seth recently spoke about the alarming increase in cyberstalking reports, having men as the victims. She said: “The IT Act has to be amended to include new provisions. We have so many laws to protect women but few provisions to specify when the woman is the accused and the man is the victim. One of the cases I was handling had the wife use her son to spy on her husband. The son hacked the father’s mail ID and would be able to detect his father’s location wherever he went. But for a victim to have a shot in the court, he would have to prove the hacking and show the electronic devices used by the accused, as per the Evidence Act. The absence of a clear provision makes it more difficult for male victims.” She further said that the ratio of the number of female victims to the number of male victims she receives has narrowed down 75 to 25, to 50 to 50.
Other sections of the IPC
Section 354A defines the offence of sexual harassment. One of the acts listed under this Section involves a common act of cyberstalking when a man displays pornographic content to a woman against her will. However, just as in Section 354D, this Section does not take into account instances when men end up on the wrong side of cyberstalking.
Section 354C discusses the offence of voyeurism. Voyeurism is said to occur in the following instances:
- When any man ‘watches’ a woman at a private place where she would reasonably expect not to be watched. In other words, she engages in an act which is, under normal circumstances, considered private, and any man invading such privacy of the woman commits voyeurism.
- When a woman consents to have her pictures taken by the man, but not to have the pictures disseminated among other people. On the dissemination of such pictures, the man commits voyeurism. This Section clearly engages instances of cyberstalking when the internet, email or any other mode of electronic communication is used to release such intimate images of a woman against her will. Gender neutrality is yet again not evident here.
Any man who commits the offence of voyeurism shall be punished with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.
Section 499 defines criminal defamation. If a person transmits or publishes content intentionally, or knowing or having reason to believe that such content will harm the reputation of such person, he shall be considered to have committed an offence under this Section. This recourse is available both to men and women.
Therefore, in instances where a man’s reputation is damaged on account of another person’s activities in cyberspace, he may file a suit under Section 499. However, while offenders under Section 354D could be punished for a maximum term of 5 years along with a fine, the punishment for criminal defamation awarded under Section 500 could extend to merely 2 years and a fine.
Section 503 discusses criminal intimidation. It involves intimidating the victim to either do an act which he is not bound by law to do or refrain from doing an act which he is bound by law to do, by threatening to cause injury to his body, reputation or property.
Section 507 dwells deeper into the cyber realm. When the accused maintains anonymity with respect to his identity, which is indeed commonplace in the event of cyberstalking, he can be booked under this section. Thus, Section 503 and 507 encompass the instances where stalking, either physically or through the cyber world, is done with the primary objective of extracting any benefits out of the victim.
The Information technology Act, 2000
Section 66E of the Information Technology Act embodies relatively similar principles to Section 354C of the IPC. It deals with instances when a person captures, publishes or transmits the image of a private area of the victim. The latter must be under a reasonable belief that such a private area is not visible to a third person. Thus, instances such as the person disrobing or being involved in a sexual act, and latent wardrobe malfunctions, at a place where he reasonably expects his image not to be captured, are covered by this Section. However, the factor setting this section apart from 354C is its acknowledgement of the fact that the vulnerability of either sex is at par in the context of internet crimes. However, Section 66E awards a maximum penalty of 3 years and a fine, while an offender under Section 354C may be awarded a penalty of up to 7 years and a fine.
Section 67 of the act could be invoked when there is publication or transmission of ‘sexually explicit content, which would, in all probability, be read, seen or heard by the victim. Sexually explicit content refers to the obscene display of a sexual act. This Section could be considered competent enough to deal with cases of both genders alike, for the penalty awarded under it is more or less similar to what is awarded under Section 354A and 354D.
With the coming of the IT Act of 2000 and the Criminal Law (Amendment) Act of 2013, the Indian legislation gained competence in dealing with aspects of cyberbullying uncovered by the IPC. Cyberbullying could lead to deleterious consequences, compromising both the physical and mental well being of the victim. However, the issue of sexism still exists, and with an alarming rise in the number of male victims, the present laws need to be interpreted or amended in ways to counter the status quo.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: