This article is written by Vanya Verma from Alliance University, Bengaluru. This article talks about cyberstalking, how to file a complaint against cyberstalking, laws that deal with cyberstalking and their loopholes.

Introduction

Physical stalking has surely been replaced by virtual stalking as a result of the pandemic. As there are so many applications, stalker-ware, spyware, social networking tools, and other technologies available, stalking people has never been easier.

The internet has opened up a medium for quicker communication and data sharing. People may interact with each other and access one another’s information with a simple click on social media sites. On the other hand, technology includes loopholes that allow criminals to abuse this freedom of access, leading to an increase in cybercrime in India.

Cyberstalking, also known as online stalking or internet stalking, is one such cybercrime. Simply described, cyberstalking is the harassment of a person through the use of technology, particularly the internet. Monitoring someone’s online activity, threats, identity theft, data theft, forging their data, and other forms of harassment are all examples of harassment.

Cyberstalking is a form of obsessive behaviour in which a person obsessively and unlawfully monitors another person’s online activities.

Recent cases of cyberstalking in India

Seema Khanna (name changed), an embassy employee in New Delhi, wasn’t aware that using the internet will result in an invasion of her privacy. Khanna (32) received a series of emails from a man demanding her to either appear naked for him or pay him Rs 1 lakh in an apparent case of cyberstalking. The woman stated in her statement to Delhi Police that she began receiving these emails in the third week of November 2020.

Khanna was threatened by the accused, who said he would post her altered photographs, as well as her phone number and address, on sex websites. He also allegedly threatened to display the photos in her south-west Delhi neighbourhood.

“She initially ignored the emails, but she soon began receiving letters through posts, all of which had the same threat. She was compelled to report the incident to the authorities “stated an officer of the cybercrime cell.

Her struggle, however, was far from over. The accused sent the woman her photos over email. The woman said that these were the exact photos she had saved in her mail. The accused allegedly hacked her email password, allowing him access to the photos, according to the police.

According to a preliminary investigation into the complaint, the emails were sent to the victim from a cyber cafe in South Delhi. “We aim to find the accused as quickly as possible,” said Dependra Pathak, Deputy Commissioner of Police (crime).

The offender appeared to know a lot about the victim, which led the authorities to believe he knew her.

During the last year, 2020, Divya Sharma noticed that a random Instagram user liked nearly 200 of her photos. She disregarded it as harmless until he began making inappropriate remarks. “He then started sending me DMs asking if I wanted to go on a date with him, which I continued to ignore,” the Pune-based Archeology student recalls. He became enraged and started abusing me, threatening to make me his wife by force.” That’s when Divya filed an online complaint with the cyber police, which resulted in the abuser’s account being suspended and the abuser being punished. She believes that, “no one has the right to threaten you in DMs or comments.”

The cyberstalker could be charged under Section 509 of the IPC for invading a woman’s modesty, as well as the Information Technology Act of 2000.

According to the National Crime Records Bureau’s most recent data, Maharashtra has reported the greatest number of cases of cyberstalking/bullying of women for the third year in a row – 1,126.

Maharashtra was also responsible for one-third of the total 2,051 cyber stalking/bullying instances registered in India between 2017 and 2019. With 184 cases, Andhra Pradesh came in second, followed by Haryana with 97 cases.

Maharashtra placed second among states in terms of cybercrime against women, with 1,503 cases reported in 2019 compared to 1,262 in 2018, a 19% increase. Karnataka topped the list, with a 50 per cent increase in cases — 2,698 in 2019 versus 1,374 in 2018. In Maharashtra, the conviction rate for cybercrime has been extremely low over the last three years, with only 56 of the 4,500 plus detained offenders being imprisoned.

What is cyberstalking?

Cyberstalking is the practice of stalking or harassing someone over the internet. It can be directed towards individuals, groups, or even organisations, and can include slander, defamation, and threats. The goal could be to control or threaten the victim, or to obtain information for other crimes such as identity theft or online stalking. It occurs via the internet, in places like social media, forums, and email. It’s usually planned out and carried out over a while. Other forms of cyberstalking might be used to frighten victims or make their lives unpleasant.

Cyberstalkers may, for example, stalk their victims on social media, trolling and sending threatening comments; they may even hack email accounts to connect with the victim’s connections, including friends and employers. Faking photos on social media or sending threatening private messages are examples of social media stalking. Cyberstalkers are known for spreading harmful rumours and making false charges, as well as creating and publishing revenge pornography. They may even commit identity theft by creating false social media profiles or blogs in the victim’s name.

Cyberstalking does not always require direct conversation, and some victims are unaware that they are being followed online. Perpetrators might utilise numerous tactics to monitor victims and utilise the information acquired for crimes such as identity theft. The barrier between the internet and real life might get blurred in some circumstances. Attackers can gather personal information, contact their associates, and try to harass offline.

Cyberstalkers employ a variety of tactics to track a person over the internet, including SMS, phone calls, emails, and social networking platforms. Users’ personal information, such as images, addresses, contacts, and whereabouts, are accessible via social networking websites and mobile apps. This information can be used by stalkers to threaten, blackmail, or physically contact the victim.

Emails are also used by cyberstalkers to track down a target. Hacking can give a stalker access to a person’s email account, which they can then use to send threatening or obscene messages. Some emails are infected with computer malware or viruses, rendering the email useless to the sender.

What does cyberstalking includes?

• False accusations of a defamatory character.
• Hacking or vandalising the victim’s website.
• Making sexual comments.
• Publishing things that are intended to defame a person.
• Personally targeting the victims of crime.
• Making fun of or humiliating someone to form a gang against them.

Reasons for cyberstalking

Severe narcissism, anger, fury, retribution, envy, obsession, psychiatric disorder, power and control, sadomasochistic fantasies, sexual deviance, internet addiction, or religious fanaticism are among the psychological causes for stalking. The following are a few of them:

• Jealousy: It is a negative emotion. Stalking can be motivated by jealousy, especially when it involves ex-partners and present partners.
• Obsession and attraction: Obsession and attraction could be another reason for stalking. The stalker may be sexually or mentally attracted to the victim. The line between admiring and stalking is thin.
• Erotomania: It is a type of stalking belief in which the stalker believes the victim, who is usually a stranger or a well-known person, is in love with him. It always entails having a sexual attraction to someone.
• Sexual harassment: Cyberstalking is said to be mostly motivated by sexual harassment. This is so because the internet reflects real life.
• Revenge and hate: Sometimes the victim is not the reason for the feeling of hatred and revenge in the mind of the stalker yet he/she becomes the target of the stalker. The stalker appears to find the internet to be the most convenient medium for expressing their hatred and vengeance.

Kinds of cyberstalking

Cyberstalking can be classified into three different types, that are as follows:

1. Email stalking;
2. Internet stalking;
3. Computer stalking.

Email stalking

Email stalking is one of the most common types of stalking in the physical world, which includes telephoning, sending mail, and actual surveillance. Cyberstalking, on the other hand, can take many different forms. Unsolicited e-mail, such as hate, obscene, or threatening messages, is one of the most common forms of harassment. Sending the victim viruses or a significant amount of electronic junk mail are examples of other sorts of harassment. It’s vital to note that simply distributing viruses or sending sales calls isn’t considered stalking.

However, if these communications are sent repeatedly in an attempt to frighten (e.g., in the same way, that stalkers in the physical world mail subscriptions to pornographic magazines), they may be considered stalking.

Internet stalking

In this instance, stalkers might make extensive use of the internet to slander and put their victims at risk. Cyberstalking takes on a public rather than a private component in such circumstances. This type of cyberstalking is particularly concerning because it looks to be the most likely to break into physical space. Traditional stalker practises such as threatening phone calls, property destruction, threatening mail, and physical attacks are commonly associated with internet stalking. There are significant distinctions between the situation of someone who is stalked from a distance of two thousand miles and someone who is regularly within the shooting range of their stalker.

While most criminal penalties recognise emotional distress, it is not deemed as dangerous as a genuine physical threat. Despite the fact that the connection between stalking, domestic violence, and feticide have been experimentally shown in real life, much internet stalking still focuses on causing emotional anguish, dread, and apprehension. This is not to imply that instilling fear and generating concern should not be criminalised.

Computer stalking

The third type of cyberstalking is computer stalking, which takes advantage of the Internet and the Windows operating system to get control of the targeted victim’s computer. It’s unlikely that many people realise that a single Windows-based machine linked to the Internet can be detected and connected to another computer over the Internet. This connection is a computer-to-computer connection that allows the interloper to take control of the target’s computer without the use of a third party.

As soon as the target computer connects to the Internet in any form, a cyberstalker usually talks directly with them. The stalker can take control of the victim’s computer, and the victim’s sole defence is to unplug from the Internet and relinquish their current IP address.

Types of cyberstalkers

A stalker could be obsessed, furious, psychotic, or deranged, depending on the motivations for stalking described above. Stalkers are divided into three categories:

Obsessional stalkers

This type involves a prior relationship between the victim and the perpetrator. The perpetrator’s primary goal is to compel or re-enter into the relationship. This category includes the majority of stalkers. This category includes 47 per cent of stalkers.

Obsessive love stalkers

In this case, the perpetrator has a strong attachment or love for the victim, and they are usually one-sided lovers. The offender could never accept his lover’s rejection. The perpetrator is usually suffering from a mental illness like schizophrenia or bipolar disorder. This group accounts for 43% of all perpetrators.

Erotomanic stalkers

In this case, the stalker has the misconception that the victim’s actions are motivated by love for him. Then he began to fall in love with her, and when it became known to him, he became a stalker.

What is the procedure for filing a complaint?

According to the Information Technology Act, 2000 any police officer not below the rank of Deputy Superintendent of Police, or any other officer of the Central Government or a State Government authorised by the Central Government in this regard, may enter any public place and search and arrest any person found there without a warrant, notwithstanding anything in the Code of Criminal Procedure, 1973. (Section 80)

Cybercrime does not have jurisdiction because it occurs without any boundaries. As a result, you can report a cybercrime to the cybercrime department of any city, regardless of where it occurred.

Cyber cells

Cyber cells have been set up to provide redressal to cybercrime victims. These cells are part of the criminal investigation department and are tasked with investigating internet-related crimes. If your location does not have a cyber cell, you can submit an FIR with a local police station. If you are unable to file an FIR for any reason, you can still contact your city’s commissioner or judicial magistrate. Any police station is bound to register an FIR, irrespective of its jurisdiction. One can report the crime online at cybercrime.gov.in

You must submit your name, contact information, and mailing address when registering a cybercrime report. The written complaint should be addressed to the Head of the Cyber Crime Cell in the city where the cybercrime report is being filed.

If you are a victim of online harassment, you should seek legal advice to help you report it to the police station. You may also be asked to submit specific documents with your complaint. This, however, would be depending on the nature of the offence.

Online grievance redressal

Women who are stalked can report the incident to the National Commission for Women (NCW). Who would then contact the police? This complaint can be filed by any woman in India. The Commission then requests that the police speed the probe. In serious cases, the commission appoints an inquiry committee, which conducts an on-the-spot investigation, interviews witnesses, gathers evidence, and so on. To aid the investigation, the Commission has the authority to call the accused, witnesses, and police documents. To register a complaint, the complainant must visit this website.

Report to the websites

Most social media platforms that allow users to create accounts provide a reporting feature. Under the IT (Intermediary Guidelines) Rules, 2011, these websites must respond within 36 hours to remove information related to infringing content. For investigation, the intermediary must keep such information and related records for at least ninety days. Any objectionable content that is hosted, saved, or published on the affected person’s computer system can be brought to the intermediary’s attention in writing or via email signed with an electronic signature.

Report to CERT

Under the Information Technology Amendment Act of 2008, the Indian Computer Emergency Response Team (CERT-IN) has been established as the national nodal agency for dealing with computer security concerns. They give guidance on cyber incident protocol, prevention, reporting, and reaction, among other things.

File an FIR

You can file a First Information Report (FIR) at the local police station if you don’t have access to any of India’s cyber cells. If your complaint isn’t accepted there, you can go to the Commissioner or the Judicial Magistrate of the city.

The Indian Penal Code covers a number of cybercrime offences. To report them, you can file a cybercrime FIR with the nearest local police station. Every police officer, regardless of the jurisdiction in which the crime was committed, is required under Section 154 of the Code of Criminal Procedure to record the information/complaint of an offence.

The majority of cybercrimes are recognised as cognizable offences under the Indian Penal Code. A cognizable offence is one that does not require a warrant for an arrest or inquiry. A police officer is required to record a Zero FIR from the complainant in this scenario. He must then submit it to the police station in charge of the jurisdiction where the crime occurred.

Zero FIR provides some relief to victims of crimes that require quick attention/investigation because it saves time by not registering the crime on police records.

The Indian laws that deal with cyberstalking along with their loopholes

Indian Penal Code, 1860

Section 354D of IPC

Following the gang-rape case in Delhi, the Criminal Amendment Act of 2013 introduced Section 354D of IPC. This section considers both physical stalking and cyberstalking. The section’s scope is defined in terms of the activities that constitute “stalking.” The Section expressly states that anyone who attempts to monitor a woman’s online activities is guilty of stalking. As a result, if the stalker engages in any of the offences listed in the section, he violates the Indian Penal Code Section 354D.

Loopholes

Firstly, the section exclusively treats “women” as victims, ignoring the fact that men can also be victims. According to the section, anyone who attempts to monitor a woman’s use of the internet, e-mail, or any other form of electronic communication is guilty of cyberstalking. We can see that it is solely focused on women. As a result, the legislation is discriminatory against women. Second, the “method of monitoring” has not been mentioned by the legislators. The guy may have no purpose for stalking, but his behaviour does.

Section 292 of IPC

Obscenity is defined in Section 292 of the IPC. The act of sending obscene materials to the victim on a social networking site, or through emails or texts, falls within the definition of cyberstalking. The stalker is guilty of an offence under Section 292 of the Indian Penal Code if he tries to deprave the other person by sending obscene material over the internet with the intent that the other person read, see, or hear the content of such material.

Section 507 of IPC 

This Section deals with “criminal intimidation through anonymous communication.” This clause specifies that it is an offence if the stalker attempts to conceal his identity so that the victim is uninformed of the source of the threat. As a result, it ensures anonymity, which is a key feature of cyberstalking. If the stalker tries to hide his or her identity, he or she will be charged under this section.

Section 509 of IPC

A stalker can be charged under this Section if the stalker’s actions infringe on the privacy of a lady by making any gestures or sending words via e-mails, messaging, or social media. If they engage in any of these activities, he would be charged under Section 509 of the Indian Penal Code. 

Loopholes:

It is a gender-biased provision since it focuses solely on a woman’s modesty and thus overlooks the reality that cyberstalking is a gender-neutral offence in which males can also be victims.

The words, voice, or gesture must be said, heard, and observed, respectively, in this section. Because words cannot be spoken, gestures cannot be seen, and sound cannot be heard via the internet, cyber-stalkers can easily avoid the penalty imposed by this clause. Finally,  the intention of insulting the modesty of the woman cannot be assumed through communication on the internet. 

Information Technology Act, 2000

Section 67 of the IT Act

This Section is a copy of Section 292A of the Indian Penal Code. This section deals with the “electronic form” of obscene material. As a result, this section deals with online stalking. If the stalker tries to publish obscene material about the victim on social media, i.e, in electronic form, to bully the victim, he will be charged under Section 67 of the Information Technology Act.

Section 67A of the IT Act

This Section is related to cyberstalking. This section was added after the 2008 amendment. It stipulates that if a stalker tries to publish any “sexually explicit” material in electronic forms, such as through emails, messages, or social media, he will be charged with an offence under Section 67A of the IT Act and will be punished as a result.

Section 67B of the IT Act

This Section was added by Amendment Act 2008 for the first time. The section focuses on stalkers who target children under the age of 18 and disseminate content depicting youngsters engaging in sexual behaviour to terrify them.

Section 66E of IT Act, 2000 and Section 354C of IPC

Section 66E of Information Technology Act, 2000 and Section 354C of the Indian Penal Code deal with “voyeurism.”

To generate despair and a sense of insecurity in the victim’s mind, the stalker may hack the victim’s account and post private images of the victim on social networking sites. Both of the above-mentioned sections attempt to make it illegal to publish or take images of a person’s private act without their consent. 

Section 66E is more generic in that it refers to the victim as “any person,” whereas Section 345C is gender-specific. The victim must be a “woman,” according to section 354C.

“What is remarkable here is that, while all offline regulations apply to digital media, the penalties under the IT Act are significantly more severe.”

“It is worth noting that the IT Act places a strong emphasis on women’s bodies and sexualities: Section 66A of the Act deals with a broad category of ‘offensive messages.’”

The act of voyeurism is covered by Section 354C of the Indian Penal Code. It has a limited reach because the victim must be a “woman” to be eligible for this clause. On the other hand, voyeurism is covered by Section 66E of the Information Technology Act, which has a broader scope than Section 354C of the Indian Penal Code. The victim is referred to as “any individual” in Section 66E. As a result, the victim does not have to be a “woman” to receive justice under this clause. If the victim is a guy, he can use Section 66E of the Information Technology Act of 2000 to sue.

Conclusion

The Information Technology Act of 2000 and the Indian Penal Code of 1860 do not specifically address the subject of cyberstalking and the defamatory or threatening statements made by the stalker while stalking the victim through SMS, phone calls, e-mails, or blogging under the victim’s name. Some of the provisions of the above-mentioned Acts allow for the punishment of the offender. There is no specific clause that deals with this offence. This crime is fairly simple to commit, but the consequences are quite long-lasting. It can harm the victim’s mental and physical well-being. The penalty provided under current provisions should be enhanced while keeping the victim’s well-being in mind.

References

• https://www.myadvo.in/blog/the-virtual-reality-of-cyber-stalking-in-india/
• https://www.tripwire.com/state-of-security/security-awareness/what-cyberstalking-prevent/
• https://www.kaspersky.co.in/resource-center/threats/how-to-avoid-cyberstalking
• https://timesofindia.indiatimes.com/life-style/spotlight/beware-cyberstalking-is-on-the-rise-during-the-pandemic/articleshow/81924158.cms
• https://www.thebetterindia.com/45671/stalking-india-women-complaint-online/
• https://vidhisastras.com/cyber-stalking-in-india/
• http://docs.manupatra.in/newsline/articles/Upload/455C1055-C2B6-4839-82AC-5AB08CBA7489.pdf
• https://www.indiaforensic.com/cyberstalking.htm
• https://www.latestlaws.com/articles/how-to-file-cyber-stalking-complaint-in-india-by-buelah-pranathi-gollapudi/

---

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join: