The Elonis decision: why would Indian women feel bothered?

CYBER CRIME AGAINST WOMEN BY DEBARATI HALDER

The month of June opened with a ‘sweet surprise’ note for many free speech advocates when the US Supreme Court pronounced its decision in favour of Elinos, who was earlier convicted for posting violent messages in Facebook  fantasising killing of his estranged wife, who had a ‘protection order’ against Elinos.  His posts (which may no more be found in Facebook) ran like these : “There’s one way to love ya, but a thousand way to kill ya” ; “fold up your protective order and put it in your pocket. Is it thick enough to stop a bullet?”  He did not stop with his thoughts about harming his wife, he fantasised a school shooting and then targeting a female FBI agent also.  As I get to know from the text of the judgement, when Elinos’s boss came to know about it, he was fired and the concerned boss alerted the FBI as well.  May be because Elinos was targeting their own departmental staff in his ‘fantasy’, along with posting violent messages targeting schools that they started monitoring the posts made by him and subsequently he was indicted  under 18 USC S.875(c) (it says “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both”) .After the Supreme Court judgement was published in the internet, concerned stakeholders published their own thoughts and opinions about the same.  While some felt that the judgement re-established the principles of free speech in regard to internet, some expressed concern regarding safety of women especially in domestic abuse cases.  Precisely, the court felt that the posts of Elonis were his own thoughts and even though the posts apparently seemed like threat messages to his wife or that the messages exposed his desire for a school shoot or harming a female FBI agent, the government failed to prove that the speaker’s (Elonis) ‘subjective intent’ was to execute the threats in real life. As Soraya Chemali and Mary Ann Frank in their writeup on the issue pointed out, “While the court did not go so far as to hold that a true threat turns on what the speaker intended to accomplish, the ruling suggests that the determination of what constitutes threat rests with the speaker and not his audience.”( See Chemali & Franks, Supreme Court may have online abuse easier, published on June 3, 2015 @ http://time.com/3903908/supreme-court-elonis-free-speech/?xid=tcoshare).

My attention is attracted to this particular judgement because Elonis was actually targeting women ( his wife and the female FBI agent) and children ( consider his post regarding school shoot out).  In its detailed judgement, it may be seen that the court was convinced by the defence of Elonis whereby he stated that he was actually posting those messages in the style of rap lyrics; that his posts were not direct threats that were to be executed like what happened for many other cold blooded murders or attacks including that of the blogger Abhijit Roy, who was supposedly sent warning messages by radical extremists who finally killed him in Bangladesh.  This judgement reminded me of our own Shreya Singhal vs. Union of India which struck down the controversial 66A. The US Supreme court  did not strike down any controversial laws, but it could motivate some stakeholders to think about the effect of laws, execution of the same and confusion among the legal fraternity regarding online abuse, especially targeting women. When the Indian Supreme court struck down 66A, while majority of the internet users, lawyers and supporters of free speech were happy, there were some including myself who expressed their concern . Is the judiciary paving a way for ‘abusers’ to escape the prosecution?  After the Shreya Singhal judgement was passed, many police officers told me that there would be a steep rise in online abuse now and we have to accept that these are but normal exercise of free speech. Nonetheless, women would continue to be the prime targets followed by transgender people, children and men. Surprisingly I was contacted by many journalists who expressed their anguish about lack of focussed laws on preventing online attack in the forms of bullying or trolling or threatening speech against women, celebrities, writers, journalists and also children. Our courts are oftener than not influenced by judgements of foreign courts; 66A judgement was no exception since the concept of free speech is being broadened basing on the understandings of the US and UK courts. When it comes to posting violent messages as Elonis did, in India, the women ( who may be targeted in the same fashion as the estranged wife of Elonis) would either leave the social networking sites, or may feel  extremely  traumatised  to speak about the issue, or may take up irrational modes like hiring hackers to remove those particular posts ( see Halder, D., & Jaishankar, K. (2015). Irrational Coping Theory and Positive Criminology: A Frame Work to Protect Victims of Cyber Crime. In N. Ronel and D. Segev (Eds.), Positive Criminology (pp. 276 -291). Abingdon, Oxon: Routledge. ISBN 978-0-415-74856-8). Some women victims may  gather enough courage to report the matter to the police, but in my experience I have seen few successful endings in such cases.  The reason is simple; many police officers may think in the similar lines as the US Supreme Court  have thought “...........determination of what constitutes threat rests with the speaker and not his audience”. The case ends then and there when the victims are told to withdraw from social media or change the phone number. Unfortunately we still do not have ‘protective order’ types of orders for online abuse  especially when it comes to interpersonal attacks.  The police may cease the devices, destroy the SIM cards and the courts may pronounce jail term or bail. But in practice, nothing actually works. Unless the social media stops the accused from using his account, he may continue to misuse it by posting threatening messages and enjoy sadistically the fearful pleas, warnings or even gradual detoriation of the psychological health of the victim. If finally the social media or his other service provider blocks him, he may come back again with a new identity to continue the harassment.

While we boast of our laws for dealing with abuse and harassment of women, all is not always well. The courts need to see the practical points while acquitting posters of violent messages or hate messages.  Sometimes violent messages may really have the “road maps” for more actual violence even if the poster convinces the police as well the courts that he did not intend to harm actually.  From my experience I have seen how such messages may lead to graver misdeeds like creation of “fake avatars” ( I coined the term Fake Avatar which is defined as “a false representation of the victim which is created by the perpetrator through digital technology with or without the visual images of the victim and which carry verbal information about the victim which may or may not be fully true and it is created and floated in the internet to intentionally malign the character of the victim and to mislead the viewers about the victim’s original identity.”  see Halder Debarati,(2013) p. 197 “Examining the scope of Indecent Representation of Women (Prevention) Act, 1986 in the light of cyber victimisation of women in India” National law school journal, Vol 11,2013, 188-218)), or even extortion or stalking or online gang-attack.   It is high time that the law makers, police and the courts take note of the situation especially when it comes to digital safety of women.

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”6^th June, 2015, published in http://debaraticyberspace.blogspot.com/