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.
Please
Note: Do not violate copyright of this blog. If you would like to use
informations provided in this blog for your own
assignment/writeup/project/blog/article, please cite it as “Halder D. (2015), “The Elonis
decision: why would Indian women feel bothered?
”6th
June, 2015, published in http://debaraticyberspace.blogspot.com/
