The
festive seasons not only bring joy and happiness, but also brings tinges of
tensions, disappointment, frustrations and unnecessary worries especially for
women and girls. This is because of the negative use of digital and information
technology; women and girls may be photographed inappropriately, touched
inappropriately and may be photographed in such conditions, they may be stalked,
their data may be unauthorisedly accessed and misused and over all, they may
also be targeted for revenge porn. It may generally happen even during
non-festive seasons too. But during the festive seasons such off-line and
online harassment targeting women may increase more. In my previous research I
have observed that this may happen due to two main reasons : lack of strict
central laws relating to public place photography and engagement of the police
force in crowd management. It may necessarily become almost impossible to
protect every woman and girl in the crowds from the perpetrators who may be
digitally empowered to violet the privacy.
The second reason plays a major role in motivating the perpetrators to
take the harassment of women and girls online so that victims may not be able
to understand the impact of victimisation immediately; simultaneously the
perpetrators may not only satisfy their sadistic ego by harassing women and
girls online, but may also gain unethically by
supplying the voyeur pictures and clippings to adult sites and even to
YouTube. By the time the victims
understand and feel the impact of victimisation, their reputation may have been
badly damaged due to viral spreading of the images.
A year
back the ministry of women and children rolled out project for portal to
complain about online harassment. But this could neither reduce the alarming
growth of online victimisation of women. The reason could be ill drafted laws
and poor execution of the existing laws. These ill drafted laws may include
S.66A of the Information Technology Act, 2000(amended in 2008) which prescribed
punishment for offensive, annoying etc speech, which was later scrapped off in
the case of Shreya Singhal vs Union of india & others (however, the
Information Technology Act has not been amended so far to either amend or
delete this provision from the present version of the Provision); Ss. 354 C and
D of the Indian Penal Code which speaks about voyeurism and cyber stalking,
S.509 of the Indian Penal Code which speaks about word gesture etc about
harming the modesty of women etc.[1]
I have also created a model law for penalising revenge porn and had submitted
the same to the ministry of women and child affairs.[2]
However, no step has been taken on this so far even though revenge porn does
exist in the Indian cyber space context as well.
It
needs to be noted that the internet has provided a broader platform for
expressing views and opinions and women are using it share their opinion on
various issues including sexual harassment that may have been meted out to them
through Me too movement. But this would definitely have another side of the
coin. Many women may prefer to bring up the issue of sexual harassment on
public platforms through social media; but the accused persons may neither
leave these victims on the cyber space. They may try to counter attack them
through trolls, bullies and hired-hackers who may try to vandalise the victims
reputations online by infringing the digital privacy of the Me Too fighters.
This in other ways may also affect the documentary evidences that the victim/s
may have saved in their electronic devices for further court proceedings.
At this
juncture It is time that the existing
law must be amended to include provisions for offensive communication and
revenge porn. On behalf of Centre for Cyber Victim Counselling a draft model Law is proposed as below:
Model
law for prohibiting Cybercrime against women
Chapter 1 : preliminary
S.1 Extent
and purpose:
It extends to the whole of India.
It has been seen that even though Criminal
Law Amendment Act, 2013 has introduced several new provisions for the safety of
women, but still there exists lacuna. Further, the Information technology Act,
2000 (amended in 2008) also failed to prevent crimes against women which
include cyber bullying, trolling and revenge porn.
In view of the above, this model law is
proposed to bring amendment to (a) the present provisions especially in the
Indian penal Code (specifically in Ss. 354 C & D) and insert new provision
for prohibiting and punishing revenge porn, (b) amend and introduce new version
of S.66A to create preventive law to prevent offensive communication including
bullying, trolling, online harassment etc against women and individuals in
general, (c) to introduce special provision in the Information technology Act,
2000 (amended in 2008) to provide confidentiality to the victims.
Chapter 2 : Proposed amendments
S.2
Insertion of a new provision on Revenge porn:[3]
The model Revenge porn prohibitory provision
:(This can be included in Chapter XVI of the Indian Penal Code as S.354E, which
may be inserted after S.354D (stalking)).
1.
Anyone, who in order to satisfy his anger and frustration for a broken
relationship, takes revenge through
publishing, transmitting, conveying, publicizing false and sexually provocative
portrayal of his/her victim, by misusing the information that he may have known
naturally and that he may have stored in his personal computer, or that which
may have been conveyed to his electronic device by the victim herself, or may
have been stored in the device with the consent of the victim herself; and
which may have been done to publicly defame the victim essentially, commits the
offence of revenge porn.
2.
Whoever commits the offence of revenge porn, shall be punished in the
first conviction with imprisonment of either description for a term which shall
not be less than one year, but which may extend to three years, and shall also
be liable to fine of not less than 1 lakh rupees and pay reasonable
compensation to the victim for damaging his/her reputation in real life and
online. If he be punished on a second or subsequent conviction, he 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 of not less than 5 lakh Rupees and reasonable compensation to
the victim.
Provided that the perpetrator must also be
liable to remove the offensive image either original or morphed, irrespective
of the fact whether the image was conveyed to him by the victim herself or not,
from his own electronic device/s and from the websites and social media
profiles where he may have uploaded the same for the purpose of taking revenge.
Provided further, that the investigating
officer shall immediately after coming to know of the offence of revenge porn
committed by the perpetrator as reported by the victim or anyone on behalf of
the victim, contact the concerned website to remove such contents including any
text accompanying the image/s which may falsely portray the victim.
Provided further that if the website
concerned fails to cooperate with the police on being alerted by the
investigating police officer and also if the website concerned fails to remove
the content within 36 hours after being
alerted by the victim herself, the said website would not be exempted from
third party liability as has been explained under S.79 of the Information Technology
Act, 2000 (amended in 2008) and would be liable to pay compensation to the
victim for an amount not less than Rs. 5 lakhs and also fine.
Explanation:
In Subsection 1, the words “publishing,
transmitting, conveying, publicizing false and
sexually provocative portrayal of his/her victim” shall include publishing, transmitting, conveying any image of woman whether nude, semi-nude or
normal to anyone individual and/or to any website including social media, with
an intention to take revenge on that said woman.
(Rationale
behind proposing a new law: Why S.354C IPC would not be able to regulate
revenge porn:
1.
S.354C IPC speaks about voyeurism which is inclusive of “private acts”
whereby victim’s private body parts may be shown. It does not mention anything
about publishing/conveying/morphing etc of pictures of women for taking
revenge. The ultimate motive, i.e., taking revenge is absent here.
2. S.354C does not speak about morphed
pictures published/conveyed/transferred etc for gratifying revenge. In cases of
revenge porn, majority of the offensive images may be morphed. This has neither
been covered under S.66E of the Information Technology Act.
3.
Creation of revenge porn may be done with normal, innocent, un-morphed
pictures as well. In such case, we need to look into the accompanying text that
describes the image. For example, a normal picture of the woman victim may be
published with a text describing her as “horny”, “Prostitute”, “my sexy wife
during honeymoon”(when in reality, the woman is not married to the perpetrator,
or even if married, did not allow publication of such normal photo with such
text ).
4.
Revenge porn differs from non-consensual pornography as well.
Non-consensual pornography is a larger term which may include revenge porn,
voyeurism or even sexual slavery including forcing the woman to be captured
naked for some unethical gain. Hence, revenge porn needs a separate
definition.)
S.3. Amendment to the definition of voyeurism
under S.354C of the Indian Penal Code (punishment for voyeurism) : In the place of “Any man”, it
should Any one and the amended provision
should be read as follows:
Any one who watches, or captures the image of a
woman engaging in a private act in circumstances where she would usually have
the expectation of not being observed either by the perpetrator or by any other
person at the behest of the perpetrator or disseminates such image shall be
punished on first conviction with imprisonment of either description for a term
which shall not be less than one year, but which may extend to three years, and
shall also be liable to fine, and be punished on a second or subsequent conviction,
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.
Explanations: For the purpose of this section, “private
act” includes an act of watching carried out in a place which, in the
circumstances, would reasonably be expected to provide privacy and where the
victim’s genitals, posterior or breasts are exposed or covered only in
underwear; or the victim is using a lavatory; or the victim is doing a sexual
act that is not of a kind ordinarily done in public.
Where the victim consents to the capture of
the images or any act, but not to their dissemination to third persons and
where such image or act is disseminated, such dissemination shall be considered
an offence under this section.
S.4.
Amendment to S.354D of the Indian Penal Code (punishment for stalking including
cyber stalking): In the
place of Any man, it should be anyone. The amended version should be read as
follows:
1) Anyone
who—
follows a woman and contacts, or attempts to
contact such woman to foster personal interaction repeatedly despite a clear
indication of disinterest by such woman; or
monitors
the use by a woman of the internet, email or any other form of electronic
communication,commits the offence of stalking;
Provided that such conduct shall not amount to
stalking if the man who pursued it proves that—
it was pursued for the purpose of
preventing or detecting crime and the man accused of stalking had been entrusted
with the responsibility of prevention and detection of crime by the State; or
it was pursued under any law or to comply
with any condition or requirement imposed by any person under any law; or
in the particular circumstances such
conduct was reasonable and justified.
(2)
Whoever commits the offence of stalking shall be punished on first conviction
with imprisonment of either description for a term which may extend to three
years, and shall also be liable to fine; and be punished on a second or
subsequent conviction, with imprisonment of either description for a term which
may extend to five years, and shall also be liable to fine.
(Rationale
behind broadening the concept of perpetrator for Ss.354 C&D: It has been
seen that women may also commit voyeurism and cyber stalking for victimising
fellow women. This amendment may help
reduce such sorts of victimisation.)
S.5.
Insertion of new provision prohibiting photography of individuals in general
without the consent of the individuals concerned (this may be inserted after S.268
of the Indian penal Code as S.268A)
1. Anyone who uses his camera devices in
any public place to capture the images of anyone including men, women,
children, people belonging to LGBT groups, with a motive to either sexual
gratification of the self, or sexual gratification of others, or uses these
images for unethical gain, or for ridiculing or causing hatred, defamation , damage to the reputation of the
said persons by way creating, circulating, spreading etc of such images through
electronic medium without the consent of
such men, women, children or member of LGBT group when the said men,
women, children, or member of LGBT group are
not expected to give consent and/or not expected to be alert for not
allowing such photography, and also
publishes, transmits, circulates the same through electronic medium shall be
punished with an imprisonment of either
description for a term which shall not be less than six months r, but which may
extend to one year , and shall also be liable to fine of not less than 20
thousand rupees and pay reasonable
compensation to the victim for damaging his/her reputation in real life and
online. If he be punished on a second or subsequent conviction, he shall be
punished with imprisonment of either description for a term which shall not be
less than one year, but which may extend
to three years, and shall also be liable to fine of not less than 50 thousand Rupees
and reasonable compensation to the victim.
Provided that the perpetrator must also be
liable to remove the non-consensual offensive image either original or morphed,
from his own electronic device/s and from the websites and social media
profiles where he may have uploaded the same for the purpose mentioned above.
Provided further, that the investigating
officer shall immediately after coming to know of the offence mentioned above
committed by the perpetrator as reported by the victim or anyone on behalf of
the victim, contact the concerned website to remove such contents including any
text accompanying the image/s which may falsely portray the victim.
Provided further that if the website
concerned fails to cooperate with the police on being alerted by the
investigating police officer and also if the website concerned fails to remove
the content within 36 hours after being
alerted by the victim herself, the said website would not be exempted from third
party liability as has been explained under S.79 of the Information Technology
Act, 2000 (amended in 2008) and would be liable to pay compensation to the
victim for an amount not less than Rs. 5 lakhs and also fine.
Explanation:
In Subsection 1, the words “capture images”
shall also include capturing images of accident
victims and doing so without offering any help to the victim, any other heinous,
serious or petty crimes and doing so without reporting the matter to the police
and offering help to the victim, capturing images of rape or sexual molestation or sexual assault
of any women or children, taking self portraits or selfies in the above
situations.
Explanation 2: The act of capturing the
images of men, women, children and members of the LGBT groups may not be
considered as an offence if the same is done for academic and research
purposes, provided the person/s capturing such images has prior consent of
proper authorities, or for medical research purposes or for the purpose of
creating documentary evidences which must be provided to the criminal justice machinery
including the courts for further legal actions to punish the wrong doers.
S.6.
Amendment to Information Technology Act, 2000(amended in 2008):
Punishment
for offensive speech (this can be inserted after S.66 (offences related to the
computer) of the Information Technology Act, 2000 (amended in 2008). This may
also be considered as the amended version of S.66A (punishment for annoying etc
speech), which was scrapped off by the Supreme court in Shreya Singhal’s case)
1.
Anyone
who sends, posts produces, publishes, creates, circulates or sponsors to be
circulates any offensive speech including
any text or cartoon or caricature or image accompanied with text to any woman
by way of electronic, digital and information communication, which may damage
her reputation, damage the reputation of her family and children create threat to her, her family and
children, damage her reputation to an extent that may affect her job or may
affect her reputation in the prospective job, shall be punished with an
imprisonment for in the first conviction with imprisonment of either description
for a term which shall not be less than one year, but which may extend to three
years, and shall also be liable to fine of not less than 1 lakh rupees and pay
reasonable compensation to the victim for damaging his/her reputation in real
life and online. If he be punished on a second or subsequent conviction, he
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 of not less than 5 lakh Rupees and reasonable
compensation to the victim.
Provided that the perpetrator must also be
liable to remove the offensive speech from his own electronic device/s and from
the websites and social media profiles where he may have published etc the said
speech targeting the woman.
Provided further, that the investigating
officer shall immediately after coming to know of the offence of posting,
publishing etc of the offensive speech committed by the perpetrator as reported
by the victim or anyone on behalf of the victim, contact the concerned website
to remove such contents including any text accompanying the image/s which may
falsely portray the victim and damage her reputation.
Provided further that if the website
concerned fails to cooperate with the police on being alerted by the
investigating police officer and also if the website concerned fails to remove
the content within 36 hours after being
alerted by the victim herself, the said website would not be exempted from
third party liability as has been explained under S.79 of the Information
Technology Act, 2000 (amended in 2008) and would be liable to pay compensation
to the victim for an amount not less than Rs. 5 lakhs and also fine.
Explanation:
For the purpose of this section, offensive speech targeting women shall
include the followings:
1.
Any
speech which lowers the moral character of the woman concerned within the
meaning of Article 19(2) of the constitution of India.
2.
Any speech
which defames the woman concerned in the society as a whole within the meaning
of Article 19(2) of the constitution of India as well as Ss.499 and 500 of the
Indian Penal Code and Indecent representation of women Prohibition Act.
3.
Any
speech which includes Cyber bullying. Cyber bullying may mean attacking anyone with harsh or
rude words in the cyber space, including
publicly available web platforms, social media, private and public chat rooms, emails, blogs etc, and such harsh
or rude words are particularly made to ridicule one’s body shape, gender, gender
orientation, physical or mental incapability, race, colour, opinion,
educational background, language etc.
4.
Any
speech which includes Cyber trolling. Cyber trolling is an extreme usage of freedom of speech which is
exercised to disrupt the community discussions in social networking sites and
which is done to deliberately insult ideologies such as feminism, secularism
etc; of the topic starter or the supporters of the topic starter.
5.
Any
speech which contains Cyber hate propaganda. Cyber hate propaganda may mean
offensive communication between the sender and multiple recipients with intent
to spread hatred against a particular individual for her opinion, race, gender
etc.
It is
expected that if this model Act is considered by the government, the growing
rate of cyber crimes against women may be brought down.
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. (2018),
" Need for a model prohibitory provision for preventing and punishing
Cybercrimes targeting women” 22nd
October 2018 , published in http://debaraticyberspace.blogspot.com
[1] My
observations on these laws can be found in my book. (Cyber Crimes against Women
in India. New Delhi: SAGE Publishing. ISBN: 978-9385985775, https://in.sagepub.com/en-in/sas/cyber-crimes-against-women-in-india/book253900
(co-authored with Professor
K.Jaishankar.
[2]
See the model law @Halder.D(2017) Criminalizing Revenge Porn From The Privacy
Aspects: The Model Revenge Porn Prohibitory Provision. Available @
[3]
This was published in supra@2
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