In
a recent academic conference where I was speaking on cyber bullying, I got some
‘strange questions’ as why I am not covering topics like pornography and
obscenity. To me, these questions were ‘strange’
because I was delivering lecture specifically on cyber bullying. But to the
individuals who asked the questions (and this group included academicians and practitioners
from women’s rights group as well), this seemed to be a genuine concern as why
cyber bullying does not mean cyber pornography, cyber obscenity, revenge porn,
cyber stalking or the concept of cyber harassment.
Decoding cyber bullying:
Many
of us believe that cyber bullying is the holistic term to explain the concept of
cyber harassment. In reality it is not.
Cyber harassment or online harassment is a
holistic term which may include various types of harassments including cyber
bullying. The term cyber bullying is defined as “abuse/ harassment by teasing
or insulting, victims’ body shape, intellect, family back ground, dress sense,
mother tongue, place of origin, attitude, race, caste, class, name calling,
using modern telecommunication networks such as mobile phones (SMS/MMS) and
Internet (Chat rooms, emails, notice boards and groups)”(Jaishankar, 2009).
www.Stopbullying.gov explains cyber
bullying as “.........Cyberbullying includes sending, posting, or sharing
negative, harmful, false, or mean content about someone else. It can include
sharing personal or private information about someone else causing
embarrassment or humiliation.”
A
clear reading of the definition of Jaishankar and the explanation provided by
Stopbullying.gov would suggest that
cyber bullying includes conveying or posting of insulting, degrading, teasing, messages
in the victim’s timeline, in groups or forums etc. Bullying messages are also
conveyed through one-to one chatting mechanism. Bullying messages may typically
be like “ you are a liar”, or “you look ugly”, or “ you are worthless”, or “x
is a black spot in the team”, or “x is a big zero when it comes to trendy fashion”
etc. Presently, India does not have any cyber bullying prevention law.
However,
it would be wrong to say that cyber bullying happens to children. Adults may
also be victims of bullying, including workplace bullying.
So when does bullying turn into
stalking?
Often
people confuse cyber bullying with cyber stalking. We at Centre for Cyber
Victim Counselling had provided a functional definition of cyber stalking in
our 2010 research report which is as follows:
“In one word, when ‘following’ is
added by Mens rea to commit harm and it is successfully digitally carried out,
we can say cyber stalking has happened" (Halder &Jaishankar, 2010).
S.354D
of the Indian Penal Code (inserted via Criminal Law amendment Act, 2013)
defines cyber stalking as follows:
“Any
man who follows a woman or contacts or attempts to contact such woman to foster
personal interaction repeatedly despite a clear indication of disinterest by
such woman or whoever monitors the use by a woman of the internet, email or any
other form of electronic communication or watches or spies a person in a manner
that results in fear of violence or serious alarm or distress, in the mind of
such woman or interferes with the mental peace of such woman, commits the
offence of stalking.”
Seeing
from the above perspectives we can see several stages of cyber stalking:
The first stage of cyber stalking can be Repeated Pursuing
The second stage can be data mining and/or monitoring.
The third stage can be creating threat /fear in the mind of the victim.
Repeated
pursuing can be in the form of sending /posting messages which may not be
insulting or degrading or annoying at the beginning. This is because the
stalker (especially in case of interpersonal stalking) may not necessarily like
to insult or humiliate his ‘target’. The main aim of the stalker may be to persuade
the victim to enter into an emotional relationship where the stalker may be a
dominant figure. The messages may turn insulting or degrading when the process
reaches the third stage, i.e., when the sender wants the victim to feel
threatened. Stalking may adopt the process of cyber bullying when the victim
refuses to abide by the ‘commands’ or ‘demands’ of the stalker. The later may
then start sending insulting, annoying, degrading messages in order to create a
fear of constant harassment and defamation of the victim. Bullying therefore changes
into the phenomena of cyber stalking when the bully becomes obsessive with his victim and continues to post hurting,
degrading, insulting messages as long as the victim does not start developing a
sense of fear; when he starts monitoring his victim to see the outcome of
bullying or rather, to see how far the victim is affected by bullying.
Revenge porn and bullying
Again,
revenge porn and bullying can be completely different forms of online harassment.
Revenge porn “..........is an act whereby the perpetrator satisfies his anger
and frustration for broken relationship
through publicizing false, 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 computer, or may have
conveyed to his electronic device by the victim herself, or may have been
stored in device with the consent of the victim herself; and which may
essentially have been done to publicly defame the victim.”(Halder &Jaishankar, 2013).
Revenge
porn may necessarily include unethical using of images of the victim for taking
revenge and creating a fake avatar of the victim which may signify the later as
that of bad character. Unfortunately many countries including India do not have
any focussed law to prevent and punish revenge porn. However, several legal
academicians including cyber civil right activists in the US have proposed revenge porn legislations and
such proposals have been considered as legal provisions to criminalise revenge
porn. In case of revenge porn, the perpetrator may or may not include bullying
tactics to create extra humiliation to his/her victim. I have observed that in
several revenge porn cases, the perpetrator may limit his act to posting to his
own time line with a tagline indicating that the victim is of bad character, or
may create a fake avatar either in the social websites like Facebook or Twitter
etc indicating that the profile owner may solicit sex, or may upload the image
to adult networking websites where all images may be ‘consumed’ as erotica. Revenge porn and bullying may be clubbed up
only when the perpetrator posts/sends annoying, insulting, degrading messages
to the victim or to a group to humiliate the victim with the revenge porn
content, i.e., after he has already created revenge porn and wishes to
continue harassing the victim with teasing messages. However, I would still not
agree to call it cyber bullying; it would be categorised as defamation if seen
from the perspective of defamation laws. S.499 of the Indian Penal Code which states
as follows:
“Whoever, by words either spoken
or intended to be read, or by signs or by visible representations, makes or
publishes any imputation concerning any person intending to harm, or knowing or
having reason to believe that such imputation will harm, the reputation of such
person, is said, except in the cases hereinafter expected, to defame that
person. Explanation 1.—It may amount to defamation to impute anything to a
deceased person, if the imputation would harm the reputation of that person if
living, and is intended to be hurtful to the feelings of his family or other
near relatives. Explanation 2.—It may amount to defamation to make an
imputation concerning a company or an association or collection of persons as
such. Explanation 3.—An imputation in the form of an alternative or expressed
ironically, may amount to defamation. Explanation 4.—No imputation is said to
harm a person’s reputation, unless that imputation directly or indirectly, in
the estimation of others, lowers the moral or intellectual character of that
person, or lowers the character of that person in respect of his caste or of
his calling, or lowers the credit of that person, or causes it to be believed
that the body of that person is in a loathsome state, or in a state generally
considered as disgraceful.”
As
may be seen from the above, cyber harassment or online harassment therefore is
a bigger term which includes forms of harassment including cyber bullying. It is
essential to understand the differences because the terms may signify different
types of criminal or civil wrongs and as such may attract different types of punishments
by courts of law. For instance, if a victim who has encountered impersonation
(not amounting to revenge porn, but an ordinary impersonation whereby his/her
image had been used to create a profile in the matrimonial site), he/she should
not report the incident as cyber bullying to the concerned website. It should
be ‘impersonation’, meaning the perpetrator has unethically and unauthorisedly
used the personal picture and information of the victim to create harassment.
Depending upon the mens rea, nature of the profile and impact of the same on
the victim’s reputation, the police may book the offender under various
provisions under Information Technology Act and also under Indian Penal Code
for impersonation(for example, Ss 66D of the Information technology Act,
2000(amended in 2008), Ss. 416 & 417, 499, 500 IPC, etc) . In case the
victim is a woman, the police may also include provisions meant for harming the
modesty of women (S.509 IPC). Similarly, in case of stalking, the victim should
rather report the crime as stalking and not cyber bullying because the legal
provisions in India do not recognise any offence of cyber bullying, but
prescribes stringent punishment for stalking. Whereas, in other jurisdictions,
where both cyber stalking and cyber bullying are recognised as offences, both
may have different types of punishments. Further, the social media websites may
also have different reporting mechanism for cyber bullying and cyber stalking.
However,
cyber bullying still remains in a grey area from legal perspectives. More research
is needed to develop a good universal understanding which may help to demarcate
why cyber bullying be considered as Bad Speech. Further, research is also
needed to create deeper demarcation between different forms of online
harassment for the purpose of better policy developments.
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), “Why cyber bullying should never be taken
as a holistic term for cyber harassment” 4th February, 2018, published in http://debaraticyberspace.blogspot.com
