Data theft during festivals post pandemic: why we need to be aware by Dr.Debarati Halder

CYBER CRIME AGAINST WOMEN BY DEBARATI HALDER

Image courtesy : Internet 

2021 October promises to be different than October 2020. The difference is being felt already and it is not because of the increase in the number of vaccinated people who may win over pandemic, but because of the ever growing percentage of cyber-crimes, especially cyber monetary crimes. Several researches have shown that pandemic related lockdown has pushed people to go on a buying spree. Given the situation, people have invested more on online shopping. The festival periods are the chosen periods for pumping up sale. In 2020, people could not invest more in the festival related shopping which includes paying for vacations, apparels and accessories.  2021 sees the graph slowly rising. Governments have eased restrictions and this has further encouraged people to venture out from their homes, visit more shops physically as well as virtually. But people have understood the value of plastic money better than before.  Ecommerce platforms are booming with offers and consumers are buying heartfull. Most of the ecommerce platforms have offered their own applications to be downloaded in Android phones so that the consumers do not venture out to other links. There is unique blending of application of social engineering, artificial intelligence, business analytical skills and most importantly data polling which makes the e commerce platforms unique in their own spheres.

The e-commerce platforms are the chosen platforms for consumer data theft.

Why do our phones showcase us our secret plans?

Many have asked me why and how their devices “secretly spy” on their buying plans and how the social media platforms, popup ads show exactly the staff that these consumers/customers are looking for. The answer is: NO! The devices are inanimate objects and they cannot spy on our plans unless there is a human made mechanism to share our plans. Here we need to look into the consumer behavior on the cyber space: time and again the internet companies have tried to shred off liability of breaching the privacy of their subscribers/customers. If we look into the consumer behavior on the cyber space, we may be able to understand that the internet companies are not completely wrong. One cannot have the search engines activated unless the said person is using some personally identifiable unique identification data which may include the phone number or the email id. Most of us do not log out of our email ids after we have finished our “search”.  We neither log off from our social media accounts when we are doing a virtual window shopping. Not to forget that social media companies are deeply connected with the e-commerce platforms: they are even more deeply connected with the search engines as well. This makes the entire search- history of the respective consumers reflect on the digital platforms that are being used by the said consumers.

The banking data leak?

Quite in the same way consumers/customers leave their banking digital footprints on the e-commerce platforms. When we use any online payment modes, the e-commerce platforms record the said mode for future commercial transaction purposes. The card/payment app etc., that may have been used by the consumers/customers may also be recorded by the e commerce platforms. But if seen minutely, the customers are ‘asked’ to consent for ‘remembering’ the payment systems. Such payments through cards or net-banking or through any other digital payment mode further goes through other payment gateways which will also remember the amount paid, the unique customer id that the banking card displays and other related sensitive personal financial data of the customer/consumers.

 

Several researches and cyber-crime analysis have shown that the festival times may be considered as the peak times for  monetary crimes on the cyber space because  there may be heavy flow of commercial transactions on e-commerce platforms and there may be almost nil ‘monitoring’ in this regard. Added with this, it has also been noticed by some that personal details of women customers may become the highest ‘valued’ data in this regard. The profile of the female customer along with the banking details and the stuff that she chooses to purchase may all be linked for an entirely different and unethical business that would add profit for some in the deep dark net world.  Unfortunately it may become a herculean task to detect the mastermind of the entire data theft as the crime detection agency may need to investigate through multiple layers of virtual platforms, majority of which may deny their liability siting the negligence of the customer.

The legal recourse?  

We need to look into EU General Data Protection Regulation (EU GDPR) for understanding the universal rules in this regard. Chapter 3 of the EU GDPR discusses in detail about the rights of the data subjects and clearly mentions that there should be restrictions in sharing personal data of the data owner with multiple stakeholders when the data owner has not given any explicit permission for the same. Interpreting this, it may be understood that social engineering is never permitted under the EU GDPR even if the consumer/customer has ‘voluntarily’ consented for recording of his/her online payment mode by the e-commerce platforms. India still does not have any dedicated data privacy protection laws. Resultant, we need to look at scattered laws and rules mentioned in different statutes and legal provisions. The Consumer Protection Act, 2019 does not specifically protect consumer’s rights against such kinds of data privacy infringements. Information Technology Act, 2000(amended in 2008) very loosely touches upon the issue of consumer data privacy under S.72A which states as follows:

Save as otherwise provided in this Act or any other law for the time being in force, any person including an intermediary who, while providing services under the terms of lawful contract, has secured access to any material containing personal information about another person, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses, without the consent of the person concerned, or in breach of a lawful contract, such material to any other person, shall be punished with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees, or with both.

But again, we must understand that the scope of this provision to prevent sharing of the banking/financial and sensitive personal data by the internet companies becomes extremely limited especially when they come up with strong plea of no liability towards willful causing of loss and ignorance of the behavior of the consumers in spite of giving the later opportunities to protect their data and profiles through different privacy control mechanisms. However, this doesn’t mean that the victim does not have legal recourse. The internet companies may need to clearly establish that they were absolutely ignorant of the probable loss that may be caused to the victim due to recording the banking details, consumer habits of the later. They must also establish that their data processing and recording mechanisms are secured and cannot be infringed by perpetrators. This claim of the internet companies must also be adhering to the principles set in S.43A of the Information Technology Act, 2000(amended in 2008) which speaks about the responsibilities of the body corporates.  Otherwise, they may need to undergo the legal recourses that the present Indian legal system offers for penalizing the internet companies.

It is hoped that India enacts a full-fledged data privacy law which will protect the rights of the general individuals including the consumers. But till then, we the general users of the information and digital communication technology need to be aware of the risks and rights available to us.

 Please note: Please  do not violate the copyright of this writeup. Please site it as Halder Debarati ( October, 2021) "Data theft during festivals post pandemic: why we need to be aware." Available @https://debaraticyberspace.blogspot.com/2021/10/data-theft-during-festivals-post.html 

 

  

 

 

Is using electronic payment mode mandatory?

CYBER CRIME AGAINST WOMEN BY DEBARATI HALDER

We are facing challenge of Covid-19 restrictions. A whole generation is facing another unique challenge. Many senior citizens and people from socio-backward classes and communities are unable to exercise their basic right to life because they may be unable to use the electronic payment mechanisms.

By the end of 1990’s electronic commerce started getting popularity and almost by the first half of the millennium, banks of several countries had expanded their services for electronic money transactions. Soon plastic money in the forms of ATM, credit, debit cards etc., were introduced and the smart generation started relying more on plastic money rather than carrying currency in their wallets. But this proved dangerous for majority. There were physical theft of wallets and the cards, misuse of the cards, hacking of e banking systems which directly affected the card operating systems, ATM machines were unauthorizedly accessed, spycams were installed in the machines to detect the banking information including the passwords etc. Senior citizens were worst affected as most of them in countries like India could not operate the e-banking system or the cards: either they could not understand the operational mechanisms or they were not physically able to conduct the entire transactions either through the ATMs, or through their smart devices. This was due to generation gap.

With the advancement of technology, e wallets were introduced. Through online banking mechanisms, one can deposit a particular amount of money in e—wallets. However, this would not be operating as a single and independent device or mechanism. Users may connect their valid government identity proofs with e-wallets. Such e-wallets may necessarily be used through computers, smart phones etc.[1] Everything remains virtual except the device/s that will help a user to access the online transaction mechanisms. It has been continuously stated that plastic money, e-wallets and e-banking systems are safe and better than carrying the currency.

But do we really know who is safeguarding our money in this system? A few provisions Chapter III of our very own Information Technology Act, 2000(amended in 2008) would make this clear. Chapter III discusses about electronic governance. S.6A of the Information Technology Act (IT Act), 2000, amended in 2008 is noteworthy here: it says as follows:

6A Delivery of services by service provider. -

(1) The appropriate Government may, for the purposes of this Chapter and for efficient delivery of services to the public through electronic means authorise, by order, any service provider to set-up, maintain and upgrade the computerised facilities and perform such other services as it may specify by notification in the Official Gazette. Explanation. -For the purposes of this section, service provider so authorised includes any individual, private agency, private company, partnership firm, sole proprietor firm or any such other body or agency which has been granted permission by the appropriate Government to offer services through electronic means in accordance with the policy governing such service sector.

(2) The appropriate Government may also authorise any service provider authorised under sub-section (1) to collect, retain and appropriate such service charges, as may be prescribed by the appropriate Government for the purpose of providing such services, from the person availing such service.

(3) Subject to the provisions of sub-section (2), the appropriate Government may authorise the service providers to collect, retain and appropriate service charges under this section notwithstanding the fact that there is no express provision under the Act, rule, regulation or notification under which the service is provided to collect, retain and appropriate e-service charges by the service providers.

(4) The appropriate Government shall, by notification in the Official Gazette, specify the scale of service charges which may be charged and collected by the service providers under this section: Provided that the appropriate Government may specify different scale of service charges for different types of services.

 

Online transactions for e-commerce purposes are directly connected with the concept of service delivery by service providers. S.6A has got two main component parts: (i) authorization to the service providers by the government to set up provisions for delivery of services in the electronic mode; and (ii) collection of service charges by the service charges. Whenever we get to see a smooth or a bumpy operation of services from the banks or from any other government or corporate authorities, we must know that there is a secret team behind that government department, bank or the corporate authority. They may be independent agencies who are commissioned by such government /bank/corporate authorities. These ‘secret teams’ perform all the technical functions for economic transactions, maintenance of the records for money transactions, maintenance of cyber security issues etc.,  and they are duty bound to not to violate the confidentiality of the user-data. Intact there are layers of contracts between the actual user and the bank/government/company, between such service provider and the actual users and the government etc. We know only the first layer of contracts and agreements between us, the actual users and the bank/government /company etc., who are providing us certain services or even goods. But there are several examples of violating the agreements and contracts. These ‘service providers’ know us more than we know ourselves because they know our bank details, our spending habits and even our location data too.

Considering the risk for breaching of confidentiality in all such cases S.7A of the IT Act, 2000(amended in 2008) has prescribed for auditing of documents etc., maintained in electronic forms. This Section says as follows:

“7A Audit of documents, etc., maintained in electronic form. -Where in any law for the time being in force, there is a provision for audit of documents, records or information, that provision shall also be applicable for audit of documents, records or information processed and maintained in the electronic form.”

But this is hugely neglected by many stakeholders and this loophole creates several data breaching related legal issues. The Indian legislature has also brought in the Intermediary guidelines Rules, 2021 which also shifts the liability for data protection for intermediaries in certain cases.

However, we must not forget that there is digital divide in our societies. Adults including men, women and people belonging to LGBTQ communities may not always access information and digital communication systems and services. This is a universal problem. Women may not be empowered to use electronic devices in socio-economically backward classes and communities. Not to forget that even though Indian constitution mandates for equal pay for all, women may not always get equal pay in unorganized sectors. Many households in India as well as in many Asian countries do not allow women to take any decision related to family-finances.  But there are situations when people are forced to use electronic payment/transaction systems. Covid-19 pandemic is one such situation where the WHO advised to reduce usage of anything which may transmit the viruses from people to people: reduction of usage of currency notes were also suggested as it was understood that the materials in the currency notes may get wet with sweat, saliva etc., and this may be extremely dangerous since it might increase the risk of spreading of pandemic. But there are new researches coming up every day which are suggesting how to take precautions while dealing with papers (including materials which are used to make currency notes) or clothes during pandemic times.

In all such cases, aren’t our constitutional rights get violated if the government or any other stakeholder insists on e-transactions? It actually does.

Answer to this question may be found in S.9 of the IT Act, 2000(amended in 2008). This says as follows:

Sections 6, 7 and 8 not to confer right to insist document should be accepted in electronic form.-Nothing contained in sections 6, 7 and 8 shall confer a right upon any person to insist that any Ministry or Department of the Central Government or the State Government or any authority or body established by or under any law or controlled or funded by the Central or State Government should accept, issue, create, retain and preserve any document in the form of electronic records or effect any monetary transaction in the electronic form.

Nonetheless, the above mentioned provision empowers all who may not be able to use or who may want to refuse the use of electronic payment system. But this may not always be considered as the Rule: this is rather Exceptio probat regulam (an exception proves the rule) in the era of internet. Even though the government and other corporate stakeholders may extend their services on humanitarian grounds to help those who may not be able to use the digital payment systems or the e-wallets etc., people’s trust may easily be broken by gross misuse of the powers that such ‘helpers’ may have: ATM debit cards may be stolen, data may be compromised, e-wallets may be illegally operated by such ‘volunteers’ who may want to gain illegal and unethical profits at the cost of innocent people.

It will take longer time to make people from all backgrounds aware about electronic payment modes. It will probably take even longer to control cyber criminality targeting vulnerable people. One must not violate the legal norms and constitutional principles to make the right to life of others almost unachievable. Vulnerable groups including senior citizens, disabled people, socio-economically backward communities, women and children must be given enough protection to gain their trust so that all can survive and win over adverse situations.

Please note: Please  do not violate the copyright of this writeup. Please site it as Halder Debarati (2021) Is using electronic payment mode mandatory?  Published @ https://debaraticyberspace.blogspot.com/2021/04/is-using-electronic-payment-mode.html on 22-04-2021

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[1] https://economictimes.indiatimes.com/definition/e-wallets

Plight of "Punita" : A common tale of 'powerless' women victims of trolling

CYBER CRIME AGAINST WOMEN BY DEBARATI HALDER

Image courtesy : Internet 

In 2012 “Nirbhaya” a young female paramedic was brutally gang raped in a cold December night in Delhi, India. Within a few days the police nabbed the offenders and arrested them. All 6 of them were from northern parts of India who came down to Delhi for making their living. All of them were working as transport workers including driver, conductor, cleaner etc. Within a few days of their arrest, the victim died because of the impact of the assault and internal injuries. The charges against the accused were enhanced from rape to include murder under the Indian Penal Code. Among the 6 accused persons, the prime accused committed suicide. Even though the case was taken over by fast track trial court, it took around 10 months for the trial court to convict the accused and award death penalty to the surviving 5 accused. The death penalty was upheld by the Supreme Court of India in 2017. In between one of the accused pleaded to be considered as minor and was declared as minor and hence was dealt under the Juvenile justice administration system. However neither the Supreme Court, nor the high court prevented the accused persons from exercising their rights to appeal against the capital sentence. The Supreme Court considered this case as rarest of rare cases. Except the minor, other convicted accused did not however succeed in their respective pleas to the Supreme Court to reverse the sentence to life imprisonment and the President for mercy petition.[1]  All four of the adult convicts were hanged in the wee hours of 20^th March, 2020. Immediately after this the Covid 19 lockdown was clamped strictly almost all over the world preventing several litigants, victims to approach the courts as courts also suffered due to pandemic.

None of the convicted persons in NIrbhaya case came from socio-economically forward class. Except one, others did not complete their basic education as well.[2] Some researches including the controversial India’s Daughter documentary[3] claimed that lack of education could have been the main reason to defy the laws for violating women in this regard. While almost all such researches and findings were concerned about the perpetrators, not many looked into the fate of the wives of such sex offenders who may not have received primary education and may not have been allowed to access justice for themselves because of being women and living in patriarchal societies. Punita, wife of Akshay Thakur, who was one of the convicts, tried her level best to convince the courts and the society at large in her own way  that if her husband was hanged, she and her minor son would have to die. On the final day of hearing she was seen shouting, crying, beating herself and fainting before the Supreme Court building. Her actions attracted media and she was probably encouraged to continue to do what she was doing because that would add more TRP to the stories that were being made on Nirbhaya sentencing. Soon she made headlines in almost all domestic and foreign news channels and she was center of debates for and against death penalty. Simultaneously she was targeted by internet trolls vigorously.[4]

In the recently held 9^th international victimology conference organized by Jindal institute of Behavioral Sciences[5] I had addressed the issue of cyber victimization of Punita through my paper titled “Critical analysis of the case of wife of Nirbhaya rape convict: therapeutic jurisprudence & cyber victimological perspectives”.  While the media could successfully (and probably rightly) generate public sympathy for the rape victim and her family, they generated extreme hatred to Punita because she was apparently ‘supporting her husband’. The internet platforms added fuel to the fire in this hate campaign. If one sees the news reports on Punita Devi on the social media handles of the news media channels, one would get to see that the comments posted about her and opinion generated on her created extremely negative profile of hers which would go a long way to prevent her from getting any job in any private or public sector. It was a visual victimization of Punita on cyber space which still exists on cyber space and will be existing forever. In my earlier research on visual victimization of women on cyber space, I had observed that the victims of such visual victimizations may now know about their online victimization because they may never get access to the internet and digital communication media as their urban counterparts may get, which may eventually help the later to reach the criminal justice machinery to remove these contents.[6]

 Women such as Punita are often seen as ‘co-accused’ by the public at large. Coming from socio-economically backward communities and being educationally challenged, most wives of sex offenders in several Asian countries (where patriarchy rules), may not be allowed to access justice for themselves. Apparently she approached the family court in her native district for divorce because the Hindu Marriage Act under S.13B(2ii) allows women to get ‘quick’ divorce under special grounds which includes conviction of husband for rape, sodomy, bestiality etc.[7] But she was too late in approaching the court. She did not want to live as a widow of a hanged rapist. She preferred to be a divorcee. Women in such situations are blamed by the families and public at large for failing to satisfy their husbands sexually and materialistically which may have encouraged the later to go ahead for raping and sexually assaulting other women. These women cannot go ahead for divorce while the trial is on because this would not only attract social taboo, it will also push such women to extreme poverty: they have to leave the matrimonial homes, they may not be accepted in their parental homes and they may not get any financial support from anyone.

How can Therapeutic Jurisprudence help?  Justice Krishna Iyer  a legendary judge who introduced new paradigm to reformative justice in India mentioned about applying Therapeutic jurisprudence in the prisons for reforming the prisoners in 1970’s.[8] But after him we did  not get to see the use of the term by the judges while dealing with reformative criminal jurisprudence in India. In numbers of my researches however I have shown that the concept of Therapeutic Jurisprudence has submissively influenced the Indian judges.[9] The spirit of Therapeutic Jurisprudence may help wives of sex offenders especially in countries like India. In my earlier research  titled “Free Legal Aid for women and Therapeutic Jurisprudence: A critical examination of the Indian model”,[10]  which was published In the edited book volume titled Methodology And Practice Of Therapeutic Jurisprudence Research edited by Stobbs Nigel, Bartel Lorana & Vols.M , I had observed that women especially from socioeconomically backward communities may not be permitted to access justice even if the legal counseling  is freely available through free legal aid clinics. This situation may be improved by vigorous campaigning by legal aid volunteers and law students. The law students, practitioners and judges must be sensitized about Therapeutic jurisprudence and law’s therapeutic effects which may bring tremendous change in women empowerment. Wives of sex offenders go through tremendous traumatization primarily because they feel cheated in their marriages and then feel threatened when it comes to social security for them. As such, mental wellbeing of these women are least taken care of when the court decides to charge the husbands, i.e. the accused in sex offences. In my presentation in the international victimology conference mentioned above, I have proposed that courts must consider to parallelly counsel such wives through free legal aid cells so that they may be made aware about their rights for divorce, matrimonial alimony, child custody and maintenance for child.

Further, I have also proposed that courts must suomotu consider to pass restraining order for the media houses regarding airing the images of grieving wives, who may or may not be accompanied by their children. These women do not make any ‘drama’ to stall the execution of sentences for supporting their husbands. They express their anger, frustration and fear for their own future which is dependent on the longevity of their husbands. Unfortunately their expression of fear, frustration etc are hugely consumed sadistically by the society at large and due to the non-ending presence of the clippings on the internet, such women may be profiled in a negative way. I have proposed that the scope of Right to be forgotten must be expanded in such cases which the courts must take up extending the power of judicial intervention for ensuring the privacy rights of women. Interestingly many courts across the globe are shifting burden to the website companies for not removing objectionable contents especially when it comes privacy of women and children. India has laws for website liabilities in this regard under S.79 of the Information Technology Act, 2000(amended in 2008). This provision read with Information Technology (reasonable security practices and procedures and sensitive personal data or information ) Rules 2011 mandates that web companies shall be held liable if they do not take down objectionable contents within due time. This brings two major points to be considered: who reports it? Whether this can be considered as ‘protected speech and expression’. Indian judicial understanding regarding freedom of speech on internet is expanding and courts have started using judicial discretion to not to consider each and every speech as speech falling outside the purview of Article 19(1)(A) of the Indian constitution which guarantees freedom of speech and expression as a fundamental right. It is obvious that women such as Punita would not know about such legal jurisprudence. The courts therefore must consider adding this issue in the bag of ‘reformative and rehabilitative considerations’ when awarding the sentences (including life sentence or capital sentences).  This may go a long way to prevent secondary victimization of the wives of sex offenders who are ‘innocent victims’ of the entire situation.

It is therefore hoped that if the issue of online as well as real life victimization of the wives of the convicted sex offenders are seen from the Therapeutic Jurisprudential aspects, the rights of women to access justice, rehabilitation and privacy may be secured.

 

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Prof(Dr) Debarati Halder, LL.B, LL.M, Ph.D(Law)(NLSIU) is a Professor at Unitedoworld School of Law, Karnavati University, Gujarat, India. She is the founder of Centre for Cyber Victim Counselling (www.cybervictims.org) and the India chapter head of International Society of Therapeutic Jurisprudence. She is the pioneer in introducing Therapeutic Jurisprudence as a part of credit course in legal education in India. She can be reached @debaratihalder@gmail.com

 

[1] See for more in PTI(2020) Nirbhaya case convicts to be hanged at 5.30 a.m. as Supreme Court dismisses plea against rejection of mercy petition. Published on March 20.2020 in The Hindu. URL: https://www.thehindu.com/news/national/nirbhaya-case-convicts-to-be-hanged-as-supreme-court-dismisses-plea-against-rejection-of-mercy-petition/article31114747.ece Accessed on 21.03.2020

[2] For more, see in Profiles: Who were the Delhi gang rape convicts?. Published in https://www.bbc.com/news/world-asia-india-23434888#:~:text=Courts%20convicted%20six%20people%20for,student%20in%20a%20moving%20bus. On March 20. 2020, accessed on 21.03.2020

[3] For more, see in Banned film India's Daughter shown in rapists' slum

. Published in https://www.bbc.com/news/world-asia-india-31865477 . On March13. 2015, accessed on 21.03.2020

[4] For example see the comments @ https://www.youtube.com/watch?v=rzwPrx1l9Hg Accessed on 29.10.2020

[5] The conference proceedings and my presentation are available @ https://www.youtube.com/watch?v=c9__aYyD9cA

[6] Halder D., & Jaishankar, K. (2014). Online Victimization of Andaman Jarawa Tribal Women: An Analysis of the Human Safari YouTube Videos (2012) and its Effects. British Journal of Criminology, 54(4), 673-688. (Impact factor 1.556). DOI: 10.1093/bjc/azu026.

[7] Section 13(2)(ii) in The Hindu Marriage Act, 1955 states

 “A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground………. that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality”

[8] See for more in Md Ghiasuddin vs State of AP . reported in (1977) 3 SCC 287. Available at: www.indiankanoon.org/

doc/1850315/,

[9] See Halder, Debarati, Why Law Fails to Be Therapeutic in Spite of Therapeutic Judicial Efforts: A Critical Analysis of Indian Legal Education From the Therapeutic Jurisprudence Perspective (October 28, 2018). Unitedworld Law Journal, Vol 2, Issue: I, ISSN: 2457-0427, (2018) pp 173-182, Available at SSRN: https://ssrn.com/abstract=3274175

[10] Halder, D. (2019), Free Legal Aid for women and Therapeutic Jurisprudence: A critical examination of the Indian model. In Stobbs Nigel, Bartel Lorana & Vols.M (eds.), Methodology And Practice Of Therapeutic Jurisprudence Research. USA: Carolina Academy Press.

Please do not violate the copyright of this blog. Please cite it as “Halder Debarati. (2020), Plight of "Punita" : A common tale of 'powerless' women victims of trolling" November, 8, 2020, published in http://debaraticyberspace.blogspot.com

 

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[1] See for more in PTI(2020) Nirbhaya case convicts to be hanged at 5.30 a.m. as Supreme Court dismisses plea against rejection of mercy petition. Published on March 20.2020 in The Hindu. URL: https://www.thehindu.com/news/national/nirbhaya-case-convicts-to-be-hanged-as-supreme-court-dismisses-plea-against-rejection-of-mercy-petition/article31114747.ece Accessed on 21.03.2020

[2] For more, see in Profiles: Who were the Delhi gang rape convicts?. Published in https://www.bbc.com/news/world-asia-india-23434888#:~:text=Courts%20convicted%20six%20people%20for,student%20in%20a%20moving%20bus. On March 20. 2020, accessed on 21.03.2020

[3] For more, see in Banned film India's Daughter shown in rapists' slum

. Published in https://www.bbc.com/news/world-asia-india-31865477 . On March13. 2015, accessed on 21.03.2020

[4] For example see the comments @ https://www.youtube.com/watch?v=rzwPrx1l9Hg Accessed on 29.10.2020

[5] The conference proceedings and my presentation are available @ https://www.youtube.com/watch?v=c9__aYyD9cA

[6] Halder D., & Jaishankar, K. (2014). Online Victimization of Andaman Jarawa Tribal Women: An Analysis of the Human Safari YouTube Videos (2012) and its Effects. British Journal of Criminology, 54(4), 673-688. (Impact factor 1.556). DOI: 10.1093/bjc/azu026.

[7] Section 13(2)(ii) in The Hindu Marriage Act, 1955 states

 “A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground………. that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality”

[8] See for more in Md Ghiasuddin vs State of AP . reported in (1977) 3 SCC 287. Available at: www.indiankanoon.org/

doc/1850315/,

[9] See Halder, Debarati, Why Law Fails to Be Therapeutic in Spite of Therapeutic Judicial Efforts: A Critical Analysis of Indian Legal Education From the Therapeutic Jurisprudence Perspective (October 28, 2018). Unitedworld Law Journal, Vol 2, Issue: I, ISSN: 2457-0427, (2018) pp 173-182, Available at SSRN: https://ssrn.com/abstract=3274175

[10] Halder, D. (2019), Free Legal Aid for women and Therapeutic Jurisprudence: A critical examination of the Indian model. In Stobbs Nigel, Bartel Lorana & Vols.M (eds.), Methodology And Practice Of Therapeutic Jurisprudence Research. USA: Carolina Academy Press.

YouTube, YouTubers and violation of privacy of women and children: The drama unfolds

CYBER CRIME AGAINST WOMEN BY DEBARATI HALDER

In recent years YouTube has won millions of hearts in India as a social media platform especially among women. This is because unlike other social media websites, YouTube has provided a platform to earn money based upon views and subscribers. Contents uploaded by users may be varied: it can be home decor, power point presentations of simplified versions of undergraduate subjects, subject lectures by professional teachers or amateur subject experts, cooking recipes, Do It Yourself (DIYs), home organisations, daily routines of home makers, technological solutions, how to do stuffs etc . Several women have used YouTube to earn money generated through the revenue that YouTube promises once the user can reach some criteria like getting 1000 subscribers or 4000 watch hours etc. [1] YouTube however would not lead the user to create contents that may earn more watch hours or subscribers. Users may go for market survey to understand which sorts of videos may attract more views, ,more subscribers etc. mostly new users including men and women may try to create videos on anything that they feel proper to share to the world. YouGTube , like Facebook and Instagram has features for allowing users to create videos for private sharing. This enables the users to share the video which may be watched only by those whom the creator chooses. The users may however go for wide circulation of their contents by not only making the videos public, but also by going live  whereby the users may directly communicate with their subscribers or may share information while live.  Even though going Live may be a feature specifically for improving the relationship between the user and his/her subscribers, live videos can be watched by the world wide audience even if they are not subscribers to that particular user.   Here, YouTube may not play a vital role to restrict uploading and sharing the contents unless the subscribers or  viewers may flag the content as inappropriate.  In short, YouTube may actually provide a wide platform to share anything including bullying videos, mashed up videos, child and woman abuse videos, birthing videos, adult sexual interaction videos and so on. While the adult sexual videos and birthing videos may not be universally accessible unless the user logs in to his/her YouTube accounts, other sorts of videos are accessible to all irrespective of age. YouTube however uses the due diligence clause to escape from any third party liability by providing notification which restricts children from viewing adult sexual contents or violent contents which may traumatise children. Hardly this  has any practical implication because children may access these videos by using email ids which may be created on the basis of fake age , or may even log in through their parents’ or friends’ email /YouTube ids.

My attention here is however attracted to the contents shared by YouTubers: I have been an avid watcher of YouTube since many years now. I have been following the changing trends of users in uploading the contents. Earlier it was more on creating mashed up videos which may have the potentials of violating the copyrights. Such videos have also been silently encouraged by actors, singers and producers because these actually publicize their work even though it may violate the laws. [2] But slowly, the content creators, especially women started becoming reviewers of products on YouTube as well. This included using of cosmetics, kitchen wares organisers etc that may be shown in the daily routine videos, home organisation videos or make up tutorials.[3]   Users not only get views and subscribers as may be needed for fulfilling the YouTube monetising criteria, they may also be connected with the brands manufacturing the products or dealers of the products who may wish to showcase their products through these non-professional videos. Several urban and rural women home makers have actually benefitted from this: consider Youtubers like Radhika Real Vlogs,[4] or simplelivingwithringlejain[5] who may be rural homemakers, but may have made a moderate to comfortable living because of their YouTube videos advertising about different brands including retailer brands.  Nonetheless, these YouTubers may also be victims of bullying and trolling for the quality of their videos, their pronunciation, lifestyle and even house decorations.

While these women may have made a landmark professional/personal achievement because of YouTube, they may unknowingly violate privacy of their own children or even spouses or other family members as they may be showing and informing the worldwide audience about their family members who may not may consent for such wide distribution of images of themselves. These YouTube videos may also be the subject matter of bullying and ridiculing the children of such YouTubers since these may stay on worldwide web for long time. YouTube videos may also create severe domestic violence for several reasons which include live fights between spouses which may be captured by third party YouTubers for fun and uploaded and circulated for getting more views; or airing of grievances by women YouTubers against the other spouses, without knowing the far-reaching consequences etc. These videos may attract huge views and opinions, comments in the nature of cyber bullying and also trolling targeting the YouTuber concerned or supporters of the same. Consider the case of two specific Youtubers from Delhi, who are spouses in real life : the wife is a senior YouTuber whereas the husband is a recent Youtuber: They had severe altercations and started living apart. But this was not enough: both used YouTube to throw insults and humiliating words to each other and their teen daughter was allegedly dragged in between. The recent reports suggested that the teenager girl who  was staying with her father for couple of months after the separation, was beaten by the latter while on live and her t-shirt was torn in a manner which would show her inner wares.[6] The girl was beaten because she wanted to visit her mother. This video became viral as several supporters of the wife started showing the clippings through their own channels. Some had also informed ChildLine and the police who had rescued the teenager and sent her to her maternal grandmother.[7]  There are several other YouTubers who started discussing about incident using the profile name of the husband wife duo.[8] While the news report published in the local news media suggested that the teenager was often beaten by both the parents when they were drunk and she was forced to come on live which she refused many times, the news clipping did not mention about the name of the girl and that of her parents as S.21 of the Juvenile Justice Care and protection Act, 2015 prohibits publication of the identity of the child in need of care and protection or child in conflict with law. The provision reads as below:

S.21. Prohibition of publication of name, etc., of juvenile in conflict with law or child in need of care and protection involved in any proceeding under the Act.-1. No report in any newspaper, magazine, news-sheet or visual media of any inquiry regarding a juvenile in conflict with law or a child in need of care and protection under this Act shall disclose the name, address or school or any other particulars calculated to lead to the identification of the juvenile or child nor shall any picture of any such juvenile or child be published: Provided that for reasons to be recorded in writing, the authority holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the interest of the juvenile or the child. 2. Any person who contravenes the provisions of sub-section (1), shall be liable to a penalty which may extend to twenty-five thousand rupees.

Now, let us understand the scope of this provision in the light of this particular case: the first subsection prohibits any report including news report, inquiry etc from disclosing the name, information etc of the concerned child. The second proviso extends the scope to ‘anyone’ who may contravene the prohibitory scope of S.21. Seen from the perspective of electronic media and the concept of citizen journalism, which gives every one right to share information, the term ‘anyone’ may literally include anyone including the good Samaritans who may have wanted to alert the concerned authorities, share their opinion against such acts of women and child abuse. Further, note the words “any other particulars calculated to lead to the identification of the juvenile or child nor shall any picture of any such juvenile or child be published” mentioned in the first sub clause. This may include the name of the concerned child and names of the parents. But apparently, this provision became a just a paper tiger in this case because those who had watched or subscribed to the videos of the couple had already known about the identity of the teenager because of the daily Lives put up by the parents and discussion about the girl in the videos posted by them. If one visits the comment section of the recent videos of both the parents in the recent past, it would be seen that commenters have taken the name of the girl, asked about her whereabouts and in some cases, some had also suggested about her changed behaviour after she had stayed with her respective parents separately. Nothing is confidential for those thousands of worldwide audiences now who had watched the parents daily and who had also witnessed the Live video where the girl was beaten up by the father.  In spite of repeated request by the mother of the girl, several YouTubers still did not take down videos mentioning about the name of the father (which broadly falls within the meaning of “any other particulars calculated to lead to the identification of the juvenile or child”) when this writeup was published. While the Juvenile Justice Care and Protection and Act provides a base rule, the concerned YouTubers may not be held solely responsible because the parents already violated the privacy of the teenager and encouraged thousands to watch the couple fight which had every potential to attract penal provisions for using words etc for harming the modesty of the wife under S.509 Indian Penal Code as well as defamation of both the wife and the husband under Sections 499 and 500 of the Indian Penal Code. YouTube on the other hand has not taken down the videos of either of the spouses or that of the other YouTubers  which may showcase the names of the parents and the child because it is guided by First Amendment of the US which may hardly be affected unless YouTube has been approached to take the videos down by concerned stakeholders.  

It is now a typical love triangle of three parties : YouTube, which is loved by all for providing such an open platform for airing opinions and consumption of real life family dramas, the YouTubers who may expect to get support, views, popularity and money because of participating in the trolling and independent discussions on such issues which may rip open privacy of general individuals including children and criminal justice machinery, most of whom may never know how to manage legalities of YouTube videos because they are completely ignorant of this new type of electronic media.  

But this is not a unique incident that attracts the attention of legal researchers, especially privacy law and speech law researchers. YouTubers, especially women YouTubers continue to violate privacy knowingly or unknowingly and provide more opportunity to trolls, bullies and offline perpetrators to victimise them because they may not be aware about the netiquettes of YouTube. Time has come that YouTube users become cautious of the contents uploaded by them and legalities attached with such uploading and sharing. In this festive season YouTube content uploading and sharing may have seen a steep rise. But it is upon YouTubers to control what must be shared and may not.

YouTube is more powerful than televisions, more demanded than movies and more devastating than what is generally apprehended.

Please note: Do not violate copyright of this blog. If you would like to use information provided in this blog for your own assignment/writeup/project/blog/article, please cite it as “Halder D. (2019), " YouTube, YouTubers and violation of privacy of women and children: The drama unfolds” Published in http://debaraticyberspace.blogspot.com on 28-10-2019

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[1] For  more, see https://support.google.com/youtube/answer/72851

[2] For example see Halder D., & Jaishankar K. (2016) Celebrities and Cyber Crimes: An Analysis of the Victimization of Female Film Stars on the Internet. Temida - The journal on victimization, human rights and gender. 19(3-4), 355-372

[3] For example see https://www.youtube.com/watch?v=52c7V2yeRlo  , https://www.youtube.com/watch?v=wYdX1uZe1FM  , https://www.youtube.com/watch?v=3yuvcKc30ss https://www.youtube.com/watch?v=IdA6BZJvaEU etc.

[4] https://www.youtube.com/watch?v=bkcMmd-b1-Y

[5] https://www.youtube.com/watch?v=6Po5tE2qKxM

[6] See for better understanding of the case in https://www.amarujala.com/delhi-ncr/faridabad/drunk-parents-beat-student-faridabad-news-noi468791969

[7] See https://www.youtube.com/watch?v=LNG3lousHu4&t=167s where the Youtuber had informed that she called the police to report the video and provided the link of the media report of the incident.

[8] For example, see https://www.youtube.com/watch?v=xWS8FAa-MC4&t=48s . https://www.youtube.com/watch?v=MdrSLYGOTpE&t=14s