Mamata Banerjee, Priyanka Chopra and Aishwariya Rai : What bonds them together and why

CYBER CRIME AGAINST WOMEN BY DEBARATI HALDER

On 14-05-2019 the Supreme Court of India created one more example of broadening the freedom of speech when it ordered for the immediate release of Priaynka  Sharma, a BJP activist. Sharma had allegedly posted a meme of Mamta Banerjee which contained morphed  picture of Mamata Banerjee on Priayanka Chopra’s image that  was taken in Met Gala, 2019. Chopra was heavily trolled for her attire and make-up and several people started created memes with Chopra’s picture.  The Supreme Court on an appeal by the brother of Sharma ordered for an immediate release of Sharma (who was arrested by the West Bengal police) emphasizing the fact that she should apologies to Banerjee because it has hurt her. The court also mentioned that freedom of speech cannot be unfettered when it infringes other’s right.[1]  As per the news reports, she was however released after 24 hours.

This is not the first time in India that someone got arrested for ‘posting’ images/comments etc  on social media which apparently questions/defames/teases political personalities including members of the ruling government  party. After the coming into effect of the amended version of  Information technology Act, 2000 (amended in 2008), S.66A (which prescribed punishment for offensive, annoying etc. speech) has been over and again used by the police to arrest individuals who had posted comments which apparently questioned/ridiculed/defamed/teased political personalities. Before S.66A could have been properly interpreted, [2] the Supreme Court felt that the provision was being grossly misused for the ill drafting and in Shreya Singhal vs Union of India, the apex court ruled it unconstitutional.  In the recent Mamata Banerjee meme case, Supreme court stuck to its earlier understanding that no arbitrary arrest may be made for posting contents on social media targeting particular political personalities (including those in the ruling government parties) because this hampers freedom of speech.  Let me also state here that Banerjee has sister -politician who had been ‘victims’ of memes : she is none other than German chancellor Angela Merkel whose  latest memes appeared with Narendra Modi  when the BJP official website got hacked.  There is rarely any information available whether Merkel had made the police arrest the individuals who had been creating or sharing the memes including the morphed images of Merkel.  

My concern here however does not cover the repetition of the act of Mamata Banerjee government in arresting individuals targeting political personalities including herself.  I look at the issue from two perspectives here: (i) morphing the image of a woman and thereby creating/distributing/sharing the same as a non-consensual image (and not nonconsensual pornography); (ii) who should be ideally liable and under which law, and whether this issue attracts any legal liablity or not.  As the reports and the  image in question (which is still available when we search with key words such Mamata Banerjee meme ) suggests , it was not one, but two women were targeted : Priyanka Chopra, the original person in the image, who was heavily trolled because of her Met Gala, 2019  attire  and Mamata Banerjee, whose  face was morphed with the picture of Priyanka Chopra . Priyanka Chopra has not yet filed any police complaint for trolling; neither she has filed any complaint for morphing her picture.  It was not the same case for Banerjee:  she made it sure that the individual who shared the image should get arrested  under several provisions of Information Technology Act, 2000 (amended in 2008) including S.500 of the Indian Penal Code which prescribes punishment for defamation. The news reports however did not mention about the specific provisions of IT Act under which she was arrested. Noticeably, neither Information Technology Act, nor Indian Penal Code recognizes any offence of’ ‘morphing’. The term does not find any mention in any law. Further, the existing laws neither specifically focuses attention for creation of  morphed image  of women for  damaging her reputation. However, cutting and pasting  of face is holistically addressed under several laws including Indecent Representation of women prevention Act (especially when the content is used to show case women in an indecent manner), S.509 of the IPC (which prescribes punishment for word, gesture, or any act made to insult the modesty of a woman), Ss66D( Punishment for cheating by personation by using computer resource) 66E Punishment for violation of privacy) etc, which may be coupled with Ss.. 67 (Punishment for publishing or transmitting obscene material in electronic form) or 67A ( Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form), (this is especially when the image or related text suggests sexual offences ) or S.354 C IPC (which prescribes punishment for voyeurism targeting women). A minute scrutiny of these provisions may suggest that they may loosely  skirt around the concept of anti-defamation law as well especially when the reputation of the targeted victim is at stake due to the content  created/transmitted .

In this political memes targeting women (and ridiculing them), one more celebrity woman Aishwarya Rai now joins with  Mamata Banerjee and Priyanka Chopra. Rai was featured in a meme created and shared  by another actor from the film industry who, the media reports suggest, had an emotional bondage with Aishwarya Rai before she got married to her present husband Abhishek Bacchan. Rai’s meme showcases not one , but three  photos with texts which had been the center of debate and ‘amusement’ for many. The first photo shows Rai with Salman Khan, a prominent actor of Bollywood who had a relationship with Rai many years back when she was a debutant in Bollywood. She reportedly came out of the relationship because of physical abuses and harassment. This photo has a caption which reads ‘opinion poll’. The next is with Vivek Oberoi, who has allegedly created the meme. This has a caption which reads ‘exit poll’ and the last in the line is Rai’s family photo with her husband and daughter, which reads ‘result’. Noticeably, this meme attracted attention of many because this centered around a celebrity woman actor who is supposed to be one of world’s most beautiful women. She has been trolled many times earlier. But this is probably the first time that she, her husband  and her minor daughter are pulled in for political meme. Oberoi was slammed by many of his fellow Bollywood women actors who considered this as disgraceful, classless, disgusting etc.[3] While accepting the fact that Rai is a favorite subject for trolls for many years, what no one understood in this was, Rai’s daughter does not deserve this as a child. Even though as a celebrity child, she and her mother  had been trolled; could anyone understand how her right to privacy and basic child rights have been violated ? That’s the curse of being the daughter of a celebrity mother which follows all children of all women celebrities including women actors, politicians, sports persons etc.

As such, both Mamata Bannerjee , Priayanka  Chopra and Aishwarya Rai could have availed any of these laws mentioned above if they were not public figures and if the photographs that had been the major issue here, had been their personal  photographs or it would have been created specifically for sexual gratification which happens to most of the women actors.[4]

Then in that case, if the photographs were their personal properties, could they have pursued the police for arrest?    We have to turn our attention to chapter IV of the Copyright Act, 1957 for this : three sub clauses of S.17 attract my attention here which are as follows:

17. First owner of copyright.— Subject to the provisions of this Act, the author of a work shall be the first

owner of the copyright therein:

Provided that—

(a) in the case of a literary, dramatic or artistic work made by the author in the course of his

employment by the proprietor of a newspaper, magazine or similar periodical under a contract of

service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar

periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first

owner of the copyright in the work in so far as the copyright relates to the publication of the work

in any newspaper, magazine or similar periodical, or to the reproduction of the work for the

purpose of its being so published, but in all other respects the author shall be the first owner of the

copyright in the work;

 (b) subject to the provisions of clause (a), in the case of a photograph taken, or a painting or portrait

drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of

any person, such person shall, in the absence of any agreement to the contrary, be the first owner of

the copyright therein;

(c) in the case of a work made in the course of the author’s employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;

Neither Priyanka Chopra, nor Mamata Banerjee claimed that the photographs in question were their personal photographs which they ‘owned’ as per Copyright Act. The photographs were then properties of different persons or agencies who probably had captured both the women with consent.  Given this fact, neither (especially Banerjee) may proceed to complaint for arresting unless it has harmed her reputation or caused her financial loss or caused grave threat. Here, we must note that the Supreme Court has very narrowly touched upon the private sentiment of  Banerjee when it stated that such production and sharing of photograph may have infringed her right (not any specific right, but understandably it was largely right to reputation under Right to Life with dignity).   But what the court failed to note here was the liability of the website where it was published and shared. Websites like Facebook however may not count this as impersonation (again we have to go back to the understanding as who is ‘owner’ of the photograph) unless the image has been used to grossly defame the person whose photo is involved. The websites would neither recognize this as offensive if seen from the perspective of US laws of Freedom of speech which is extremely broad. This has been the major concern for many women victims of morphing, revenge porn and nonconsensual porn throughout the world.  In India the due diligence clause under S. 79 of the Information Technology Act (exemptions from liability of intermediary in certain cases) had been a major savvier for  US based web companies like Facebook or Twitter when it comes to liability of websites for offences including generating /continuing the harassment of women for nonconsensual photographs.   There is however one more solution from EU : Article 13 of the EU directives on Copyright in the single market[5] which makes the websites liable for illegal hosting of contents if they do not acquire license from the right holders of such contents. This means that the third party liability in offensive and illegal content sharing becomes more stringent as per the EU copyright Law. But in India such laws are not yet implemented or executed.

What we see from the above discussion is, Supreme Court has yet again broadened the meaning of freedom of speech, but failed to provide guidelines which may have strengthened rights of women who may be victimized by way of morphing in general. The court was in a hurry to undo the wrong of a political persona and the police who may have acted under her direction. But failed to create a lasting (and impressive) interpretation of  laws which could have saved millions of women victims of nonconsensual  images.

*Please note : Please do not violate the copyright of this blog. If you need to share/use this blog for your writeup/project/story, please cite it as Halder.Debarati (2019)Mamata Banerjee, Priyanka Chopra and Aishwariya Rai  : What bonds them together and why. Published in  http://debaraticyberspace.blogspot.com

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[1] Singh V.P. (2019) Mamta Banerjee Meme: What For Did The SC Ask Priyanka Sharma To Apologise?

https://www.livelaw.in/columns/mamta-banerjee-meme-what-for-did-the-sc-ask-priyanka-sharma-to-apologise-145069 . Published on May 15, 2019

[2] See Mamata Banerjee meme: SC grants bail to BJP worker Priyanka Sharma, asks her to apologise after release. Published in https://www.indiatoday.in/elections/lok-sabha-2019/story/mamata-banerjee-meme-bjp-worker-bail-west-bengal-priyanka-supreme-court-1524467-2019-05-14   on May 14, 2019.

[3] See ET online (2019)Vivek Oberoi tweet Aishwarya Rai's meme; Sonam Kapoor, Jwala Gutta lash out at actor

Published @//economictimes.indiatimes.com/articleshow/69413084.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst on May 21, 2019. Accessed on May 21, 2019

[4] 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.

ISSN: 14506637

[5] See Art 13 in the DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on copyright in the Digital Single Market @ https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016PC0593

The great Facebook hack: Liability of Facebook as service provider

CYBER CRIME AGAINST WOMEN BY DEBARATI HALDER

Photo curtsy: Google

By the late evening of 28^th September, 2018 almost all of Facebook users would have received messages in their electronic devices that their “session expired”. It indicated that the subscriber needs to log in again to continue the Facebook activities. Many of the users felt it was a hoax, many felt it was a hackers act and some could understand it was an alert alarm as they were always ‘online’ and never logged off even when their phones were ‘sleeping’ or switched off. By late night-early morning on 29^th September, 2018 the Facebook subscribers got an official information from Facebook help center stating that the company had discovered that there was an attack on their system and the attackers had illegally accessed Facebook access tokens which would give way to access the subscribers’ data. On an emergency precautionary step, Facebook logged off all users so that they can log on again with a secured code provided by Facebook. It was confirmed that Facebook was trying to exercise due diligence to protect the data of the users and in the course of the same users were directed to log off.

Due diligence has been addressed by  S.512 © of the Digital Millennium Copyright Act, 1998 which indicates that the intermediary may be saved from third party liabilities (especially for copyright infringements) if  the intermediary practiced due diligence, i.e., it   did not have the requisite level of information about the said infringement, it must not have been financially benefited from such infringement, it must have taken expeditious measures to take down the content concerned or block the access to the material concerned upon receiving the information of the infringement. The same has also been addressed by S.79 (3) of the Information Technology Act, 2000 (amended in 2008) and has been further explained in Information Technology intermediary guidelines Rules, 2011 whereby the term cyber security incident has been defined as follows:

Rule .2(d) "Cyber security incident” means any real or suspected adverse

event in relation to cyber security that violates an explicit or implicity

applicable security policy resulting in unauthorised access, denial of

service or disruption, unauthorised use of a computer resource for

processing or storage of information or changes to data, information

without authorisation;

The rules further goes on to explain what are the due diligence practices that should be adopted by the intermediary under Rule.3(3), which states that  The intermediary shall not knowingly host or publish any information or shall not initiate the transmission, select the receiver of transmission, and select or modify the information contained in the transmission as specified in sub-rule (2):

Interestingly Rule. 4 of the Intermediary Guidelines Rule further provides a clear direction to the intermediaries as what is to be done and within how much time when the intermediary has come to know about any information which harms the interest of users or threatens the security of the nation etc (which are mentioned in rule 3), by stating that The intermediary, on whose computer system the information is stored or hosted or published, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature about any such information as mentioned in sub-rule (2) above, shall act within thirty six hours and where applicable, work with user or owner of such information to disable such information that is in contravention of sub-rule (2). Further the intermediary shall preserve such information and associated records for at least ninety days for investigation purposes.

This Rule 4 (read with Rule 3) mentions that the intermediary should either remove the offensive content or block the access to the content. Facebook in its action in practicing due diligence and exercising reasonable security practices (in India, the guiding principle in this regard is mentioned in the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011), had alerted the users, logged them off and logged them in with fresh code and also expressed that they are not aware whether any individual has been affected by such unauthorised access to the Facebook system as a whole.

By doing this Facebook actually tried to escape its liability as a ‘negligent body corporate’ or a company which may be brought to the courts under S.43A of the Information Technology Act, 2000(amended in 2008). Compare the incident of Facebook- Cambridge analytica data breach and how the EU parliament addressed the issue by accusing Facebook for having extremely poor cyber security measures compared to Europe. Facebook users were also advised by an Illinois court to go for a class suit against the company (Facebook) for unethically scanning and storing personal photos and information of the users.[1] The recent news also suggests that in the US Facebook users have started going for class actions against Facebook for data breach which occurred apparently because of  the company’s negligence in securing the data.[2] Under the Indian information technology Act, 2000(amended in 2008), S.43A empowers the victims of privacy (including data ) breach to claim compensation from the faulting body corporate to a maximum limit of Rs. 5 Crores, which however is subject to modification depending upon the damage suffered by the victims, reputation harm etc and the discretion of the adjudicator. Not many users have applied this law for bringing big companies under the Indian scanners. There are however some cases of bank’s liability or hospital managements liability which are now coming up because of the awareness among the users/data owners and their lawyers.

However, web companies like Google, Facebook etc may have another option to shred the liability: they may always shift the major burden to the data owners or data managers, i.e. the private individuals who upload data almost every minute in average to expose their private information.[3] It is for this that we need to be vigilant on our own practices of data sharing.

Stay safe, play safe.

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), " The great Facebook hack : Liability of Facebook as service provider”  30^th September, 2019 , published in http://debaraticyberspace.blogspot.com

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[1] See Halder Debarati (2018), FB, Its content regulation policies & photo matching tech: boon or bane for Indian women from privacy law aspect. Published in LiveLaw on April, 20018 @https://www.livelaw.in/fb-its-content-regulation-policies-photo-matching-tech-boon-or-bane-for-indian-women-from-privacy-law-aspects/

[2] See for instance, see Knoop Joseph (2018), Facebook sued over data breach that involved 50 million accounts . available @ https://www.dailydot.com/layer8/facebook-breach-lawsuit/

[3] For better understanding about this see Halder & Jaishankar ((November 2016). Cyber Crime against Women in India. New Delhi: SAGE. ISBN: 978-93-859857-7-5.

CYBER CRIME AGAINST WOMEN BY DEBARATI HALDER
https://youtu.be/c4mtQsV9iUg

Help young generation to understand their duties and rights on cyber space: Model Policy Guidelines for Directing Students for Positive Use of Internet Including Social Networking Sites and Whatsapp

CYBER CRIME AGAINST WOMEN BY DEBARATI HALDER

Better late than never! Let us start 2018 with a positive note: let us teach our younger tech savvy generation how to respect women, men and people from LGBTQ groups online.  I was invited by  UNICEF to represent them in the West Bengal State child protection committee meet on child rights and deliver lecture  on online exploitation of children on 21st November, 2017 . I  delivered lecture on "Children as consumers and contributors of offensive contents online and role of POCSO Act: a Therapeutic Jurisprudential approach." 
We know children are smarter than us the older generation in cyber related issues. But at the same time, it is also our duty to guide children to be more responsible while on internet. I take pleasure in sharing this model policy guidelines which was prepared by me sometimes back. This model policy guidelines may be used by schools, colleges and other stake holders

Model Policy Guidelines for Directing Students for Positive Use of Internet Including Social Networking Sites and Whatsapp 

Dr. Debarati Halder

Objectives & missions of the policy guidelines: To protect children from adversities of internet and educating them for a positive use of internet and social-networking sites.
Scope of the policy guidelines: It may be used to educate children from 1st Standard to plus 2. It may also be used to provide guidance for teachers and counsellors to help children for positive usage of internet and social networking sites.
The guidelines:
1.Every school must encourage children to participate in debates or discussions on internet rights, positive and negative effects of the same. This may be made as a part of the subject of computer science, or as a part of C.C.
2.Junior students (from the age group of 4-8) must be encouraged to take part in awareness building sessions. In such sessions, the students may be shown how to handle the devices properly and why not to switch on devices without parent’s supervision or permission. For this purpose the schools can consider making small skits with the help of older children and the teachers, or use movie clippings or other audio-visual learning materials.
3.Students from the age group of 8-13 must be encouraged to attend awareness sessions where they may be taught how to use the internet for positive gain. Given the fact that many study materials and books provide internet links or pages on specific subjects, the students may be encouraged to open such sites in the presence of the teachers. Parent-teacher-student sessions must be made to sensitise parents about the positive use of internet and digital communication technology. Students may be introduced to issues including grooming by paedophiles, values of good talk and bad talk in the internet etc. Students may be slowly introduced to social networking sites. It is not necessary to direct the students to open their accounts. But the students may be asked to take part in discussions on the policy guidelines or terms and conditions that are
offered by social networking sites, email service providers etc, and then create their own accounts in the social networking sites.
4.Students from the age group of 14-17 may be encouraged to open accounts in the social networking sites and add their parents and teachers in their friend circles. They may be encouraged to create their own safety rules and privacy rules and discuss about them with younger students in class debates or awareness sessions. Students may also be encouraged to access informative pages in the social networking sites for gaining more knowledge.
5.It is important to teach students about rational coping mechanisms if and when they accidentally fall victims of cyber crimes. They must be taught how to use the safety tools to protect themselves, when and how to contact the principals, teachers and parents.
6.Schools must arrange for workshops on guiding students for positive usage of internet, which may include sessions on copyright violations as well. In such workshops, students may be encouraged to express their thoughts. Such workshops may be conducted with the police personnel, cyber crime experts, and NGOs as resource persons.
7.Senior students (from the age group of 16-18) may be encouraged to create their own blogs or vlogging sites either on their own or as group effort to show case positive usage of internet.
8.However, it must be noted that this policy guideline should not be used if the schools wish to use it as the sole guideline for separate types of offences. The author offers to cooperate with the schools to build up unique policy guidelines on the basis of this model policy guideline depending upon the need of every organisation. It is hoped that if the above guidelines are adopted, crimes targeting children by children and adults may be curbed.

* This model policy guideline was first published in http://www.cybervictims.org/moderlpgccvc.pdf by Dr. Debarati Halder. 

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), "Help young generation to understand their duties and rights on cyber space: Model Policy Guidelines for Directing Students for Positive Use of Internet Including Social Networking Sites and Whatsapp", published in http://debaraticyberspace.blogspot.com on 28-01-2018

Virtual friendship: what’s the reality in it for women

CYBER CRIME AGAINST WOMEN BY DEBARATI HALDER

6^th August, 2017 my WhatsApp, Facebook, Twitter and Instagram accounts were flooded with Happy friendship images. I was not well aware about friendship day as I was for Raksha Bandhan because back in our school days, we loved to wait for  “Rakhi” which used to come in different shapes made of colourful  sponge  topped with tiny little shining stars. Irrespective of gender, we used to tie Rakhi on each other’s hands and gift our own crafts (the “home made Rakhi”) to our elders, teachers and our best-friends. In my family, this was an occasion to pamper our grandfather with our own Rakhi who was generous enough to give us the sisters a treat in a nearby Chinese restaurant for “rakhi”. My family was not alone in celebrating Rakhi in such a manner. There were many families irrespective of religion who would extend Rakhi greetings and children would come over to each other’s places to show their Rakhi that they got from their siblings, friends or even grandparents. That was our ‘friendship day’ too as we the Bengalis carefully nurtured the custom of strengthening social bond with tying of Rakhi to our friends irrespective of their religion, cast or place of birth, instilled by none other than Rabindra Nath Tagore. We never saw texts wishing of “rakhi” or “Freindship day”. The greetings cards made especially for this were special items in gift shops which some of us bought for presenting a ‘memorable gift’ to their acquaintances. That was some thing REAL in real world.

There were spats of incidences this Friendship day and Raksha Bandhan day which made me think where we are heading to:

People wish happy friendship day to strangers whom they have never met or heard their voices in their lives. Women especially are flooded with such messages accompanied with images from ‘friends’ all over the world. An expert researcher may definitely find a nexus between sending friendship messages and subsequent online harassment to these ‘friends’. Such messages actually initiate a strange relationship and may even make women recipients believe that the senders have genuine interest in extending friendship. This internet culture is especially noticeable in young women and also first time users of social media including messaging apps in the smart phones. The virtual friendship or even any relationship can be so addictive that individuals may even forget their real life family or friends with whom one has actually grown up. Unfortunately there is no law for internet-deaddiction or rather virtual relationship deaddiction. Laws are made to control crime or prevent escalation of crimes. But consider when individuals forget their liabilities and duties to their real life family members or friends for their virtual relationships: a unique condition may arise in such cases where the neglected member may have to plead to the courts for directing the concerned person to ‘pay attention’ failing which, he/she may have to ‘pay’ for his/her irresponsible nature. Such unique conditions may include not only negligence of his /her moral responsibilities towards own families including caring for older or younger generations or dependants, but also may include exposing own family members or real life friends to extreme danger including various types online offences whereby the latter’s privacy may be infringed due to callousness of the earlier.

August is the beginning of  festive season in India, followed by major festive months including September and October. Let us share the happiness and positiveness among our family and friends first and then to our virtual friends some of whom may not even be “real”. We need to understand that once the family unit provides a strong mental support to any individual including children, no negative force may destroy the inner peace and yes, the reputation of the said person. Sharing happiness and sorrows alike may also make it easier for any one especially women and girls  to combat online harassment especially those kinds which directly affects our reputation.

Let us be independent from fear of virtual reputation damage which may be caused due to unknown virtual friends.

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. (2017), " Virtual friendship: what’s the reality in it for women”10^th August, 2017, published in http://debaraticyberspace.blogspot.com