The TikTok ban : Why the ban may fail to prevent online victimization of women

CYBER CRIME AGAINST WOMEN BY DEBARATI HALDER

Image credit: Google 

On 24^th April Madras High court would decide on the plea of Bytedance, which owns TikTok regarding the much talked about ban of the app. Tik Tok, , a nongaming app launched in 2019 has given a tough competition in regard to its popularity to all the social media giants because of the unique features  which allows users to create and share short videos with special effects. Teenagers and adults  in India loved the app because unlike other social media platforms including YouTube, TikTok has simple features to upload and publish videos. Unlike PubG however, this did not necessarily have gaming features.

In early April, 2019, the Madurai bench of Madras High court had in an interim order directed the government stakeholders in the State and Centre to ban the video app TikTok as the Public Interest Litigation in this regard emphasized that it encourages pornography and underage users are vulnerable to be exposed to sexually explicit contents, pornography etc, which may not be good for their mental and physical health.[1] Incidentally the Madurai Bench of the Madras High court was the first court in India to take suo motu cognizance in BlueWhale game case and asked the Central government and the social media website, web companies like Google etc to monitor what is being generated and catered to the users through their platform.[2] But in this case, the situation stands on a different platform: consequent to the interim order, Google and Apple removed TikTok app  from their Play Stores.  Resultant, Bytedance had incurred huge loss. But the later has now challenged this interim order on the ground that the interim order was passed on the basis of ex parte hearing. The company had stated that the app allows users to create videos and circulate them for fun and amusement and it does not pose any threat to security of individuals. Bytedance also stated that such bans are against right to speech and expression.[3]

We can see here two important points:

First : before the governments took prohibitory actions (like what happened for PubG ban in Gujarat, where police started arresting those who downloaded and played PubG even after the ban order was conveyed to the public)[4], Web company like Google  and phone and software manufacturing company Apple had followed the mandates of S.79 (exemption of liability of intermediary in certain cases) and Rule 3 of  Information technology (Intermediaries guidelines) Rule, 2011 : specially mentionable are Rules 3(3) and 3(4) which states as follows:

Rule 3(3) 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): provided that the following actions by an intermediary shall not amount to hosing, publishing, editing or storing of any such information as specified in sub-rule: (2) — (a) temporary or transient or intermediate storage of information automatically within the computer resource as an intrinsic feature of such computer resource, involving no exercise of any human editorial control, for onward transmission or communication to another computer resource; (b) removal of access to any information, data or communication link by an intermediary after such information, data or communication link comes to the actual knowledge of a person authorised by the intermediary pursuant to any order or direction as per the provisions of the Act;

And Rule 3(4) of the above rule states 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.

These companies apparently did not want to invite any more troubles like the past when they were repeatedly called by the court to explain why they had not taken any action to block and ban contents and materials victimizing children which are regularly shared through their platforms.

Second: Bytedance, the parent company of TikTok has alleged that they were not heard by the court before pronouncing the ban order. Apparently, they may become the first web company to stress upon the point as why they should be banned when they have their flagging system and they do take care of the contents that are flagged. This case would make a history in India where the court has taken a decision influenced by the happenings of the past, and the concerned web company promises to break the glass ceiling because they know this is not the end. While many information as how to use (activate/download) TikTok without Google/Apple Play stores have started surfacing on internet,[5] my concern is not how the app may or may not be downloaded legally or illegally.

Exposing children to pornography, using women as items of sexual gratification, grooming, creating “dangerous contents” which may cause damage to public health, online victimization of women and children etc would not stop if one video creating and sharing app is banned. In that case, the courts must also consider picking up social media giants Facebook, Twitter, YouTube, Instagram etc, and search engines like Google for banning them because of their constant failure to monitor misogynist, sexist, child abusive contents. All social media companies including YouTube have data mined several images, contents and marked them as adult specific. Several videos are not available unless the users verify their age. But how will you search the needle in the hey stack? The courts could not yet make strict regulations for virtual age verification by the web companies. The web companies (hosted in US and other countries) are confused about the law relating to pornography because India does not have any focused law defining pornography still now. Further, the web companies also do not accept all contents (which are alleged to be porn as per Indian understanding) as offensive because the ever expanding free speech and expression jurisprudence of the US does not allow the web companies to take down the contents unless it is gravely threatening to the physical and virtual privacy  and security of the person concerned or damages the reputation of the woman (in case the victim is a woman). Children can still be exposed to online dangers through Facebook, Instagram or YouTube. Women are continued to be victimized through all pockets of internet.

As such, there may be practically no solution for this and ban would encourage more law breaking. Google and Apple had already shown that they are willing to follow the local laws (or rather, not to fall in any legal tangles regarding web service providers liability). It is expected that India creates focused laws to address different emerging and existing types of online victimization and the same are implemented in proper way. Otherwise, the orders of banning may lead to ground ZERO.

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), "The TikTok ban : Why it may fail to prevent online victimization of women”  23^rd April, 2019 , published in http://debaraticyberspace.blogspot.com

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[1] For more, see J.Sam Daniel (2019). Ban TikTok, Its encouraging pornography : Madras High court to Centre. Published in NDTV on April 4, 2019. URL https://www.ndtv.com/india-news/madras-high-court-directs-centre-to-prohibit-downloading-of-tik-tok-app-2017482 Accessed on 12.04.2019

[2] Halder, D.(2018) The #Bluewhale challenge to the Indian judiciary: A

critical analysis of the response of the Indian higher judiciary to risky

online contents with special reference to Bluewhale Suicide game. In

Sourdin Tania & Zariski Archie (eds.), The responsive judges. USA:Springer  ISBN no. 978-981-13-1022-5  pp 259-276.

[3] See  Live law news network (2019). TikTok Ban : SC Says Ban Will Stand Lifted If Madras HC Fails To Decide On Interim Order By April 24. Available @https://www.livelaw.in/top-stories/tiktok-ban-sc-says-ban-will-stand-lifted-if-madras-hc-fails-to-decide-on-interim-order-by-april-24-144438 . Publshed in on 22^nd April, 2019.  Accessed on 23^rd April, 2019

[4] See Ahaskar Abhijit (2019). Why playing PUBG Mobile can get you arrested in Gujarat. Published in https://www.livemint.com/news/india/why-playing-pubg-mobile-can-get-you-arrested-in-gujarat-1552849965539.html on 18th March, 2019. Accessed on 12.04.2019

[5] For example, see SC hearing on TikTok: Why it is difficult to ban the app in India. Published in https://www.businesstoday.in/technology/internet/tiktok-ban-after-madras-hc-decision-reality-banned-apps-tiktok-pubg/story/339286.html   on April 22, 2019. Accessed on 22.04.2019

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

Why cyber bullying should never be taken as a holistic term for cyber harassment

CYBER CRIME AGAINST WOMEN BY DEBARATI HALDER

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” 4^th February, 2018, published in http://debaraticyberspace.blogspot.com

Risky private talks: what women must be aware of

CYBER CRIME AGAINST WOMEN BY DEBARATI HALDER

Gone are the days when young women preferred to secretly seek information from friends, cousins or aunties residing in neighbouring houses about periods, sexual behaviour of men on nuptial nights or about pregnancy and related issues. Hush hush talks about delayed periods,  sex etc  slowly shifted to digital communication mediums and gradually women are now talking about these issues openly, breaking gender  based myths  that periods make women ‘untouchable’ or delayed periods may signify obvious pregnancy. This would not have been possible without the social media as a positive platform for letting women express their feelings and seek information from various groups , pages, websites etc. This is the main reason that social media is also called infotainment as well, which signifies information-entertainment. While this is the worldwide trend now, in India women are still gathering courage to speak about these issues openly on social media platforms.  For many women, it is still a matter to be shared either by phone calls or by way of Facebook, Yahoo, Gmail chat messengers, or by way of WhatsApp, Vibe, WeChat etc.  Often women may not only seek to gain information on these information by sharing ‘private secrets’, they may also like to know about fellow women’s sexual relationship with their husbands or boyfriends. There was this report by Porno-Hub which showed that women in India are no less porno viewers compared to their male counter parts (http://www.telegraphindia.com/1160103/jsp/7days/story_61762.jsp#.Voj9msLUnQ0.facebook). Women, like men are inquisitive to know about the sexual behavior of other couples and truely speaking, there is no wrong is sharing such secrets.

But wait!

There are risks involved in sharing sex-secrets with other women even in closed groups.  The language used by women inquisitive to know about sexual behaviour of friends  may not always be comfortable for others; such communications are supposed to be ‘not serious’ and women may tend to use ‘sex jokes’ which are supposed to be exclusively meant for men. But do remember, women have equal right to expression: then where is the problem?  Many a times, women friends may pester each other to share private photos on WhatsApp or similar mobile messaging platforms. These are not typical sexting, but clearly photos in a compromising position with the male partners , or simple photos of embracing or hugging each other on bed . While the earlier may be extremely risky since it may attract legal liabilities of creating sexually explicit images and distributing the same (if not kept in the owner’s own possession for private viewing), the later may look perfectly safe to create and distribute. But when seen from the perspective of online safety of women, distribution of both sorts of images may be risky. This is because, the recipient of the message asking to share the photographs, may never know whether the message was generated by the friend whom she knew since her childhood or she is truly her best friend. The sender may be the adolescent child of the friend who helps the ‘cyber illiterate mom’ to send messages, may be her husband who wishes to monitor her and her friends or may be any other stranger who may have gained illegal access to the phone either physically or digitally. The caution note for sharing sex-secrets by plain texting is also similar. The information that is sent out may be misused if the same is shared with public by others who may want to harass or blackmail the sender of the information. It takes a few seconds to text a sex joke or share the ‘bed secrets’ with friends, but may take huge time to remove the unwanted information from public viewing and manage reputation damage. Women who may pester their friends to get indulged in such secret talks through digital communication platforms may not be fully aware of safety risks. It is therefore better to be aware than to be ‘less serious’ and ‘popular’ only to attract more danger for oneself and her friends. Let us keep our secrets to ourselves and let us enjoy real life socialising for the sake of online safety of us, the women.

Please Note: Do not violate copyright of this blog. If you would like to use informations provided in this blog for your own assignment/writeup/project/blog/article, please cite it as “Halder D. (2016), “Risky private talks:  what women must be aware of”

11^th March, 2016, published in http://debaraticyberspace.blogspot.com/

Cyber misogyny of female journalists

CYBER CRIME AGAINST WOMEN BY DEBARATI HALDER

When the image of Aylan Kurdi, the Syrian boy who was found lying dead on a sea shore in Turkey surfaced on internet, social media including Twitter were flooded with posts expressing concerns for war refugees.  One of the worst causes of destruction of human civilisation is definitely the war. When as a young student I used to read about World Wars, I used to believe that wars are parts of history and this would never occur in modern age. But my childish thoughts were smashed with growing up years when I learnt that wars in different forms still exist and they are more devastating than before.  The television channels used to show live broadcasting of soldiers preparing for counter attack in borders and like many other young women I often used to think that such reporting are done by men. But I was proved wrong. Be it  Barkha Dutt’s reporting on Kargil war between India and Pakistan  or her coverage of 2008 Taaj attack in Mumbai , like many other girls, we knew Barkha as a reporter meant to cover risky areas. Remember Maya Mirchandani , the reporter who was one of the last to cover Sri Lankar President Chandrika Kumaratunga’s campaign rally when the Kumaratunga was hurt due to bomb explosion ? Following female journalists like Barkha or Maya, many female journalists came up to take this venture of reporting war crimes, political hooliganism, scams etc literally risking their lives.  Among these brave women brigade, I have my own cousins who have also suffered physical injuries in the course of their duties.

But with the advent of digital communication technology, attacks on women journalists have become more organised, personal and also patterned.  Sagarika Ghosh, one of the senior most women journalists in India was one of the worst victims of Twitter trolls.  In my BBC interview (http://www.bbc.com/news/world-asia-india-22378366) regarding attacks on women on social media I expressed my anguish over the issue of lack of empathy and sympathy from the part of criminal justice machinery to the female victims, especially in case of trolling or bullying, even if they are celebrities . Undoubtedly, this is a major cause which motivates the perpetrators to abuse such women.   In my recent publication titled “A retrospective analysis of S.66A: Could S.66A of the Information Technology Act be reconsidered for regulating “bad talk” in the internet?” Published in Indian Student Law Review (ISLR), 2015(1), pp 98-128, I took up Sagarika’s case  as a prime example as how women may be victimised online  irrespective of their position in the society. They may also be targeted by misogynist posts including online sexual abuse.  The reasons may vary from professional jealousy from own colleagues, workplace harassment to even dislike by members of particular group or organisation, who may motivate supporters to individually attack the women concerned online.  The very recent case of the Delhi Journalist Swati Chaturvedi, who became a victim of  sexist trolling allegedly by another senior journalist  may be seen as a good example in this case( http://indiasamvad.co.in/6524/showstory/Beware-of-sexist-remarks-Delhi-journo-to-become-first-to-be-arrested-for-Twitter-trolling).  But it would be wrong to presume that such atrocities happen only in India.  Consider the case of Sharmila Seyyid, a SriLanka based war crime reporter; because of her work, she was attacked online and once Twitter and other social media were also used to spread the news of her death and the morphed picture which showed her raped. She was very much alive but these tricks were taken up to send her death threats and make her family feel extremely insecure about her life (See http://www.thehindu.com/opinion/op-ed/sharmila-seyyid-online-trolling-death-threats/article7109863.ece). But she is not the only one Sri Lankan female reporter to be victimised online. Another Sri Lankan war crime reporter named Dilshy Banu, who is also the writer of four books, was also attacked online. Dilshy, unlike other women was not trolled in the social media. But whenever anyone searches her name with the key words of her name, the search engine gets flooded with web links of pornographic sites which has her name with a slight change in the spelling. Dilshy contacted me for help and permitted me to use her case study.  It is unfortunate that similar to many other women journalists, Dilshy’s name has been added to vicious misogynist posts on internet and these web links may stay for a long time like those ugly posts targeting other women journalists, which are still floating in some sites, unless search engines themselves pull down those web links. on a positive side,the number of such links showing porn contents which are tagged with Dilshy's name are reducing. But the process is slow. But as may be seen, such act of pulling down of misogynist posts needs the cooperation not only from the NGOs, but also from the criminal justice machinery where the victim should report the crime for getting a legal recognition of the offence, the search engines as the intermediaries and of course the general public who may help these brave women by ‘positive Google bombing’.  It is understandable that like India, many other south Asian countries including Sri Lanka, Pakistan, Bangladesh, Bhutan etc may not have well developed laws to prevent cyber misogyny targeting women; and even if they do, the foreign based intermediaries may need to work more cooperatively to help prevent such sorts of victimisation since the viral nature of the offensive posts may  make the individual stake holders almost impossible to erase them completely.  It is unfortunate to note that this may be one of the reasons that more orthodox countries including Iran etc, periodically block many websites including Google or may even create prohibitory sanctions for using internet.  

It is understandable that all of us have freedom of speech and expression and as I mentioned in my article on S.66A, the courts, not only in India, but all over the world, are slowly expanding the scope of free speech guarantee.  The latest example is obviously the Elonis decision in the US on which I wrote my blog @ http://debaraticyberspace.blogspot.in/2015/06/the-elonis-decision-why-would-indian.html . But that does not mean that people can take internet or digital communication technology to continue attack on women, including journalists.  

Let us join hands to stop online victimisation of women irrespective of jurisdiction.

Please Note: Do not violate copyright of this blog. If you would like to use informations provided in this blog for your own assignment/writeup/project/blog/article, please cite it as “Halder D. (2015), “Cyber misogyny of female journalists”, 9^th September, 2015, published in http://debaraticyberspace.blogspot.com/

The Elonis decision: why would Indian women feel bothered?

CYBER CRIME AGAINST WOMEN BY DEBARATI HALDER

The month of June opened with a ‘sweet surprise’ note for many free speech advocates when the US Supreme Court pronounced its decision in favour of Elinos, who was earlier convicted for posting violent messages in Facebook  fantasising killing of his estranged wife, who had a ‘protection order’ against Elinos.  His posts (which may no more be found in Facebook) ran like these : “There’s one way to love ya, but a thousand way to kill ya” ; “fold up your protective order and put it in your pocket. Is it thick enough to stop a bullet?”  He did not stop with his thoughts about harming his wife, he fantasised a school shooting and then targeting a female FBI agent also.  As I get to know from the text of the judgement, when Elinos’s boss came to know about it, he was fired and the concerned boss alerted the FBI as well.  May be because Elinos was targeting their own departmental staff in his ‘fantasy’, along with posting violent messages targeting schools that they started monitoring the posts made by him and subsequently he was indicted  under 18 USC S.875(c) (it says “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both”) .After the Supreme Court judgement was published in the internet, concerned stakeholders published their own thoughts and opinions about the same.  While some felt that the judgement re-established the principles of free speech in regard to internet, some expressed concern regarding safety of women especially in domestic abuse cases.  Precisely, the court felt that the posts of Elonis were his own thoughts and even though the posts apparently seemed like threat messages to his wife or that the messages exposed his desire for a school shoot or harming a female FBI agent, the government failed to prove that the speaker’s (Elonis) ‘subjective intent’ was to execute the threats in real life. As Soraya Chemali and Mary Ann Frank in their writeup on the issue pointed out, “While the court did not go so far as to hold that a true threat turns on what the speaker intended to accomplish, the ruling suggests that the determination of what constitutes threat rests with the speaker and not his audience.”( See Chemali & Franks, Supreme Court may have online abuse easier, published on June 3, 2015 @ http://time.com/3903908/supreme-court-elonis-free-speech/?xid=tcoshare).

My attention is attracted to this particular judgement because Elonis was actually targeting women ( his wife and the female FBI agent) and children ( consider his post regarding school shoot out).  In its detailed judgement, it may be seen that the court was convinced by the defence of Elonis whereby he stated that he was actually posting those messages in the style of rap lyrics; that his posts were not direct threats that were to be executed like what happened for many other cold blooded murders or attacks including that of the blogger Abhijit Roy, who was supposedly sent warning messages by radical extremists who finally killed him in Bangladesh.  This judgement reminded me of our own Shreya Singhal vs. Union of India which struck down the controversial 66A. The US Supreme court  did not strike down any controversial laws, but it could motivate some stakeholders to think about the effect of laws, execution of the same and confusion among the legal fraternity regarding online abuse, especially targeting women. When the Indian Supreme court struck down 66A, while majority of the internet users, lawyers and supporters of free speech were happy, there were some including myself who expressed their concern . Is the judiciary paving a way for ‘abusers’ to escape the prosecution?  After the Shreya Singhal judgement was passed, many police officers told me that there would be a steep rise in online abuse now and we have to accept that these are but normal exercise of free speech. Nonetheless, women would continue to be the prime targets followed by transgender people, children and men. Surprisingly I was contacted by many journalists who expressed their anguish about lack of focussed laws on preventing online attack in the forms of bullying or trolling or threatening speech against women, celebrities, writers, journalists and also children. Our courts are oftener than not influenced by judgements of foreign courts; 66A judgement was no exception since the concept of free speech is being broadened basing on the understandings of the US and UK courts. When it comes to posting violent messages as Elonis did, in India, the women ( who may be targeted in the same fashion as the estranged wife of Elonis) would either leave the social networking sites, or may feel  extremely  traumatised  to speak about the issue, or may take up irrational modes like hiring hackers to remove those particular posts ( see Halder, D., & Jaishankar, K. (2015). Irrational Coping Theory and Positive Criminology: A Frame Work to Protect Victims of Cyber Crime. In N. Ronel and D. Segev (Eds.), Positive Criminology (pp. 276 -291). Abingdon, Oxon: Routledge. ISBN 978-0-415-74856-8). Some women victims may  gather enough courage to report the matter to the police, but in my experience I have seen few successful endings in such cases.  The reason is simple; many police officers may think in the similar lines as the US Supreme Court  have thought “...........determination of what constitutes threat rests with the speaker and not his audience”. The case ends then and there when the victims are told to withdraw from social media or change the phone number. Unfortunately we still do not have ‘protective order’ types of orders for online abuse  especially when it comes to interpersonal attacks.  The police may cease the devices, destroy the SIM cards and the courts may pronounce jail term or bail. But in practice, nothing actually works. Unless the social media stops the accused from using his account, he may continue to misuse it by posting threatening messages and enjoy sadistically the fearful pleas, warnings or even gradual detoriation of the psychological health of the victim. If finally the social media or his other service provider blocks him, he may come back again with a new identity to continue the harassment.

While we boast of our laws for dealing with abuse and harassment of women, all is not always well. The courts need to see the practical points while acquitting posters of violent messages or hate messages.  Sometimes violent messages may really have the “road maps” for more actual violence even if the poster convinces the police as well the courts that he did not intend to harm actually.  From my experience I have seen how such messages may lead to graver misdeeds like creation of “fake avatars” ( I coined the term Fake Avatar which is defined as “a false representation of the victim which is created by the perpetrator through digital technology with or without the visual images of the victim and which carry verbal information about the victim which may or may not be fully true and it is created and floated in the internet to intentionally malign the character of the victim and to mislead the viewers about the victim’s original identity.”  see Halder Debarati,(2013) p. 197 “Examining the scope of Indecent Representation of Women (Prevention) Act, 1986 in the light of cyber victimisation of women in India” National law school journal, Vol 11,2013, 188-218)), or even extortion or stalking or online gang-attack.   It is high time that the law makers, police and the courts take note of the situation especially when it comes to digital safety of women.

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

”6^th June, 2015, published in http://debaraticyberspace.blogspot.com/

The myths and some hard realities

CYBER CRIME AGAINST WOMEN BY DEBARATI HALDER

Last week I was invited to conduct a session in the workshop on violence against women which was hosted by Department of criminology and criminal justice sciences, ManonManium Sundaranar University, Tirunelveli, Tamil Nadu. I didn’t expect such a large gathering of students (mostly girls) for my own session which was on online violence because many of these students hardly frequent Facebook ( I did a small research on it) and some how believe that they are immuned from any sorts of victimisation that I mentioned in my book “Cyber crime and the Victimization of Women: Laws, Rights, and Regulations. Hershey, PA, USA: IGI Global. ISBN: 978-1-60960-830-9 
My first job was to break their myth. When I was doing my home work for the session, I came across good amount of materials which advocated that these girls were not the only ones who believed in this myth. There are some myths which many girls and their families in India feel to be true. I am going to showcase some of these myths and  break them  today:

 Myth no.1: I don’t have a Facebook account. Hence no one can make a dirty fake image of mine.

Reality: wrong! The perpetrator can still make a fake image of yours and float it in the Facebook if he has your basic information like your institution, your name or your residential address if he really wishes to. He may not even need your picture!

Myth no.2:  Facebook is dangerous because people may use it to actually victimize me.

Reality: nonsense! Know the safety rules and how to use it properly. It can turn into a huge resource for good.

Myth no.3: If I frequent the net, I will become a beloved for the hackers.

Reality: Well, stop being paranoid. Do not be ‘open’ to forcefully close your windows. Share only limited information and pick up a habit of changing your passwords, security question and secondary email address every fortnight. Choose good sites to get useful information.

Myth no.4 : Cell phones are causes for rape, elopement and love marriage

 Reality: really? Then why these issues keep coming back since pre-cell-phone era in India? Cell-phones are mediums of communication in the same way (obviously better versions) as were hand written letters and landline phones. Learn yourself and teach your children to use it for good communication and not for creating terrifying sensational news headlines.

Myth no.5: a girl should never be allowed to access internet including emails and popular social networking sites and cell phones unless she is married and in safe custody of her husband.

Reality: absolutely ridiculous thinking! Girls must be trained about good communication and bad communication in the digital communication technology. This will make them confident and reach the emergency services without anyone’s help.

Myth no.6: men are always dangerous when with camera devices

Reality:  Some men who are unaware of cyber etiquettes should be blamed for creating bad examples. But not all men are equal. Responsible men never misuse their devices.

Unfortunately the recent incidences of rape and sudden increase in the media report on sexual assault of women in India  made majority of women as well as their families extremely insecure. Added with it, the hard realities that misuse of smart phones and popular social networking sites do damage the reputation of women and their families have actually strengthened the belief in the unreal myths. The extreme results can be seen in the ridiculous actions of the village heads in banning cell-phones for girls in many villages in India. The workshop ended with a strong note from a wonderful woman professor who emphasized that education and awareness can reduce the violence against women. True. It stands true for online violence against women also. Learn how to use the modern digital devices for good and make the society a better one.

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. (2013), “The myths and some hard realities”, 3^rd February,2013, published in http://debaraticyberspace.blogspot.com/

Do not mess with your wife through cyber space; it could lead to divorce

CYBER CRIME AGAINST WOMEN BY DEBARATI HALDER

Marriages are made in heaven, but divorces may not be made only in the real space. People have found cyber space a perfect platform to express views about others and this may also include ridiculous humiliation of women, including one’s own wife. Truly, off late I have been noticing many ego clashes and typical domestic quarrels taking place through online chats and emails. Not very long ago a Muslim wife was declared legally divorced by the Shariat (Islamik law) when her husband conveyed the word “talaq” three times through online chat (see “Talaq joke during  internet chat may cost youth his marriage”(2010,October,27) in msn news. Retrieved on 25.12.2010 from http://news.in.msn.com/national/article.aspx?cp-documentid=4508570). The write up claims that the husband had unknowingly used the devastating word and that brought the marriage to an abrupt end. But Shariat is not the only legal source to punish such thoughtless idiotic communications which takes toll on marriages. The definition of domestic violence under section 5 of the Protection of women from Domestic Violence Act,2005, may also be cited as one of the preventive legal provisions which bars usage of humiliating, insulting words by husband or relative/s of husband against the victim woman. This law strengthens protection of women from verbal abuse hurled by their men especially when such verbal abuses are carried out by any means including the digital medium.

Sadly enough, in India, many educated men have taken to verbally abusing their wives over their work place designation, relationship with colleagues, child bearing capacity, attitude to their families and homes etc.  This is especially because these men do understand that physical violence over their wives may mar their own reputation as educated, matured and modern young husbands. Hence verbal abuse through internet could be the most sorted after way to express anger and frustration over the marriage relationship. If the  Supreme Court judgments over the grounds of divorce are analyzed in light of digital era, it could be seen that such via-internet mess up may include conveying insulting, humiliating words to the wife through online chat, emails, message box etc, spreading ridiculous messages about the wife to friends and acquaintances, creating fake profiles to irritate the wife etc.

No wonder, women also take to internet to abuse their husbands. Many anti-domestic violence law activists have rightly pointed out that the broad provisions of this Act supporting women almost blindly, may be misused by many women against innocent men. I do support them partly. But in a traditional patriarchal society like India once a woman’s reputation is destroyed by her husband, it is none other than the woman herself who has to suffer the brunt of the “mistake” of her husband. Cyber space must not create the war-zone between the husband and wife. Once it is turned in to so, even the law of the land may also not save the marriage.

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. (2010), “Do not mess with your wife through cyber space; it could lead to divorce”, 27^th December,  2010, published in http://debaraticyberspace.blogspot.com/