Legal Remedy for Cyber Stalking and Online Harassment

Almost everyone and everything can be accessed with just one click behind a computer or phone, in this wave, there has been a surge in all forms of online stalking and sexual harassment especially, on social media platforms.  The element of anonymity encourages and leads to the commission of such acts. This article primarily decodes and simplifies the various forms of legal remedy that is available for any such form of ONLINE stalking or ONLINE sexual harassment.

In general, cyber stalking refers to computer-based harassment. The term is usually interchangeably referred as online harassment or online abuse. Further, it can be understood that Cyber/ Online harassment/ stalking/ abuse may be defined as a repeated, unsolicited, hostile behaviour by a person through cyberspace with the intent to terrify, intimidate, humiliate, threaten, harass or stalk someone else.

LEGAL REMEDIES

In India, legal remedies primarily exist in penal form for the offence of cyber stalking/ harassment. They are present in general as well as specific legislations such as the Indian Penal Code, 1860 and the Information Technology Act, 2000.

  1. The Indian Penal Code, 1860

The Penal Code has provisions that address issues of harassment/stalking that not only limit to physical forms but, also extend to cyber/online modes. The act inter alia defines stalking under section 354 D to include “the act of any man who monitors the use by a woman of the internet, email or any other form of electronic communication,” that essentially forms online stalking which is punishable under the act.

  1. Sexual Harassment – Section. 354 A

Section 354 A of the Indian Penal Code primarily punishes offence of sexual harassment. In terms of cyber stalking/ harassment it provides to punish the following:

  1. a demand or request for sexual favours; or
  2. showing pornography against the will of a woman; or
  3. making sexually coloured remarks.

For the commission of acts mentioned in a) and b) the punishment is rigorous imprisonment for a period which may extend to three years, or with fine, or with both. Further for the commission of offence mentioned in c), the punishment is imprisonment of either a period which may extend to one year, or with fine, or with both.

Hence 354 A punishes posting of lewd comments or sexually coloured remarks on a woman, forceful sharing/messaging/posting showing of pornography to a woman, against her will and any requests made for sexual favours through online platforms as well.

  1. Voyeurism – Section. 354 C

Section. 354 C of the Indian Penal Code provides to punish the act of voyeurism. It inter alia defines the act of voyeurism to include the act of a man

  • watching or capturing the image of a woman or
  • disseminating such an image

when the woman is engaging in a private act.

In an instance, where the victim has ONLY consented to the act of capturing the image or recording a video of such kind, but has NOT CONSENTED or agreed upon the circulation or dissemination of the same, then, upon such non-consensual circulation or dissemination, such act of circulation or dissemination will constitute as an offence under section 354-C

The punishment for the commission of voyeurism as given under this section

  • for the first conviction is imprisonment for a term not less than 1 year but, which may extend up to 3 years along with a fine and,
  • for the second or subsequent conviction, imprisonment for a term which shall not be less than 3 years, but which may extend to 7 years along with the liability to pay a fine.

Hence, the seriousness of the offence is indicative through the aggravated punishment that is given to repeat offenders.

  1. Online Stalking – Section 354 D

There is a provision that addresses the issue of stalking that not only limit to physical forms but, also extends to cyber/online modes. It defines stalking to include “the act of any man who monitors the use by a woman of the internet, email or any other form of electronic communication,” that essentially forms online stalking which is punishable under this provision.

Certain exceptions have been laid out for the act as described under this section, the important one being if such act is reasonable and justified in a certain circumstance.

The punishment for commission of the offence under this section:

  • for the first conviction is imprisonment that may extend to a maximum term of 3 years along with a fine &
    • for the second or subsequent conviction is imprisonment that may extend to a maximum of 5 years along with a fine.

In Kalandi Charan Lenka v. State of Orissa, the accused sent obscene, vulgar and scandalous mails, published obscene pamphlets and the accused created a fake Facebook account with name of the victim with intentions to intimidate her and exploit her sexually. Upon the accused having changed her place of study to avoid harassment, the accused followed her to harass her online and offline.  Theaccused was found to be guilty for the offence of sexual harassment.

  1. Word, gesture or act intended to insult the modesty of a woman– Section 509

Section 509 of the Indian Penal Code has been inserted in to the code to protect the modesty and chastity of women. In order to such an offence certain  conditions are to be met, one The accused must have the intention to insult the modesty of a woman and in pursuance of such intention the accused must have carried out an act knowing that the woman whose modesty is being insulted can hear or see such sounds, words, gestures and objects. The act of insult of modesty could also be through the invasion of the privacy of a woman.

The punishment for conviction under this provision is imprisonment that may extend to a maximum period of 3 years along with a fine.

  • Criminal Intimidation – Section 506 and Section 507

Section 506 and 507 of the Indian Penal Code, 1860 punish the offence of criminal intimidation. The essence of criminal intimidation as described under section 503 is the threat of causing injury /harm with the intention to cause such harm/injury and hence cause alarm in such person or force them to do an act they aren’t legally bound to do or force them to omit an act that they are legally bound to do.

In the context of harassment of women online, Section 506 can be accessed when a woman receives online threats of rape/ acid attack / sexual harassment/ any other criminal offence.

The conviction for the commission of an offence under Section 506 is punishable with:

  1. Imprisonment which may extend to a maximum of 7 years or fine or both – if the intimidation is to cause death or grievous hurt or to cause fire to a property or commit a crime punishable with life imprisonment or imprisonment that may extend to 7 years or to impute unchastity to a woman.  
  2. Imprisonment that may extend to 5 years or fine or both – when any other form of criminal intimidation is committed other than those given in (a).

Criminal intimidation of rape/acid attack/ sexual harassment online would fall under punishment given in (a).

Section 507 can be accessed or used when the criminal intimidation is committed by a person anonymously or by using a fake account or by concealing their identity.

Punishment for conviction of offence under section 507 is the same as that prescribed under section 506 along with the provision to extend the imprisonment to an additional 2 years.

6. Defamation- Section 499

A person can seek remedy under Section 499 of the Indian Penal Code, which exclusively deals with remarks on social media or obscene images or videos posted for public consumption and which prove to be defamatory, if they believes that their reputation is being harmed by a visible representation published on the internet can invoke this provision Under this provision, defaming a woman or a man on online platforms can be punished.

  1. Information Technology Act, 2000

Information Technology (IT) Act is a special legislation that was legislated with the object of specifically providing legal remedy for cyber/online offences.

  1. Section 67 & Section 67 A – Publication, transmission and causing of transmission of obscene content and sexually explicit material

Section 67 of the IT act punishes the act of publishing, transmitting and causing the transmission of obscene/ vulgar content in electronic form.  The term obscenity under this section is said to include any word that creates sexual thoughts in the reader or hearer or words used to express sexual desires or thoughts. Furthermore, judicial pronouncements  have also held that words even if the words used are extremely unparliamentary, unprintable and abusive in nature, so long as the they aren’t capable of arousing sexual thoughts in the minds of the hearers or reader and does not involve any lascivious elements  that arouse sexual thoughts or desires  or the words do not have the effect of depraving persons, and defiling morals by sex appeal or lustful desires, it cannot be penalised and brought under  Section 67 of the IT Act.

The punishment for first conviction of this offence is imprisonment for a term that may extend to a maximum of 3 years along with a fine that may extend up to Rupees Five Lakhs.

The punishment for second or subsequent conviction is imprisonment that may extend to a term of five years and with a fine that may go up to Ten lakh rupees.

Section 67 B of the IT act punishes an offence similar as in Section 67 B but however in a graver and more express form. Section 67 B punishes the act of publishing, transmitting and causing the transmission of obscene/ vulgar content in a sexually explicit way through an electronic form. Here the term sexually explicit in simple terms means that whatever matter is published or transmitted must be describing or representing sexual activity in a direct and detailed way along with it necessarily being lascivious or of prurient interest. Further an image of a person bilateral sexual activity, it can be unilateral sexual activity but it should be explicit and not implied.

For Example: When the image of a male private part is sent to someone through a Facebook private message, one can seek remedy under Section 67 of the act. However, a picture of an erected male private part held in their hand, is sent as a message, it is a more sexually explicit image along with being vulgar and obscene and hence can be charged under Section 67 A.

The punishment for commission of an offence under Section 67 A is:

  1. For first conviction – Imprisonment that may extend to 5 years along with a fine that may go up to 5 Lakh Rupees
  2. For second or subsequent conviction– Imprisonment that may extend up to 7 years along with a fine that may go up to 10 Lakh Rupees.

Both these offences require the obscene content to be sent without the consent of the receiver/receivers. Further, the exceptions to these two sections is when the publication is proven to be correct as being for the public good or which is use bona fide for religious purposes.

2) Section 67 B- publishing or transmitting of material depicting children in sexually explicit act

Section 67 B of the IT act provides to punish those who publish, transmit and download child pornography that is children engaging in sexually explicit acts. The provision provides in detail the various acts relating to children in sexually explicit positions that could constitute an offence under it. The victim as under this section can be a child that is any person who has not completed the age of 18 years.

The punishment for the commission of offence under Section 67 B is:

  1. For first conviction – Imprisonment that may extend to 5 years along with a fine of ten Lakh Rupees.
  2. For second or subsequent conviction- Imprisonment that may extend to 7 years along with a fine of ten Lakh Rupees.

3) Section 66 E- Violation of Privacy

Section 66 E of the IT Act punishes anybody who intentionally/knowingly captures, publishes or transmits a picture or video graph of the private area of a person without their consent. Such act is made punishable primarily as a matter of breach of privacy of person and as means to tackle voyeurism similar to his provision of law specifically deals with the offece with respect to electronically sent visual image with the intention to be viewed by a person or persons of an image videotape, photograph, film or record by any means the naked or undergarment clad genitals, pubic area, buttocks or female breast.

For example, in case a person A has installed hidden cameras in a ladies changing room where A knew that a B would come to swim and subsequently A has captured a video of B changing through the hidden cameras and has forwarded this video of B through MMS. Person B can seek remedy under section 66 E of the IT Act, against A’s actions.

Punishment for commission of offence under Section 66 E is

  • Imprisonment that may extend to three years or
  • A fine that may go up to two lakh Rupees or
  • Both.

In the light of increased connectivity and anonymity, the instances of online harassment has gone up and subsequently laws have evolved and been incorporated to tackle these problems primarily through two legislations that are the Information Technology Act and the Indian Penal Code. The various acts of voyeurism, online stalking, child pornography, anonymous criminal intimidation (threats of rape/ acid attack or other forms of sexual harassment) etc have been made punishable and legal recourse is hence, made available for the same. Most of these offences have a maximum punishment that is usually for longer periods of 3, 5 or 7 years to create a greater level of deterrence. Furthermore, some offences such as stalking and voyeurism under section 354 C and 354 D of the Indian Penal Code are made punishable with graver punishment if there are instances of repeated offenders which is again indicative of the seriousness and gravity of the offence.

— Gowri Krishna an intern at Ravindra Vikram Law Associates

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