Is using electronic payment mode mandatory?

CYBER CRIME AGAINST WOMEN BY DEBARATI HALDER

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

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

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

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

6A Delivery of services by service provider. –

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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



Gender and Internet : Web magazine for Cyber law for women News update for March 13-April 18,2021

#stopcybercrimesagainstwomen

Picture credit: Debarati Halder

Indian court makes strict guidelines for searching smart devices for collecting evidences.
https://www.livelaw.in/news-updates/karnataka-high-court-issues-guidelines-for-search-of-smartphones-laptops-electronic-gadgets-171136?fbclid=IwAR3-005H-GnVGCMAC7-tKGIder4ry8_L9pYulaqkCioVmGRrOmo6SvTzT9s#.YE3VCj6QPw8.facebook

Woman from US allegedly creates deep fake videos to harass teen cheer leaders. Police starts investigation.
https://arstechnica.com/tech-policy/2021/03/pa-woman-charged-with-using-deepfakes-to-harass-teenage-cheerleaders/?fbclid=IwAR27CxUMFtt6hv_vP-zjGC3Xt2G4PmKaD95DW7LB097denkrL-Ruw37yy6M

Hotel booking site encounters data breach and several customers’ data gets breached. The booking site is held liable for late reporting of the matter to the criminal justice authorities.
https://www.politico.eu/article/dutch-privacy-watchdog-fines-booking-com-e475k/?fbclid=IwAR1l39EYtgTGg6y0N_2_4OgfuoCX2Cg6SvtR6jwGAJg5tjl_5XMgtshfd0Q

Nigeria Court convicts 11 internet fraudsters for sending misrepresenting electronic messages to women for duping them under Cybercrime (Prohibition, Prevention, Etc) Act, 2015 and prescribes imprisonment for all of them.
https://www.channelstv.com/2021/04/12/court-convicts-11-internet-fraudsters-in-port-harcourt/

Egypt court sentences a man for 8 years imprisonment for cyber crimes targeting women which included cyber stalking and sending unsolicited sexually explicit pictures to women.
https://www.wionews.com/world/egypt-jails-man-for-8-years-in-metoo-case-376919

United Arab Emirates deports 11 Ukranian nationals to Ukrain who were allegedly involved in a naked photo shoot in Dubai.
https://www.esquireme.com/content/51879-11-ukrainian-nationals-who-filmed-indecent-video-in-dubai-marina-have-been-deported-ramadan

Police in Mumbai, India detects and closes down apps that showcased illegal porn contents. Police reveals that Covid 19 lockdown helped booming of illegal porn industry
https://www.thequint.com/entertainment/indian-porn-ott-app-boom-pandemic-lockdown-hotshots-hothit-fliz-movies

Gender and Internet : Web magazine for Cyber law for women News update for February 8, 2021-March14,2021

Women are victimized not only by men, but by women also. #stopviolenceagainstwomen

Picture credit: Debarati Halder

Court in England condemns revenge porn by defendant who exposed victim’s photo despite her plea to not to do it. Court provides defendant ‘no contact order’ and orders for destroying defendant’s phone.
https://www.bbc.com/news/uk-northern-ireland-56085409

Woman allegedly shields herself by stalking. resultant Ontario court of justice recognizes new tort law for internet harassment
https://www.jdsupra.com/legalnews/ontario-canada-superior-court-creates-6096436/

Women arrested for crypto currency fraud in Australia
https://www.smh.com.au/national/nsw/six-more-charged-in-bitcoin-money-laundering-investigation-20210311-p579ng.html

Man gets arrested in India for creating morphed picture and coercing for nude chat
https://www.thehindu.com/news/cities/Hyderabad/youth-arrested-for-harassing-woman/article34030758.ece

4 women gets arrested for cyber sexual exploitation of children in Philippines
https://ph.news.yahoo.com/justice-achieved-victims-online-sexual-160500481.html

Woman posing as man on social media sites harasses other women and gets arrested in Pakistan.
https://arynews.tv/en/woman-arrest-harassment-charges/

Gender and Internet : Web magazine for Cyber law for women News update for January26th- February 7, 2021

Picture credit : Debarati Halder

British woman in Dubai had a spat with flatmate over sharing dining table as workspace during Covid 19 lockdown period, sends indecent word over WhatsApp chat and gets detained by police.
https://www.gulte.com/trends/57487/uk-woman-jailed-in-dubai-for-f-word-on-whatsapp

Serbian man charged with creating fake investment farm and duping several others especially from USA, is extradited to Dallas to face the federal prosecution. FBI reports that several women were also involved as conspirators in this money laundering case.
https://www.star-telegram.com/news/local/crime/article249044535.html

US senators introduce Safe Tech Act in the wake of January 6 riot over US Capitol in Washington to limit the power of S.230 of the Communication Decency Act which shield web companies from liability for contents posted by users. This is expected to make the web companies more liable for cyber stalking , online harassment etc.
https://o.canada.com/pmn/news-pmn/crime-pmn/u-s-senators-propose-limiting-liability-shield-for-social-media-platforms

Arunachal man in India complaints to the police about creation of fake profiles in the name of his wife which shared obscene and indecent posts. On investigation and with the information from Facebook, police arrests local woman who allegedly created the fake profile.
https://arunachal24.in/arunachal-women-arrested-by-papumpare-cyber-crime-police-for-posting-obscene-messages/

E commerce platform Myntra changed its controversial logo as Mumbai police receives complaint alleging that the logo insults women.
https://www.ndtv.com/offbeat/myntra-changes-its-offensive-logo-starts-a-meme-fest-online-2361289

Cape Town woman loses money in romance scam. Two suspects gets arrested and they would be appearing in Bellville Special Commercial Crime Court, Cape Town
https://www.iol.co.za/news/south-africa/western-cape/woman-loses-fortune-in-love-scam-7f52186e-3163-4b61-8aaa-b05dcd2e8d0f

Gender and Internet : Web magazine for Cyber law for women News update for January 18th-January 26th, 2021

Happy 72nd Republic day of India (picture courtesy : internet)

UK man found to have downloaded and possessing horrific child abuse including sexual abuse videos, adult porn contents. even after pleading guilty under Sex offenders Act, he escaped jail sentence. stakeholders fear for reoffending.
https://www.edinburghnews.scotsman.com/news/crime/tranent-pervert-was-caught-haul-sickening-child-abuse-images-and-bestiality-porn-3112250

Former security technician from US arrested and pleads guilty for secretly accessed women customers home security cameras breaching company’s privacy and confidentiality policies towards customers.
https://www.securitymagazine.com/articles/94418-adt-technician-hacked-hundreds-of-customers-security-cameras

Delhi based Nigerian woman dupes another female divorcee through romance scam in India, gets arrested.
https://mumbaimirror.indiatimes.com/mumbai/crime/kurla-woman-loses-rs-17-lakh-to-cyber-criminals/articleshow/80427759.cms

West Buechel police investigates and arrests two women on charge of organized cyber crime for money laundering, card frauds and identity stealing.
https://www.wdrb.com/news/west-buechel-police-arrest-2-women-in-cyber-crime-case-involving-stolen-identities/article_ea9f18f8-5a9a-11eb-87fa-a76b12c9375c.html

Gender and Internet : Web magazine for Cyber law for women News update for January 7th-January 17th, 2021

Women clothes sellers on e-commerce platforms are not spared! Predators target them with nasty messages asking about private questions.
https://www.bbc.com/news/technology-55661022

Senior Indian woman journalist reports of phishing attack after realizing that offer to join Harvard university was a phishing mechanism.
https://www.ndtv.com/blog/how-i-fell-for-a-phishing-attack-my-story-by-nidhi-razdan-2353395

Man takes revenge for cyber bullying his girl friend by stealing 500 laptops from medical colleges in India
https://www-indiatimes-com.cdn.ampproject.org/v/s/www.indiatimes.com/amp/news/india/man-steals-at-least-500-medical-college-laptops-to-avenge-cyberbullying-of-girlfriend-531944.html?amp_js_v=a6&amp_gsa=1&usqp=mq331AQFKAGwASA%3D&fbclid=IwAR2kF1YDcJMlXvLo9juNiWDjvPmgPRvW_WN2vtJeP4ifkCRR2Lh58w7TPZM#aoh=16106782822311&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%24s&ampshare=https%3A%2F%2Fwww.indiatimes.com%2Fnews%2Findia%2Fman-steals-at-least-500-medical-college-laptops-to-avenge-cyberbullying-of-girlfriend-531944.html

YouTubers in India get arrested after their channel showcase woman talking about sex, alcohol
https://www-news18-com.cdn.ampproject.org/v/s/www.news18.com/amp/news/buzz/three-youtubers-arrested-in-chennai-after-video-of-woman-talking-about-sex-alcohol-goes-viral-3282737.html?amp_js_v=a6&amp_gsa=1&usqp=mq331AQFKAGwASA%3D&fbclid=IwAR1rJlAkySrIGEOwxlk5MWvP36e14n5l2sT-p02t0OdrBE9JA-c8kL91kas#ampshare=https%3A%2F%2Fwww.news18.com%2Fnews%2Fbuzz%2Fthree-youtubers-arrested-in-chennai-after-video-of-woman-talking-about-sex-alcohol-goes-viral-3282737.html

Gender and Internet : Web magazine for Cyber law for women News update for December 21st – January 6th, 2021

Let 2021 be a healthier year
Picture credit: Debarati Halder

Allahabad High Court in India refuses to quash FIR against the husband who uploaded nude pictures of wife on internet
https://www.livelaw.in/news-updates/allahabad-high-court-quashing-fir-whatsapp-posting-nude-snap-wife-167637?fbclid=IwAR1HYveTOKJhK0mCHJ4crcypfjVDBi0qlWiKrAWznAeyWKSK67ZcJBH_WVE

Senators in the US introduces Stop Internet sexual exploitation Act which aims for strict regulation of internet platform which hosts pornography. Critics apprehend this will impact on online sex work.
https://arstechnica.com/tech-policy/2020/12/pornhub-squarely-targeted-in-bipartisan-bill-to-regulate-sex-work-online/?fbclid=IwAR2SQwxLJkzVp70noMvqiPs4s_db11heXSYtCjc6Aotlz8zbDghtRzEVx-0

Essex man who hacked into the Snapchat accounts of girls and young women from different countries including UK, Australia, Hongkong, Romania etc and forced victims to share their intimate images with him, gets arrested, charged and finally gets jail sentence for 11 years.
https://www.bbc.com/news/uk-england-essex-55549628

India sees steady growth in deepfake porns and growing numbers of girls and women and victims.
https://lifestyle.livemint.com/news/big-story/deepfakes-when-seeing-is-not-believing-111609504596030.html

Stakeholders warn that custom made clothes ordered through online platforms are becoming gateways for privacy violation for women.
https://www.washingtonpost.com/technology/2021/01/05/amazon-tshirt-body/?fbclid=IwAR1CVvgfVT8tcOj8AwlOljhxgcr5nNybwQAeDKan8QYKZbW8DYnuTYCVYwQ

Gender and Internet : Web magazine for Cyber law for women News update for December 15th- December 21, 2020

Picture Credit : Debarati Halder

Japanese man allured women with suicidal tendencies through Twitter to kill them and hid body parts in his apartment. Arrested in 2017, this Twitter killer gets death sentence for murdering.
https://www-bbc-com.cdn.ampproject.org/v/s/www.bbc.com/news/amp/world-asia-55313161?amp_js_v=a6&amp_gsa=1&usqp=mq331AQHKAFQArABIA%3D%3D&fbclid=IwAR2ppKBDUR9QsUMmOfZQ1W8fkS0O8-DlkWsJzzxweQtGuKibamXsYuXEvOs#aoh=16080903667883&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%24s&ampshare=https%3A%2F%2Fwww.bbc.com%2Fnews%2Fworld-asia-55313161

Uber refuses to share the data about sexual abuse cases involving Uber drivers on the basis of protection of privacy of victims. California Public utility commission rejects the said ground and slaps $59 million on Uber.
https://www.google.com/search?q=California+Public+Utility+Commission&rlz=1C1CHBF_enIN919IN919&oq=California+Public+Utility+Commission&aqs=chrome..69i57&sourceid=chrome&ie=UTF-8

Federal Trade Commission reaches out every social media company to provide explanation as to what private data of users are collected and why.
https://arstechnica.com/tech-policy/2020/12/ftc-kicks-off-sweeping-privacy-probe-of-nine-major-social-media-firms/?fbclid=IwAR27xPWnAaFmDwEdbgfXHpHdBWQ6vWAAZCqmhY3NrG00DTvDvaYGya6c1Jo

A private law website in India receives ‘urgent removal’ removal request for a court judgement from the official incident reporting ID of Computer emergency response team. Cyber secueity infrastructure of top government websites are questioned.
https://www-indiatoday-in.cdn.ampproject.org/v/s/www.indiatoday.in/amp/technology/news/story/cert-in-employees-use-official-incident-reporting-id-to-ask-website-to-censor-indian-court-order-1749417-2020-12-14?amp_js_v=a6&amp_gsa=1&usqp=mq331AQFKAGwASA%3D&fbclid=IwAR2Rrs0TTJJjaVBXO89N9GzMZyynj6g0HPoABLmaPkoiazPac6BKQkrf0RA#csi=1&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%24s&ampshare=https%3A%2F%2Fwww.indiatoday.in%2Ftechnology%2Fnews%2Fstory%2Fcert-in-employees-use-official-incident-reporting-id-to-ask-website-to-censor-indian-court-order-1749417-2020-12-14

Victim of physical gang sexual assault in Egypt files compliant with the concerned government agency and gets more threats. On her social media outrage, Egypt Prosecution orders for seven accused.
https://egyptianstreets.com/2020/12/18/sexually-assaulted-and-threatened-egypts-public-prosecution-orders-arrest-of-seven-men-in-mit-ghamr-assault/

Jobless man from Hyderabad, India allured woman by impersonating, collected her personal data and photograph. When the victim refused to chat over Facebook, the accused allegedly threated to share her nude pictures. Police arrests the accused and slaps charges under Sections 66C, 66D, 67 of the IT Act and 354, 506, 509 of the Indian Penal Code.
https://www.siasat.com/hyderabad-man-arrested-for-stalking-blackmailing-women-on-social-media-2047366/

Gender and Internet : Web magazine for Cyber law for women News update for November 9th-December 14th , 2020

Picture Credit : Dr.Debarati Halder

Let ‘Orange the world‘ campaign bloom every where always

Iraninan woman who underwent numerous plastic surgeries to look like Angelila Jolie. get 10 yeaps of imprisonment sentence. She was earlier detained by the police on charges of Cultural crimes and social moral corruption.
https://www.indiatoday.in/world/story/iran-woman-zombie-angelina-jolie-sahar-tabar-sentenced-10-years-jail-1749051-2020-12-13?fbclid=IwAR09hy5UDRhr–KFu22quV0GizQJ3EpK7ulB1R7Phcs5JXdA4d15mvQqodM

Egyptian photographer gets arrested for a private photoshoot of model in ancient Egysptian dress in the background of 4,700 year old pyramid in the archeological zone.
https://www.india.com/viral/egypt-arrests-photographer-over-pyramid-of-djoser-photoshoot-of-model-dancer-salma-al-shimi-wearing-ancient-costume-4238095/?fbclid=IwAR3WB87LrGsg6MNPadzNR1jI-TovlxYYprluiIEmtoO9UeUi76nlve3nZuQ

Woman from Rajasthan, India, believed her Facebook male friend, left home and reached another city in the wee hours. Gets trapped by suspicious person who wanted sexually harass her. Police team rescues her. But Facebook friend remained ‘non responsive’ through out her stay in the new city.
https://timesofindia.indiatimes.com/city/ahmedabad/raj-girl-left-in-the-lurch-by-fb-friend-rescued/articleshow/79712067.cms

Police sub inspector in Ahmedabad, India takes phone number of woman complainant in the process of investigation of a case lodged by her, then sends message to her and allures her to come down to a hotel for ‘personal work’ and attempts to rape. The sub inspector gets arrested.
https://indianexpress.com/article/cities/ahmedabad/sub-inspector-arrested-for-rape-attempt-on-woman-in-ahmedabad-7100663/

Man in Pune, India stalks and dupes women through online dating sites. he impersonated as manage for massage parlor, used photographs of foreigners to gain confidence. Police arrests him with charges for stalking, harming modesty of women with word gesture etc under Indian penal Code and for transmitting obscene materials over digital telecommunication platforms under Information technology Act, 2000 (amended in 2008).
https://www.hindustantimes.com/pune-news/man-arrested-for-stalking-women-through-online-dating-sites-in-pune/story-7uNxTdDikHqujuLTPP0LIK.html

Federal Investigation agency, Pakistan arrests man who was charged with offence of managing porn site from Hyderabad, Pakistan. He was recruiting women by misleading them and using them to make calls to international clients.
https://www.geo.tv/latest/323586-man-arrested-by-fia-from-hyderabad-for-allegedly-managing-porn-websites

UK sees sky rocketing of revenge porn cases during pandemic time in 2020.
https://www.independent.co.uk/news/uk/home-news/revenge-porn-covid-domestic-abuse-b1770059.html

Bangladesh police says 80% of the cyber bullying victims are women and girls
https://www.thedailystar.net/country/news/80-cyberbullying-victims-are-women-cyber-crime-division-dmp-2009017

A 17 year old veteran Fesno, California police officer gets jailed for allegedly possessing child porn material.
https://www.fresnobee.com/news/local/crime/article247739800.html

Makkah criminal court holds virtual session for sentencing Arab national with imprisonment for one and half years for impersonating woman on social media platform, publishing her photos and threatening to make her other photos public.
https://saudigazette.com.sa/article/601236/SAUDI-ARABIA/Jail-for-Arab-national-for-blackmailing-young-woman-on-social-media

School in Ahmedabad, India receives threat mail threatening to release morphed pictres of girl students online.
https://timesofindia.indiatimes.com/city/ahmedabad/new-mail-threat-to-school-prelim-exams-cancelled/articleshow/79699828.cms#:~:text=AHMEDABAD%3A%20Prelims%20exams%20of%20students,email%20received%20on%20Friday%20morning.&text=School%20principal%20Binu%20Thomas%20said,charged%20up%20to%20assist%20students.%E2%80%9D

Former High court Judge of India Justice Karnan gets arrested for insulting women judge and women family members of the male judges through WhatsApp and Information communication technology platforms.
https://www.hindustantimes.com/india-news/former-hc-judge-c-s-karnan-arrested-for-insulting-sc-judges-women/story-w6TZS2WATU91lEiojH737M.html?fbclid=IwAR36p6sbJAOejlRm4Bwu_A-xl0Cw0GLnP0UixdFi7WBrL7ZB7a2rmsKyLJ0

Arnab Goswami, Kunal Kamra and internet governance in India : Where do women victims of cybercrimes stand now? by Dr.Debarati Halder

Picture credit : Debarati Halder

In 2012 the then chief minister of West Bengal, Mamata Banerjee took a strong a note for Ambarish Mahapatra’s very bold, excessively strong post including a cartoon showcasing Didi and Mukul Roy, who was the then state minister for railways. The cartoon included the railway logo. Mahapatra was arrested in 2012 and later released. In 2015 the courts ordered that Mahapatra should be compensated for the wrongful arrest.[1] Clearly, the court gave a red signal to the West Bengal government for wanting to use executive power to shun critics of the government on internet media. Quite at this time, the courts accepted the arguments of Shreya Singhal for scrapping off S.66A of the Information Technology Act, 2000 (amended in 2008) which was considered as a draconian law for the bad drafting and equally bad usage of the same by the government. The Supreme Court could have strongly advised for amending the provision which could offer a wonder anti bullying law.[2] But the last stroke was given by the then UP government by arresting a juvenile for his post on internet just before the court could even consider on 66A. The court laid 66A to rest judicially. What lurked on was the issue of usage of government logo in criticism speech.

Why Attorney General of India has to give a consent for contempt of court proceeding for a criticizing speech?  Armed by Shreya SInghal judgement in 2015, many started openly criticizing the government. This is indeed a healthy sign of a strong democracy. In the US the right to criticize the government had remained a celebrated right. Cases like New York Times Co. v. Sullivan, 376 U.S. 254, 283 (1964) or  Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) has deeply influenced the speech rights which have been taken over by the internet companies including Facebook and Twitter post millennium. First Amendment right to speech and expression became broader over the years giving the internet companies extreme power to deny most of the (non- US) government-backed requests for taking down of contents because according to them such speech did  not violate their policies which were based on US First Amendment guarantees.[3] Twitter however had remained a favorite platform for celebrities, right activists and politicians to express their opinion ‘in short’. This gave rise to use creative, expressive and bold languages to express opinions within 120 words plus ‘threads’. In late September and early November, 2020, social media platforms including Twitter saw a wave of sympathy, hatred and apathy towards the arrest of Arnab Goswamy and his release from the prison on interim bail by the Supreme Court. Goswamy, a journalist and managing director and editor-in –chief of Republic TV, was arrested for alleged abetment for suicide of a Mumbai based designer and his mother.[4] Kunal Kamra, a standup comedian, like many other non-supporters of Goswami had strongly objected for the interim bail of Goswami over Twitter.[5] But this could have been considered as a very normal ‘protest’ by Kamra, provided he would not have pulled in the integrity of Supreme Court of India. His post included a picture of the Supreme Court building covered with saffron color with the flag of the ruling BJP party atop it.  What was wrong in this? (i) Using derogatory remarks towards the integrity and impartial nature of the supreme court while deciding the interim bail application of Goswami ? or (ii) using the picture of the Supreme Court colored in saffron which may indicate its loyalty to a particular community, political party or idealism? Or (iii) morphing the picture of the building by putting the political party’s flag atop the building instead of the tricolor?  

If we take point number (i), we would see that even though the Supreme Court is not a protected entity which should be considered as above free speech especially related to criticism, it has taken strong note against those who had published, posted, uploaded, shared derogatory comments on the integrity of the institution, the judges, personal reputation of the judges and their family members. Justice Karnan’s case is a good example in this regard. This ex-judge of Madras High court was condemned not only by Madras High court, but also by several women lawyer’s associations in India  for sharing sexually explicit and obscene remarks about the female judges and the wives of other judges.[6] The Madras High Court had also asked the social media platforms to remove the contents posted by justice Karnan in this regard. Second and third points definitely attract my attention here as the morphing of the building attracts penal provisions not only from Article 19 (2) of the Constitution of India, which discusses about restriction of free speech under Indian constitution, but also from The Emblems And Names (Prevention Of Improper Use) Act, 1950. The later statute in S. 3 prohibits improper use of certain names and ensembles[7] and this includes emblem and picture of Supreme Court building as well.[8] But we need to note that even though the morphing and re presentation of the building had taken place on Twitter, Information Technology Act, 2000 (amended in 2008) may not be attracted that effectively because of the absence of S.66A .  The issue of Kamra publishing the ‘wrong’ image of Supreme Court is so heavy that it has attracted charges for criminal contempt of court for which the Attorney General of India has consented for initiating the proceedings against Kamra.[9] To a certain extent, this consent may depend on the discretionary power of the Attorney General as well especially when he sees the matter from the perspective of utter disrespect to the institution of Supreme Court. Kamra however maintained that he won’t apologies, neither would he remove his content from Twitter in this regard.[10]

          Here, I cannot hold myself back from mentioning about the plight of millions of women victims of trolling, morphing and revenge porn who may suffer endlessly because of long life of their fake avatars on internet. If only courts and civil society members were much aware about the issue, courts could have taken a strong note of cyber victimization of women as well. But here comes the key player: the web platform.

Twitter in the middle of the storm: Twitter is the platform for the alleged offence committed by Kamra. But quite simultaneously Twitter attracted another ref eye of the government and the courts: Leh, the joint capital of Union territory of Ladakh was recently shown as part of Jammu and Kashmir on Twitter.[11] This indeed attracts a huge public, political and constitutional sentiments after the recent scrapping of Article 370 by the present government of India which made Ladakh (of which Leh is the capital town) a union territory and no more part of Jammu and Kashmir. Twitter was notified and as the existing laws mandate, Twitter may even get suspended if it does not rectify the mistake. But not to forget, including Twitter all the US based social media companies have a wonderful trick to avoid the government and court notices by indicating that ‘they are looking into the matter’. There are hundreds of public interest litigations filed in the Supreme Court on the issue of women and child safety on internet and the responsibility of the internet companies. In almost all cases, all the companies escaped the clutches of S. 69 B (power to issue notice for blocking the website/contents etc) by the very slippery gateway of S.79 of the Information technology Act (exemption from liability of intermediary to certain cases).

Be it the case of Kunal Kamra or anyone else who may be victimizing anyone including private individuals or the highest courts of judicature, social media companies will remain as they have remained, being the chosen platform of the government to have a handle to encourage accessibility of justice, good governance etc.

Comes the decision of internet regulation by State made laws: Amidst all these pandemonium, the Indian government literally blew the bugle against millions of free speech activists when it announced about the decision for internet regulation by state made laws.[12] The ministry of Information and Broad casting may extend their jurisdiction to internet media if this decision is fructified. The free speech advocates fear that this decision may result in situations like the 1975-77 emergency period where the then prime minister tried to gag the free speech and expression rights of print and television media. Their apprehension is not baseless because this decision comes at a time when police is seen busy to manage issues related several fake news and fake avatars of the ruling and opposition political parties and net streaming which speak about sex .  But this decision, if fructified, may also bring cheers to women victims of misogynist trolls, fake avatar, revenge porn, nonconsensual porn as well.  While many may fear that such regulation may chock free flowing of adult contents, we must not forget that our courts once refused to provide a blanket ban on porn provided it is viewed by the viewer without offending anyone and the content is made legally with consenting adult actors. However the fear and apprehension weighs more than the cheers because the government may not always abide by the court rulings: the best example is, statutorily S.66A is in deep coma, but not dead.

Hope continues for women victims? But the tussle over the moral wrong of ‘to watch or to block the entire content’ or the heavy examples set by Attorney General of India for a morphed photograph of the building of Supreme Court and derogatory comments about the institution itself probably cannot minimize online victimization of women who undergo morphing and are targeted with hate speech on internet vigorously. I hope such strong actions touch the issue of cyber victimization of women and girls strongly. If internet is to be regulated, let it be so judiciously and for proper causes.


[1] See for more in https://www.ndtv.com/india-news/double-the-compensation-of-jadavpur-professor-arrested-for-circulating-mamata-cartoons-court-tells-g-745593

[2] Halder, Debarati, A Retrospective Analysis of Section 66A: Could Section 66A of the Information Technology Act be Reconsidered for Regulating ‘Bad Talk’ in the Internet? (August 24, 2015). Halder Debarati (2015) A RETROSPECTIVE ANALYSIS OF SECTION 66 A: COULD SECTION 66 A OF THE INFORMATION TECHNOLOGY ACT BE RECONSIDERED FOR REGULATING “BAD TALK” IN THE INTERNET? Published in Indian Student Law Review (ISLR) 2015 (1) PP 99-128 ISSN 2249-4391, Available at SSRN: https://ssrn.com/abstract=2650239 or http://dx.doi.org/10.2139/ssrn.2650239

[3] For example, see https://in.reuters.com/article/us-singapore-politics-malaysia-scandal/facebook-refuses-singapore-request-to-remove-post-after-critical-website-blocked-idINKCN1NF05T, orhttps://www.wsj.com/articles/facebook-hate-speech-india-politics-muslim-hindu-modi-zuckerberg-11597423346  

[4] https://www.ndtv.com/india-news/arnab-goswami-arrested-for-allegedly-abetting-suicide-of-interior-designer-say-police-news-agency-pti-2320301

[5] https://www.livelaw.in/top-stories/dont-intend-to-retract-my-tweets-or-apologize-kunal-kamra-responds-to-ags-consent-for-contempt-against-him-165857

[6] See https://www.newindianexpress.com/cities/chennai/2020/nov/10/madras-high-court-orders-removal-of-derogatory-videos-made-by-former-hc-judge-cs-karnan-2221987.html

[7] S.3 of  The Emblems And Names (Prevention Of Improper Use) Act, 1950 states as follows: 3. Prohibition of improper use of certain emblems and names.—Notwithstanding anything

contained in any law for the time being in force, no person shall, except in such cases and under such

conditions as may be prescribed by the Central Government, use or continue to use, for the purpose of any

trade, business, calling or profession, or in the title of any patent, or in any trade mark or design, any

name or emblem specified in the Schedule or any colourable imitation thereof without the previous

permission of the Central Government or such officer of Government as may be authorised in this behalf

by the Central Government.

[8] See S.17 of the Schedule attached to The Emblems And Names (Prevention Of Improper Use) Act, 1950 , which includes the followings in the prohibited list: namely, “The name of the Parliament or the Legislature of any State, or the Supreme Court, or the High Court of any State, or the Central Secretariat, or the Secretariat of any State Government or any other Government Office or the pictorial representation of any building occupied by any of the aforesaid institutions”.

[9]See  https://www.livelaw.in/top-stories/dont-intend-to-retract-my-tweets-or-apologize-kunal-kamra-responds-to-ags-consent-for-contempt-against-him-165857

[10] See ibid

[11] See https://timesofindia.indiatimes.com/india/twitter-risks-suspension-over-leh-map-error/articleshow/79201328.cms

[12] See https://www.theguardian.com/world/2020/nov/11/india-to-regulate-netflix-and-amazon-streaming-content?fbclid=IwAR11PXTEutFHo6VjsPy7tteOFyRweprK6vALKMNtNpBQZEF5tAeLIQyJejw

Please do not violate the copyright of this writeup. Please cite it as Halder Debarati (2020).Arnab Goswami, Kunal  Kamra and internet governance in India: where do women victims of cybercrimes  stand now? published in Gender & Internet : web magazine for cyber law for women @ https://internetlegalstudies.com/2020/11/14/arnab-goswami-kunal-kamra-and-internet-governance-in-india-where-do-women-victims-of-cybercrimes-stand-now-by-dr-debarati-halder/ on 14th November, 2020