Category: Cyber crimes against women

YouTube, YouTubers and violation of privacy of women and children: The drama unfolds by Dr.Debarati Halder

picture credit : Internet

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

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

While these women may have made a landmark professional/personal achievement because of YouTube, they may unknowingly violate privacy of their own children or even spouses or other family members as they may be showing and informing the worldwide audience about their family members who may not may consent for such wide distribution of images of themselves. These YouTube videos may also be the subject matter of bullying and ridiculing the children of such YouTubers since these may stay on worldwide web for long time. YouTube videos may also create severe domestic violence for several reasons which include live fights between spouses which may be captured by third party YouTubers for fun and uploaded and circulated for getting more views; or airing of grievances by women YouTubers against the other spouses, without knowing the far-reaching consequences etc. These videos may attract huge views and opinions, comments in the nature of cyber bullying and also trolling targeting the YouTuber concerned or supporters of the same. Consider the case of two specific youtubers from Delhi, who are spouses in real life : the wife is a senior YouTuber whereas the husband is a recent Youtuber: They had severe altercations and started living apart. But this was not enough: both used YouTube to throw insults and humiliating words to each other and their teen daughter was allegedly dragged in between. The recent reports suggested that the teenager girl who  was staying with her father for couple of months after the separation, was beaten by the latter while on live and her t-shirt was torn in a manner which would show her inner wares.[6] The girl was beaten because she wanted to visit her mother. This video became viral as several supporters of the wife started showing the clippings through their own channels. Some had also informed ChildLine and the police who had rescued the teenager and sent her to her maternal grandmother.[7]  There are several other YouTubers who started discussing about incident using the profile name of the husband wife duo.[8] While the news report published in the local news media suggested that the teenager was often beaten by both the parents when they were drunk and she was forced to come on live which she refused many times, the news clipping did not mention about the name of the girl and that of her parents as S.74 of the Juvenile Justice Care and protection Act, 2015 prohibits publication of the identity of the child in need of care and protection or child in conflict with law. The provision reads as below:

S.74. Prohibition of publication of name, etc., of juvenile in conflict with law or child in need of care and protection involved in any proceeding under the Act.-1. No report in any newspaper, magazine, news-sheet or visual media of any inquiry regarding a juvenile in conflict with law or a child in need of care and protection under this Act shall disclose the name, address or school or any other particulars calculated to lead to the identification of the juvenile or child nor shall any picture of any such juvenile or child be published: Provided that for reasons to be recorded in writing, the authority holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the interest of the juvenile or the child. 2. Any person who contravenes the provisions of sub-section (1), shall be liable to a penalty which may extend to twenty-five thousand rupees.

Now, let us understand the scope of this provision in the light of this particular case: the first subsection prohibits any report including news report, inquiry etc from disclosing the name, information etc of the concerned child. The second proviso extends the scope to ‘anyone’ who may contravene the prohibitory scope of S.74. Seen from the perspective of electronic media and the concept of citizen journalism, which gives every one right to share information, the term ‘anyone’ may literally include anyone including the good Samaritans who may have wanted to alert the concerned authorities, share their opinion against such acts of women and child abuse. Further, note the words “any other particulars calculated to lead to the identification of the juvenile or child nor shall any picture of any such juvenile or child be published” mentioned in the first sub clause. This may include the name of the concerned child and names of the parents. But apparently, this provision became a just a paper tiger in this case because those who had watched or subscribed to the videos of the couple had already known about the identity of the teenager because of the daily Lives put up by the parents and discussion about the girl in the videos posted by them. If one visits the comment section of the recent videos of both the parents in the recent past, it would be seen that commenters have taken the name of the girl, asked about her whereabouts and in some cases, some had also suggested about her changed behaviour after she had stayed with her respective parents separately. Nothing is confidential for those thousands of worldwide audiences now who had watched the parents daily and who had also witnessed the Live video where the girl was beaten up by the father.  In spite of repeated request by the mother of the girl, several YouTubers still did not take down videos mentioning about the name of the father (which broadly falls within the meaning of “any other particulars calculated to lead to the identification of the juvenile or child”) when this writeup was published. While the Juvenile Justice Care and Protection and Act provides a base rule, the concerned YouTubers may not be held solely responsible because the parents already violated the privacy of the teenager and encouraged thousands to watch the couple fight which had every potential to attract penal provisions for using words etc for harming the modesty of the wife under S.509 Indian Penal Code as well as defamation of both the wife and the husband under Sections 499 and 500 of the Indian Penal Code. YouTube on the other hand has not taken down the videos of either of the spouses or that of the other YouTubers  which may showcase the names of the parents and the child because it is guided by First Amendment of the US which may hardly be affected unless YouTube has been approached to take the videos down by concerned stakeholders.  

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

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

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

Please note: Do not violate copyright of this blog. If you would like to use information provided in this blog for your own assignment/writeup/project/blog/article. This was first published in https://debaraticyberspace.blogspot.com/2019/10/youtube-youtubers-and-violation-of.html Please cite it as “Halder D. (2019), ” YouTube, YouTubers and violation of privacy of women and children: The drama unfolds” Published in https://debaraticyberspace.blogspot.com/2019/10/youtube-youtubers-and-violation-of.htm on 28-10-2019, reshared @https://internetlegalstudies.com/2019/10/28/youtube-youtubers-and-violation-of-privacy-of-women-and-children-the-drama-unfolds-by-dr-debarati-halder/


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

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

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

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

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

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

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

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

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Gender and Internet : Web magazine for Cyber law for women News update for October 1st-19th, 2019

22 women allegedly tricked to perform in internet pornography as they were allured by porn producers by advertisement for modeling. The porn producers in San Diego are charged with sex trafficking.
https://www.nytimes.com/2019/10/11/us/porn-sex-trafficking.html?fbclid=IwAR0b4rgIEbFSa5hneBxaN1R1QH7UJ7UL5aPzLFNQvW4oj-rI4dq8dADkNUE

Former assistant head teacher from Kingston sends indecent photographs and videos of himself to a police officer who was posing as a 13 year old girl, asking “her” to reply with indecent images. The former teacher is pleaded guilty for distributing sexually explicit pictures to children, trying to incite girl between the age group of 13-15 and having sexually explicit images of children stored in his computer. He is presently subjected to 10 year sexual harm prevention order.
https://www.independent.co.uk/news/uk/crime/daniel-butterfield-teacher-child-grooming-pictures-kingston-a9159176.html?fbclid=IwAR1EFwWj-ybaIaN3Yzle-hcWQgHEvmBHP5InVy_z2h7_cWRiv3-YPQQukiI

Japanese man stalks, assaults female pop singer in Japan by tracking her social media posts including photos of her eye direction, curtains etc.
https://www.theregister.co.uk/2019/10/10/stalker_japan_eyes/?fbclid=IwAR0rmJmmddSP70f4VSWqJxHb67Xi1tquM8XO3ZXPC_JQfJwV95F3NuqTOPQ

Man puts GPS device in the car of his girlfriend for stalking including cyber stalking in the US. investigation leads to bigger crimes including racketeering, loansharking and cyber stalking by him.
https://www.theregister.co.uk/2019/10/04/gps_cyberstalking_indictment/?fbclid=IwAR0MXOpUA4b6NVlVwJNz-yRvEjjY8K4T5IzVk_DCXLbUZr0iNq6vmUNMJMo

Pakistan man convicted for creating and sharing revenge porn of his ex- fiance. Sentenced for 8 years of imprisonment and payment of damages of Rs. 50,000/- under the Pakistan prevention of electronic crimes Act, 2016
https://www.geo.tv/latest/250929-court-sentences-man-to-eight-years-for-sharing-revenge-porn-photos-of-ex-fianc%C3%A9e-online

Ghana police arrests man who had secretly taken bathing pictures of five women and posted them on three different websites. The community supports the victims and the accused is thrashed by mob before police rescued and arrested him
https://www.peacefmonline.com/pages/local/news/201910/393179.php

Gender and Internet: Web magazine for Cyber law for women News update for September 16-24, 2019

Man in Derbyshire uploads distributes breast pictures of his neighbor who borrowed the computer to upload the pictures for medical purposes. while returning the computer, she forgot to delete them.Accused shared the pictures because he was allegedly irritated by the victim. The court convicted the accused of revenge porn. Held that the pictures were not captured by the accused for sexual purposes, but were distributed for taking revenge. The court, which took note of the victim’s distress condition, ordered the accused is ordered two months prison sentence, 80 hours of unpaid work and restraining order prohibiting him to connect with the victim.
https://www.derbytelegraph.co.uk/news/derby-news/derby-man-sent-revenge-porn-3280054

Pornhub owner earns money from the revenue generated through advertisements, rejects the claim that they allow revenge porn contents on their websites. But the reality is different. Victims state even police can not help in preventing uploading of revenge porn in such websites and detecting the perpetrators. Website liability is questioned.
https://www.bbc.com/news/technology-49583420

India raises alert over need for a new legislation to combat cyber crimes against women as several women , including nuns are defamed via social media.
https://www.thehindu.com/news/cities/kozhikode/cybercrime-womens-panel-calls-for-stricter-punishment/article29434022.ece

Nigerian man arrested in India for duping women, through impostering profiles of wealthy people
https://www.ndtv.com/delhi-news/nigerian-man-in-delhi-posed-as-wealthy-foreigner-cheated-women-jailed-2103379

Gender and Internet: Web magazine for Cyber law for women News update for September 9-15, 2019

Husband uploads non consensual photos of estranged wife on social media profiles through an impersonating profile to defame her in India. They were allegedly married for 12 years and got separated recently. Suspect is yet to be arrested.
https://www.hindustantimes.com/gurugram/man-booked-for-uploading-wife-s-pictures-online/story-mlWcXbHR2adXiO1qj2przO.html

Florida teenager girl violates child porn laws by sexting to friends
https://www.theguardian.com/us-news/2019/aug/31/maryland-court-teen-girl-video-law?CMP=share_btn_fb&fbclid=IwAR3GHIQF3rSaJQkY7W5Kd-yW-im7MzRO35uJvaVSij8NoeyVK5svZQDfCRw

Public profiles of women and men uploaded on LinkedIn may not expect privacy cocoons from web scrappers. US court rules that web scrapping of LinkedIn without the consent of the owner of the website would be violate laws.
https://arstechnica.com/tech-policy/2019/09/web-scraping-doesnt-violate-anti-hacking-law-appeals-court-rules/?fbclid=IwAR0JTHWCJRZSmQgDxDQzziRUPyxOnC_O4IVZO6pXqEK67BnUFShnHZSunbQ

Stakeholders in UK express concern over surveillance used by law less Facial recognition technology which may violate privacy rights of women and men
https://www.independent.co.uk/news/facial-recognition-technology-police-general-election-a9111026.html?fbclid=IwAR3s-_jUKlTEAoashuxWxlGNcQOXStLs2U9BTbECrqjQ-dO42sOKmg8x4k0

3 ways how Artificial Intelligence may make women land in trouble by Dr.Debarati Halder

Image curtsy : Google

Information communication technology and digital communication technology have opened up new vistas for human relationships. The innovative technology with the help of Artificial Intelligence (AI) can now read minds,[1] predict illness,[2] predict crime occurrence,[3] enhance the professional and social network, and help in better analytical understanding of subjects. But it can also leave devastating impacts on human life. It can alter the data (including personal data), harm social reputation and can even instigate victims to take extreme steps like committing suicide.[4] All these may be done by positive and negative usage   of artificial intelligence which plays the base role for empowering Apps which in turn may be used for positive and negative usages.  Artificial Intelligence (AI) has been used by web companies like Facebook for facial recognition of users earlier. AI has also been used for companies (other than web companies) for processing employee data. In short, AI has been used to access private information of individuals either consensually or without consent. Here are three ways as how AI may create an uncomfortable situation for women specifically in India :

  1. Facial Recognition Apps and harassment of women: Remember the time when Facebook suddenly started asking for nude photos individuals for upgrading their own safety system apparently for providing safety mechanisms for subscribers?[5] This project was intended to build up a safety mechanism against revenge porn with the help of Artificial Intelligence. Facebook wanted to empower their subscribers, especially women to report revenge porn. But before that, the company wanted to ensure that the revenge porn content showcased the image that belonged to the victim specifically. The facial recognition app, the skin texture, hair color, biometric recognition technology would be matching both the images (the nude picture of the victim and the revenge porn content created by the perpetrator) and would be identifying the revenge porn content as illegal. But this project received stern objections because there were more possibilities of misuse of nude photos than positive use of the same. Facebook -Cambridge analytica case did prove that nothing is impossible when it comes to preservation of data by body-corporates and data of individuals is always profitable and the security of the  same is vulnerable. But this may not seem to be as dangerous as misuse of Face App may seem to be . FaceApp is basically used to change the face structure of the person whose photograph would be used in this App. It can change the texture of the skin and density of hair including facial hair.  In July, 2019, FaceApp became the center of concern for Indian cyber security stakeholders especially when several celebrities started using FaceApp and started showcasing their changed faces on Instagram.   While FaceApp was basically being used for fun purposes, it may also throw challenges for data safety and security of person concerned. FaceApp helps to change the structure of faces. But we should not forget that the altered facial image can be saved in devices and cloud of different individuals. This altered image may be used for several illegal activities. Predators may unauthorizedly access the social media profiles and change facial images of the victims to create fake profiles; they may also use such images to create a completely new impersonating profile to harass women. Altered facial images of women may also be used for revenge purposes especially when the victim is looking for opportunities in the entertainment or advertisement sector where her appearance may be considered as her biggest asset. Apart from this, FaceApp may be used to attract bullies and trolls to intensify victimization of women.
  2. Bringing back the memory: No one, but the web companies clearly remember what we posted in last summer. Every day social media companies would show what was posted by the user a year back or a couple of years back and would gently remind the user that he/she can share the said post as a memory. How does it happen? The web companies look for algorithm and the highest likes and comments for posts on daily or even hourly basis. When the posts earn more likes and comments, the AI decides to bring it forth. In certain situations, such refreshing of memories might not be ‘wanted’ at all especially when the victim might had a bitter ending of the relationship with persons in the said image or the text in question may no longer evoke good memories, but rather traumatize the victim more. But machine intelligence does not fail the company: it is a matter of consent and choice after all. But consider if the account is unauthorizedly accessed: the hacker may get to know something from the past which the victim may never wanted the hacker to know.
  3. Reminding the user about best low prices : AI runs over the internet like blood vessels carrying oxygen all over the body. When a user decides to compare prices of any product or services, AI helps to share the same almost always on any platform the user would be visiting. It might be extremely embarrassing for any woman if such searches start showing results when she is surfing the social media or even the search engine with a friend or another individual. Nothing is left by the AI from prices of lipsticks, hotels at cheaper rate, flight details to last watched videos on how to conceive. This might also make women face discrimination, office bullying and harassment due to several reasons.

These are but some of the many ways as how AI may make women to land in trouble. AI is necessarily connected with data privacy protection policies of web companies. The EU General Data Protection Regulation, 2018 provides that personal data may not be processed without the consent of the owner of the data.[6] But in this case, there can be legal tangles as web companies may  claim that they do not breach the data confidentiality or transfer the data to any other jurisdiction, neither they process the data without proper authorization. Here, multiple stakeholders may be involved which may include the original owner of the content or the picture which may have been processed for the purpose of harassment : the perpetrator, who may have carried out changes on the data using the AI supported Apps, perpetrators who may have unauthorizedly  stored the altered contents, picture or information or may have used the altered information, picture for creating impersonating profile etc. As per Indian legal understanding, altering, modifying etc of contents/ information/ image /images without proper authorization of the original owner of the  information etc may attract penal provisions under the Information Technology Act, 2000 (amended in 2008): these provisions may include Ss 43 (Penalty and compensation for damage to computer, computer system etc, ), 66 (computer related offences, 66C (punishment for identity theft) and 66D (punishment by cheating by personation by using computer resource etc. This may also attract penal provisions for Copy Right violation as well. Further, the web companies may be narrowly be liable for protecting data properly under several provisions including S.43A which speaks about body corporates liability to protect data. But irrespective of existing provisions, web companies may always escape the clutches of law due to due diligence clause and on the question of consent expressly or impliedly provided by the woman victim concerned. In the EU, courts are becoming more and more concerned about policy violations by web companies to fool the users. In India too, the courts must throw light on the web companies responsibility as data repository. Regulations like Data protection Bill, 2018 must be considered with utmost care. These may have the key to solve problems of online victimization of women.

Also, women users need to be extremely cautious about machine intelligence. Awareness must be spread about how the hidden ‘safety valves’ of the web companies (which may actually make the web companies more powerful against claims of lack of due diligence) may be used properly.  

Please note: This blog was first published in
https://debaraticyberspace.blogspot.com/2019/09/3-ways-how-artificial-intelligence-may.html Please note: This blog was first published in


[1] For example, see Nosta John (2019) A.I. Can Now Read Your Thoughts—And Turn Them Into Words and Images. Published @ https://fortune.com/2019/05/07/artificial-intelligence-mind-reading-technology/ on May 7, 2019

[2] For example, see PTI (2019), These AI tools can predict early death risk due to chronic diseases

Published @//economictimes.indiatimes.com/articleshow/68611835.cms?from=mdr&utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst on March 28, 2019

[3] Dearden Lizzi (2017) How technology is allowing police to predict where and when crime will happen. Published @ https://www.independent.co.uk/news/uk/home-news/police-big-data-technology-predict-crime-hotspot-mapping-rusi-report-research-minority-report-a7963706.html?fbclid=IwAR334Z4-1KlkK5Xrt_R6IUaU7K35bANkPLc3RAUhHUeEf-eerZseEJbSofo on October 7, 2017

[4] Halder D., & Jaishankar, K (2016.) Cyber crimes against women in India.

New Delhi: SAGE Publications. ISBN: 9789385985775

[5] See for example Solon Olivia (2017) Facebook asks users for nude photos in project to combat ‘revenge porn’. Published in https://www.theguardian.com/technology/2017/nov/07/facebook-revenge-porn-nude-photos  on November 7, 2017

[6] For more, see S.7 of the EU GDPR . URL: https://gdpr-info.eu/art-7-gdpr/ Accessed on 17-08-2019

Court system under the Information Technology Act, 2000 (amended in 2008) by Dr.Debarati Halder

Often I have been asked by victims, stakeholders and students of law about the jurisdictions of the courts and court system as a whole under the Information Technology Act, 2000 (Amended in 2008). This query carries great significance especially at a time when subscribers, consumers and civil society members are facing numerous problems due to data theft, data diddling, and data leaking etc. by the body corporate, intermediary and service providers themselves. Such issues of piercing the veil of cyber security and data privacy due to inefficient data protection mechanism of the body corporate may in turn help individual predators and even criminal gangs to target individuals including women and children to make it a large scale offence. Let us consider the case of Facebook facial recognition case in the US : even though Facebook as a company has been strongly contesting the case, the federal appeals court has given a green signal  for this class suit whereby Facebook can be prosecuted for infringement of data privacy  and would be liable to pay a huge compensation to the petitioners.[1]  What we understand from here is, such cases in the field of cyber law, may be dealt by courts in the nature of civil cases as well as in the nature of criminal cases.

In India, the primary regulatory provision for cyber issues is the Information Technology Act, 2000(amended in 2008) (IT Act, 2000, amended in 2008). This provision indicates that there are two types of authorities and tribunals/courts who may handle cases in the nature of civil and criminal liabilities, i.e., civil and criminal court and tribunals . We may understand this typology by understanding the nature of the cases under the Information Technology Act first, which is as follows:

In the issue of civil nature of cases, the administrative tribunal system under the IT Act has three tiers.

As may be seen from the above flow chart, at the grass-root level is the Certifying Authorities. A licensed Certifying Authority (CA) who has been granted licence under S.24, issues the digital signature certificates. CAs are controlled by Controllers, who are appointed by central government under S.17 of the Act. This provision also mentions about the appointment deputy /assistant controllers who should work under the instructions of the Controller.

Functions and responsibilities of the controller can be discussed under three broader heads:

S.18 of the IT Act provides essential functions of the Controller. Apart from S.18, there are certain other provisions under the IT Act, which speaks about other responsibilities and powers of the Controller.  The functions under S.18 are as under:

  • Exercising supervision over the activities of the Certifying Authorities;
  • Certifying public keys of the Certifying Authorities;
  •  Laying down the standards to be maintained by the Certifying Authorities;
  • Specifying the qualifications and experience which employees of the Certifying Authority should possess;
  • Specifying the conditions subject to which the Certifying Authorities shall conduct their business;
  •  Specifying the contents of written, printed or visual materials and advertisements that may be distributed or used in respect of an Electronic Signature Certificate and the public key;
  • Specifying the form and content of an Electronic Signature Certificate and the key;
  • Specifying the form and manner in which accounts shall be maintained by the Certifying Authorities;
  •  Specifying the terms and conditions subject to which auditors may be appointed and the remuneration to be paid to them;
  •  Facilitating the establishment of any electronic system by a Certifying Authority either solely or jointly with other Certifying Authorities and regulation of such systems;
  •  Specifying the manner in which the Certifying Authorities shall conduct their dealings with the subscribers;
  •  Resolving any conflict of interests between the Certifying Authorities and the subscribers;
  •  Laying down the duties of the Certifying Authorities;
  •  Maintaining a database containing the disclosure record of every Certifying Authority containing such particulars as may be specified by regulations, which shall be accessible to public.

As such, other than the functions mentioned above, the Controller may also have the following powers and functions:

  • Controller may also recognize the foreign certifying authorities with prior approval from the government under S.19.
  • Controller is the authority to suspend license of the CA in case of any discrepancies in the function of the CA under S.25
  • Controller has power investigate contraventions or authorize any officer to do the same under S.28.
  • Controller may also access to computer and data under S.29 if he has reasonable cause to suspect for any contravention of the provisions etc.

Apart from this, controller also has powers for dispute resolution: As such, .controllers can take over matter for regulating and resolving any conflict of interests between the Certifying Authorities and the subscribers.

Adjudicators along with the controllers form the second tier of tribunal system for civil nature of cases under the IT Act.  Adjudicating officers are appointed by the Central Government under S.46 of the IT Act for holding inquiry (in the manner prescribed by the Central Government) in cases where any person has committed a contravention of any of the provisions of this Act or of any rule, regulation, direction or order made thereunder which renders him liable to pay penalty or compensation. Such officer should not be below the rank of a Director to the Government of India or an equivalent officer of a State Government.S.46 clearly mentions that no person shall be appointed as an adjudicating officer unless he possesses such experience in the field of Information Technology and legal or judicial experience as may be prescribed by the Central Government. The adjudicating officer appointed under S.46(1)  are empowered to exercise jurisdiction to adjudicate matters in which the claim for injury or damage does not exceed rupees five crore. In case the jurisdiction in respect of claim for injury or damage exceeds Rs. five crore, the jurisdiction to try such cases then shall vest with the competent court. Every adjudicating officer shall have the powers of a civil court which are conferred on the Cyber Appellate Tribunal under sub-section (2) of section 58. As such, all proceedings before the adjudicator (a) shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code; (b) shall be deemed to be a civil court for the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973. And (c) shall be deemed to be a Civil Court for purposes of order XXI of the Civil Procedure Code, 1908

But, the adjudicating officer cannot fix the quantum of punishment (especially fines, damages and compensation) at his own whimsies and fancies. S.47 says while adjudging the quantum of compensation under Chapter IX, the adjudicating officer shall have due regard to the following three factors, namely –

  • the amount of gain of unfair advantage, wherever quantifiable, made as a result of the default;
  • the amount of loss caused to any person as a result of the default;
  • the repetitive nature of the default

As such, adjudicators are responsible to handle cases of data infringement, unauthorised access to computer, offences to the computer (of civil nature), and fraudulent data leaking cases etc. under chapter IX of the IT Act.

At the top tier of the tribunals for dealing with cases of civil nature under the Information Technology Act, 2000(amended in 2008) exists the Cyber Appellate Tribunal. S.48 of the Information Technology Act, 2000 (amended in 2008) stated that the central government shall by notification establish one or more appellate tribunals to be known as Cyber Appellate Tribunal. However, it has been observed by several cyber law practitioners that the Cyber Appellate Tribunals in some places in India were not functioning properly. As such, since 2017 The Telecom Disputes Settlement and Appellate Tribunal (TDSAT) established under section 14 of the Telecom Regulatory Authority of India Act, 1997 (24 of 1997), (TRAI Act) has substituted CAT & working as Appellate Tribunal for the purposes of IT Act. It also exercises the jurisdiction, powers and authority conferred on it by or under IT Act. The TDSAT shall consist of a Chairperson, and not more than two  members  to be appointed by the Central Government.[2] Prior to the coming into existence of  TDSAT within the meaning of Appellate tribunal under the IT Act, online High Court judges could  qualify  to be appointed as Chairpersons  of the cyber appellate tribunal as per S.50 of the IT Act. However,  presently  as per S.4 of the TRAI Act, the Chairperson and other members of the Authority shall be appointed by the Central Government  only if such candidate has special knowledge of, and professional experience in, telecommunication, industry, finance, accountancy, law, management or consumer affairs.  Further, a person who is, or has been, in the service of Government shall not be appointed as a member unless such person has held the post of Secretary or Additional Secretary, or the post of Additional Secretary and Secretary to the Government of India or any equivalent post in the Central Government or the State Government for a period of not less than three years (as per Proviso to S.4 of the TRAI Act). s. 57, IT Act, 2000(amended in 2008) speaks about the jurisdiction & limitations of the Appellate authority , which to large extent is practiced by the TDSAT now. According to S.57, any person aggrieved by an order made by controller or an adjudicating officer under this Act may prefer an appeal to Appellate Tribunal having jurisdiction in the matter. However, no appeal shall lie to the Appellate Tribunal from an order made by an adjudicating officer with the consent of the parties. Every appeal under 57(1) shall be filed within a period of forty-five days from the date on which a copy of the order made by the Controller or the adjudicating officer is received by the person aggrieved and it shall be in such form and be accompanied by such fee as may be prescribed. Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause for not filing it within that period.

Court for dispute resolution of criminal nature: Information Technology Act, 2000(amended in 2008) does not specifically mention about any court which may handle cases of criminal nature under this Act. But S.77A of the Information Technology Act is mentionable here, which speaks  about  compounding of offences According to S.77A of the IT Act, 2000(amended in 2008), a court of competent jurisdiction may compound offences, other than offences for which the IT Act provides punishment for life or imprisonment for a term exceeding three years.  As per S.77A, the court however, shall not compound offences falling under the categories as below:

  • Where the accused is, by reason of his previous conviction, liable to either enhanced punishment or to a punishment of a different kind:
  • Where such offence affects the socio economic conditions of the country.
  •  Has been committed against a child below the age of 18 years or a woman.

S.77A(2) of the IT Act states that  a person accused of an offence under this Act may file an application for compounding in the court in which offence is pending for trial and the provisions of sections 265B and 265C of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply. From the above discussion, it may be inferred that any competent criminal court under Cr.P.C which are competent to handle cases involving offences and punishments as has been prescribed under Chapter XI under the IT Act, may be considered as competent court for the purpose of this Act. Now, the question which may arise is, which criminal courts may handle cases of criminal nature under IT Act, 2000 (amended in 2008). For this, we may need to understand the patterns of punishments under Chapter XI of the IT Act, 2000 (amended in 2008). These can be listed as below:

  • Imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.
  • Imprisonment of either description for a term which may extend to three years or with fine which may extend to rupees one lakh or with both
  • Imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lakh.
  • Imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both
  • Imprisonment up to three years, or with fine which may extend up to two lakh rupees, or with both.
  • Imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both.
  • Imprisonment extending to imprisonment for life.
  • Imprisonment in first conviction of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.
  • On first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees
  • Life imprisonment

Now, to find the answer as which court may try cases of criminal nature under the IT Act,  the above mentioned  list has to be matched with the powers of various criminal courts under Ss.28 & 29 of Cr.P.C. The powers of the courts under the Cr.P.C can thus be categorized as follows:

As such it may be understood that cybercrimes and offences recognised under Chapter XI with various degrees of punishment may be dealt by various criminal courts as has been discussed under Ss.28 and 29 of the Criminal Procedure Code. But, in such cases also, the aggrieved party (including the offender) may make an appeal to the appropriate courts including the Session’s court,  High Court and also to Supreme court. However, in case the offence includes any offence targeting children, then along with Information Technology Act, 2000(amended in 2008), provisions of Protection of Children from sexual offences Act may also be applied. In such cases, the offence may necessarily be dealt with by courts designated under POCSO Act : such courts may be Special Court or Children’s Court or the Sessions court itself.

Note: Please do not violate the copyright of this writeup. If you wish to use this writeup for your report/assignment/project etc, please refer it as Halder Debarati (2019) Court system under Information Technology Act, 2000 (amended in 2008). Published in http://www.internetlegalstudies.com on 12-08-2019

:


[1] For example see @https://www.theguardian.com/technology/2019/aug/09/facebook-facial-recognition-lawsuit-can-proceed-us-court?CMP=share_btn_fb&fbclid=IwAR3RvbLbL9TmFCkeBgypZORu4dRYnQNFvbWuFfIoQN1m-n80UlFO8_26qIk

[2] see http://dot.gov.in/actrules/telecom-regulatory-authority-indiatrai-act-1997

Gender and Internet: Cyber law magazine for women News Update for July 21-31, 2019

Court releases man accused of dating underage girl, on the ground that the accused was intellectually disabled, due to his disability he was attracted to internet dating sites and the concerned dating site clearly mentioned that no one below the age of 19 can be the member of the said site. The court also considered that the accused stopped communicating with the woman understanding that she may be under 14.
https://www.irishtimes.com/news/crime-and-law/man-released-without-charge-after-sting-in-cork-1.3970574

45 year old mom sentenced to 15 years prison sentence for allegedly trafficking her female children on internet
https://www.sunstar.com.ph/article/1816574

Man arrested by police for allegedly paying families to encourage children including girls to act in sexually explicit manner in front of cameras and sharing the contents with third parties for more child abuse. The man was also accused of destroying I-pad in an attempt to destroy evidences.
https://www.dailymail.co.uk/news/article-7300753/Monmouth-businessman-south-Wales-Jonathan-Kay-paid-families-Philippines-sex-abuse-children.html

Indian man gets arrested for allegedly accessing wife’s Facebook profile and posting derogatory obscene contents to vent out anger over bitter ending of the relationship with wife.
https://www.indiatoday.in/crime/story/hyderabad-man-who-posted-obscene-pictures-on-wife-s-facebook-arrested-1575546-2019-07-31

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

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

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

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

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

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

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

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

owner of the copyright therein:

Provided that—

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

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

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

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

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

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

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

copyright in the work;

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

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

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

the copyright therein;

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

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

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

  • This blog was earlier published in Halder.Debarati (2019)Mamata Banerjee, Priyanka Chopra and Aishwariya Rai  : What bonds them together and why. Published in  http://debaraticyberspace.blogspot.com

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

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

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

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

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

[4] Halder D., & Jaishankar K. (2016) Celebrities and Cyber Crimes: An

Analysis of the Victimization of Female Film Stars on the Internet. Temida

– The journal on victimization, human rights and gender. 19(3-4), 355-372.

ISSN: 14506637

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

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

WhatsApp reporting of women and child abuse videos: The common understanding versus the reality

By Dr.Debarati Halder

Image Source: WhatsApp

Couple of days ago my friend shared an alarming news with me on Facebook about WhatsApp. It says that several cyber security think tanks including Cyber Peace Foundation are now finding out how WhatsApp groups are circulating child sexual abuse videos and how these contents are growing viral.[1] This is not an uncommon incident now. In 2015 from Centre for Cyber Victim Counselling, we had done an empirical research titled “Harassment via WhatsApp in Urban and Rural India: A Baseline Survey Report (2015).[2] This research was conducted in three cities namely Tirunelveli, Kolkata and Delhi with responders from the age group of 19-40. Even though this research did not include survey on WhatsApp groups , but it did emphasize on personal harassment or receiving of the sexually explicit images, harassing videos of others etc. Some of the findings of this report are as follows:

  • 32.8% stated that they are aware of the safety tools in WhatsApp and 42.7% said they feel it is safer than other internet communication services. 41.2% stated that they were not aware of the safety tools and 13.7% stated that they don’t feel that WhatsApp is safer than other internet communication services. 1.5% did not want to tell about their knowledge of awareness regarding safety tools in WhatsApp and 11.5% did not want to tell about their feelings whether WhatsApp is safer than other internet communication services. 24.4% stated that they have heard about the safety tools in WhatsApp but have no direct knowledge about it. 32.1% stated that they have heard about other internet communication services, but they do not have direct knowledge, whether WhatsApp is safer because they do not use other services.
  • In answer to the question whether they had received any sexually explicit or obscene images including videos/images of rape, sexual abuse of women or children or men or LGBT people etc, among the 131 respondents, 11.5% stated that they had received sexually explicit or obscene images, 51.9% stated they did not receive such images and 2.3% did not want to answer. 34.4% stated that they are not aware of being targeted with such images because they do not use WhatsApp or have stopped using the services.[3]

This suggests that WhatsApp had been a “chosen platform” by predators since long.

 But why WhatsApp has become more dearer to predators than other social media websites like Facebook or Instagram especially for those including pedophiliacs or persons who  create and circulate abusive videos including sexual abuse videos of women  ?  Let’s have a reality check about WhatsApp here:

  • What is WhatsApp and how it works: As we had mentioned in the research report, WhatsApp messenger was started approximately in 2009 in the US by Jan Koumand Brian Action as a “better SMS alternative” (WhatsApp, 2014) and it is available for iPhone, Blackberry, Android, Windows phone, Nokia etc. This app uses the user’s phone number as the basic verification mode and it does not support calls via VoIP (Schrittwieser,Fr¨uhwirt, Kieseberg, Leithner, Mulazzani, Huber, & Weippl, 2014). Some of the basic features of WhatsApp include status update, profile picture update, uploading of address book (Schrittwieser, et. al., 2014), options to create/join groups (Terpstra, 2013), updates about location, uploading and circulating photos and videos and voice recordings. Typically WhatsApp verification may include a three stage procedure which involves (i) logging on to the download page of WhatsApp @ https://www.whatsapp.com/download/ and clicking on the chosen device icon and start downloading; (ii) the server then sends a 4-digit PIN number by SMS to the prospective user’s phone by SMS for verification and authentication (Schrittwieser, et. al., 2014), (iii) the user copies the code to the WhatsApp’s application graphical user interface (GUI) and after cross checking by the WhatsApp server the app gets activated on the phone of the user (Schrittwieser, et. al., 2014). Once connected with WhatsApp, the user can get the information about other WhatsApp users by simply checking his/her phone address book or call log history or Gmail address book. This is because WhatsApp may access the user’s contact list or address book to keep track of other mobile phone numbers who use the WhatsApp services and may store this information on the server (WhatsApp, 2014, see sub- para B in Para 3) to get people connected instantly, profile pictures of other users and one WhatsApp user may get instantly connected to others through the server.[4]
  • How do users create network on WhatsApp and how the groups may be busted?

After downloading the app and activating the same, the user may get connected to his friends or likeminded people by doing a simple search in his phone address book. Other numbers with WhatsApp applications may show up. Users may choose to circulate their messages in several ways through WhatsApp :

  • By using broadcasting feature whereby a single text/audio visual  message may be conveyed to a batch of people : The Boradcasting list may be created as below:
Image Source: WhatsApp

  • By forwarding the message to maximum five recipients at one time. Now, this “forwarding” may reach a wider recipient list if it is done in a group.  WhatsApp group can be created  by any individual by going to the chat tab and creating a new group. The image below may explain how groups can be created on WhatsApp:
Image source : WhatsApp

Interestingly, WhatsApp groups can be private or be public as well. Most of the groups who circulate images /contents of sexual abuse including  for self-gratification or group gratification, may keep their group private so that the group may not be disturbed by any 3rd party monitoring authority including the police. These group members generally may have a mutual understanding and trust whereby the contents shared by them would not be reported outside.  The members may necessarily download /save the sexual abuse/harassment videos/contents in their own devices  for individual gratification or for unethical gaining by further circulation as well. The end to end encryption by WhatsApp may make it more favorable for such group members to widely discuss and circulate such contents.

Public groups on the other hand are more open groups where people may join for discussions and it may not necessarily private for those whom the admin/s have invited or made them join. Unlike the private groups, public groups may be monitored if any  third party monitoring authority joins the discussion in disguise or any other group member decides to bring in the police or other monitoring stakeholders. In both these cases, admin’s responsibilities have been scrutinized by courts in India. The recent report suggests that the courts have held  responsible for allowing to spread seditious, inciting messages.[1]  WhatsApp group members and admins have also been booked for creating /circulating child sexual abuse materials for sexual gratification.[2]

  • What if the group admin is an underage user?

It is important to know the age barrier about WhatsApp users. There are infact not two, but three options given by WhatsApp. Lets check it:

  1. The minimum age criterion for European region including European Union countries is 16.
  2. For other countries the, the minimum age criteria is 13 unless the domestic laws of the said countries have fixed a higher age for using of WhatsApp.[3]
  3. Overlooking both, a child can use the WhatsApp services of the parents if the parent allows the child to use the services under his/her monitoring.

This in fact shows that a child may use WhatsApp, may create his/her own profile and may create contents him/herself for private or public sharing on WhatsApp with whoever he/she wants. 

  • What happens to the producer/distributor of the offensive contents?

In broader understanding, the child is legally permitted to create content  which he/she thinks can be circulated. Now, this has been a question for several courts : when a child is creating a sexting content and circulating the same with fellow children (including his/her boy/girl friend ),  how the courts (and the laws )would treat him/her ? Is he the perpetrator? Is he the victim? Or is he a ‘child’ with no liabilities?[4] S.67B of the Information technology Act, 2000(amended in 2008), Ss. 13 and 14 of the Protection of children from sexual offences Act, 2012 clearly mention that “whoever’ creates, circulates, produces etc  contents depicting children in sexually contents may be penalized. These cane be considered non-baliable, which would suggest that the punishment can be heavier.  Similarly, Ss. 67 and 67A of the Information Technology Act, 2000(amended in 2008) also penalizes ‘anyone’ who creates, distributes etc  sexually explicit and obscene materials. S. 354C of the Indian Penal Code also touches upon penalizing men who  private images of woman who would not consent for sharing such contents with third parties . S.375 and 376 of the Indian penal Code also touches upon capturing rape videos and storing or circulating the same. These offences can also be non-bailable and can have heavier punishments.

The contents that the children would have created also carries significance: if a child creates a sexting video or sexual abuse video or a non consensual porn image/content or  even a revenge porn content and sends it to his friend/s, the recipient may decide not to receive the content if from the look at the content or the text attached with it, the recipient feels that it should not be opened or should not be further circulated because it contains ‘bad stuff’.  WhatsApp is smart enough to have created limited policy guideline and security feature whereby one can report his/her child who may be using WhatsApp without parental guidance  and the parents feel that the child may be doing /victimized due to illegal /risky contents and connections.  It says

“If your underage child created a WhatsApp account, you can show them how to delete their account. You can learn how to delete an account in our Help Center.If you’d like to report an account belonging to someone underage, please send us an email. In your email, please provide the following documentation and redact or hide any unrelated personal information:

Proof of ownership of the WhatsApp number (e.g., copy of government-issued identification card and phone bill with the same name)

Proof of parental authority (e.g., copy of birth or adoption certificate for the underage child)

Proof of child’s date of birth (e.g., copy of birth or adoption certificate for the underage child)

We’ll promptly disable the WhatsApp account if it’s reasonably verifiable that the account belongs to your underage child. You won’t receive confirmation of this action. Our ability to review and take appropriate action on a report significantly improves with the completeness of the information requested above.[5]

Removal /deactivating of the said account is however at the discretion of WhatsApp especially when they would not be reasonably convinced .

But in case the reporting individual is not the parent of the child who may be doing illegal stuff  or who may be a potential victim, WhatsApp suggests to contact the parents of the child.

For adult wrong doers, WhatsApp has a typical formula which is followed by almost all social media companies : they would suggest to block the number so that the user of that particular number would not be able to contact the blocker  unless the earlier is being unblocked . Here is what WhatsApp suggests regarding how to block a number:

Image source : WhatsApp

  • The producer/distributor of the offensive content has been arrested. What about the offensive image?

The above information would not serve much purpose for blocking /reporting of the content unless the same is considered as an offending  subject through a police report. In such case, the said content may be made disabled from their own server, but they would rather work like email or SMS and would not access individual devices to dig out the offensive content to block and disable it. In such case, even if the persons (owning the WhatsApp numbers and profiles) may be blocked, the contents may keep on circulating unless these have been ‘ordered ‘ to be disabled from the server.  This is how the objectionable contents float from one device to another and reach out to millions after the original sender may have deleted from his device to save himself or he may have been arrested by the police.

Nothing but a police report about the said content therefore could be the best answer for blocking the content from being further circulated. But a few things can not be ignored when this is suggested: the police must act accordingly to make WhatsApp delete the content from its server and block the circulation whenever it appears on WhatsApp from which ever device. But this may become a herculean task especially when the police and the courts  may feel  challenged due to lack of infrastructure and proper laws. As long as this does not take place, WhatsApp users have to be responsible enough to not to circulate such contents even if they receive it from known or unknown numbers. Not to be forgotten, the police may arrest individuals who may store child sexual harassment videos /images unknowingly as well. But the unfortunate fact is this may not be the same for adult sexual abuse cases. But if the users use WhatsApp responsibly, the problem may definitely be address.

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), ” WhatsApp reporting of women and child abuse videos:  The common understanding vs the reality”  29th April, 2019 , published in http://debaraticyberspace.blogspot.com


[1] See WhatsApp ‘admin’ spends five months in an Indian jail. Published in https://www.bbc.com/news/technology-44925166 Accessed on 22.04.2019

[2] See Sandhya Nair (2018) WhatsApp group sharing child porn busted, 5 held

Published in http://timesofindia.indiatimes.com/articleshow/65263327.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst Accessed on 22.04.2019

[3] For more information see https://faq.whatsapp.com/en/general/26000151/?category=5245250

[4] Halder, D., & Jaishankar. (2013). Revenge Porn by Teens in the United

States and India: A Socio-legal Analysis. International Annals of

Criminology, 51(1-2), 85-111. ISSN: 00034452 (UGC Listed Journal)

[5] See https://faq.whatsapp.com/en/general/26000151/?category=5245250


[1] Cuthbertson Anthony (2019). WHATSAPP IS HOTBED FOR CHILD SEX ABUSE VIDEOS IN INDIA, STUDY FINDS. Published in https://www.independent.co.uk/life-style/gadgets-and-tech/news/whatsapp-child-sex-abuse-videos-groups-india-a8885811.html?fbclid=IwAR251ajPe20Y7zcXtD2o1s0w–86-Pr5UrKHVgv7IF_7swAH_dvEGQTzcZQ on 26th April, 2019. Retrieved on 26th April, 2019

[2] Halder, D., & Jaishankar, K. (2015). Harassment via WhatsApp in Urban

and Rural India: A Baseline Survey Report (2015). Tirunelveli, India:

Centre for Cyber Victim Counselling. Available @ https://www.cybervictims.org/CCVCresearchreport2015.pdf Retrieved on 27.04.2019

[3] Ibid

[4] See pp 2 in ibid

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

by Dr.Debarati Halder

Image credit: Google

On 24th 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.


[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 22nd April, 2019.  Accessed on 23rd 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