Category: Editor’s column

Cyber Law, Editor's column

ChatGPT : a new legal challenge? by Dr.Debarati Halder

Since November 2022, several stakeholders including those in the education sector have been widely discussing about the new Artificial intelligence based  chatbot ChatGPT.[1] Not so long ago we got to see few AI based human assistance apps Alexa and Siri. These were also connected with internet of things. They answered many questions, guided clients for accessing information of any type and generated any cyber security and data privacy issues. In the legal profession we got to see possibilities of AI based judges. Many lawyers and human-right activists were strongly against this while some actually felt triumphant thinking that AI based judicial work will be accurate and would be giving needed justice to the parties. ChatGPT has created new sensation: not only because it is solving test series[2], but also there are possibilities of probable clash with copyrights of many contents. 

As many resources on ChatGPT had suggested, it works on human fed information and attempts to answers put up before it. There are few implications for this:

  1. For academic evaluations, the chatbot is fed the information and probable assessment questions. The success depends on how accurately and how quickly the AI system matches the correct answers.
  2. Students may misuse the system and possibilities of wide range copyright violation cannot be overruled.
  3. The chatbot is fed about probable legal issues and the nearest legal solutions for the same. The scope of said legal solutions may be expanded by accessing several other contents available on the internet. This may actually make the chatbot more accurate than an attorney farm or a practitioner whose research team may need several days to prepare the brief to support the client. In short, , human emotional intelligence may be lacking while counselling clients, especially in cases of private injuries.
  4. The chatbot interacts with human beings for assistance. Even though the makers of the chatbot claims that it has better data security, at present all AI based human assistance apps are questionable for providing data privacy and security. There is no guarantee that the personal data including sensitive personal data will be protected.

ChatGPT is heavily supported by LargeLanguage Model (LLM) model tools and this may necessarily have a third-party moderator of the information/data. Within four months of its inception, usage of ChatGPT has become questionable from all sectors including the legal sector: consider this thought provoking article on digital literacy training of the judiciary touching upon the usage of ChatGPT in delivering judgements in the USA[3]: Gutiérre raises question on probable errors in the judgement as judges may not know to check the authenticity of the  information received from ChatGPT. Gutiérre suggests for development of a policy to use the AI based human assistance tools for legal professionals and I completely agree with the same.

Let us not forget that emotional intelligence plays havoc in providing healing touch for cases falling in the category of personal injury. Chatbots or any other robot legal researcher would not be able to map and match the emotional injury with physical injury and quantity of damages and compensation. Similarly an assessment designed to evaluate the positive learning process of a student can not achieved properly if the AI based assistance tools are used without any proper guidelines. It is time that we humans tame our machine intelligence  by setting certain guidelines first. Otherwise the precious human intelligence for creating artificial intelligence will be used only for destruction and overpowering the good by evil intentions.

[1] For more understanding, see https://openai.com/blog/chatgpt/ Accessed on 21.02.2023

[2] See Rosen Kalhan (2023) . ChatGPT passes MBA exam given by a Wharton professor. Published in https://www.nbcnews.com/tech/tech-news/chatgpt-passes-mba-exam-wharton-professor-rcna67036 on 24-01-2023. Accessed on 25-01-2023

[3] Juan David Gutiérrez(2023) ChatGPT in Colombian Courts:

Why we need to have a conversation about the digital literacy of the judiciary. Published in https://verfassungsblog.de/colombian-chatgpt/?fbclid=IwAR3X2r9vVJH5HeYcGf_O4cBNoKae4_TouFLH36TOJqZ1B954NTqLFnrgFug on 23-02-2023 . Accessed on 23-02-2023

Editor's column

বৈদ্যুতিন যুগে ভাষা দিবসের কিছু চিন্তা ভাবনা

দেবারতি হালদার

বেশ অনেকগুলো বছর ভাষা অধিকার নিয়ে অনেক বিশ্লেষণ করার পর কিছু জ্ঞান উপলব্দি করেছি : ভাষা অধিকার একমাত্র মাতৃভাষায় চিন্তা প্রকাশের অধিকার মাত্র নয়. সেই ভাষা যেন এমন ভাবে ব্যবহার না করা হয় যা অন্য মানুষের চিন্তা ধারাকে আঘাত করে. এটা অধিকারের থেকেও দায়িত্ত্বকে বেশি করে বাড়িয়ে দেয়।  বিগত অনেক বছর ধরে এই রকম অনেক কমপ্লেন দেখে নিজেও শিখেছি কোন ভাষা কিভাবে প্রয়োগ করলে ভাষা অধিকার টি খুইয়ে ফেলতে হয়. তবে এই অধিকার খুইয়ে ফেলাটা বেশির ভাগ ক্ষেত্রে সরকারের বিরুদ্ধে প্রতিবাদের ক্ষেত্রেই আমরা বেশি দেখে থাকি। এই নিয়ে কত বাগ -বিতন্ডা। কোন প্রতিবাদী ভাষা আইনের চোখে বেআইনি নয় আর কোন প্রতিবাদী ভাষা সত্যি ই বেআইনি এ নিয়েও বিচারকদের কম মন্তব্য  নেই. প্রতিটি দেশের নিজস্ব আইনি বিশ্লেষণ আছে এই নিয়ে। সে থাকলেও আমরা অনেক সময়েই দেখি সেই আইনি বিশ্লেষণ অনেকটাই এক ধাঁচের হয়. মহিলাদের বাক স্বাধীনতা নিয়ে অনেক রিসার্চ হচ্ছে। আমার রিসার্চ একটু অন্য রকম. আমি ঠিক বাক স্বাধীনতা নয়, ভাষা স্বাধীনতা আর দায়িত্ব নিয়েই মেতে থাকতে ভালোবাসি। বেশ কিছু দিন আগে এই রকম দু-একটি কেস দেখছিলাম:  বিবাহিত পুরুষ অধ্যাপক তাঁর দায়িত্বাধীনে অনুসন্ধানরতা  কন্যাসমা ছাত্রীকে অত্যন্ত উত্তক্ত করেছিলেন এই ভাষা স্বাধীনতার সুযোগ নিয়ে। বৈদ্যুতিন মাধ্যমে ক্রমাগত একটি বা দুটি শব্দ, ছন্দ এবং ছত্র  ছাত্রীকে পাঠাতেন। সেই শব্দ, ছন্দ ও ছত্র  গুলি এতটাই ভয়াবহ হয়ে উঠলো যে ছাত্রীটিও আর সহ্য করতে পারলোনা। সংখ্যায় গুনলে এগুলি অতি   নগন্য। কিন্তু সেই সবই, ছন্দ , ছত্রের মধ্যে নিহিত অর্থ টি শালীন নয়. অধ্যাপক যখন দেখলেন ছাত্রী টি কোনো সাড়া দিচ্ছেনা , তিনি কিছু নির্বাক অত্যন্ত সংক্ষিপ্ত ভিডিও পাঠাতে শুরু করলেন।  এবারে সেই ছাত্রীটি শালীনতা হানির অভিযোগ আনতে বাধ্য হলো. অধ্যাপক পাল্টা জবাব দিলেন : যখন শব্দ বা ছত্র গুলি দেখেও সে চুপ করেছিল , মানে কোনো রকমের অস্বস্তি প্রকাশ করেনি, তখন কি করে ধরে নেওয়া যাবে সে এগুলি পছন্দ করেনি?  পাঠক /পাঠিকা  , এই ধরণের কেস খুব চেনা চেনা লাগছেনা? অধ্যাপক- ছাত্রীর জায়গায় সহকর্মী, বন্ধু, কাছের বা দূর দম্পর্কের আত্মীয় যে কাউকে বসাতে পারেন। ভাষা যে কত শক্তিশালী হতে পারে তা এই ধরণের তথাকথিত “নগন্য” কেস থেকেও বুঝতে পারবেন সবাই। ভাষার অপব্যবহার (বিশেষত মহিলাদের  বিরুদ্ধে ) টেনে আনতে পারে অনেক রকম আইনি বিপদ। ছোটদের কথা টা আজ আর বললাম না. আজকে একটি বিশেষ কেস দেখে মনে হলো এই বিষয়েও কিছু বক্তব্য প্রকাশ করা উচিত। কেরালা হাই কোর্ট রায় দিয়েছেন যখন কোনো স্ত্রী তাঁর স্বামীর বারংবার বারণ অমান্য করে তৃতীয় অচেনা পুরুষের সঙ্গে সময় অসময় না দেখে ক্রমাগত অবান্তর ফোনে কথা বলে যান তখন সেই ব্যবহার মানসিক নির্যাতনের পর্যায়ে পরে. না না! মনে করবেন না আমি আবার ফেমিনিজম নিয়ে বুলি কপচাবো। কিন্তু এই এক রায় সেই স্বামীদের ক্ষেত্রেও প্রযোজ্য হওয়া চাই যাঁরা তাঁদের স্ত্রীদের বারণ  অমান্য করে অন্য মহিলার সঙ্গে ক্রমাগত অবান্তর কথা বলে যান. একটু ভেবে দেখুন: এই কথা বলা যদি কর্ম ক্ষেত্রে জন্যে, কাজের জন্যে জরুরি হয় তাহলে আইনি বুমেরাং টি যিনি অভিযোগ করছেন তাঁর দিকে  ঘুরে যাবে। আর নাহলে জোর করে নিজেকে প্রেমিক প্রবর ভেবে নেওয়াটা অত্যন্ত বিপজ্জনক হয়ে যাবে। ভাষার আর  দোষ কি? ভাষাকে যে যেভাবে ব্যবহার বা অপব্যবহার করতে চাইছে দায়িত্বটি তাঁর।

এবার সময় এসেছে আমরা সবাই ভাষার অপব্যবহার নিয়ে একটু আলোচনা করি, ভাবি আর সেই বিবেচনা গুলি আমাদের পরবর্তী প্রজন্মকে জানাই। কারণ তারা আমাদের জানবার আগে অনেক কিছুই জেনে গেছে। 

২১/২/২০২২

Editor's column

The celebrity ‘Drug on Cruise case’ of  2021 and the ‘may be considered’ Right to be Forgotten

Prof(Dr).Debarati Halder*

On October 3, 2021, India woke up to the big news of celebrity drug on cruise case where the key accused was a 23 year old young adult man, Aryan Khan. The news media revealed that Khan, the elder son of Bollywood superstar Shahrukh Khan, had been arrested by the officer of the Narcotics Control Bureau (NCB), Mumbai and was charged for knowingly consumption, sale and purchase   of narcotic substances under the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The family of the arrested immediately tried for bail, but was not successful. The legal technicalities revealed that Khan had to approach the special NDPS court for bail once the judicial magistrate who was hearing the matter of arrest of Khan rejected the bail plea on ground of non-maintainability of such bail matter in courts other than NDPS courts. Khan was first put in the custody of  NCB for a brief period after which he was sent for judicial custody, which in plain words may mean that he was put up in a regular jail meant for accused who has not yet been convicted by the courts. The NCB reportedly argued against his bail stating that being the child of a celebrity father, Khan may have every opportunity to access to narcotics, he may be able to get involved in the selling and purchasing of the prohibited substances.  Later when the matter went to Bombay High Court for appeal against the rejection to bail, the WhatsApp chats between Khan and his friends were also pulled in as the defense in the High Court wanted to establish that Khan was already discussing about the selling, purchasing, consuming etc. of drugs over WhatsApp chats. The Bombay High court however, granted him bail and he was released from judicial custody after two days of the passing of the order.

My concern here centers around the concept of privacy and confidentiality of the accused which flows from the Universal Declaration of Basic Principles of Human Rights,[1] adopted by the Indian Constitution[2] and which to a certain extent, reflects in the Criminal Procedure Code, 1973 especially with the courts increasingly accepting the Right to be forgotten jurisprudence. We must not forget that an accused is innocent until proven guilty. Given the case of Khan, it may be seen that his arrest and then judicial custody in the jail in Mumbai became an open ‘document’ which has been consumed by public at large. Narcotic Drugs and psychotropic substance abuse cases may not be the regular criminal cases involving the offender and the victims unless otherwise proven where the substance consumer had been forced to consume such substances following several illegal mechanisms, or where the accused is found to have been involved in the drug peddling racket. Such cases may typically fall within the meaning of victimless crimes where ‘offenders’ themselves turn into victims of substance abuse. Such cases must be dealt with extreme care by the judiciary and the correctional administration where the offender-victim may need rehabilitation.  Such cases however are extremely complicated as it may often be seen that substance abusers may be involved in the drug peddling rackets too. But the central point here is, unless proven, the accused can not be considered as guilty even in such cases as well. Then why such cases of celebrity accused persons attract so much public attention and why certain media channels make such news items as matters of national level concern? One of the reasons for this in my understanding is, the inquisitiveness of the public regarding the life style of the ‘celebrity accused’. Several news channels shared the contents of arrest memo of Aryan Khan which in reality should not be shared unless it is considered as a public document by the courts. Some other news media channels shared stories as what should be Khan’s daily food routine as a detainee in the jail, [3] what did Khan read inside his prison cell, [4] etc.

We must understand that while the courts may make certain orders publicly accessible for ensuring transparency of the judicial proceedings, the same cannot and should not be misused for media trials.[5] The Bombay High court order for releasing accused Aryan Khan on bail is available on several legal news platforms.[6] But Khan’s Day to day to affair in the jail is a matter which must have been given a confidentiality cloak. Right to be forgotten is a protection against further victimization of the accused by the society at large and is an integral part of reformative justice jurisprudence whereby the accused may be given a new opportunity to join the mainstream society as a reformed and positive individual.  The case is not closed now and Khan is neither convicted, nor acquitted of the case. But when the prosecution may establish that he is guilty, and in such case once he finishes his sentence period, or when the defense may establish that he is not guilty, Khan may consider to request the court to exercise his Right to be Forgotten and the court may then consider directing different digital platforms to restrict public access to the bail orders and remove the contents about him which shows him as an accused from the digital platforms of different news media channels. Interestingly, Part III of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021(IT Act Rules, 2021) may offer some solace if Khan or any other person who may establish a proper locus standi, wishes to approach the court or the news media channels directly for applying Right to be Forgotten or for removing contents that may be misleading, damaging the reputation of the accused. Rule 8 of the IT Act, Rules, 2021 extends the application of the Rules to the publishers of the news and current affairs contents and of online curated contents and the application of these Rules for Part III is administered by the Ministry of Information and Broadcasting, Government of India. The Rule suggests that any one who is aggrieved by any news content may directly contact the grievance mechanism cell established by the publisher of the news media portal/channel/paper. If the problem is not solved, then the aggrieved can reach out to the next level, i.e., self-regulatory body.[7] If the aggrieved is not satisfied with the decision of the self-regulatory body, then he/she can further approach interdepartmental committee which is considered as level III grievance redressal mechanism for the purpose of maintaining code of ethics, and which works for the oversight mechanism by the central government. In short, this Rule makes it easier for the aggrieved party   to approach the concerned authorities for removing or blocking an unwanted content which may be misleading, defamatory, damaging the reputation of some one etc. One may not approach the higher courts through Writ Petitions.  We must acknowledge that many female professionals including actors, models, athletes, journalists, writers and YouTubers etc., are constantly targeted in several news media channels for their daily activities , expression of thoughts or even cases of victimization of different sorts. If such women are held as accused or had become victims, they may also consider for applying for their Right to be Forgotten, they may also approach the concerned forums under the above mentioned Rule to remove unwanted news contents which are no longer relevant   But it must also be seen that application of Part III of the IT Act, Rules, 2021 should not pose a bar against judicial transparency and freedom of speech and expression.

 We must not forget that Right to be Forgotten is an extension of the right to privacy which every accused must have. Given the fact that the news stories about the accused in the Cruise drug case may remain floated on the information super highway for a long time, it is expected that the news media channels and their publishers may consider restricting further infringement of privacy of the accused.

Please note: The views expressed in the writeup are that of the author’s.  Please cite it as “Halder Debarati (2021) The celebrity ‘Drug on Cruise case’ of  2021 and the ‘may be considered’ Right to be Forgotten. Published in https://wordpress.com/post/internetlegalstudies.com on 06.11.2021”

*Prof(Dr) Debarati Halder, Ph.D(Law) is working as Professor of Law, Parul Institute of Law, Parul University, Vadodara, Gujarat. She is also the founder of Centre for Cyber Victim Counselling (www.cybervictims.org) . She can be reached @debaratihalder@gmail.com

[1] See Articles 11 (right to be presumed innocent until proven guilty), and 12 right to privacy against arbitrary interference with his privacy, family, attack upon his honour and reputation etc) of the Universal Declaration of Human Rights.

[2] Even though the scope of Article 21 of the constitution of India has been expanded to include right to privacy due to the landmark cases including Justice Puttaswamy vs Union of India & others, Writ Petition (Civil) No 494 of 2012; (2017) 10 SCC 1; AIR 2017 SC 4161

[3] Outlook Web Bureau (2021). Lunch At 11 Am, Dinner At 6 Pm: Aryan Khan’s Daily Routine In Arthur Road Jail. Published in   https://www.outlookindia.com/website/story/entertainment-news-breakfast-at-7am-dinner-at-6pm-what-n956-aryan-khans-life-in-arthur-road-jail-looks-like/397783 on 16-10-2021. Accessed on 02.11.2021

[4] Livemint (2021). Aryan Khan reading religious books in Jail, say authorities. Published in   https://www.livemint.com/news/india/aryan-khan-reading-books-on-lord-ram-sita-in-jail-say-authorities-11635060965958.html on 24-10-2021. Accessed on 02.11.2021

[5] For more understanding, see The Chief Election Commissioner of India v M.R. Vijayabhaskar & Ors , Civil Appeal No. 1767 of 2021 (Arising out of SLP (C) No. 6731 of 2021). Available @https://main.sci.gov.in/supremecourt/2021/11474/11474_2021_35_1502_27915_Judgement_06-May-2021.pdf Accessed on 02.11.2021

[6] For example, see ARYAN SHAH RUKH KHAN. V/s THE UNION OF INDIA & ANR.CRIMINAL APPELLATE JURISDICTION,  CRIMINAL BAIL APPLICATION NO. 3624 OF 2021 Available @https://www.livelaw.in/pdf_upload/aryan-khan-case-bail-condition-403194.pdf, accessed on 02.11.2021

[7] Rule 12(2) of the IT Act Rules, 2021 states as follows:

(2) The self-regulatory body referred to in sub-rule (1) shall be headed by a retired judge of the

Supreme Court, a High Court, or an independent eminent person from the field of media, broadcasting,

entertainment, child rights, human rights or such other relevant field, and have other members, not

exceeding six, being experts from the field of media, broadcasting, entertainment, child rights, human

rights and such other relevant fields.

(3) The self-regulating body

cyber crime against women, Cyber Law, Editor's column

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


CYBER CRIME AGAINST WOMEN IN INDIA
Editor's column

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

cyber crime against women, Editor's column

Plight of “Punita” : A common tale of ‘powerless’ women victims of trolling by Dr.Debarati Halder

First published @https://debaraticyberspace.blogspot.com/2020/11/plight-of-punita-common-tale-of.html?spref=fb&fbclid=IwAR2_sKM13spiQ4r6CletmvaLG8z7orClpR7MQOIHhnahcTMl1O678NhnY_c

In 2012 “Nirbhaya” a young female paramedic was brutally gang raped in a cold December night in Delhi, India. Within a few days the police nabbed the offenders and arrested them. All 6 of them were from northern parts of India who came down to Delhi for making their living. All of them were working as transport workers including driver, conductor, cleaner etc. Within a few days of their arrest, the victim died because of the impact of the assault and internal injuries. The charges against the accused were enhanced from rape to include murder under the Indian Penal Code. Among the 6 accused persons, the prime accused committed suicide. Even though the case was taken over by fast track trial court, it took around 10 months for the trial court to convict the accused and award death penalty to the surviving 5 accused. The death penalty was upheld by the Supreme Court of India in 2017. In between one of the accused pleaded to be considered as minor and was declared as minor and hence was dealt under the Juvenile justice administration system. However neither the Supreme Court, nor the high court prevented the accused persons from exercising their rights to appeal against the capital sentence. The Supreme Court considered this case as rarest of rare cases. Except the minor, other convicted accused did not however succeed in their respective pleas to the Supreme Court to reverse the sentence to life imprisonment and the President for mercy petition.[1]  All four of the adult convicts were hanged in the wee hours of 20th March, 2020. Immediately after this the Covid 19 lockdown was clamped strictly almost all over the world preventing several litigants, victims to approach the courts as courts also suffered due to pandemic.

None of the convicted persons in NIrbhaya case came from socio-economically forward class. Except one, others did not complete their basic education as well.[2] Some researches including the controversial India’s Daughter documentary[3] claimed that lack of education could have been the main reason to defy the laws for violating women in this regard. While almost all such researches and findings were concerned about the perpetrators, not many looked into the fate of the wives of such sex offenders who may not have received primary education and may not have been allowed to access justice for themselves because of being women and living in patriarchal societies. Punita, wife of Akshay Thakur, who was one of the convicts, tried her level best to convince the courts and the society at large in her own way  that if her husband was hanged, she and her minor son would have to die. On the final day of hearing she was seen shouting, crying, beating herself and fainting before the Supreme Court building. Her actions attracted media and she was probably encouraged to continue to do what she was doing because that would add more TRP to the stories that were being made on Nirbhaya sentencing. Soon she made headlines in almost all domestic and foreign news channels and she was center of debates for and against death penalty. Simultaneously she was targeted by internet trolls vigorously.[4]

In the recently held 9th international victimology conference organized by Jindal institute of Behavioral Sciences[5] I had addressed the issue of cyber victimization of Punita through my paper titled “Critical analysis of the case of wife of Nirbhaya rape convict: therapeutic jurisprudence & cyber victimological perspectives”.  While the media could successfully (and probably rightly) generate public sympathy for the rape victim and her family, they generated extreme hatred to Punita because she was apparently ‘supporting her husband’. The internet platforms added fuel to the fire in this hate campaign. If one sees the news reports on Punita Devi on the social media handles of the news media channels, one would get to see that the comments posted about her and opinion generated on her created extremely negative profile of hers which would go a long way to prevent her from getting any job in any private or public sector. It was a visual victimization of Punita on cyber space which still exists on cyber space and will be existing forever. In my earlier research on visual victimization of women on cyber space, I had observed that the victims of such visual victimizations may now know about their online victimization because they may never get access to the internet and digital communication media as their urban counterparts may get, which may eventually help the later to reach the criminal justice machinery to remove these contents.[6]

 Women such as Punita are often seen as ‘co-accused’ by the public at large. Coming from socio-economically backward communities and being educationally challenged, most wives of sex offenders in several Asian countries (where patriarchy rules), may not be allowed to access justice for themselves. Apparently she approached the family court in her native district for divorce because the Hindu Marriage Act under S.13B(2ii) allows women to get ‘quick’ divorce under special grounds which includes conviction of husband for rape, sodomy, bestiality etc.[7] But she was too late in approaching the court. She did not want to live as a widow of a hanged rapist. She preferred to be a divorcee. Women in such situations are blamed by the families and public at large for failing to satisfy their husbands sexually and materialistically which may have encouraged the later to go ahead for raping and sexually assaulting other women. These women cannot go ahead for divorce while the trial is on because this would not only attract social taboo, it will also push such women to extreme poverty: they have to leave the matrimonial homes, they may not be accepted in their parental homes and they may not get any financial support from anyone.

How can Therapeutic Jurisprudence help?  Justice Krishna Iyer  a legendary judge who introduced new paradigm to reformative justice in India mentioned about applying Therapeutic jurisprudence in the prisons for reforming the prisoners in 1970’s.[8] But after him we did  not get to see the use of the term by the judges while dealing with reformative criminal jurisprudence in India. In numbers of my researches however I have shown that the concept of Therapeutic Jurisprudence has submissively influenced the Indian judges.[9] The spirit of Therapeutic Jurisprudence may help wives of sex offenders especially in countries like India. In my earlier research  titled “Free Legal Aid for women and Therapeutic Jurisprudence: A critical examination of the Indian model”,[10]  which was published In the edited book volume titled Methodology And Practice Of Therapeutic Jurisprudence Research edited by Stobbs Nigel, Bartel Lorana & Vols.M , I had observed that women especially from socioeconomically backward communities may not be permitted to access justice even if the legal counseling  is freely available through free legal aid clinics. This situation may be improved by vigorous campaigning by legal aid volunteers and law students. The law students, practitioners and judges must be sensitized about Therapeutic jurisprudence and law’s therapeutic effects which may bring tremendous change in women empowerment. Wives of sex offenders go through tremendous traumatization primarily because they feel cheated in their marriages and then feel threatened when it comes to social security for them. As such, mental wellbeing of these women are least taken care of when the court decides to charge the husbands, i.e. the accused in sex offences. In my presentation in the international victimology conference mentioned above, I have proposed that courts must consider to parallelly counsel such wives through free legal aid cells so that they may be made aware about their rights for divorce, matrimonial alimony, child custody and maintenance for child.

Further, I have also proposed that courts must suomotu consider to pass restraining order for the media houses regarding airing the images of grieving wives, who may or may not be accompanied by their children. These women do not make any ‘drama’ to stall the execution of sentences for supporting their husbands. They express their anger, frustration and fear for their own future which is dependent on the longevity of their husbands. Unfortunately their expression of fear, frustration etc are hugely consumed sadistically by the society at large and due to the non-ending presence of the clippings on the internet, such women may be profiled in a negative way. I have proposed that the scope of Right to be forgotten must be expanded in such cases which the courts must take up extending the power of judicial intervention for ensuring the privacy rights of women. Interestingly many courts across the globe are shifting burden to the website companies for not removing objectionable contents especially when it comes privacy of women and children. India has laws for website liabilities in this regard under S.79 of the Information Technology Act, 2000(amended in 2008). This provision read with Information Technology (reasonable security practices and procedures and sensitive personal data or information ) Rules 2011 mandates that web companies shall be held liable if they do not take down objectionable contents within due time. This brings two major points to be considered: who reports it? Whether this can be considered as ‘protected speech and expression’. Indian judicial understanding regarding freedom of speech on internet is expanding and courts have started using judicial discretion to not to consider each and every speech as speech falling outside the purview of Article 19(1)(A) of the Indian constitution which guarantees freedom of speech and expression as a fundamental right. It is obvious that women such as Punita would not know about such legal jurisprudence. The courts therefore must consider adding this issue in the bag of ‘reformative and rehabilitative considerations’ when awarding the sentences (including life sentence or capital sentences).  This may go a long way to prevent secondary victimization of the wives of sex offenders who are ‘innocent victims’ of the entire situation.

It is therefore hoped that if the issue of online as well as real life victimization of the wives of the convicted sex offenders are seen from the Therapeutic Jurisprudential aspects, the rights of women to access justice, rehabilitation and privacy may be secured.

Prof(Dr) Debarati Halder, LL.B, LL.M, Ph.D(Law)(NLSIU) is a Professor at Unitedoworld School of Law, Karnavati University, Gujarat, India. She is the founder of Centre for Cyber Victim Counselling (www.cybervictims.org) and the India chapter head of International Society of Therapeutic Jurisprudence. She is the pioneer in introducing Therapeutic Jurisprudence as a part of credit course in legal education in India. She can be reached @debaratihalder@gmail.com

[1] See for more in PTI(2020) Nirbhaya case convicts to be hanged at 5.30 a.m. as Supreme Court dismisses plea against rejection of mercy petition. Published on March 20.2020 in The Hindu. URL: https://www.thehindu.com/news/national/nirbhaya-case-convicts-to-be-hanged-as-supreme-court-dismisses-plea-against-rejection-of-mercy-petition/article31114747.ece Accessed on 21.03.2020

[2] For more, see in Profiles: Who were the Delhi gang rape convicts?. Published in https://www.bbc.com/news/world-asia-india-23434888#:~:text=Courts%20convicted%20six%20people%20for,student%20in%20a%20moving%20bus. On March 20. 2020, accessed on 21.03.2020

[3] For more, see in Banned film India’s Daughter shown in rapists’ slum

. Published in https://www.bbc.com/news/world-asia-india-31865477 . On March13. 2015, accessed on 21.03.2020

[4] For example see the comments @ https://www.youtube.com/watch?v=rzwPrx1l9Hg Accessed on 29.10.2020

[5] The conference proceedings and my presentation are available @ https://www.youtube.com/watch?v=c9__aYyD9cA

[6] Halder D., & Jaishankar, K. (2014). Online Victimization of Andaman Jarawa Tribal Women: An Analysis of the Human Safari YouTube Videos (2012) and its Effects. British Journal of Criminology, 54(4), 673-688. (Impact factor 1.556). DOI: 10.1093/bjc/azu026.

[7] Section 13(2)(ii) in The Hindu Marriage Act, 1955 states

 “A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground………. that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality”

[8] See for more in Md Ghiasuddin vs State of AP . reported in (1977) 3 SCC 287. Available at: http://www.indiankanoon.org/

doc/1850315/,

[9] See Halder, Debarati, Why Law Fails to Be Therapeutic in Spite of Therapeutic Judicial Efforts: A Critical Analysis of Indian Legal Education From the Therapeutic Jurisprudence Perspective (October 28, 2018). Unitedworld Law Journal, Vol 2, Issue: I, ISSN: 2457-0427, (2018) pp 173-182, Available at SSRN: https://ssrn.com/abstract=3274175

[10] Halder, D. (2019), Free Legal Aid for women and Therapeutic Jurisprudence: A critical examination of the Indian model. In Stobbs Nigel, Bartel Lorana & Vols.M (eds.), Methodology And Practice Of Therapeutic Jurisprudence Research. USA: Carolina Academy Press.

Cyber crimes against women, Cyber Law, Editor's column

“Netizens” by Dr.Debarati Halder
copyright @debaratihalder

During the COVID-19 19 lock down period between march 2020 to almost the end of October 2020, we have seen steep rise of cybercrimes especially cybercrimes against women. These crimes included different patterns: economic crimes, data privacy infringement, child sexual abuse online and creation of widespread hatred. Social media platforms like twitter, Instagram etc., had been flooded with hate messages, fake news, obscene messages etc. but it would be wrong to think that only web-based platforms had been used to creates online harassments or cyber crimes at large. Handheld phones are not spared either. Communication conveyed over phone had been threatening, unwanted and had also taken the nature of bullying. Both the receivers and perpetrators are nothing but Netizens. The concept of Netizens is fiction based just like the concept of cyber space, which finds it roots in the fiction called Neo romancer.

Individuals who live, survive in internet, on the internet and gain infotainment and use internet for connectivity are known as Netizens. The simple connotation of this term could be citizens of net.

But this term has not found any acceptance in any legal statute, international documents speaking about right to access internet, right to be forgotten or even cyber safety, e commerce. This is a popular nickname for all those who use internet, who have been born in the era when internet was booming and those who are connected to each other through information-digital communication technology. Often, we do get to hear that people belonging to the older generation who adopted internet and digital communication technology (because otherwise they could not have survived due to global digital revolution), are called as net immigrants because they may have get accustomed with the digi-culture. But would not prefer to use this term. Worldwide e-governance growth has involved every citizen to become netizen. Digitization by the governments of birth, marriage and death registrations, social security related data, bank data, school data, workplace data, health data, court data and above all internet and digital communication technology consumption data for the purpose of e-governance has therefore made everyone irrespective of age, gender, class, creed etc, netizens.

Netizens play a great role in shaping the livability of themselves as well as other netizens including women and children netizens on cyber space. Laurence Lessig, a pioneering professor on cyberspace regulation predicted that internet will be a virtual livable space with ‘market’ and it would become necessary for State to carefully frame laws to regulate cyber space. His findings stand firm forever. Netizens are important stakeholders for profit generation for internet companies. They also earn by living on the cyber space. By saying this, I however can not ignore the fact that netizens may use internet and cyber space as a whole for ethical as well as unethical profit gain. Consider the positive profit gaining strategies: legal e-commerce activities, earning from content development, etc. The illegal profit gaining part is heavier. Millions of netizens sell and consume data that may have been generated, stored, processed, trafficked in illegal ways. Data of women and girls are the hot priority in this regard. Almost all stakeholders would unanimously agree that cybercrimes against women and girls are rising because of the unmonitored behavior of several netizens.

As such, if we quickly look into the existing constitutional and legal frameworks of different countries, we can see that almost all countries have knowingly or unknowingly developed certain rights and duties for netizens. These rights and duties are universal in nature and may include freedom of speech and expression, right to privacy, right to access justice, right to information, right to live a dignified life and right to be forgotten. Simultaneously the duties may include duty to respect others rights on the cyber space as well as in real life, duty not to incite hatred, not to infringe privacy, copy right of other netizens including organizations and government data etc. the prime duty of every netizen however is to help the victim of online abuse by reporting right violation because if they remain mute spectators, they would become bystanders and add to visual victimization of the victim/s.

We can also see that existing laws have extended penal provisions to charge the netizens for their wrong doings on the cyber space which may affect lives of others in real life.  But major problem lies in the jurisdictional issues. Netizens are ubiquitous especially. Netizen from one geographic region may reach out to other netizens situated another geo location. Initiating criminal proceedings against netizens in such cross border criminal cases  becomes a huge problem  for the criminal justice machinery especially in the absence of treaties to extradite offenders. The international laws and rules also play a major role in charging netizens for offences which may not be considered as indictable offence in the country where the netizen is residing and operating from.

It is expected that the international organizations and States must come together for working towards creation of universal rules for regulating the activities of netizens. This may help all to live and be remembered in a wonderful cyber space.

Please do not violate the copyright of this writeup. Please cite it as Halder Debarati (2020) ‘Netizens’. Published @https://wordpress.com/posts/internetlegalstudies.com on November 3rd, 2020

Editor's column

Decoding Cyber Stalking law from Indian perspectives. by Dr.Debarati Halder
Picture courtesy : Internet

2020 had many surprises for us. It brought in the century’s biggest health hazard, economic slowdown and upsurge of economy for a sector which survived on illegal. data mining, data pooling and data selling. Often people mistake that data mining, data pooling etc are connected with financial crimes. But it is not so always. These are connected with cyber stalking also. There are hundreds of materials on internet which may suggest that cyber stalking is cyber bullying or cyber stalking is the ONLY form of cyber harassment. Unfortunately, this is also not true.

Cyber stalking basically is a criminal activity which is from the family of offences of privacy infringement. In India cyber stalking was not recognized as an offence prior to Criminal Law amendment Act, 2013. In fact stalking as well as cyber stalking was considered as within the meaning of  eve teasing, a term which was neither recognized by the Indian Penal Code. However, in case the victim needed to stress on the constant persuading and monitoring by the perpetrator, the police would look for solace mostly in S.509 Indian Penal Code, sometimes coupled with provisions addressing criminal intimidation including anonymous criminal intimidation. S.503 of the Indian Penal Code addresses Criminal intimidation and it says as follows: “Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation…..Explanations: A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.” S.506 speaks about punishment to criminal intimidation and it says as follows:  “Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;…..If threat be to cause death or grievous hurt, etc – and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, of with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.” S.507 of the IPC discusses about anonymous criminal intimidation and says as follows : “Whoever commits the offence of criminal intimidation by an anonymous communication, or having taken precaution to conceal the name or abode of the person from whom the threat comes, shall be punished with imprisonment of either description for a term which may extend to two years, in addition to the punishment provided for the offence by the last preceding section.”. S.509 IPC speaks about punishment for word, gesture or act intended to harm the  modesty of women and says as follows: Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.”

What do we understand from these provisions keeping the concept of ‘eve teasing’ in the forefront which is reflected in S.509 IPC?

  • It necessarily includes certain kinds of words and behaviors, gestures which make the woman feel uncomfortable, insulted, annoyed, irritated and above all, threatened about her own safety.
  • That written or spoken word is uttered or expressed in writing especially with an intention that the victim sees it and feels uncomfortable and threatened.
  • The privacy of the woman is infringed or threatened to be infringed.

Now, how the privacy infringement can attract the concept of cyber stalking? Even though Justice Puttaswamy vs Union of India & others,[1] have emphasized on right to privacy, the law makers have not yet included this as an inherent right in the constitution. It may be noted that while the final judgement of the Puttaswamy case came in 2018, the petitioner approached the court as early as in 2012 . This was the year that saw the gruesome gang rape of Nirbhaya in Delhi and following the same, the Criminal Law Amendment Act, 2013 which introduced a bunch of gender centric laws including S,354D of the Indian Penal Code which addresses stalking including cyber stalking. Let us now see what does S.354D IPC offer to address cyber stalking: it says

“(1) Any man who—follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking; Provided that such conduct shall not amount to stalking if the man who pursued it proves that—it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or in the particular circumstances such conduct was reasonable and justified.

(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.”

This makes it clear that stalking happens when the woman feels threatened for her personal safety for the repeated persuading by the stalker who can not be a female (as the provision suggests). Here men are mandatorily seen as perpetrators and women are the victims.  This behavior includes monitoring of the cyber usage of the victim as well. A plain reading of the Section would suggest that cyber stalking may also include multiple online offences including unauthored access to device, data, data network, email, social media profile of the victims etc which are addressed under S.43 (Penalty and damage to computer, computer system etc), 65 (punishment for tampering with computer source document) and 66 (punishment for computer related offences)of the Information Technology Act , 2000 (amended in 2008) and S.66C (punishment for identity theft) of the Information Technology  Act, 2000 (amended in 2008) etc. Cyber stalking may or may not include cyber bullying which is not addressed by any law in India.  It may necessarily include data mining. Even this is also not considered as criminal offence because data mining may be used for positive purposes also (consider prospective employers mining data about prospective employees: It is for this reason that several  social networking sites like LinkedIn, FaceBook, ResearchGate etc allow users to upload information about their work, work experience etc). As a continuing effort to create threat and sense of uncomfortableness, the stalker may keep on sending text messages, memes, voice messages sexted messages etc. All these are broadly covered under the first paragraph of S.354D, but which message may constitute criminality individually, is not mentioned therein. The behavior which attracts the criminality within the meaning of cyber stalking, may also include creation of fake profile of the perpetrator himself or an impersonating profile of the victim so that he can contact the friends of the victim for monitoring the victim. But S.354D does not explicitly mention about this and this is the reason that many stakeholders feel this very behavior IS cyber stalking. The correct answer is NO. This actually constitutes a separate criminal liability which is partly addressed by the above mentioned provisions of the Information Technology Act including  S.66C (identity theft)of the Information Technology Act, 2000(amended in 2008), partly by S.354C IPC(addressing voyeurism and prescribing punishment for the same) and partly by S.67A of the Information technology Act, 2000 (amended in 2008) which addresses creation, circulation of sexually explicit contents etc. These provisions should be taken only when the victim complaints of cyber stalking, receiving messages from the perpetrator within the meaning of repeated persuading and creation of threat whereby the perpetrator may indicate that he is going to make private information of the victim public if she does not abide by his ‘demands’ of communicating and keeping contacts with him. This ‘aftermath’ may also include creation of revenge porn contents which is not recognized by Indian laws.

However, we should not overlook the exception clauses of S.354D IPC. When such repeated persuading is done in the course of positive purposes which includes monitoring for the security purposes, for the benefit of the victim etc and when the act is ‘justified’ by an order for doing so from competent authorities, it may not attract criminal liability. This actually means if the monitoring includes surveillance by proper authorities and for proper reasons, it would be not be considered as cyber stalking within the meaning of S.354D.

Stay Safe, be safe.

Please do not violate the copyright of this blog. If you need to use it for your reference, please cite it as Halder Debarati (2020) Decoding cyber stalking law from Indian perspectives . Published in https://wordpress.com/block-editor/post/internetlegalstudies.com on 04-07-2020

[1] Writ Petition (Civil) No. 494 of 2012, (2017) 10 SCC 1

Cyber crimes against women, Editor's column

Covid- 19 : Online harassment of women teachers and students during work from home by Dr.Debarati Halder
image courtesy : Internet

With the spreading of Covid-19 pandemic all over the world including India at a pace faster than the speed of viral videos, all service industries and educational institutes have encountered major shocks. In India the government announced complete lock down on and from 24th March. While many elementary schools closed down immediately sending notices to the parents of the children about precautionary steps to be taken while staying safe at home for children, it was not the same case for undergraduate and postgraduate students. The colleges and universities in India started getting closed partially whereby the classes were stopped on an urgent basis and students were instructed to vacate the university premises including hostels etc in the early second week of March, 2020. Several universities and colleges started taking step to make sure that students must get back to their homes or home places before the major outbreak. By then, China, Italy and Spain reported heavy numbers of positive cases and stakeholders back in India were not able to gauge how fast this may affect us. The schools, colleges and universities still did not allow teachers, faculties and admin staffs to stay and work from home because there were no government circulars in this regard. Soon, it was felt necessary that campuses should close down because Covid 19 was definitely not choosing only children. India started having its own share of positive cases too, even though the percentage was far less than her neighbor China, or countries in Europe.  24th March lock down started in India. Within no time, people started enjoying their ‘sudden vacation’ at many places because many still did not believe that India may attract Covid 19 as rapidly as other countries could. Social media sites like TikTok, YouTube, Facebook, Instagram and Twitter started flooding with memes, funny jokes about quarantine. WhatsApp revived its popularity as a chosen medium to communicate with each other. Within a week or so, several stakeholders could understand this lock down would increase domestic violence problems as thousands of women, who may or may not be financially independent, had to stay quarantined with their abusive partners (husbands) for 24×7 and this encouraged more domestic quarrels, violence and abuses.[1] Several men may have also found them in same situations, but indeed, the percentage of such men may be far more lesser than the female victims.

 In between, the cases of online crimes against women including stalking and sending harassing and threatening mails/messages, creation of fake accounts, revenge porn contents, non-consensual sexual contents, non-consensual image sharing, bullying, trolling, online reputation damage cases also started surfacing. While the State and National commissions for women showed their concern for extending help for  offline domestic abuse cases, online crimes against women did not receive much response even from the social media websites because such web companies also had to follow quarantine rules for their employees : disruptive internet connections also prevented faster approach to the web companies and the police. The later however, may not be expected to look into such issues right now because the police agencies already have the bad reputation of trivialising online crimes and harassments against women.

Given the understanding that lock down may extend beyond 21 days, several schools and universities started turning to online mode of imparting education. Zoom, the video conferencing app,  became the chosen web application for this, closely followed by some other apps including Blackboard coursesites.com. YouTube on the other hand became the favourite platform for students for accessing study materials, reference materials and entertainments during the online classes and beyond the time fixed for online lecture by the teachers.  WhatsApp  however retained its highest popularity among the senior and junior students for connecting with each other during the class hours. But soon it was understood that no platform is free from abuses. High school students  have taken it as a regular habit to make memes about their own classmates, especially female classmates, bully and harass them publicly within the groups; some teens even have gone to the extent of creating fake accounts  of their female class mates on Instagram because they have felt somehow they may not have the desired attention from their classmates while they are online. Female teachers are no exception: several of them may have to encounter bullying from students in groups which were basically created by them to convey about online class timings. Several students may have also gone to the extent of capturing screen shots of Zoom and other online classes specifically targeting girl students.

Almost same pattern of privacy infringement cases was reported for online classes for higher education as well. Zoom became worst reviewed platform for conducting online classes as users including women students and faculties reported privacy infringement and cyber security issues all over the world.[2] Reportedly users of Zoom started experiencing cyber flashing (forcefully sending unsolicited pictures of private parts) [3] : they have also experienced strangers penetrated into the zoom meetings only to throw lewd remarks to participants especially women.[4] Several Indian faculties and undergraduate and postgraduate students may have reported similar kinds of harassments including group bullying, trolling and disruptive communications which may break the  class lecture related communications.

What I see as a graver issue of privacy infringement is clicking screen shots of women faculties and students in name of record keeping. I have noticed that such screen capturing may happen specially at times when the female participant may switch on her camera and her facial image becomes visible. In India, the law is silent in this regard as such capturing of screen shots do not fall under the category of voyeurism or privacy violation as addressed under Ss. 354C of the Indian Penal Code and 66 E of the Information Technology Act, both addressing voyeurism (the former addressing voyeurism for women and the later, for all irrespective gender). It is however understood that when a participant (irrespective of gender and age) is instructed and invited to join a web meeting or online lecture series, he/she may have impliedly given a consent for being recorded.  For children however, questions of such implied consents may never arise because legally, children may not be eligible to give consent. In that case, it becomes a clear-cut case of privacy infringement. But it may become a public wrong only when such picture is used for sexual gratification including self-sexual gratification. But how this is going to be proved unless the device is going to be put under surveillance? Unless some one finds out that such images have been used for sexual gratification, the Information Technology Act and the data protection provisions, including EU General Data Protection Regulations which has guided the framing of Indian Data Protection Bill, 2019, may not offer much help even if the victims are children.[5]

What about adult women then? Unlike children, it would be presumed that they may  participate the online meetings, classes, discussions etc with consent and such consent may imply that their presence may be recorded without telling them at what time they may be recorded while they are online. It is expected that they would be in proper attire so that even if their screen presence is captured, it would not be offensive. But here also, we come back to the same question: who guarantees that  such images would not be captured by anyone else who may be a participant, but not authorised to record the presence of participants? How will the woman know such image (even if captured by the authorised person) may not be used for unethical purposes including sexual gratification purposes? The law may not have any answer in this case also. On the contrary, the woman concerned may have to face more harassment for raising such issues because Sexual harassment of women at workplace (prevention, prohibition and redressal Act), 2013 may not be always applicable in such cases due to lack of understanding of the nature of the grievances and also due  infrastructural issues. Indeed, the claims of the woman may be washed away very easily by defending the situation on the basis of ‘technical and technological misunderstanding’. What we should not forget is, during lock down, quarantine and work from home period, there may be no guarantee that the smart phone or the tablet or the device may not be used only by the original handler : to kill the boredom, family members may access each other’s phones  and may use it for playing prank as well.

         However, not everything is as bad as we are apprehending! I have noticed several teachers and education management groups are turning their Whatsapp groups to ‘admin only’ mode where other group members may not be able to send messages. Indeed, this is a better way to prevent online harassment of women on WhatsApp groups. But the meeting/conferencing/ teaching platform apps are not yet ready to prevent privacy infringement issues.. The online platforms which had remained as secondary platforms, may not be expected to create robust security policies within a day or two. Neither the government and private stakeholders may do that. This will then create another toothless paper tiger which will be more harmful to individuals, especially women and girls. We need to maintain digital safe distancing for our own protection now. We should work collectively towards maintaining internet hygiene for us, our women and girls during the pandemic. We must understand that even when scientists and health professionals may declare Covid 19  as not so harmless, the pandemic of   online harassment of women and girls may not recede. Such contents may surface again and again to remind us what could have been prevented by our simple diligence may never be removed even if the entire web world is disinfected.

We can no longer say “Stay home, stay safe” because as the government decisions suggest, universities and colleges may soon reopen phase by phase. The news of reopening business establishments brought cheers in the minds of people despite the fear of community transmission of the disease. But the reopening of the institutions may further escalate the victimisation of female faculties and teachers who may have been targeted by the online perpetrators. Such victims may even fear for loss of  their job if the nature of victimisation includes creation of fake profiles and the same carries the names of the institutions.   We must understand  that such victims must be supported against further victimisation including possible job loss as they may not even know what had been their responsibility for attracting such sorts of victimisation.  It has become mandatory now to maintain internet hygiene and safe digital distance from possible perpetrators  for the sake of us, the  entire human society!

Please note: please do not violate the copyright of this blog. If you need to cite it/use it for your work, please cite the same as Halder Debarati (2020). “Covid- 19 : Online harassment of women teachers and students during work from home.” Published on 10-06-2020 in  https://wordpress.com/block-editor/post/internetlegalstudies.com

[1] See DebRoy.L.(2020). Domestic Violence Cases Across India Swell Since Coronavirus Lockdown. Published in  https://www.outlookindia.com/website/story/india-news-rise-in-domestic-violence-across-all-strata-of-society-in-the-coronavirus-lockdown-period/350249 on April 7, 2020. Retrieved on 07.04.2020

[2] See Drew Harwell (2020). Thousands of Zoom video calls left exposed on open web. Published in https://www.washingtonpost.com/technology/2020/04/03/thousands-zoom-video-calls-left-exposed-open-web/?fbclid=IwAR1M3yRTYKqUuDJhP0rZLz_z8yDcwrZ5CgQN2yzlsgGA2awhPIEOF31CQlA&utm_campaign=wp_main&utm_medium=social&utm_source=facebook on April 3.2020. Retrieved on 07-04-2020

[3]See Zoe Betty (2019) WHY THE UK NEEDS TO TAKE CYBER-FLASHING SERIOUSLY. Published in https://www.thetimes.co.uk/magazine/style/why-the-uk-needs-to-take-cyber-flashing-seriously-73c0r02f9 on 08-12-2019. Retrieved on 04.04.2020

[4] See Farrer Martin (2020). Singapore bans teachers using Zoom after hackers post obscene images on screens. Published in  https://www.theguardian.com/world/2020/apr/11/singapore-bans-teachers-using-zoom-after-hackers-post-obscene-images-on-screens on April 11,2020. Retrieved on 11-04-2020

[5] See Halder, D. (2018). Child Sexual Abuse and Protection Laws in India. NewDelhi: SAGE Publications. ISBN: 9789352806843

cyber crime against women, Editor's column

Human Rights on cyber space during the challenging time by Dr.Debarati Halder
Picture Courtesy : Internet

Dr.Debarati Halder

As the entire world went under lock down, we saw a huge surge of online activities since the first week of March, 2020: several organizations changed their work policy to accommodate work from home policy through cyber space. Schools turned to virtual classes. Universities and colleges sought for conducting webinars, online essay competitions, quiz competitions etc to engage the students. Higher education system also opted for online pedagogy which included online thesis submission, evaluation of the same, online viva voce for Ph.D  and Master’s degree evaluation, conducting online sessions on different degree courses, and so on. Resultant, there was a tremendous growth of demand of online meeting platforms which were considered as least essential during normal times. It is but obvious that such platforms started failing participants especially in regard to privacy issues. The WHO guidelines made everyone to rely on online banking, online e-commerce and related transactions and this gave a golden opportunity to the fraudsters to loot people who had to suddenly adapt this digital life culture without properly knowing about digital hygiene, cyber safety issues etc.  the government on the other hand insisted on uploading health apps which would give a clear way for mapping and surveilling health of users and also let the user know about the health data (even though in a very minimum scale) of other users residing in near vicinity.

Parents, schools, universities and colleges, administrators,  police and the courts have remained busy in ensuring that the dangerous pandemic does not engulf the entire society, the homeless and jobless migratory laborers reach their home place (amidst much chaos) and hospitals and health clinics mandatorily open their doors to patients who may be Covid positive. But no law, government orders or policies may control the minds of people and adolescent children who are either up to take revenge in a sophisticated and ‘smart way’, or to sexually gratify themselves or may have adolescent inquisitiveness about sexual issues. It is not only the Bois Locker room that attracts my attention here: millions of issues of online violence of women and girls have been surfacing now.

I take this opportunity to discuss here what are the women’s rights that had been codified by international instruments including the Universal Declaration of Human Rights (UDHR), International Covenants on civil and political rights, socio-cultural -economic rights , Convention on elimination of all sorts of discriminations against women (CEDAW), EU Convention on Cyber Crimes etc. Summing up the rights created/guaranteed /expanded, the following Rights may be considered for understanding how these are supported/violated on the cyber space:

  1. Right to lead a dignified life : This right has been considered as a prime rights as an independent right as well as within the broader meaning of right to life. Right to dignified life may essentially imply that no woman should be considered as a mere sexual object : she should not be subjected to inhuman treatment at home, at workplace or at cyber space. The labour market should not treat her as mere body for sexual enjoyment. She should not be subjected to flesh trade under any circumstances and the workplace should ensure her right to dignified life irrespective of her work profile.

But is this right being upheld on cyber space? several researchers and practitioners including myself had researched upon several patterns of online harassment of women and this may include gender bullying, trolling, doxing,  online flesh trade, unauthorised access to device, data, profiles etc, cyber stalking, creation of fake avatars for wide defamation, non-consensual image capturing and sharing, voyeurism, revenge porn, creating and sharing obscene contents targeting women and girls etc.[1]  Be it gender bullying, trolling, doxing or cyber stalking, or creating fake avatar or gratifying revenge taking mentality or sharing non-consensual images, it may be seen that women are denied a right to lead dignified life on cyber space. consider the recent case of one TikTok user who had been charged for creating videos showcasing physical assaults, sexual assaults to women and allegedly instigating for physical violence targeting women.[2] Neither Facebook, nor Twitter, nor Instagram, nor YouTube, nor TikTok have taken any measure to control such showcasing of violence and harassment of women. TikTok is flooding with thousands of videos showcasing harassment of women: some show women being beaten, some show women being touched inappropriately, some also show women in indecent manner especially when it come to sharing non-consensual images at public functions, public places etc. YouTube however leads in such cases if I talk about “funny videos” : there are ‘funny wedding falls”, “funny crying brides” “funny garland exchange scenes” to vigorous trolling of women who may show case their culture, homes, cooking skills etc. Several women have also reported cyber stalking by their male colleagues and supervisors at workplace as well. As a cybercrime victim counsellor, I have received hundreds of cases where women have been victimised by way of creating fake avatars, majority of which are of the nature of revenge porn. The laws created to safeguard the right to lead a dignified life for women have also failed them several times: during this lockdown, police may not be able to assist women who may report bullying, doxing or trolling or creation of revenge porn or sextortion etc unless it is attracting a bigger interest like that of Bois locker room case. Several women had been turned down by the police by making them understand that these are trivial offences and the police may not be able to assist them in spite of the fact that such offences may be considered as cognizable.

  • 2.Right against discrimination on the basis of gender, color, creed, race etc: This is considered as a prime right under CEDAW. But women have been vigorously targeted defying this very right. Consider the case of Sara Baartman, who had been an exhibit on the topic of racial and gender discrimination for over two hundred years now: She was bought by white businessmen from South Africa  to earn money over showcasing her body shape which was am matter of huge sexual curiosity in Europe during  19th and 20th Century. She died in 1815. But the so called civilized society did not leave Baartman even after her death: her mortal remains and skeleton were kept in Museum of Man in Paris which further attracted visitors to see her mortal remains including her genitalia. It was only in 2002 that the civilized society decided to finally put Sara to rest,[3] but not before making her as a symbol of racial porn icon which still floats on internet. The same lust for black, Latino, Asian, women still can be seen on porn sites which earn huge revenue from the consumers of armature porn,  racial porn, black porn etc.

Leaving aside the sexual gratification part, internet and cyber space also host loads of contents and pages which are discriminatory in nature. Almost all the web companies host (knowing or unknowingly) several pages where women from different age group, of different color, belonging to different race, caste or creed and nationality and socio-economic background are constantly bullied, virtually dissected and routinely harassed. Several of such women may not even know that they are being harassed on the cyber space by way of creation of contents which may be in the nature of bullying, trolling, creating racially/sexually abusing still/video contents etc.

  • 3.Right to livelihood: This is the most interesting right that needs to be discussed in this context. Internet has provided different ways of livelihood to women: be it earning money by showcasing different types of skills on YouTube, or by promoting particular brand/s of cosmetics or spices or clothes or electronic items etc, or by being a blogger, content writer etc, women did get a platform to earn money. This however also includes acting on porn platforms. Interestingly, the laws existing in different jurisdictions (barring certain countries), do not hold women criminally responsible if they participate in creating sexually explicit contents which may fulfill certain legal conditions: for example, the said content is created through proper legal mechanism with full consent of the actor, the content creator/host has certified that the same is strictly meant for adult entertainment purposes and has explicitly displayed age restriction in the opening page of the content, has not used any child for creating such contents and has taken due diligence to restrict sharing of such contents to children .  But if seen from the perspectives of privacy infringement and related shaming/doxing/defamation perspectives, it may be seen that users of internet may go beyond the aims of tech companies (who would promote the platforms for using it for earning livelihood), to block right to livelihood for women. Thousands of women may have lost their jobs, or job prospects because of revenge porn or nonconsensual porn contents that may have shared knowingly to have unethical gain by perpetrators. The Intellectual property rights of women who may have tried to earn a living by showcasing their skills on the internet, have never been recognized or may have been violated grossly. Again, profiles of some women may also have become a regular source of income for the perpetrators who may illegally use such profiles to dupe others.
  • 4.Right to legal aid and fair hearing: Every individual has an inherent right to access legal help, free legal aid and fair hearing. This applies to perpetrators and victims, men, women, children and people belonging 3rd gender as well. If we speak from the perspective of cyber crime victims, it may be seen that women victims may not always be given proper hearing for different types of online harassment cases. As mentioned above, several types of harassment may be seen as trivial offences. Many of the harassment are neither recognized by laws as criminal offences as well. Even though several international stakeholders including UNICEF has also acknowledged the patterns of online criminal activities like revenge porn, doxing etc, the same could not be added as criminal offences by several Governments for reasons known best to them. This has definitely hampered creation of proper legal and criminal justice infrastructure where the police had remained untrained for dealing with such sorts of victimizations.  There are however, several attempts to address certain types of online harassment by pulling legal understandings from different provisions which are not necessarily meant to address the said harassment : for example, the concept of bullying and trolling have been addressed by expanding the scope of defamation and criminal intimidation  laws, issue of non-consensual image sharing have been largely covered by voyeurism and copyright laws and the stakeholders have tried to cover revenge porn under the voyeurism, creation/sharing of sexually explicit contents etc. None of these could actually yield fruitful results all over the world. Resultant, we get to see less reporting of the online criminal activities targeting women and even lesser conviction rates.
  • 5.Right to privacy: This may be said to be the basis of all other rights discussed above especially from the perspective of rights on cyber space. The more the digital communication technology progressed, the human society had seen more privacy infringements. The web companies at the beginning had put more emphasis on the negligence of the users/contributors to protect their privacy while the former argued that their platforms provide for privacy and safety setups that are user friendly. But soon it was seen that neither the data bank of the hospitals, the government departments, banks, nor that of the web companies are safe. Women including women users of cyber space are sandwiched between the privacy infringing individual perpetrators, and also the web companies.   Privacy on the cyber space has become a myth now. With the growing rate of capturing nonconsensual images and sharing the same on online platforms without permission, it is evident that the concept of privacy on cyber space has expanded its scope to cover the issue of privacy on physical space as well.

But everything is not always dark. NGOs working on awareness building could reach a milestone where women have started understanding that such online harassments actually violate their basic rights. The more the victims would use the reporting mechanism, the more the courts and the law makers would understand the pressing need of making laws and ensuring proper implementation of the same. It is expected that such awareness may lead to larger human rights movements.

Please note: Please do not violate the copyright of this write up. If you need to cite it, please cite it as Halder Debarati(2020). “Human Rights on cyber space during the challenging time”. Published in https://wordpress.com/block-editor/post/internetlegalstudies.com/576 on 30th May, 2020

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

New Delhi: SAGE Publications. ISBN: 9789385985775

[2] https://www.indiatvnews.com/entertainment/news/tiktok-star-faisal-shaikh-mr-faisu-trouble-vilolence-against-women-complaint-filed-latest-video-619610

[3] https://www.bbc.com/news/magazine-35240987