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:
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. 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. 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, 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.
Since 16th March, 2020 most of the countries started planning for partial lockdown for preventing the fast spreading of Covid -19. By 22nd March, most of the countries in Europe, Asia, Africa and in the USA , Australia etc called for total lock down. India was no exception. Almost all universities, colleges, schools and other workplaces faced the impact of lockdown. People including adults and children became extremely confused as there was no specific indication as when worldwide lock down would be lifted. Europe saw a rapid increase of the Covid-positive patients. USA joined soon. Many Asian countries including India could not afford to let people do their business as usual. Indian government called for a lockdown period for 15 days first. But before the finishing the of 2 weeks period, the government had to reconsider and extended the lockdown period till 3rd May, 2020. However, several State governments in India are considering for further extension because the numbers of Covid 19 patients are increasing. Schools and universities decided to conduct online classes with huge preference to Zoom. Adults and children shifted more to online entertainment because television industry came to a standstill due to lockdown as well. However, the tele industry did consider sharing old versions of the daily soaps.
While people went in lockdown, many took to internet to entertain each other : social media sites including Facebook, Instagram, YouTube, TikTok, and digital and internet communication apps like WhatsApp etc soon saw a flood of user generated contents which are now hugely consumed by others. Not all of these user generated contents are actually for entertainment for all. There were several contents which were and are still being made specifically to target and harass women and girls. The first platform that started getting contents for gender harassment, especially harassment to women was Zoom app which was being used by most of the educational institutes and workplaces for holding online meetings, classes, webinars etc. In several cases it was seen that Zoom meetings were unauthorizedly accessed by unwanted persons who started posting harassing, sexually explicit comments, disrupted meetings with exposing private parts, showing masturbation etc. Soon Zoom authorities came with a pubic declaration that cyber security and safety measures of the platform were not strong enough to tackle such sudden huge use. Who could actually be held responsible for such unauthorized access then? The web platform implied that organizers of the zoom meetings and classes must take precautionary measures. But were we really ready and aware and to take such precautionary measures? Probably no. The Zoom app mismanagement actually led to four kinds online crimes :
Unauthorized access to the meetings
Data privacy infringement
Creation of sexually explicit contents
Making gestures etc to harm the modesty of women
While this is just one kind of offence, online harassment of women did not remain restricted to this only. Given the fact that during lock-down most of the stakeholders of criminal justice machinery including the police and courts and the web companies are working with limited man power and infrastructure facilities, perpetrators have taken this time to escalate harassment. The communication apps like Whatsapp, Facebook messenger etc are now flooding with online bullying. This is seen especially in the school and college groups. These platforms have become chosen platforms for throwing harsh, insulting, intimidating comments towards classmates, batch-mates and also towards the teachers, especially female teachers, colleagues and users. I myself had been targeted by some bullies and stalkers on Facebook messenger and Whats App as well.
Apart from this, the other patterns of online harassment which has raised to a maximum height during the Covid -19 lockdown stage, that came in my observation is creation of impersonating profiles on social media. We must however appreciate the fact that impersonation by using unique identities have been considered as an offence Under S.66C of the Information Technology Act, 2000(amended in 2008), which speaks about punishment for identity theft and says “whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique identification feature of any other person, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lakh”
Several of such impersonating profiles are of the nature of revenge porn. some may also fall in the category of sexually explicit and voyeuristic contents , but may not have the mens rea as that of revenge porn ( the element of revenge taking mentality is not present), especially since these images may have been captured in the public places or may have been collected from other profiles etc. TikTok and YouTube are of no exception in this matter. People are restricted in their homes; they have taken to TikTok content creations which may include uploading contents including women doing different activities, that may have been captured in public places. Consider videos showcasing women cooking and sweating, eating at weddings, resting at home by lying down or in a leisure posture, women and girls walking on the roads, at college/school campuses, working in a working place etc: TikTok content creators may take such audio visual images, pickup any specific posture of women that may be consumed more by viewers and may upload such clippings with texts (sometimes sexually explicit) and background sounds that may be available on Tiktok or may be created by the users . One must not forget that TikTok was questioned earlier on their lack of due diligence for not taking down abusive contents earlier by Supreme court of India: Google Play services removed TikTok from their platform as well. But soon TikTok cleared all legal hassles and came back in android services again.  No doubt, the App is back again for being (mis)used to harm the modesty of women and infringing the privacy of women and children during quarantine time when the victims may feel more restrained to reach out to criminal justice machinery and the websites.
But we should not think that this is an exclusive problem of India only. I did get to hear about sudden growth of online harassment targeting women from different regions of the world: be it USA, Australia, South Africa, UK , Ireland or even our neighbouring countries like Nepal, Bangladesh or SriLanka .women, including working women, volunteers who may have come to different Asian countries from the US etc, health workers, law students and professionals, every where women are facing similar problems to reach out to criminal justice system to report crimes. Even if they may reach out, the police and the courts and the websites as well are not in a position to offer a quick help.
Several stakeholders may provide several suggestions to stay safe online and maintain the hygiene of the devices to save ourselves, especially women from rising level of cyber crimes during lock down period. But are we concerned about the mental health conditions and impact of victimisation of online harassment on women during lock down? Several women may be living with abusive partners, husbands who may have cheated on them, or even other women family members who may have been victimised online and who may in order to share the trauma, disclosed the victimisation to the former. Unlike trauma that may generate from physical harassments, online harassments during lock down may bring unique traumatising effects. Devices handled by women may be detained and they may not be allowed to contact anyone in case the harasser spreads his vicious net to reach out to husband or other male members of the family. Victim women may even go to the extent of self-harming too. They may even try to destroy the evidences of online harassment by deleting the contents from their phones if the harassment is in the nature of bullying or threatening message etc. In case of revenge porn content or in the case of non-consensual image sharing, victims may even try to block the profiles without saving the evidences. In several other cases, they may take up irrational coping mechanism like counter bullying or contacting the perpetrator asking him to take down the contents. they may even try to contact amateur hackers, which may prove extremely dangerous for them. Emotionally such women victims may become completely withdrawn and may even show aggressiveness as well.
What could be done in such situations as lock down in India has been extended for the third time. My opinion in this regard is as follows:
The police control rooms in each district must open a dedicated 24-hour service unit specially equipped with infrastructure and properly trained police personnel who may handle such digital harassment cases and evidences to receive complaints from the victims, especially women victims of online harassment.
Some types of online offences have been recognised by our domestic laws; some however have not received any focussed laws. But that does not mean that only offences that may contain complaints towards creating porn contents, threatening and defamatory contents etc, may be given priority and FIR may be registered for such offences which may fall within the meaning of cognizable offences. The police must entertain all complaints and must guide the victims in all cases.
Police may rope in NGOs, cyber crime and cyber law experts to create an expert committee in every district and metropolitan area to provide immediate counselling to the victim as how to save the evidences of online harassments and how to share the same with the police for the purpose of investigation.
Victims may get an immediate feel of relief when they are told that their complaints are registered. The police therefore must not neglect to look into each type of compliant. Such gestures from the police may prevent the women victims from committing self harm or from taking any irrational steps to saver their reputation and that of their families.
Courts and prosecutors must also consider extending their support whereby judicial magistrates may join such endeavours to support the victims. We should remember that it is only adults, but children may also be involved as victims as well as perpetrators. Unless the courts are extending supports through electronic mediums, it would become extremely difficult to win the trust of victims as well as general public for Criminal Justice machinery at this time of lock down.
Last but not the least, we must not forget that in cases of online harassment of women, web companies are the foremost liable sectors. The Due diligence clause must not be suspended due to lock down. The web companies must consider each and every take down request and reports on objectionable contents and must adhere to Indian legal understanding for restricting the access to such contents.
Indeed, the Lockdown period is a testing time for the entire human civilisation. But if we do not restrict unethical and illegal usage of information technology, the impact of online harassment may be more traumatising than the Covid-19 experience.
Stay safe, stay strong and do not misuse the Information and digital communication technology.
Cyber Crimes against women may be of different forms: it may be sexual, whereby the perpetrator may create non consensual image sharing for sexual gratification (which may include rape or sexual assault video sharing), revenge porn contents and may share the same through social media, internet and digital communication technology etc. Further, the perpetrator may also take to cyber platform for carrying on stalking activities, communicating rape and death threats, impersonation, unauthorized access and accessing private contents for further impersonation, defamation of the victim, bullying, including sexual bullying, trolling etc. Several of such crimes against women may have been recognized by the Information Technology Act, 2000(amended in 2008), Indian Penal Code (especially provisions inserted through Criminal Law amendment Act, 2013), Indecent Representation of women Prohibition Act, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 etc and Protection of children from sexual offences Act (especially when the cyber offences are committed against children) etc. (See for more in Halder D., & Jaishankar, K (2016.) Cyber crimes against women in India.New Delhi: SAGE Publications. ISBN: 9789385985775. and also Halder, D. (2018). Child Sexual Abuse and Protection Laws in India. NewDelhi: SAGE Publications. ISBN: 9789352806843.)
Some of such offences which may be recognized by the Indian Penal Code or any other offences and which may necessarily fall under sexual offences against women (specially under Ss. 376, 354 , 354 A.B.C.D) and under S.509 IPC which prescribes punishment for harming the modesty of women etc, may necessarily be considered as cognizable offences where the officer in Charge of the police station MUST register FIR and initiate investigation procedure. However, on several occasions, the police may refuse to register the FIR, may refuse to even hear the victim or on much instigation, my simply insert the submissions in the General Diary or station diary and may never register the FIR.
A plain reading of S.154 of the Cr.P.C and S.172 Cr.P.C may provide answer to all the above mentioned issues. The discussions in this regard are carried forward in the YouTube link below.
On behalf of Centre for Cyber Victim Counselling (www.cybervictims.org), we urge all our readers to stay safe and not to share any fake news. Also, please do not use online platforms to generate any harassing content, revenge porn materials, non consensual porn materials bullying, trolling contents etc to harass women and girls. Stay safe. Let others feel safe...
Over the years we have witnessed gradual development of internet and digital communication technology and rapid over flow of users of the same who may or may not know the digital socio-legal culture. This internet and digital communication technology that I have mentioned here, primary includes WhatsApp. When this platform started becoming popular in India since 2014-15 onwards, it also became popular platform to form opinions, disseminate news including fake news, harassing remarks for group members and other individuals who may not be group members but may be known to one or other group members. Soon Indian users could get connected with users from other jurisdictions through WhatsApp and the groups formed on the basis of WhatsApp became better connected than networks of people connected on Offline. Consider groups like law teachers’ groups, or groups formed on the basis of common interest like terrace gardeners, animal lovers, theological groups, chartered public vehicle commuters’ groups, health service providers groups etc.: members did not necessarily stay in the same locality, did not work in the same organization or may not speak the same vernacular language. But what bonded them was their common interest. This was some thing more popular than Facebook which was ruling internet during 2012-18 era. Slowly WhatsApp became more popular with specific service people like the IPS or IAS association (non official groups) and judicial officers’ groups. The popularity grew because individuals could actually control who would view their opinion and images that may have been ‘consensually’ shared by the members. It must not be however forgotten that WhatsApp has also notoriously become a platform for several online crimes including crimes against State, against individuals, cybercrimes against women and children, economic crimes, cyber terrorism etc.
Understanding stronger confidentiality setup of WhatsApp, soon workplaces and schools also started their own WhatsApp groups. Presently almost all organizations, schools and educational institutes have their respective division /unit/team-based WhatsApp groups. Some of these groups are moderated and monitored by senior members of the organization or the HR department member or the creator of the group or teachers (in case they are the creators/members of the said groups). The bright side of the story is, people can get the necessary information in their hand phones (which may include WhatsApp services) and they may not necessarily look into their mails unless it is for immediate verification necessity. Mails now have become more official and WhatsApp groups are more personal. The negative aspect is quick circulation of offensive, harassing and unwanted contents.
Here comes the question of liabilities of three groups especially regarding creation, publication and circulation of offensive and unwanted contents. These liabilities may vary according to the age of the creators/publishers/circulators and position of the creators/publishers/circulators. ‘Position’ here necessarily means the website who is hosting the communication, the admin who is moderating or who may have created the group and general members who may be the creators/publishers/circulators of the content. This three groups are as follows:
Let me first start with the website. WhatsApp as the web platform of the communications or Facebook as the parent company facilitating WhatsApp, may seek their excuse from any legal tangle in case of creation, circulation, publication of any offensive contents by virtue of Due Diligence clause which they exercise in almost cases of creation/circulation/publication of contents which are offensive. For this purpose, we need to understand the Indian version of Due Diligence law which can be found in S.79 of the Information Technology Act, 2000(amended in2008); the first two subclauses address the points which may be used by the websites. To summaries:
Websites or intermediaries who provide services including web hosting services, search engines etc (as per S.(w) of the Information technology Act, 2000(amended in 2008), may not be liable for any third-party activities carried out on their web platforms if such activity (which includes creation/publication/circulation etc. of any offensive, harassing etc. contents) is not initiated by the website, the website dies not select the receiver of the transmission and the website does not select or modify the information contained in the transmission. The website or the intermediary will also be excused from the third party liability in case the same has practiced due diligence as per the laws, rules and guidance as has been mandated by the Indian government. These Rules are mentioned in Information Technology (Intermediaries guidelines) Rules, 2011, which have further been suggested for amendment. As such, these Rules include the following responsibilities of the intermediary or the web platform:
Publishing of Rules, regulations, privacy policies and user agreements which will clearly make the user understand that posting/transmission of/uploading/modification etc of contents which may be grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever; harm minors in any way; infringes any patent, trademark, copyright or other proprietary rights; violates any law for the time being in force; deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature; impersonates another person; contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource; threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order, or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation. threatens public health or safety; promotion of cigarettes or any other tobacco products or consumption of intoxicant including alcohol and Electronic Nicotine Delivery System (ENDS) & like products that enable nicotine delivery except for the purpose & in the manner and to the extent, as may be approved under the Drugs and Cosmetics Act, 1940 and Rules made thereunder; (k) threatens critical information infrastructure.
Provide all support to the criminal justice machinery to disclose incidences of cyber security, the identity and all other relevant details of the harasser/originator of the offensive content.
Not to host/transmit/publish etc any information which the website management known to be illegal and offensive.
Provide periodic update on the policy of the web company related to users liabilities, rights and duties etc.
Take down reported content within considerable time of maximum 24 hours (as the draft Intermediary Guidelines (Amendment) Rules, 2018 indicates). 
In short, the web companies, intermediaries may not be directly liable for WhatsApp mess-ups that may be done by the individual users.
The second party which may attract the liability for publication/creation/circulation of any offensive content on the platform is the group admin. Now, let us first understand who are called as ‘group admins’: WhatsApp provides certain features especially for group chats and this includes monitoring of the group by designated persons who are known as admins. Admins may not necessarily be the creators of the group. However, the latter may always remain as admin in spite of creation of multiple admins by him/her. Admins may have the power and authority to include and exclude members, block members, restrict the publication of comments and create group policies which may be used to restrict a particular member/s in case of violation of the same. Indian courts have in numbers of occasion, held that group admins may not be held liable for the activities of the members of the group in case the said admin had shown due diligence to restrict publication/circulation/creation of offensive comments. This due diligence is however derived from the understanding of criminal law sanctions mixed with tortuous liabilities. For example, consider the followings:
If the group admin has not been made group admin consensually and he does not know the subject of discussion of the group, he may have a very narrow defence of being misled by other admins/creator who forced him to join them in criminal activities like creation/publication/circulation of offensive contents which violate the existing laws of the Land.
If the group admin himself had not created/circulated any offensive content and had warned any user for not sharing/posting etc any content which is offensive, he may not be made liable for creating/sharing contents which may be offensive under any law if any member had even for some time (when the admin was not expected to watch/monitor the group) had posted/circulated some offensive content. But in such case, if the content falls in the category of child sexual abuse material which may be categorised under S.67B of the Information Technology Act, 2000(amended in 2008) or POCSO Act, the admin may not avail any excuse.
In case the group admin is a child, the question becomes tricky. If the group is specifically made by minors, the police, the prosecution and the court have to see who may have provided the basic assistance in accessing the web platform and the contents (including the offensive contents). Necessarily in such cases, courts may have to use the principles of vicarious liability because a child may not be eligible to own a SIM card unless an adult provides him the same. Here, the basic understandings of contract laws and age of maturity may be applied. Now, let us see the case of the WhatsApp group of students of an elite school in Mumbai where minor students were discussing about child sexual abuse of their own female classmates: parents may be made vicariously liable in such case, which actually did not take place, may be because here the parents of the accused children themselves alerted the school and restricted further violation of rights of those children who were targeted for the sexual fantasy of the adolescent boys. But here one needs to check whether personal information including images of the ‘victim children’ were disseminated unauthorizedly or not, or whether it was restricted only to the use of names. In both cases POCSO Act may be applied (in the latter case , Ss.11 (sexual harassment), 13(use of children for pornographic purposes) and S.14 (punishment for using children for pornographic purposes) of the POCSO Act may be narrowly applied.
However, if the group admin/s knowingly allow creation/circulation /publication of posts which may be offensive in nature, they may not get any excuse from the clutches law specifically made to punish the commitment of such acts like creation/circulation/dissemination of obscene images (S.67), sexually explicit contents (S.67A), voyeurism and sharing non-consensual images (S.66E of the Information Technology Act, 2000(amended in 2008) and S.354C of the Indian Penal Code, defamation (S.499, 500 Indian Penal Code), sharing information which has been restricted as seditious material under S.124A IPC or any other law which may restrict freedom of speech in the line of Article 19(2) of the Constitution of India, all of which may be read together with Ss.107 and 108 of the Indian Penal Code and S.84B of the Information Technology Act, 2000(amended din 2008)( laws related to abetment of offence ).
Coming to the liability of the third group of users of WhatsApp, it may be seen that if a user/user create/publish/circulate any content which is offensive in nature, they may be liable as per the respective legal sanctions. However, the act of forwarding any content has also been considered as within the scope of defamation laws (under S.499/500 IPC ) or in case of online harassment of women and children, within the meaning of different kinds of offences recognised by law including voyeurism, stalking, non-consensual image sharing, indecent representation of women, child sexual abuse, grooming etc.
But the question larks on the issue of machine and artificial intelligence, which may make the admins responsible in case they may not be aware about the usage. For example, if the admin is a new user or not accustomed with the privacy and security features of WhatsApp, he may not be able to restrict certain ‘posts’ which may be published because of the machine intelligence: this may include certain words which the phone may suggest presuming the first few alphabets. He may neither be able to restrict a member which may have been suggested by the computer system of the platform and the device. Further, he might also not be able to remove certain posts which may have surfaced in the group due to resharing or forwarding by other members. Here, the group admin’s liability must be seen exclusively. Websites or intermediaries however would not be liable by virtue of the proviso clause of Rule 3 of the Intermediary Guidelines Rules, 2011 (and also Amended draft version of 2018), which says “……………….the following actions by an intermediary shall not amount to hosting, publishing, editing or storing of any such information as specified in subrule(2): (a) temporary or transient or intermediate storage of information automatically within the computer resource as an intrinsic feature of such computer resource, involving no exercise of any human editorial control, for onward transmission or communication to another computer resource; (b) removal of access to any information, data or communication link by an intermediary after such information, data or communication link comes to the actual knowledge of a person authorised by the intermediary pursuant to any order or direction as per the provisions of the Act.”
As may be understood from the above, WhatsApp group admins therefore may not always claim to be immuned especially when they were aware of the group activities, they had not practiced due diligence from their side and they had published or forwarded offensive contents themselves for the wider circulation of the same.
*Prof(Dr)Debarati Halder, LL.B., M.L., Ph.D(Law)(NLSIU) is the Managing Director (Hon) of Centre for Cyber Victim Counselling (www.cybervictims.org) . She can be reached @firstname.lastname@example.org
 See Halder D., & Jaishankar, K (2016.) Cyber crimes against women in India.
New Delhi: SAGE Publications. ISBN: 9789385985775 for understanding types of cyber crimes against women and laws.
 See Halder, D. (2018). Child Sexual Abuse and Protection Laws in India. New
Delhi: SAGE Publications. ISBN: 9789352806843, Halder D., & Jaishankar K. (2014). Patterns of Sexual Victimization of Children and Women in the Multipurpose Social Networking Sites. In C. Marcum and G. Higgins (Eds.), Social Networking as a Criminal Enterprise (pp. 129-143). Boca Raton, FL, USA: CRC Press, Taylor and Francis Group. ISBN 978-1-466-589797 for more understanding on types of cyber crimes against children.
 See for example, Kurowski, S., (2014). Using a whatsapp vulnerability for profiling individuals. In: Hühnlein, D. & Roßnagel, H. (Hrsg.), Open Identity Summit 2014. Bonn: Gesellschaft für Informatik e.V.. (S. 140-146). Available @ https://dl.gi.de/handle/20.500.12116/2633 Accesed on 21.01.2020
 See for example, Broadhurst, Roderic and Woodford-Smith, Hannah and Maxim, Donald and Sabol, Bianca and Orlando, Stephanie and Chapman-Schmidt, Ben and Alazab, Mamoun, Cyber Terrorism: Research Review: Research Report of the Australian National University Cybercrime Observatory for the Korean Institute of Criminology (June 30, 2017). Available at SSRN: https://ssrn.com/abstract=2984101 or http://dx.doi.org/10.2139/ssrn.2984101 Accessed on 20.01.2020
 By way of Intermediary Guidelines (Amendment) Rules, 2018
 The Intermediary Guidelines (Amendment) Rules, 2018 also mentions that if the intermediary has more than 50 fifty lakh users in India or is in the list of intermediaries specifically notified by the government of India, it shall:
(i) be a company incorporated under the Companies Act, 1956 or the Companies Act,2013;
(ii) have a permanent registered office in India with physical address; and
(iii) Appoint in India, a nodal person of contact and alternate senior designated
functionary, for 24×7 coordination with law enforcement agencies and officers to
ensure compliance to their orders/requisitions made in accordance with provisions
 For understanding this, we need to see S.11 of the Indian Contract Act, which says minors, persons of unsound mind and persons disqualified by law may not be able to enter into any agreement.
 See India Today Webdesk. Schoolboys at posh Mumbai school talk about raping classmates, ‘gang bang’ in horrific WhatsApp chats. Available @https://www.indiatoday.in/india/story/mumbai-ib-school-students-whatsapp-chat-horror-1629343-2019-12-18 . Accessed on 21.01.2020