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The internet is a different world altogether, a world that keeps changing and updating faster than change itself. This world of technology is causing a transformation on the society by driving growth, facilitating connection of people and providing to the world, a medium of communication and cooperation. It is evident as to why the internet has had such a dramatic growth over the past decade.
This article would discuss the different pitfalls of the cyber space, the impact of technology on the youth of the United Kingdom, different preventive mechanisms prescribed by laws and policy guidelines of the UK to address cyber bullying. Cyberspace is a virtual medium on the internet having the major function of forming a network that would facilitate the process of communication. It is the transforming business that keeps the growth spurt very efficient and effective in its own manner. It has helped economies opening up their markets, reduce the optimum cost of investment in commerce and collaterally even enabling people to benefit out of their business while they are on the move. Cyber space has been a very promotional platform of fresh thoughts, innovative business models, increasing input of ideas and an enormous source of growth. With all these amazing characteristics to cyber space, it also proves to be the devil’s workshop. Unfortunately, though the UK economy strives to help increase the efficiency of its people using the cyber space, there are risks. An increasing number of adversaries are hunting for opportunities to use the cyberspace as a platform to steal, destroy or compromise very critical data on the internet. As a step to avoid these threats, United Kingdom Government laid down plans for measures to keep the users of UK safe from cyber-bullying.
CYBER BULLYING – A CRIME?
Cybercrimes contain all criminal offences that are committed with the aid of communication devices. This can be the Internet, the telephone line and the mobile network and so on. Cyberbullying, on the other hand is the use of electronic or online communications by someone to threaten, intimidate, harass, defame or even maliciously contact another person without their consent. Both types of bullying and cyberbullying may happen simultaneously but the advantage with cyberbullying is that it leaves a record as proof of the activity which would prove to be an evidence in future.There is no legal definition of cyberbullying in the UK law but there are other laws within the meaning of which cyberbullying and harassment on social media or other platforms be brought under. Moreover, there is no specific anti-cyberbullying legislation in UK. Although, since 1998, the law of the UK has mandated that state schools are bound by law to have anti-bullying policies in their place. Independent schools, too have laid down requirements of such nature, since 2003. And despite these unclear applications, cyberbullying in itself is not an offence in the UK. The provisions of the Protection from Harassment Act (PHA), however, prohibits individuals from pursuing a course of conduct that either amounts to harassment, or that they should know amounts to harassment. And as per the provisions of Sec.8 of the PHA, every individual has a right to be free from harassment and any one pursuing a course of conduct that amounts to harassment in any form within the meaning of Sec.1, would amount to an offence. It is within the meaning of this section that the offence of cyberbullying is construed under. When the perpetrator uses a technology or social media as a medium od conduct to harass, stalk or abuse another person, it is said to be harassment within the provisions of Sec.8.
The Teaching and Learning International Survey carried out every 5 years, depicted an increase in bullying in the schools of England. These acts indicated to be driven by students ranging from online bullying, trolling to harassment and other problems on social media. The survey further revealed that 14% of students faced issues on the basis of hurtful material posted by other students compared to an international average of 2%. Further, around 27% pupils received unwanted contact online, every week in the mode of cyber bullying as compared to an international average of 3%.The lack of regulation with regard to this aspect of cyber space was cited as the reason for such happenings, leaving the schools with the responsibility of finding their own response. It has also been observed that the misuse of social media, hinders the learning process apart from proving to be an emotional harm and hence suggested that it be addressed at a wider level.Cybersmile Foundation, a help centre to increase awarness, had performed a research to find out the kind of misuse happening in cyberspace of UK. Their statistics show the following data:
29.6% of respondents aged 25-34 have undergone homophobic abuse online.
31.5% of respondents aged 18-24 have seen bullying on the basis of religion, online.
40.6% of respondents between the age group 18-24 had seen racist abuse online.
55.1% of all respondents have faced abuse on the social media: Facebook.
Kinds of cyberbullying :
Cyberbullying is a form of bullying, but the term has a wide scope to contain within itself different forms of cyberbullying that people face. Some common methods of cyberbullying to which people fall a prey could be categorised as follows:
When a person is subjected to abusive messages or efforts to contact them or a group of people via an online portal, it is online harassment extended within the meaning of Sec.2 of Protection from Harassment Act, 1997.
When a person is called out, labelled or shamed for any of their acts in the past, by the nature of their being, by the way they dress or by virtue of their sex, race or any other characteristic amounts to online shaming.
Keeping someone away from certain activities online like groups, games etc.
Other activities falling within the meaning of cyberbullying are trolling someone on social media or other chat rooms, building up some sites or pages that corners a particular person, encouraging someone to self-harm by way of trolling or spreading hate against the person or sometimes even taking part in an abusive poll.
The act of pressurising young children to take part in sending images or content that are sexual would also amount to cyberbullying.
THE LAWS IN UK :
OECD’s report on the Life in Digital Era, reflected an alarming information on the problems of cyber-bullying present in the schools of England. While reflecting on the way of life in the digital age in UK, the OECD report stated that the level of inequality of uses is relatively high, which means that not everyone makes full use of the breadth of possible online activities. In addition, the risks for children are substantial, with 37% of extreme Internet users among 15-year-olds, the second highest share in the OECD.
This report of the OECD depicted the fact that people are prone to implicit risk of being exposed to cyber-bullying on the digital platform, especially children. The governments in UK have repeated the general principle that what is illegal offline, is illegal online. The Government, Parliament and The Judiciary of UK have invested a lot of thought and time in carefully keeping the world of digital network a safe place.
A New Code :
According to Sec.103 of the Digital Economy Act, 2017 , the Secretary of the State is required to issue guidance to the concerned social media providers with regard to the kind of action which is appropriate to be taken against:
Insulting behaviour, or
Behaviour likely to intimate or humiliate an individual.
The Conservative Government added this to the Digital Economy Bill during its final stages.
A NEED FOR SPECIFIC LAW?
Some of the laws used to prosecute online harassment predate the widespread use of the internet and social media. In recent past, a number of parliamentary committees have investigated this question, and come to different conclusions. The House of Lords Communications Committee published a report on Social media and criminal offences in 2014, which concluded that although much of the relevant law predated social media, it was still “generally appropriate”:
“Our overall conclusion is that the criminal law in this area, almost entirely enacted before the invention of social media, is generally appropriate for the prosecution of offences committed using the social media.”
But owing to the changing conditions and rapid increase in technology along with threats, the government has by virtue of the Computer Misuse Legislation and other provisions, have set up a wing under the National Crime Agency which focus on critical cyber incidents to take action on the criminals for their activities. Even other departments of the country such as UK Police, Europol, FBI and The US Secret Service, put in their actions with regards to cybercrimes.
Despite all actions being taken owing to past incidents, cyber bullying is still a very prevalent activity across the world on social media. Rape threats, revenge porn, trolling, harassment and other activities still continue to terror the lives of people despite the country striving to keep its online platform a safe space. With growing advancements and infrastructural developments in technology, it is the need of the hour to ensure that the acts of people are kept on a leash to prevent people from adverse conditions and to ensure a safe cyber space for everyone.
Reshmitha G. Sarma is a student of Final year – B.Com., LLB (hons.), SASTRA Deemed University. She can be reached @ email@example.com
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, 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.
6 people in Massachusetts who had been former employees of EBay Inc company, have been charged with conspiring to commit cyber stalking and tamper with witnesses as they started threatening a couple, who runs a newsletter on e-commerce by sending anonymous emails, delivering stuffs like live cockroaches, bloody masks etc
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. 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. Reportedly users of Zoom started experiencing cyber flashing (forcefully sending unsolicited pictures of private parts)  : they have also experienced strangers penetrated into the zoom meetings only to throw lewd remarks to participants especially women. 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.
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