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.
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.
Selling intimate images of own wife is considered violative of law. SriLankan swimming instructor arrested for allegedly cooercing his Filipina wife to perform sexual activities for uploading the images and then selling them for unethical gain. https://www.pna.gov.ph/articles/1074960
On 14-05-2019 the Supreme Court of India created one more example of broadening the freedom of speech when it ordered for the immediate release of Priaynka Sharma, a BJP activist. Sharma had allegedly posted a meme of Mamta Banerjee which contained morphed picture of Mamata Banerjee on Priayanka Chopra’s image that was taken in Met Gala, 2019. Chopra was heavily trolled for her attire and make-up and several people started created memes with Chopra’s picture. The Supreme Court on an appeal by the brother of Sharma ordered for an immediate release of Sharma (who was arrested by the West Bengal police) emphasizing the fact that she should apologies to Banerjee because it has hurt her. The court also mentioned that freedom of speech cannot be unfettered when it infringes other’s right. As per the news reports, she was however released after 24 hours.
This is not the first time in India that someone got arrested for ‘posting’ images/comments etc on social media which apparently questions/defames/teases political personalities including members of the ruling government party. After the coming into effect of the amended version of Information technology Act, 2000 (amended in 2008), S.66A (which prescribed punishment for offensive, annoying etc. speech) has been over and again used by the police to arrest individuals who had posted comments which apparently questioned/ridiculed/defamed/teased political personalities. Before S.66A could have been properly interpreted, the Supreme Court felt that the provision was being grossly misused for the ill drafting and in Shreya Singhal vs Union of India, the apex court ruled it unconstitutional. In the recent Mamata Banerjee meme case, Supreme court stuck to its earlier understanding that no arbitrary arrest may be made for posting contents on social media targeting particular political personalities (including those in the ruling government parties) because this hampers freedom of speech. Let me also state here that Banerjee has sister -politician who had been ‘victims’ of memes : she is none other than German chancellor Angela Merkel whose latest memes appeared with Narendra Modi when the BJP official website got hacked. There is rarely any information available whether Merkel had made the police arrest the individuals who had been creating or sharing the memes including the morphed images of Merkel.
My concern here however does not cover the repetition of the act of Mamata Banerjee government in arresting individuals targeting political personalities including herself. I look at the issue from two perspectives here: (i) morphing the image of a woman and thereby creating/distributing/sharing the same as a non-consensual image (and not nonconsensual pornography); (ii) who should be ideally liable and under which law, and whether this issue attracts any legal liablity or not. As the reports and the image in question (which is still available when we search with key words such Mamata Banerjee meme ) suggests , it was not one, but two women were targeted : Priyanka Chopra, the original person in the image, who was heavily trolled because of her Met Gala, 2019 attire and Mamata Banerjee, whose face was morphed with the picture of Priyanka Chopra . Priyanka Chopra has not yet filed any police complaint for trolling; neither she has filed any complaint for morphing her picture. It was not the same case for Banerjee: she made it sure that the individual who shared the image should get arrested under several provisions of Information Technology Act, 2000 (amended in 2008) including S.500 of the Indian Penal Code which prescribes punishment for defamation. The news reports however did not mention about the specific provisions of IT Act under which she was arrested. Noticeably, neither Information Technology Act, nor Indian Penal Code recognizes any offence of’ ‘morphing’. The term does not find any mention in any law. Further, the existing laws neither specifically focuses attention for creation of morphed image of women for damaging her reputation. However, cutting and pasting of face is holistically addressed under several laws including Indecent Representation of women prevention Act (especially when the content is used to show case women in an indecent manner), S.509 of the IPC (which prescribes punishment for word, gesture, or any act made to insult the modesty of a woman), Ss66D( Punishment for cheating by personation by using computer resource) 66E Punishment for violation of privacy) etc, which may be coupled with Ss..67 (Punishment for publishing or transmitting obscene material in electronic form) or 67A ( Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form), (this is especially when the image or related text suggests sexual offences ) or S.354 C IPC (which prescribes punishment for voyeurism targeting women). A minute scrutiny of these provisions may suggest that they may loosely skirt around the concept of anti-defamation law as well especially when the reputation of the targeted victim is at stake due to the content created/transmitted .
In this political memes targeting women (and ridiculing them), one more celebrity woman Aishwarya Rai now joins with Mamata Banerjee and Priyanka Chopra. Rai was featured in a meme created and shared by another actor from the film industry who, the media reports suggest, had an emotional bondage with Aishwarya Rai before she got married to her present husband Abhishek Bacchan. Rai’s meme showcases not one , but three photos with texts which had been the center of debate and ‘amusement’ for many. The first photo shows Rai with Salman Khan, a prominent actor of Bollywood who had a relationship with Rai many years back when she was a debutant in Bollywood. She reportedly came out of the relationship because of physical abuses and harassment. This photo has a caption which reads ‘opinion poll’. The next is with Vivek Oberoi, who has allegedly created the meme. This has a caption which reads ‘exit poll’ and the last in the line is Rai’s family photo with her husband and daughter, which reads ‘result’. Noticeably, this meme attracted attention of many because this centered around a celebrity woman actor who is supposed to be one of world’s most beautiful women. She has been trolled many times earlier. But this is probably the first time that she, her husband and her minor daughter are pulled in for political meme. Oberoi was slammed by many of his fellow Bollywood women actors who considered this as disgraceful, classless, disgusting etc.While accepting the fact that Rai is a favorite subject for trolls for many years, what no one understood in this was, Rai’s daughter does not deserve this as a child. Even though as a celebrity child, she and her mother had been trolled; could anyone understand how her right to privacy and basic child rights have been violated ? That’s the curse of being the daughter of a celebrity mother which follows all children of all women celebrities including women actors, politicians, sports persons etc.
As such, both Mamata Bannerjee , Priayanka Chopra and Aishwarya Rai could have availed any of these laws mentioned above if they were not public figures and if the photographs that had been the major issue here, had been their personal photographs or it would have been created specifically for sexual gratification which happens to most of the women actors.
Then in that case, if the photographs were their personal properties, could they have pursued the police for arrest? We have to turn our attention to chapter IV of the Copyright Act, 1957 for this : three sub clauses of S.17 attract my attention here which are as follows:
17. First owner of copyright.— Subject to the provisions of this Act, the author of a work shall be the first
owner of the copyright therein:
(a) in the case of a literary, dramatic or artistic work made by the author in the course of his
employment by the proprietor of a newspaper, magazine or similar periodical under a contract of
service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar
periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first
owner of the copyright in the work in so far as the copyright relates to the publication of the work
in any newspaper, magazine or similar periodical, or to the reproduction of the work for the
purpose of its being so published, but in all other respects the author shall be the first owner of the
copyright in the work;
(b) subject to the provisions of clause (a), in the case of a photograph taken, or a painting or portrait
drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of
any person, such person shall, in the absence of any agreement to the contrary, be the first owner of
the copyright therein;
(c) in the case of a work made in the course of the author’s employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;
Neither Priyanka Chopra, nor Mamata Banerjee claimed that the photographs in question were their personal photographs which they ‘owned’ as per Copyright Act. The photographs were then properties of different persons or agencies who probably had captured both the women with consent. Given this fact, neither (especially Banerjee) may proceed to complaint for arresting unless it has harmed her reputation or caused her financial loss or caused grave threat. Here, we must note that the Supreme Court has very narrowly touched upon the private sentiment of Banerjee when it stated that such production and sharing of photograph may have infringed her right (not any specific right, but understandably it was largely right to reputation under Right to Life with dignity). But what the court failed to note here was the liability of the website where it was published and shared. Websites like Facebook however may not count this as impersonation (again we have to go back to the understanding as who is ‘owner’ of the photograph) unless the image has been used to grossly defame the person whose photo is involved. The websites would neither recognize this as offensive if seen from the perspective of US laws of Freedom of speech which is extremely broad. This has been the major concern for many women victims of morphing, revenge porn and nonconsensual porn throughout the world. In India the due diligence clause under S. 79 of the Information Technology Act (exemptions from liability of intermediary in certain cases) had been a major savvier for US based web companies like Facebook or Twitter when it comes to liability of websites for offences including generating /continuing the harassment of women for nonconsensual photographs. There is however one more solution from EU : Article 13 of the EU directives on Copyright in the single marketwhich makes the websites liable for illegal hosting of contents if they do not acquire license from the right holders of such contents. This means that the third party liability in offensive and illegal content sharing becomes more stringent as per the EU copyright Law. But in India such laws are not yet implemented or executed.
What we see from the above discussion is, Supreme Court has yet again broadened the meaning of freedom of speech, but failed to provide guidelines which may have strengthened rights of women who may be victimized by way of morphing in general. The court was in a hurry to undo the wrong of a political persona and the police who may have acted under her direction. But failed to create a lasting (and impressive) interpretation of laws which could have saved millions of women victims of nonconsensual images.
*Please note : Please do not violate the copyright of this blog. If you need to share/use this blog for your writeup/project/story, please cite it as Halder.Debarati (2019)Mamata Banerjee, Priyanka Chopra and Aishwariya Rai : What bonds them together and why. Published in http://debaraticyberspace.blogspot.com
Singh V.P. (2019) Mamta Banerjee Meme: What For Did The SC Ask Priyanka Sharma To Apologise?
By the late evening of 28th September, 2018 almost all of Facebook users would have received messages in their electronic devices that their “session expired”. It indicated that the subscriber needs to log in again to continue the Facebook activities. Many of the users felt it was a hoax, many felt it was a hackers act and some could understand it was an alert alarm as they were always ‘online’ and never logged off even when their phones were ‘sleeping’ or switched off. By late night-early morning on 29th September, 2018 the Facebook subscribers got an official information from Facebook help center stating that the company had discovered that there was an attack on their system and the attackers had illegally accessed Facebook access tokens which would give way to access the subscribers’ data. On an emergency precautionary step, Facebook logged off all users so that they can log on again with a secured code provided by Facebook. It was confirmed that Facebook was trying to exercise due diligence to protect the data of the users and in the course of the same users were directed to log off.
Rule .2(d) “Cyber security incident” means any real or suspected adverse
event in relation to cyber security that violates an explicit or implicity
applicable security policy resulting in unauthorised access, denial of
service or disruption, unauthorised use of a computer resource for
processing or storage of information or changes to data, information
The rules further goes on to explain what are the due diligence practices that should be adopted by the intermediary under Rule.3(3), which states that The intermediary shall not knowingly host or publish any information or shall not initiate the transmission, select the receiver of transmission, and select or modify the information contained in the transmission as specified in sub-rule (2):
Interestingly Rule. 4 of the Intermediary Guidelines Rule further provides a clear direction to the intermediaries as what is to be done and within how much time when the intermediary has come to know about any information which harms the interest of users or threatens the security of the nation etc (which are mentioned in rule 3), by stating that The intermediary, on whose computer system the information is stored or hosted or published, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature about any such information as mentioned in sub-rule (2) above, shall act within thirty six hours and where applicable, work with user or owner of such information to disable such information that is in contravention of sub-rule (2). Further the intermediary shall preserve such information and associated records for at least ninety days for investigation purposes.
This Rule 4 (read with Rule 3) mentions that the intermediary should either remove the offensive content or block the access to the content. Facebook in its action in practicing due diligence and exercising reasonable security practices (in India, the guiding principle in this regard is mentioned in the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011), had alerted the users, logged them off and logged them in with fresh code and also expressed that they are not aware whether any individual has been affected by such unauthorised access to the Facebook system as a whole.
By doing this Facebook actually tried to escape its liability as a ‘negligent body corporate’ or a company which may be brought to the courts under S.43A of the Information Technology Act, 2000(amended in 2008). Compare the incident of Facebook- Cambridge analytica data breach and how the EU parliament addressed the issue by accusing Facebook for having extremely poor cyber security measures compared to Europe. Facebook users were also advised by an Illinois court to go for a class suit against the company (Facebook) for unethically scanning and storing personal photos and information of the users.The recent news also suggests that in the US Facebook users have started going for class actions against Facebook for data breach which occurred apparently because of the company’s negligence in securing the data.Under the Indian information technology Act, 2000(amended in 2008), S.43A empowers the victims of privacy (including data ) breach to claim compensation from the faulting body corporate to a maximum limit of Rs. 5 Crores, which however is subject to modification depending upon the damage suffered by the victims, reputation harm etc and the discretion of the adjudicator. Not many users have applied this law for bringing big companies under the Indian scanners. There are however some cases of bank’s liability or hospital managements liability which are now coming up because of the awareness among the users/data owners and their lawyers.
However, web companies like Google, Facebook etc may have another option to shred the liability: they may always shift the major burden to the data owners or data managers, i.e. the private individuals who upload data almost every minute in average to expose their private information.It is for this that we need to be vigilant on our own practices of data sharing.
Stay safe, play safe.
Please Note: Do not violate copyright of this blog. If you would like to use informations provided in this blog for your own assignment/writeup/project/blog/article, please cite it as “Halder D. (2018), “The great Facebook hack : Liability of Facebook as service provider”30thSeptember, 2019 , published in http://debaraticyberspace.blogspot.com
See Halder Debarati (2018), FB, Its content regulation policies & photo matching tech: boon or bane for Indian women from privacy law aspect. Published in LiveLaw on April, 20018 @https://www.livelaw.in/fb-its-content-regulation-policies-photo-matching-tech-boon-or-bane-for-indian-women-from-privacy-law-aspects/
Better late than never! Let us start 2018 with a positive note: let us teach our younger tech savvy generation how to respect women, men and people from LGBTQ groups online. I was invited by UNICEF to represent them in the West Bengal State child protection committee meet on child rights and deliver lecture on online exploitation of children on 21st November, 2017 . I delivered lecture on “Children as consumers and contributors of offensive contents online and role of POCSO Act: a Therapeutic Jurisprudential approach.” We know children are smarter than us the older generation in cyber related issues. But at the same time, it is also our duty to guide children to be more responsible while on internet. I take pleasure in sharing this model policy guidelines which was prepared by me sometimes back. This model policy guidelines may be used by schools, colleges and other stake holders
Objectives & missions of the policy guidelines: To protect children from adversities of internet and educating them for a positive use of internet and social-networking sites. Scope of the policy guidelines: It may be used to educate children from 1st Standard to plus 2. It may also be used to provide guidance for teachers and counsellors to help children for positive usage of internet and social networking sites. The guidelines: 1.Every school must encourage children to participate in debates or discussions on internet rights, positive and negative effects of the same. This may be made as a part of the subject of computer science, or as a part of C.C. 2.Junior students (from the age group of 4-8) must be encouraged to take part in awareness building sessions. In such sessions, the students may be shown how to handle the devices properly and why not to switch on devices without parent’s supervision or permission. For this purpose the schools can consider making small skits with the help of older children and the teachers, or use movie clippings or other audio-visual learning materials. 3.Students from the age group of 8-13 must be encouraged to attend awareness sessions where they may be taught how to use the internet for positive gain. Given the fact that many study materials and books provide internet links or pages on specific subjects, the students may be encouraged to open such sites in the presence of the teachers. Parent-teacher-student sessions must be made to sensitise parents about the positive use of internet and digital communication technology. Students may be introduced to issues including grooming by paedophiles, values of good talk and bad talk in the internet etc. Students may be slowly introduced to social networking sites. It is not necessary to direct the students to open their accounts. But the students may be asked to take part in discussions on the policy guidelines or terms and conditions that are offered by social networking sites, email service providers etc, and then create their own accounts in the social networking sites. 4.Students from the age group of 14-17 may be encouraged to open accounts in the social networking sites and add their parents and teachers in their friend circles. They may be encouraged to create their own safety rules and privacy rules and discuss about them with younger students in class debates or awareness sessions. Students may also be encouraged to access informative pages in the social networking sites for gaining more knowledge. 5.It is important to teach students about rational coping mechanisms if and when they accidentally fall victims of cyber crimes. They must be taught how to use the safety tools to protect themselves, when and how to contact the principals, teachers and parents. 6.Schools must arrange for workshops on guiding students for positive usage of internet, which may include sessions on copyright violations as well. In such workshops, students may be encouraged to express their thoughts. Such workshops may be conducted with the police personnel, cyber crime experts, and NGOs as resource persons. 7.Senior students (from the age group of 16-18) may be encouraged to create their own blogs or vlogging sites either on their own or as group effort to show case positive usage of internet. 8.However, it must be noted that this policy guideline should not be used if the schools wish to use it as the sole guideline for separate types of offences. The author offers to cooperate with the schools to build up unique policy guidelines on the basis of this model policy guideline depending upon the need of every organisation. It is hoped that if the above guidelines are adopted, crimes targeting children by children and adults may be curbed. * This model policy guideline was first published in http://www.cybervictims.org/moderlpgccvc.pdf by Dr. Debarati Halder.
Please Note: Do not violate copyright of this blog. If you would like to use informations provided in this blog for your own assignment/writeup/project/blog/article, please cite it as “Halder D. (2018), “Help young generation to understand their duties and rights on cyber space: Model Policy Guidelines for Directing Students for Positive Use of Internet Including Social Networking Sites and Whatsapp“, published in http://debaraticyberspace.blogspot.com on 28-01-2018