Tag: Cyberlaws

Arnab Goswami, Kunal Kamra and internet governance in India : Where do women victims of cybercrimes stand now? by Dr.Debarati Halder

Picture credit : Debarati Halder

In 2012 the then chief minister of West Bengal, Mamata Banerjee took a strong a note for Ambarish Mahapatra’s very bold, excessively strong post including a cartoon showcasing Didi and Mukul Roy, who was the then state minister for railways. The cartoon included the railway logo. Mahapatra was arrested in 2012 and later released. In 2015 the courts ordered that Mahapatra should be compensated for the wrongful arrest.[1] Clearly, the court gave a red signal to the West Bengal government for wanting to use executive power to shun critics of the government on internet media. Quite at this time, the courts accepted the arguments of Shreya Singhal for scrapping off S.66A of the Information Technology Act, 2000 (amended in 2008) which was considered as a draconian law for the bad drafting and equally bad usage of the same by the government. The Supreme Court could have strongly advised for amending the provision which could offer a wonder anti bullying law.[2] But the last stroke was given by the then UP government by arresting a juvenile for his post on internet just before the court could even consider on 66A. The court laid 66A to rest judicially. What lurked on was the issue of usage of government logo in criticism speech.

Why Attorney General of India has to give a consent for contempt of court proceeding for a criticizing speech?  Armed by Shreya SInghal judgement in 2015, many started openly criticizing the government. This is indeed a healthy sign of a strong democracy. In the US the right to criticize the government had remained a celebrated right. Cases like New York Times Co. v. Sullivan, 376 U.S. 254, 283 (1964) or  Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) has deeply influenced the speech rights which have been taken over by the internet companies including Facebook and Twitter post millennium. First Amendment right to speech and expression became broader over the years giving the internet companies extreme power to deny most of the (non- US) government-backed requests for taking down of contents because according to them such speech did  not violate their policies which were based on US First Amendment guarantees.[3] Twitter however had remained a favorite platform for celebrities, right activists and politicians to express their opinion ‘in short’. This gave rise to use creative, expressive and bold languages to express opinions within 120 words plus ‘threads’. In late September and early November, 2020, social media platforms including Twitter saw a wave of sympathy, hatred and apathy towards the arrest of Arnab Goswamy and his release from the prison on interim bail by the Supreme Court. Goswamy, a journalist and managing director and editor-in –chief of Republic TV, was arrested for alleged abetment for suicide of a Mumbai based designer and his mother.[4] Kunal Kamra, a standup comedian, like many other non-supporters of Goswami had strongly objected for the interim bail of Goswami over Twitter.[5] But this could have been considered as a very normal ‘protest’ by Kamra, provided he would not have pulled in the integrity of Supreme Court of India. His post included a picture of the Supreme Court building covered with saffron color with the flag of the ruling BJP party atop it.  What was wrong in this? (i) Using derogatory remarks towards the integrity and impartial nature of the supreme court while deciding the interim bail application of Goswami ? or (ii) using the picture of the Supreme Court colored in saffron which may indicate its loyalty to a particular community, political party or idealism? Or (iii) morphing the picture of the building by putting the political party’s flag atop the building instead of the tricolor?  

If we take point number (i), we would see that even though the Supreme Court is not a protected entity which should be considered as above free speech especially related to criticism, it has taken strong note against those who had published, posted, uploaded, shared derogatory comments on the integrity of the institution, the judges, personal reputation of the judges and their family members. Justice Karnan’s case is a good example in this regard. This ex-judge of Madras High court was condemned not only by Madras High court, but also by several women lawyer’s associations in India  for sharing sexually explicit and obscene remarks about the female judges and the wives of other judges.[6] The Madras High Court had also asked the social media platforms to remove the contents posted by justice Karnan in this regard. Second and third points definitely attract my attention here as the morphing of the building attracts penal provisions not only from Article 19 (2) of the Constitution of India, which discusses about restriction of free speech under Indian constitution, but also from The Emblems And Names (Prevention Of Improper Use) Act, 1950. The later statute in S. 3 prohibits improper use of certain names and ensembles[7] and this includes emblem and picture of Supreme Court building as well.[8] But we need to note that even though the morphing and re presentation of the building had taken place on Twitter, Information Technology Act, 2000 (amended in 2008) may not be attracted that effectively because of the absence of S.66A .  The issue of Kamra publishing the ‘wrong’ image of Supreme Court is so heavy that it has attracted charges for criminal contempt of court for which the Attorney General of India has consented for initiating the proceedings against Kamra.[9] To a certain extent, this consent may depend on the discretionary power of the Attorney General as well especially when he sees the matter from the perspective of utter disrespect to the institution of Supreme Court. Kamra however maintained that he won’t apologies, neither would he remove his content from Twitter in this regard.[10]

          Here, I cannot hold myself back from mentioning about the plight of millions of women victims of trolling, morphing and revenge porn who may suffer endlessly because of long life of their fake avatars on internet. If only courts and civil society members were much aware about the issue, courts could have taken a strong note of cyber victimization of women as well. But here comes the key player: the web platform.

Twitter in the middle of the storm: Twitter is the platform for the alleged offence committed by Kamra. But quite simultaneously Twitter attracted another ref eye of the government and the courts: Leh, the joint capital of Union territory of Ladakh was recently shown as part of Jammu and Kashmir on Twitter.[11] This indeed attracts a huge public, political and constitutional sentiments after the recent scrapping of Article 370 by the present government of India which made Ladakh (of which Leh is the capital town) a union territory and no more part of Jammu and Kashmir. Twitter was notified and as the existing laws mandate, Twitter may even get suspended if it does not rectify the mistake. But not to forget, including Twitter all the US based social media companies have a wonderful trick to avoid the government and court notices by indicating that ‘they are looking into the matter’. There are hundreds of public interest litigations filed in the Supreme Court on the issue of women and child safety on internet and the responsibility of the internet companies. In almost all cases, all the companies escaped the clutches of S. 69 B (power to issue notice for blocking the website/contents etc) by the very slippery gateway of S.79 of the Information technology Act (exemption from liability of intermediary to certain cases).

Be it the case of Kunal Kamra or anyone else who may be victimizing anyone including private individuals or the highest courts of judicature, social media companies will remain as they have remained, being the chosen platform of the government to have a handle to encourage accessibility of justice, good governance etc.

Comes the decision of internet regulation by State made laws: Amidst all these pandemonium, the Indian government literally blew the bugle against millions of free speech activists when it announced about the decision for internet regulation by state made laws.[12] The ministry of Information and Broad casting may extend their jurisdiction to internet media if this decision is fructified. The free speech advocates fear that this decision may result in situations like the 1975-77 emergency period where the then prime minister tried to gag the free speech and expression rights of print and television media. Their apprehension is not baseless because this decision comes at a time when police is seen busy to manage issues related several fake news and fake avatars of the ruling and opposition political parties and net streaming which speak about sex .  But this decision, if fructified, may also bring cheers to women victims of misogynist trolls, fake avatar, revenge porn, nonconsensual porn as well.  While many may fear that such regulation may chock free flowing of adult contents, we must not forget that our courts once refused to provide a blanket ban on porn provided it is viewed by the viewer without offending anyone and the content is made legally with consenting adult actors. However the fear and apprehension weighs more than the cheers because the government may not always abide by the court rulings: the best example is, statutorily S.66A is in deep coma, but not dead.

Hope continues for women victims? But the tussle over the moral wrong of ‘to watch or to block the entire content’ or the heavy examples set by Attorney General of India for a morphed photograph of the building of Supreme Court and derogatory comments about the institution itself probably cannot minimize online victimization of women who undergo morphing and are targeted with hate speech on internet vigorously. I hope such strong actions touch the issue of cyber victimization of women and girls strongly. If internet is to be regulated, let it be so judiciously and for proper causes.


[1] See for more in https://www.ndtv.com/india-news/double-the-compensation-of-jadavpur-professor-arrested-for-circulating-mamata-cartoons-court-tells-g-745593

[2] Halder, Debarati, A Retrospective Analysis of Section 66A: Could Section 66A of the Information Technology Act be Reconsidered for Regulating ‘Bad Talk’ in the Internet? (August 24, 2015). Halder Debarati (2015) A RETROSPECTIVE ANALYSIS OF SECTION 66 A: COULD SECTION 66 A OF THE INFORMATION TECHNOLOGY ACT BE RECONSIDERED FOR REGULATING “BAD TALK” IN THE INTERNET? Published in Indian Student Law Review (ISLR) 2015 (1) PP 99-128 ISSN 2249-4391, Available at SSRN: https://ssrn.com/abstract=2650239 or http://dx.doi.org/10.2139/ssrn.2650239

[3] For example, see https://in.reuters.com/article/us-singapore-politics-malaysia-scandal/facebook-refuses-singapore-request-to-remove-post-after-critical-website-blocked-idINKCN1NF05T, orhttps://www.wsj.com/articles/facebook-hate-speech-india-politics-muslim-hindu-modi-zuckerberg-11597423346  

[4] https://www.ndtv.com/india-news/arnab-goswami-arrested-for-allegedly-abetting-suicide-of-interior-designer-say-police-news-agency-pti-2320301

[5] https://www.livelaw.in/top-stories/dont-intend-to-retract-my-tweets-or-apologize-kunal-kamra-responds-to-ags-consent-for-contempt-against-him-165857

[6] See https://www.newindianexpress.com/cities/chennai/2020/nov/10/madras-high-court-orders-removal-of-derogatory-videos-made-by-former-hc-judge-cs-karnan-2221987.html

[7] S.3 of  The Emblems And Names (Prevention Of Improper Use) Act, 1950 states as follows: 3. Prohibition of improper use of certain emblems and names.—Notwithstanding anything

contained in any law for the time being in force, no person shall, except in such cases and under such

conditions as may be prescribed by the Central Government, use or continue to use, for the purpose of any

trade, business, calling or profession, or in the title of any patent, or in any trade mark or design, any

name or emblem specified in the Schedule or any colourable imitation thereof without the previous

permission of the Central Government or such officer of Government as may be authorised in this behalf

by the Central Government.

[8] See S.17 of the Schedule attached to The Emblems And Names (Prevention Of Improper Use) Act, 1950 , which includes the followings in the prohibited list: namely, “The name of the Parliament or the Legislature of any State, or the Supreme Court, or the High Court of any State, or the Central Secretariat, or the Secretariat of any State Government or any other Government Office or the pictorial representation of any building occupied by any of the aforesaid institutions”.

[9]See  https://www.livelaw.in/top-stories/dont-intend-to-retract-my-tweets-or-apologize-kunal-kamra-responds-to-ags-consent-for-contempt-against-him-165857

[10] See ibid

[11] See https://timesofindia.indiatimes.com/india/twitter-risks-suspension-over-leh-map-error/articleshow/79201328.cms

[12] See https://www.theguardian.com/world/2020/nov/11/india-to-regulate-netflix-and-amazon-streaming-content?fbclid=IwAR11PXTEutFHo6VjsPy7tteOFyRweprK6vALKMNtNpBQZEF5tAeLIQyJejw

Please do not violate the copyright of this writeup. Please cite it as Halder Debarati (2020).Arnab Goswami, Kunal  Kamra and internet governance in India: where do women victims of cybercrimes  stand now? published in Gender & Internet : web magazine for cyber law for women @ https://internetlegalstudies.com/2020/11/14/arnab-goswami-kunal-kamra-and-internet-governance-in-india-where-do-women-victims-of-cybercrimes-stand-now-by-dr-debarati-halder/ on 14th November, 2020

CYBER BULLYING, CYBER SECURITY AND THE CYBER LAWS OF UK – AN ANALYSIS OVER THE YEARS by Reshmitha.G.Sarma

Picture courtesy: Internet

Opinions are that of the author and Gender and Internet : Web magazine for cyber law for women does not hold responsibility for the opinions of the author

INTRODUCTION:

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.[1] 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.[2]

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.[3] 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.[4]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.[5] And as per the provisions of Sec.8 of the PHA[6], 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.[7]

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%.[8]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.[9]Cybersmile Foundation, a help centre to increase awarness, had performed a research to find out the kind of misuse happening in cyberspace of UK.[10] 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.[11]
  • 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.[12]
  • 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.[13]
  • The act of pressurising young children to take part in sending images or content that are sexual would also amount to cyberbullying.[14]

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.[15] 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.[16]

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.[17] 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:

  • Bullying,
  • Insulting behaviour, or
  • Behaviour likely to intimate or humiliate an individual.[18]

The Conservative Government added this to the Digital Economy Bill during its final stages.[19]

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.”[20]

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.

CONCLUSION:

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 @ reshmitha96@gmail.com

[1] Cyberspace, TECHOPEDIA, Sep 2012

[2] Online Harms White Paper, Department of Digital, Culture, Media & Sport and Home Office, Business Regulation, Government of UK, (Apr 2019), https://www.gov.uk/government/consultations/online-harms-white-paper

[3] See, Types of cyberbullying, NATIONAL SOCIETY FOR THE PREVENTION OF CRUELTY TO CHILDREN (NSPCC), https://www.nspcc.org.uk/what-is-child-abuse/types-of-abuse/bullying-and-cyberbullying/.

[4] See, Cyberbullying: What is it and how to stop it, UNICEF| for every child, https://www.unicef.org/end-violence/how-to-stop-cyberbullying

[5] Protection from Harassment Act, 1997, Act no.c.40, 1997, UK Public General Acts, Sec.1

[6] Protection from Harassment Act, 1997, Act no.c.40, 1997, UK Public General Acts, Sec.8

[7] ibid

[8] OECD (2020), TALIS 2018 Results (Volume II): Teachers and School Leaders as Valued Professionals, TALIS, OECD Publishing, Paris, https://doi.org/10.1787/19cf08df-en.

[9] Sean Coughlan, England’s schools ‘worst for cyber-bullying’, BBC NEWS, June 2019, https://www.bbc.com/news/education-48692953 

[10] What is cyberbullying, THE CYBERSMILE FOUNDATION, https://www.cybersmile.org/advice-help/category/what-is-cyberbullying

[11] ibid

[12] See, Types of Abuse – bullying and cyberbullying, NATIONAL SOCIETY FOR THE PREVENTION OF CRUELTY TO CHILDREN (NSPCC),  https://www.nspcc.org.uk/what-is-child-abuse/types-of-abuse/bullying-and-cyberbullying/.

[13] See, Types of cyberbullying, NATIONAL SOCIETY FOR THE PREVENTION OF CRUELTY TO CHILDREN (NSPCC), https://www.nspcc.org.uk/what-is-child-abuse/types-of-abuse/bullying-and-cyberbullying/.

[14] ibid

[15] OECD (2019), How’s Life in the Digital Age?: Opportunities and Risks of the Digital Transformation for People’s Well-being, OECD Publishing, Paris, https://doi.org/10.1787/9789264311800-en.

[16] ibid

[17] See, HC Deb, Culture Media and Sport Committee, Online Safety: Responses to Committee’s Sixth Report of Session 2013-14, Jul 2014, HC 517 2014-15, page 11, Feb 2015, https://publications.parliament.uk/pa/cm201415/cmselect/cmcumeds/517/51702.htm.

[18] DIGITAL ECONOMY ACT, 2017, Act no. c.30, 2017, UK Public General Acts, Sec.103

[19]  HC Deb Apr 2017 c1124, HL Deb Apr 2017 cc1491-1493, https://hansard.parliament.uk/commons/2017-04-26/debates/52706430-B069-4DDA-B0F1-52916F6A4588/DigitalEconomyBill.

[20] House of Lords Communications Committee, Social Media and criminal offences, Jul 2014, HL 37 2014-15, para 15