Crimes against women under cyber law: an introspection and suggestive study
Abstract-
Information and technology are the quintessence of the modern era. The virtual space is the present now and indeed cyberspace has quickly escalated the need for cyber laws. The dimensions of cyber crime have been expanding at a catastrophic rate. Paradoxically, the proportion of benefits that should have arisen from the cyberspace have tilted towards the misdemeanours and vicious circle of organized crimes that have been taking place to which teenage girls and women are the most endangered. The present paper introspects upon the assumptions suggesting cyber violence as gender-specific violence and explores the vastness and extent of these crimes against women in realm of cyber stalking, bullying, morphing pornographic images, electronic blackmailing, and defaming, blackmailing, abusing and matters connection with the victimization of women in the cyberspace. Furthermore, the paper will throw light on the domestic and international legislation which have been adopted to curb this ever-increasing menace in the domain of virtual space. An enunciated paradigm will also be drawn based on the current incidents concerning contravention of cyber laws, henceforth inculcating the law enforcement responses and reposing faiths in justice systems. A comparative study will also be made on the measures taken around the globe and its impact and effectiveness in the information technology regime as well as victim support and rehabilitation system. Finally, the paper will put forth the suggestive remedies and responses which can be most suitably adapted and practiced in the Indian socio-legal scenario and its technological manifests.
Introduction
“As the world is increasingly interconnected, everyone shares the responsibility of securing cyberspace” – Newton Lee
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The dimensions of cyberspace are such that, in the presence of the dark web and even the deep web, no one can possibly ascertain the extent of this. The vastness of cyberspace has created the worrisome and sorry state of affairs. This gift of globalization and technological advancement has become a curse of the twenty-first century. Cyberspace is a boon or a bane is a matter of debate and speculation. However, it is well established that there is an increase in number of cyber crimes against women at the rate of 6.3% from 11592 reported cases in 2015 to 12,317 reported cases in 2016 as per the National Crime Records Bureau. In India, Maximum number of cases under cyber-crimes were reported in Uttar Pradesh (2,639 cases) (21.4%) followed by Maharashtra (2,380 cases) (19.3%) and Karnataka (1,101 cases) (8.9%) during 2016. During 2016, 48.6% of cyber-crime cases reported were for illegal gain (5,987 out of 12,317 cases) followed by revenge with 8.6% (1,056 cases) and insult to the modesty of women with 5.6% (686 cases).[footnoteRef:2] [2: NCRB Crime Report 2016, available at:http://ncrb.gov.in/StatPublicati ons/CII/CII20 16/pdfs/Crime% 20Statistics%20-%202016.pdf (last visited on 5 September 2019)]
Analysis of the cyber crimes against women and tackling mechanism
The tackling mechanism in India for cyber crimes known as the Information Technology Act, 2000 is more or less considered as a half-baked law. Since the priority was given to the protection of electronic commerce popularly called the e-commerce and communications, cyber-socializing communications has remained untouched with no specific regard to cyber victimization of women in India. The Indian Information Technology (IT) Act of 2000 is based on the 1997 United Nations Model Law on Electronic Commerce and focused on communications infrastructure and e-commerce initiatives.’ The IT Act included some penalties for economic crime committed online, but failed to address cybercrime against individuals. Amendments to the law passed in 2008 regulated more illegal cyber activities, including distribution of images depicting child sexual abuse. Women who are raped are often re-victimized when the images of their rape are recorded and used against them to perpetuate the cycle of violence.[footnoteRef:3] [3: Anita, G., Niveditha, M. (2009, December 9). Economic and Political Weekly, available at: http://www.jstor.org/stable/25663650 (last visited on 10 September 2019)]
Specifically, Section 66A, 66E, 67, and 67A[footnoteRef:4] which deal with crimes that affect women provides for punishment for sending offensive messages through communication service. It covers any electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or mislead the addressee or recipient about the origin of such messages. Online threats of rape, abuses, derogatory messages, hacking someone’s mail or social media page to defame are punished under this law for offenses causing mental violence. As simple and pragmatic as it may sound, it is easy for Police to arrest a person under this act but filing a charge sheet becomes next to impossible as the Police is often found not well equipped or read for these matters to understand the gravity and to track the authentic source of these sort of messages. Paradoxically, the news of arrest is easily found on any informational or media sources but the updated data and statistics on charge sheeting or conviction are no available. This is due to the reason that people arrested are often not investigated upon for a charge sheet be made against them and are discharged or acquitted later by court later. Section 66E provides punishment for violation of privacy. Privacy here means capturing, transmitting, publishing any image of private area of body and publishing that without anyone’s consent making it a punishable offence. For women it is specifically mentioned ‘buttock or female breast’. However, this definition lacks significantly because any part of private area should not be visible to public without consent regardless of that person is in public or private place. This section deals exclusively with privacy of body and the provision of consent makes it critical as it later becomes difficult to prove consent was not there in the activity. Registering a crime is not important and unless we consider investigation, inquiry or making charge sheet, conviction and acquittal, it is not possible to understand the situation. Often cyber crimes against women take place within marital relations when an estranged partner uploads obscene images of his wife. In these cases also proving the consent becomes a complex activity. Even if consent was there whether it was an informed consent also becomes important. Cases registered under Section 66E is abnormally low since the conviction rate of IT Act is not at all impressive. [4: the Information Technology Act, 2000]
The Indian Evidence Act is very vital in dealing with electronic evidences. Guidelines of evidences are provided by the Indian Evidence Act 1872. Indian Evidence Act was amended to include evidences relating to electronic record. Presently, Section 65A and 65B provides for evidences related to electronic record and admissibility of electronic record. The act needs to be more explicit, updated and stronger to deal with the issue of electronic evidences. Without compatible evidence it is very difficult to improve conviction rate of cyber crimes. Section 354 of IPC presently covers voyeurism, stalking and sexual harassment all of which are now punishable criminal offence. Stalking, Voyeurism and sexual harassment where computer is used as a medium are mostly registered under IPC. The judiciary also needs to be sensitized about the record-keeping of electronic records and dealing with them. The police also needs to be more well-equipped in dealing with electronic records.[footnoteRef:5] [5: National Dialogue on Gender-based Cyber Violence National Dialogue on Gender-based Cyber Violence Introspecting the Gaps between Cyber Crimes against Women and Laws ]
Law enforcement response
A rapid increase in the use of computer and internet has given rise to new forms of crimes like publishing sexually explicit materials in electronic form, video voyeurism and breach of confidentiality and leakage of data by intermediary, e-commerce frauds like impersonation commonly known as Phishing, identity theft and offensive messages through communication services.[footnoteRef:6] Section 66A of Information Technology Act, 2000 which dealt with punishment for sending offensive messages through communication service, etc. was struck down not because it is outside the purview of Art 19(1)(a) alone but because of vice of vagueness and the use of loose language. None of the terms in 66A are even attempted to be defined and cannot be defined, the result being that innocent persons are roped in as well as those who are not.[footnoteRef:7] [6: Shreya Singhal vs. Union of India (24.03.2015 - SC)] [7: Ibid.]
Comparative study on measures and remedies
This most concerning issue of “cyber crime against women” was ignored and unaddressed until the first cybercrime convention, which took place in 2001. The Convention on Cybercrime of the Council of Europe (CETS No.185), known as the Budapest Convention, is the only binding international instrument on this issue. It serves as a guideline for any country developing comprehensive national legislation against Cybercrime and as a framework for international cooperation between State Parties to this treaty. The Budapest Convention is supplemented by a Protocol on Xenophobia and Racism committed through computer systems.[footnoteRef:8] [8: Budapest Convention, available at: https://www.coe.int/en/web/cybercrime/the-budapest-convention (Last visited on 12 September 2019).]
United Kingdom’s Protection of Harassment Act, 1997 covers cyber offenses such as cyber harassment and cyber stalking typically against women originating from domestic violence or dating violence. The offenses related to unauthorized access are regulated by a compact legislation called “Computer Misuse Act, 1990”. This Act was created to protect the both men and women who are victims but the language clears provides that the Act suits to the need for preventive action against harassment of women. This Act mainly covers the three offenses namely, unauthorized access to computer material, to enable any such access to secure unauthorized access, intention to create further menace with such unauthorized access, and unauthorized modification of the computer material. the United States Of America Code makes it an offense to use a telecommunications device in interstate or foreign communications to: (1) make, create solicit and initiate the transmission of “any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person”; (2) make, create solicit and initiate the transmission of “any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication”; (3) Make a telephone call or “utilize a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications”; (4) Make or cause “the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number”; (5) Make repeated telephone calls or repeatedly initiate communication “with a telecommunications device, during which conversation or communication ensues, solely to harass any person at the called number or who receives the communication”; or (6) Knowingly permit any telecommunications facility under his or her control to be used to commit any of the previously-listed activities. The penalties for these offenses include fines, imprisonment for up to two years, or both.[footnoteRef:9] [9: Section 223(a) of Title 47 of the U.S. Code. ]
Disregard to women in patriarchal society as compared to the USA and UK has led more statistical rise of cyber crime against women in India than the counterparts. While the nature of the problems originated from the information and communication technology remain more or less same across the world, however the economic, political and social conditions of these countries is different to each other. Irrespective of how any mechanism to curb cyber crimes are developed, the ultimate solution to this problem, like any other lies in our society. Based on the direction of Hon'ble Supreme Court under the matter of Suo moto Writ Petition no.3/2015[footnoteRef:10] certain guidelines were issued by the Apex Court bringing new initiatives taken by different organizations to bring a difference in the present situation. [10: Re: Prajwala Letter Dated 18.2.2015]
International conventions, as well as domestic laws of many countries, may have developed laws to protect society as a whole from the clutches of the “dark side” of cyberspace however has not mitigated the cyber crimes from its root. Numerous NGOs have been coming forward realizing the need of the hour.
An initiative of Government of India known as the National Cyber Crime Reporting Portal facilitates the victims/complainants to report cybercrime complaints online. This portal caters to complaints pertaining to cyber crimes only with special focus on cyber crimes against women and children. Complaints reported on this portal are dealt by law enforcement agencies/ police based on the information available in the complaints. It is imperative to provide correct and accurate details while filing complaint for prompt action.[footnoteRef:11] Online cybercrime reporting platform [11: https://cybercrime.gov.in/]
- One national-level cyber forensic laboratory
- Training of Police officers, judges & prosecutors
- Cybercrime awareness activities
- Research & Development[footnoteRef:12] [12: Government of India Ministry of Home Affairs Delhi Cyber Crime prevention against Women and Children, available at: https://pib.gov.in/Pressreleaseshare.aspx?PRID=1559115 Press Information Bureau (Last visited on 12 September 2019).]
The complaint lodged on the portal is obtained by the nodal officer of the concerned state. Cyber Crime State Nodal Officer will then forward the said complaint to concerned Superintendent of Police (SP) at district level and further investigation is completed. Some remedies as enunciated by the National Crime Reporting Portal provides that If anyone is victim of cyberstalking, he or she should be consulted by parents, friends or relatives and file complaint against the cyber stalker on National Cyber Crime Reporting Portal or the Police. It is also advisable to save all communications with the stalker as evidence. Most important measure is to keep evidence such as Credit card receipt, Bank statement, envelope (if received a letter or item through mail or courier), brochure/Pamphlet, online money transfer receipt, copy of email, URL of webpage, chat transcripts, suspect mobile number screenshot, videos, images or any other kind of document.
Being careful while accepting friend request from strangers on social media. Ensuring personal information, photos and videos and selecting privacy settings accordingly is also suggested. Being careful to uploading photos on social media which shows location or places being frequent visited as there could be cyber stalker may keep tab on daily lifestyle of victim. Being careful about sharing personal details such as address, phone number, date of birth etc. on social media and avoid downloading email attachments or clicking on suspicious links received in emails from unknown or unreliable sources. It is advisable to scan all removable media with anti-virus software before use. Passwords should also not be stored in readable forms like in notebook, computer or books.
Conclusion
Henceforth on the basis of the aforementioned detailed submissions on cyber crimes against women it is further suggested that Securing our online presence just like you secure ourselves, there shall be mindfulness of appearance on video chat & video calls and fake social media accounts as not all the accounts are real and not all information provided on accounts are true. Being cautious with sensitive browsing the deleted data on communication devices can be recovered, being careful while giving mobile devices, PC’s for servicing/repairing/selling, Protecting communication devices, Report if content is found related to of Child Pornography (CP)/Child Sexual Abuse Material (CSAM) or sexually explicit material.[footnoteRef:13]For this NCRB has already been notified as Central Government nodal agency to issue notices under Section 79(3)b of Information Technology (IT) Act. There also exists limitations in availing National Crime Reporting Portal wherein only three categories of offences under cyber domain is made punishable and reportable that is Child Pornography (CP), Child Sexual Abuse Material (CSAM) and sexually explicit content such as Rape/Gang Rape (CP/RGR) content. A complainant also suffers from a bulk load of procedural compliance to lodge a complaint and ambiguity is also surfaced regarded whether a particular offence, for instance cyber stalking falls under which category making registration of crime really an excruciating process. There is an undeniable need to curb women victimisation in cyber domain for creation of a safe and more technological cyber domain for future. [13: Cyber awareness and hygiene for teens and young adults, available at: https://cybercrim e.gov.in/ Webform/C rime_OnlineSafetyTips.aspx (last visited on 12 September 2012).]
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