Online gender-based violence (OGBV)—that women and people from marginal gender locations experience because of their social location and identity—is ubiquitous and takes several forms. A large body of evidence points to how victims/survivors lack recourse to accessible mechanisms for redressal. Gender-based violations online occur on privately-owned platforms that are unresponsive to the scale and pervasiveness of the problem. Even as gender equality advocates demand greater accountability from social media companies for complaints of online violence, the importance of formal systems of the law in this regard cannot be overemphasized.
Judicial attitudes in cases of OGBV are an important measure of access to justice for victims/survivors; an indicator of whether those who brave the labyrinth of legal procedures feel respected and heard. The core of addressing OGBV must rest on principles of substantive equality—recognizing that individuals and groups may have special needs that must be addressed to achieve equality in outcomes rather than merely formal equality, which assumes all people and groups should be treated the same way. Dignity and privacy, which include aspects of personal autonomy, bodily integrity, and informational privacy, are the other cornerstones. These three attributes offer a rights-based approach to adjudicating OBGV cases. These principles were the bedrock on which this study was undertaken.
The study, conducted in 2021-2022, used legal provisions in the Indian Penal Code, 1860 (IPC), and the Information Technology Act, 2000 (IT Act), to identify cases of OGBV adjudicated in Indian courts across all levels—subordinate courts as well as High Courts and the Supreme Court. The cases, selected through purposive sampling, offer several key insights. The findings reveal how courts view cases of OGBV, flagging emerging concerns that need attention.
Based on the findings, the study also discusses the following overarching areas to rethink approaches for courts:
1. There is an urgency to stop the trivialization of OGBV. Courts need to recognize the import of online offenses, treating them as implicating the body and personhood of the victim/survivor. This includes understanding the online-offline continuum and addressing hybrid offenses appropriately.
2. Courts must establish robust procedures for effectively addressing the online circulation of non-consensual intimate content. Courts should set down guidelines and rely on appropriate legal precedents to handle non-consensual intimate image distribution (NCIID), involving privacy rights protection and recognizing emerging digital crimes. This can follow the judicial practice of recognizing systemic harms and rights of victims/survivors as seen in many pathbreaking decisions like the Vishaka ruling or the NALSA verdict. While courts have appointed experts to tackle content takedown issues, stalling the proliferation of NCIID material is an uphill task.
3. Courts should uphold victims’/survivors’ right to privacy in OGBV cases, even where provisions on ‘outraging the modesty of a woman’ have been used. Such provisions also need revision and require consultations with women’s rights groups and civil society working towards gender justice.
4. Courts should hold online platforms accountable for harmful content. They should recognize the role of social media companies in profiteering out of the viral circulation of content, and address algorithmic amplification of content that undercuts dignity and rights of users. Step change is possible only with comprehensive changes to the policy and legal regime targeting large digital corporations, including for algorithmic accountability. This is critical to move away from penalizing individual offenders and bring about systemic change for women’s equal participation in the online public sphere.
5. Courts should be safe spaces for marginalized groups seeking justice. Power imbalances in online relationships due to social and cultural factors must be recognized during adjudication.
6. Procedural hurdles like certificates authenticating digital evidence should not impede justice, and bail orders should be contextualized for online spaces.
7. Ecosystem-level considerations are imperative. Sensitization within the criminal justice system, including defence lawyers and police, is crucial.
Additionally, you can view IT for Change’s portal on ‘Forging a Survivor-Centric Approach to Online Gender-Based Violence', which serves as a tool for judges and lawyers to acquire a comprehensive understanding of gendered cyberviolence.