Tackling Women's Digital Freedoms and Unfreedoms Online - Through Law & Technology

  1. Unmasking the web

#MeToo” – the spontaneous and unstructured campaign, exposed the underbelly of sexual harassment. This campaign would not have had the results it did were it not for the Internet. However, this very same domain with its limitless reach becomes one of the most vicious weapons in perpetrating violence. Sexual harassment and violence against women is by no means only in the real world. It is equally vexatious and malicious in the digital world and sometimes even more so than physicalviolence.

There is an innate assumption of physicality when one visualizes offenses like sexual harassment. It is this very same assumption that probably emboldens women to venture farther when exploring online spaces than they would in the physical world.

This myth that physical dissociation would protect them vaporizes into ether the minute they face their first harassing and harrowing experience online. Women born into a restrictive and patronizing Victorian world were engineered into believing that they are probably the cause for any offense or violation that may occur against them. Irrespective of the region they are born in, it is either their dress, their coquettish conduct, their come-hither looks, the time or place that they dared to venture out into or the person they chose to be with.

The possibility of anonymity online has emboldened women to become a lot more explorative than they would in the physical world be it adaptation to social media or exploring activities which they would not dream to, or dare to, try out physically. That physicality is irrelevant to get or feel violated becomes apparent when the secure family orientedsocial media page of the victim is violated.

Pictures innocently posted online as a means of sharing happy times become the very basis for extreme harassment. Happy times captured without a thought for possible future abuse becomes revenge porn. Celebrity and ordinary users alike face trollsonline for strong to inane comments. Again, women become easy targets with the threats invariably involving not just threats of rapeor gang rapebut of televised versions of such violent crimes. Even innocent explorations into matrimonial sites becomes a nightmare with miscreants employing these to trap women.

The Internet suddenly does not seem as enticing as it promised to be. The fetters are reappearing again insidiously even as women are yet to explore it for their freedom and emancipation.

  1. Walk across my parlor

Online threats have proven to be vicious and the impact unexpected. The circulation of a morphed picture of a young girl onto a naked body led her to take her life. (Madhav 2016). The cases of the trolling of Chinmayee- a singer (Narayanan 2012), and Gurmehar Kaur - a student (Saha 2017), debunks the assumed safety and security when venturing out online.

 

At first instance, it would seem that online threats ranging from bullying, trolling to body shaming (be it through revenge pornor by morphing pictures and circulating online) are gender agnostic, and that men suffer as much from these crimes as women do. Trolling incidents against sports-persons Virendra Sehwag (Nikhil 2017), or Irfan Pathan (“Irfan Pathan was trolled,2017) show the vulnerability of all online. However, Irfan was in fact trolled for what was deemed unislamicin his post of a picture of his burka-clad wife. Irfans incident, the trolling incidents of Monali Thakur (Sharma 2017)- a reality show contestant who was asked not to wear short outfits on the music reality show, or cricketer Mithali Raj (“Mithali Raj trolled,2017), who was trolled for wearing a revealingtop in the picture she posted on Twitter, all clearly indicate a gender twist.

The leaning of all these trolls towards dictating appropriate female behavior online defines and augments the threat landscape for women in general. Significantly, the casualness with which online bullies resort to extreme threats against even known personalities - that I know where you live, I will find you, rape you and circulate the video, demonstrates the harsh reality of online violence against women.

The 2014 Pew Research Centers Study on online harassment states that young women in the age group of 18-24 face disproportionately higher instances of online harassment than men and that women, in general, feel more adversely affected by online harassment compared to men (Pew Research Center study 2014).

The cloak of societal norms of propriety seem to disappear with the presumed dissociation of online offenses. That the victim may not even be physically assaulted by the perpetrator, or even see the perpetrator, neither lessens the harm nor reduces the damage that is caused (Finn & Banach 2000). Online offenses are not merely remote crimes with no proximity. They affect victims as much if not more, due to the limitless reach of the Internet. Each click on such recordings or images of actual rape and gang rapes offenses, amounts to re-victimization (Shariff 2014) and in any event both the physical violation and the circulation of its recording are independent offenses. Beyond online interactions over the Internet is the logic of the digital that provides methodologies for increased crimes against women (Finn & Banach 2000).

  1. Causation & effect
    1. Dissociation from crimes

Unlike physical crimes, wherein perpetrators are confronted with the immediate consequence of their crime, the online criminal neither faces the victim nor has to contend with any of its gory aftermath.

The perpetrator is clearly dissociated both from the victim and the crime and more so, from the effect or impact of such offense on the victim.

Suler, J.(2004) refers to this as the 'disinhibition effect', which allows people to say and do things in cyberspace that they wouldn't ordinarily say or do in the face-to-face world, to disclose private and personal things or share secret emotions, fears, wishes. Suler states that this benign disinhibition, is a double - edged sword, as these personal and private sharing of details is what is most misused by the online criminal. But, at the same time, it is also what drives women to loosen up online and experiment and explore, unlike they would otherwise.

The reverse of this disinhibition effect is for perpetrators of violence to lose all restraints imposed by societal norms or self-restraint and unleash the kind of violent and harsh online harassment instantiated above. Suler refers to this as 'toxic disinhibition'.

The strong sense of self and absence of physical contact (Hollenbaugh & Everett 2013), which emboldens women also makes criminals say things or display conduct, which they may otherwise refrain from in the physical world (Flood & Pease 2009). This dissociative behavior is likely to be aggravated by the absence of effective enforcement. The age at which one goes online is steadily decreasing, and consequently, the age of perpetrators of online violence is also reducing. In many instances, the younger demographic tends to treat the entire exercise of committing a crime as a game (Shinder 2012).

Each of these factors contributes to the increasing crimes against women and children online (Chisholm 2006).

    1. Values and norms in flux

As discussed above, the emerging scenario of online violence against women demonstrates a shift in moral, legal and ethical values (Biber, Doverspike, Baznik,Cober & Ritter 2002). Linz, Donnerstein & Penrod (1984) demonstrated diminishing empathy from research subjects towards violence against women, when they were repeatedly exposed to videos of such violence. This theory continues to hold good in todays Internet linked world where objectification and lack of empathetic concern for womens feelings and welfare are the norm”(Carr 2017).

 

The case of circulation and thereafter sale of a MMS clip of a consensual sexual act between minors are illustrative of such heightened objectification (Aneeta Hada v. Godfather Travels & Tours Pvt., Ltd., 2012 and Sharat Babu Digumarti v. Govt of NCT of Delhi, 2017). Even virtual characters are not safe from sexual assault, as the case of A Rape in Cyberspace”(Nappinai 2017), wherein one of the owners of a virtual character hacks and takes control of other online characters and makes them perform sexual acts against their wishes, demonstrates.

The Avnish Bajaj case dealing with the sale of CD containing minors engaged in sexual act on the e- commerce platform Bazee.com, was one of the earliest cases under the anti-obscenity (online) law- Section 67 of the Information Technology Act, 2000 (IT Act) (Aneeta Hada v. Godfather Travels & Tours Pvt., Ltd., 2012 and Sharat Babu Digumarti v. Govt of NCT of Delhi, 2017) The case is also responsible for redefining liability of Internet intermediaries like Bazee.comin India, covered by Section 79 of the IT Act. After the amendments in 2008 to Section 79 of the IT Act, intermediaries were exempted from liability for content hosted on their sites, provided they had no control over the said content. This liability is subject to the limitations set out in the said provision, which includes compliance with the Rules made under the Section.

In the above case, the victim survivedthis gross travesty of her privacy and dignity. Unfortunately, Vinu Priya from Salem, Tamil Nadu, resorted to the drastic step of suicide (Madhav 2016) when her morphed pictures were circulated through social media. Instances abound of circulation of revenge pornonline i.e., circulation of videos or images of consensual sexual acts after a couple separates.       

 

Cases of nude video clips or photos being used to blackmail victims into acquiescing to further assaults against them, failing which the culprits threaten to circulate the images and videos online, is another trend emerging from misuse of technology.

The case of Joji Jose v. State of Kerala (2015) falls under the above category of forcing the victim to marry the culprit under threat of circulating her naked photographs online. In Amandeep Kaur v. State of Haryana (2013), the video of the victims extra-marital sexual relationship was circulated online and sent to her husband. In Adarsh @ Adrash Singh v. State of Punjab (2013) – the victim was subjected to cyber bullying and her pictures were circulated online just before her marriage. In this instance, the Punjab & Haryana High Court took note of this emerging trend of victimizing women, which it held was ruining the social fabric of societyand ought to be curbed with heavy hands. Such instances of blackmail are commonly used against the LGBT community, where consensual acts are threatened to be exposed. Because India penalizes unnatural offencesunder the contentious Section 377 of the Indian Penal Code (IPC) victims themselves may become susceptible to prosecution (Nappinai 2017). While courts have underlined the changing context of social norms, the same has not reduced the commission of such or similar offenses.

The Indian Supreme Court has taken suo motu note of the circulation in the public domain of rape and gang rape videos, in Prajwala v. Union of India (2015). This verdict, which is awaited, is likely to clarify the roles and responsibilities of private and public agencies with respect to such cases.

  1. Unfreedoms online
    1. Freedom from fear women & repression

Freedom defies definition. It ranges from fundamental freedoms, recognized under international covenants and national constitutions. It encompasses both the physical and mental exercise of choice, be it to speak freely, act, think or do what one wants.

In the context of this paper, Franklin D. Roosevelts 1941 address on the four freedoms comes to mind, especially, freedom from fear’(American Presidency Project n.d.). If it were not for this freedom, all other freedoms become ephemeral, be they the freedom of speech and expression, thought, movement or action.

 

In effect, offenses against women online clearly decimate womens freedom through fear. It is illustrative of how the virtual world is not exempt from gender based hierarchies creating unfreedoms’(Sen 2004) that prevent womens free expression and exercise of choice.

 

Women in public life often face threats of rape and gang rape in response to their utterances. For instance, Kavita Krishnan, was trolled and threatened during a live chat show on Rediff (Sahay 2013). News anchors like Sagarika Ghosh and Barkha Dutt (Dutt 2017) ,social activists like Meena Kandasamy or any women even single mothers or homemaker expressing their opinions (Chatterjee 2015) tend to be targets of online threats. Trolling, a popularly used term in respect of online harassment, is rather mild to describe threats ranging from rape to gang rape and acid attacks, not to mention televised gang rapea threat that was casually dished out to Kandasamy.

 

Prior to its strike down, women who faced such vitriolic online threats could take recourse to Section 66A of the IT Act. The Supreme Courts strike down of this provision owing to its misuse by the State to clamp down dissent (Shreya Singhal v. Union of India, 2015), leaves a gap in the legal redress available to women in such instances.

 

Instances to harassment online are most certainly not limited to the Indian soil. UK members of parliament have spoken out against online threats and harassment including death threats being meted out regularly (Saner 2016).

Brianna Wu, who along with many other women was targeted by 'Gamergate', a game industry hate- group with repeated and explicit death threats, including of slitting her throatand tagging as a whoreexpressed feeling abject helplessness (Wu 2015) .

All the above instances pertain to women who have spoken up in public, expressing their personal, public or political views. Yet, when it comes to protecting themselves from online abuse, and taking the necessary steps, most women are afraid especially for the safety and well being of their family and children. Fearappears to be the common denominator among all these women. Instances noted above demonstrate that strong and powerful women resort to possibly withdrawing from public appearances or curtail extensive use of their social media. They are thus subject to the unfreedoms born out of fear that prevent them from exercising their rights.

    1. Guaranteeing privacy while tackling unfreedoms

With a sigh of relief, India welcomed the path breaking verdict, delivered by a nine-member Constitution Bench of the Supreme Court in Justice Puttaswamy v Union of India (2012), which held privacy is a fundamental right. The decision also calls special attention to the freedoms women need in order exercise their rights. The Supreme Court drew from an earlier decision - Anuj Garg v. Hotel Association of India (2008), wherein the Supreme Court highlighted the need for the State to focus on factoring in ways through which unequal consequences of sex differences can be eliminatedrather than to restrict freedoms, which in this context was that of bar dancers to pursue their occupation. The court noted that It is states duty to ensure circumstances of safety which inspire confidence in women to discharge the duty freely in accordance to the requirements of the profession they choose to follow,and not make policy decisions that are oppressive to women and against their privacy rights.

    1. The fence eats the grass

In Justice Puttaswamy v. UOI (2012), the Indian Supreme Court explores the possibility of proposed State actions for protecting women and their privacy being merely a veneer for patriarchal domination and abuse of women. This is akin to women being told to not wear certain kinds of clothes or step out after dark. These restrictions are usually justified in the name of security of women. Inexorably, this process results in women paying the price of freedom for their personal protection.

Patriarchal notions, as the Supreme Court noted, are used as a shield to violate core constitutional rights of women based on gender and autonomy. The Supreme Court relied on Catherine MacKinnons Towards a Feminist Theory of the State’ (1989), to highlight the dangers of privacy being used to cover up physical harm done to women by perpetrating their subjection.

The Supreme Court comes down heavily on any attempt to use privacy, as a cover to conceal and assert patriarchal mindsets.The emphasis on ensuring womens security with proportionality to the other bulk of well-settled gender norms such as autonomy, equality of opportunity, right to privacy et alruns right through the fairly lengthy judgement.

The Supreme Courts emphatic pronouncement that women have an inviolable interest in privacycombined with its caution that Privacy is the ultimate guarantee against violations caused by programmes not unknown to history, such as State imposed sterilization programmes or mandatory State imposed drug testing for womenlends fillip to providing protection for womens freedoms, while guarding against intrusive or overbearing regulation (Datta 2010).

The fine line therefore appears to be the balance needed to protect women from online harassment without restricting their rights through State action or self-regulation.

  1. Black hole of enforcement
    1. Laws protective shield

In the Indian context, the dearth of laws is certainly not the reason for absence of safety of women online. General and special laws represent an obvious deterrence to committing online offenses against women. It just has to be kept in mind that the IT Act is not the repository for all provisions applicable to cybercrimes.

Threats broadly identified above may be prosecuted by applying the following provisions. Section 66 read with Section 43 of the IT Act is a capture-all provision, which deals with offenses like hacking, virus attacks, data theft, denial of service attacks among others. Cybercrimes by their very nature involves one or some of these attacks either at preliminary stages for gathering information or access to computers or at subsequent stages for commission of offenses. These provisions therefore are most significant to deal with violence against women online . Instances of hacking into the webcams of laptops and recording of personal details of women and children through such remote access and thereafter posting such personal images or videos online (Anderson 2013) are instances of such violence, where the above provisions could be called into action.

Section 66E IT Act protects against capturing or circulation of images of private parts of individuals without their consent. Cases of culprits surreptitiously recording private acts and then threatening victims or even revenge pornwould be covered under this.

 

The cases of Joji Jose (2015) and Amandeep Kaur (2013) fall within this category i.e., even where the person may have consented to the recording of personal or sexual acts, its circulation without the consent of the woman is illegal under Section 354C IPC. Section 66E IT Act also provides for prosecuting violation of a womans privacy, if she did have a reasonable expectation of such privacy.

 

Section 66E, along with Section 43A and Section 72A of the IT Act are few of the only provisions for data protection or protection against data breaches in the digital domain. Section .43A provides for civil remedies for negligence in implementing and maintaining reasonable security practices and procedurewhile dealing with sensitive personal data and section 72A provides for criminal prosecution for breach of lawful contract leading to the disclosure of the broader spectrum of personal information. A more detailed data protection and privacy enactment is likely after the Committee of Experts appointed by the Government submits its report. The Committee has already put out a white paper on the data protection framework India and is soliciting feedback from the public. (Ministry of Electronics and Information Technology 2017).

In addition to the above, in cases of blackmail by persons having in their possession sexual or personal recordings, provisions of the IPC may be invoked. If content that is obscene or sexually explicit is circulated online, irrespective of whether the content is an actual recording or a morphed picture or video, Section 67 and Section 67A IT Act may be applied for initiating prosecution. Section 67B of the IT Act provides stringent punishment for child pornography. Even browsing or viewing child pornography is an offense. Exceptions including with respect to artistic works is built into the above provisions.

Cases such as those of cheating on matrimonial sites or for financial frauds may be prosecuted inter alia under Section 66D IT Act, which punishes impersonation online.

Noxious online offenses, where women are targeted through sexual harassment and serious intimidation and threats of physical harm would fall clearly within the ambit of the provisions under IPC including Section 354A IPC (sexual harassment), Section 354D IPC (stalking) and Section 509 IPC (outraging modesty of a woman). In addition, the instances of criminal intimidation set out above may be tackled with the general provision under Section 506 IPC, which metes out punishment depending on the gravity of the threat or intimidation.

    1. Proverbial slip between law & enforcement

Lackadaisical enforcement can substantially weaken laws shield. The painfully slow pace of implementation of the law in courts; lack of empathy and awareness among police and inability of victims to sustain lengthy prosecution born out of delays and lapses in law enforcement can render legal provisions to dead letters. Research by Feminism in India reveals that women prefer blocking harassment than reporting such. Police also often advise women to ignore or block harassment online (Feminism in India 2016).

Filing the complaint, follow up with the police and thereafter in court entails substantial investment of time for those who choose to prosecute. Even though cases filed under the above cited criminal provisions would be State led prosecutionsi.e., the victim is only required to register the complaint and not conduct the prosecution, she still has to expend a lot of time and effort to pursue such prosecutions to ensure effective implementation. Further cyber forensic labs often delay reports (Shakill 2015).

There is a general lack of sensitivity by the police while dealing with such cases. Women have repeatedly reported being treated like the culprit during police inquiry, which they often report feels like an interrogation. For instance, in a case of circulation of personal pictures of the victim by a hacker, the police questioned the morality of the victim in taking such pictures. The police finally registered the case, after many months, only because of legal intervention.

 

Despite the thrust towards a Digital India, womens cyber security is routinely ignored. The National Crime Records Bureaus Crime in for India Report of 2015 (National Crime Records Bureau 2015) lists insulting modesty of women, personal revenge/settling scores and sexual exploitation among the top ten reasons for commitment of cyber offenses. Conviction rates for cybercrimes in the country are quite low (Kumar 2016).

 

Once the victim crosses all these hurdles, she faces further obstacles through delays in court. Delays in the justice delivery system have in fact resulted in many victims taking the easy alternative of requesting closure of cases even though Section 77A IT Act explicitly prohibits entering into compromises/settlement to drop charges in cases of offenses against women and children. Yet many such cases of sexual harassment of women online go unpunished with cases being closed at premature stages(Nappinai 2017).

It is not just in India that women face obstacles in enforcing their rights against online harassment. Wus case, discussed earlier, demonstrates the limitations in enforcement. In January 2017, FBI released a redacted report of its Gamergate investigations, which in effect heighten the sense of helplessness mentioned by Wu, when the offenses of online harassment were committed. The report indicates that barely any prosecution followed the extensive investigation in most cases despite explicit proof of persistent and willful harassment during the 2014-2015 period (Robertson 2017).

Across jurisdictions, women report not just the absence of or delays in enforcement against perpetrators, but also of the permeation of the patriarchal condescension warning women to stay awayfrom the online domain or to just walk away. Even judges advise victims to just go offline, stating that Its virtual, and you just have to turn off the computer and walk away.”(Lafrance 2016)

Asking women to stay away from the Internet or social media sites is by no means a solution. States are obligated to protect womens freedom online against harassment. Obviating this and prescribing ways to avoid offensive behaviorlimits how women may choose to explore the online.

It must also be mentioned that despite the reality of poor enforcement and delays in justice delivery, there have also been a few expeditious trials in India. For example, a cyber stalking case was tried in 48 hours in city of Pune (Joshi 2017). This case demonstrates how effective enforcement against offenses online is not impossible.

    1. Technology to the rescue

Technology, which has enabled offenses against women through innovative means could also be roped in to protect if not prevent commission of such crimes. In 2015, the Indian Supreme Court took note of instances of rape and gang rape videos being uploaded online and suo motu action was initiated in Prajwala v. Union of India (2015). The scope was thereafter extended to include prevention of child pornography being disseminated online. On 23 October, 2017 the Supreme Court passed an interim order based on consensual proposals formulated and accepted by a high-level Committee, comprising representatives of the government and prominent social media networks, constituted by the court (Prajwala v. Union of India, 2017).

 

The primary thrust of the above order is to prevent, at the earliest possible time, uploading and/or circulation of recordings of violent crimes such as those set out above, using technological advances. The order also envisages use of technology to search and find such content and carry out its removal proactively. These mechanisms will, hopefully, alleviate the harm caused when these videos are widely shared online. The implementation of the Supreme Courts order would set a welcome trend of using technology to combat the problems created by the use of technology.

The combination of law and technology may provide the much - needed protections that women need to participate online, and can help bridge the digital gender gap. Implementation would necessitate a combination of regulation and technology enabled solutions. However, neither technology nor law alone can obliterate crimes against women from the online domain. But, that ought not to be a deterrent in implementing solutions.

  1. Dignity of  being

In Gaurav Jain v. Union Of India (1997) the Indian Supreme Court scorned Shakespeares quote "Frailty, the name is woman", as an ignominy heaped upon women of Victorian Eraand instead articulated eloquently, as follows fortitude, thy name is woman.

It is with this fortitude and tenacity that women would have to continue their foray into web. The idealistic declaration in Article 1 of the Universal Declaration of Human Rights that all human beings are born free and equal in dignity and rightswill come alive only with women balancing safety with sagacity.

That their brethren may not act in the spirit of brotherhood envisaged under the Universal Declaration of Human Rights and that users of the Internet will continue to defy the alleged reason and conscience, which they are purportedly endowed with when committing grave and heinous violations against women may be more certain than the transient security being offered online. Adopting preventive measures, exercising caution, just as the physical world warrants, and prompt reporting against infractions may be just some remedies to counter violence online from the womens side.

Legal and technological measures to find and eliminate offensive content is a significant task that regulatory and Internet intermediaries will have to undertake. Such action is intended to protect womens rights online and to prevent stymieing their freedoms.

More importantly, effective enforcement would pave the way for womens safety online. Cyber sexual harassment is neither given the serious attention it warrants nor is the police, across jurisdictions, really equipped to handle such cases (Jarvis 2017). It is irrelevant whether the cyber harassment is from USA or UK or India, law enforcement agencies neither understand the extent to which such harassment could go nor the seriousness of such actions. Sensitization of police and means for them to initiate expeditious action are therefore paramount to not only punish culprits but to also deter others from indulging in such acts.

As the Supreme Court eloquently captured in the Justice Puttaswamy judgment, autonomy and dignity with protection of their privacy may be the broad wish list that needs protecting in the pursuit of happiness and dignity of being of women online. Unfortunately, until such time as this wish list is met, women will have to deal with the unfreedoms imposed as the fetters across assumed freedoms.

 Read the full piece here.

 

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