By Sampada Kapoor
The constitution of India guarantees Freedom of Speech and Expression to every citizen of India. This Fundamental Right is not only available in the physical world but in the virtual world of Internet also. The Information Technology Act, 2000 (hereinafter referred to as the IT Act) is a legislation governing this right in the cyberspace.
In the ambit of Freedom of Speech and Expression, Section 66 A of the IT Act which punishes a person for broadcasting any information which is “grossly offensive” or “menacing” in character on the cyberspace, was struck down by the Honourable Supreme Court in the case of Shreya Singhal v. Union of India and right to freely express ourselves in the cyber world was given. This however, does not mean that a person can post defamatory content or send threatening messages or post obscene pictures online. There are other laws and penalties available under which these offences can be penalised. This piece is going to deal with these hidden acts and penalties.
The social media is the most common used platform for interacting with people these days. People from all age group, living continents apart are connected through it. And it is not just the people we know who can access us online but anyone using this platform by a simple click of button can know us. Thus sometimes we tend to get messages or even emails from strangers which are offensive in character. We tend to ignore these but these texts can lead up to threatening and taunting emails. And just like that we can become victims of cyber bullying.
Cyber Bullying Research Centre in the United States defines cyber bullying as “wilful and repeated harm inflicted through the use of computers, cell phones and other electronic devices.” The bullies set up fake profile to harass a person. Opening fake accounts amounts to forgery and is punishable with 2 years imprisonment. Any activity done through these fake accounts can increase the liability by another 3 years in jail. Cyber bullying is therefore any harassment that occurs via the Internet and Mobile Phones, vicious forum posts, name calling in chat rooms, posting fake profiles and cruel messages. As per Section 77 B of the IT Act the above offence is cognizable and bailable. While bullying, if defamation is caused then it is covered under Section 500 of the Indian Penal Code, 1860.
But merely because some article is published, attributing certain utterances to that person then it is not defamation. Cyber stalking is another offence that is committed by the use of computer and computer services to threaten or harass a person repeatedly. Stalkers are mostly motivated by a desire to exert control over the victim. India has crossed the danger mark in cyber crimes. Mumbai tops this list followed by Delhi. It is believed that about 75% of the cyber crimes are targeted at women, adolescents and children. According to research, 62.5% of the cases of harassment started through emails and online chats. A study conducted on 72 women by Megha Desai and K Jaishankar states that, 12.5% of the respondents had an intimate relationship with their cyber stalker before the stalking started.
Criminal Law Amendment Ordinance, 2013 added Section 354D to the Indian Penal Code, 1860 to define and punish the act of stalking. It guarantees a minimum punishment of 1 year which can be extended upto 3 years and the offender is also liable to fine. There are various cases of cyber crime being reported. The case of one Mrs. Ritu Kohli was the first case of cyber stalking and bullying reported, where the accused hacked into the victims email account, morphed her pictures and posted them on adult websites. The recent case of “Bois Locker Room Chat” where young boys were talking in a lewd manner and transmitting obscene pictures of girls is also governed under the IT Act. Here Section 67 of the IT Act is applicable, which punishes publishing or transmitting obscene material in the electronic form along with Section 67 B, which specifically talks about children depicted in sexually explicit content in the electronic form. Thus, a person cannot post or tag you in an offensive photo. It makes a person liable for 3 years of imprisonment and if it contains sexually explicit content then punishment is increased to 5 years. It is also a violation of their privacy and the accused is punished with imprisonment upto 3 years or fine upto two lakh rupees.