Virtual violence: are Sections 66A and 67 of the IT Act the answer?

The session, moderated by Anjali Mathur, discussed these pressing questions: What will ensure that these sections don’t turn into tools of censorship and harassment in the hands of the State or right-wing groups? Is legislation the answer? What are the alternative remedies? What can women do when they face virtual violence? How do we, as journalists and women, understand these sections in the context of the debate that sees as untenable curbs on the freedom of expression?

Redressing cyber crime

Kick-starting the discussion, NS Nappinai, founder member of the Technology Law Forum and a lawyer with 22 years of experience and specialising in IT issues, threw open the question to the audience: “What is gender violence”. Pat came the answer: “Violence directed at women because they are women.” So, the question arises, do cause and effect of gender violence change because of the medium, or is it only the impact or reach that changes? Technology has certainly helped perpetrators due to a greater reach, anonymity and a larger victim base. Crime now had a new face in the shape of: easier access to pornography; increase in child pornography (often with underage perpetrators); cyber stalking; cyber harassment; identity theft; morphing; cyber defamation; cyber bullying and e-mail spoofing. The perpetrators of cyber crime also include children who find a way of taking revenge, and getting back at teachers, classmates or friends, according to Nappinai.

So what are the remedies? One legal response to the “IT revolution” was the Information Technology Act, 2000 (“IT Act”), of which the most relevant Section, that is S.66 A, makes “sending offensive, false, annoying, inconvenient, deceitful or misleading messages through communication device” punishable with a three-year jail term and a fine.

Laws within the Information Technology Act 2000 (IT Act) along with Section 66A, seeking to deal with technology-driven gender and hate crimes against women and children, cast a wide net, trying to cover every possible act. However, these wide-ranging provisions are often narrowly interpreted. There needs to be a clearer understanding of their interpretation and use, so that their impact is felt where it is really required, said Nappinai.

The law attempts to deal with situations as wide-ranging as the attempt to bully and blackmail a woman over her alleged illicit affair (the case of VR Ninawe); and identity theft (for example by Manish Kathuria of one Ritu Kohli to chat on www.mirc.com, using obscene language and giving her contact details to induce listeners to make lewd calls to Kohli; the accused was traced through his IP address. Instances of cyber stalking and cyber harassment are also violations under this Section.

However, the other face of the ambiguous Section 66A is the possibility of it being used to censor or silence dissenting voices. For example, the recent Palghar case where two young women were booked for Facebook posts lamenting the manner in which Shiv Sena supremo Bal Thackeray’s funeral had caused a complete shutdown of Mumbai. Likewise, in Tamil Nadu, Ravi Srinivasan’s tweet against Karthi Chidambaram, son of P Chidambaram; Ambikesh Mohapatra’s arrest in April 2011 for posting a cartoon on West Bengal chief minister Mamata Banerjee; Aseem Trivedi’s arrest in September 2012 for cartoons on corruption, and Heena Bakshi’s Facebook post about Chandigarh Traffic Police about a stolen car.

Section 66A was amended after the 26/11 attacks in Mumbai and was aimed at dealing with those who made hoax calls. However, said Nappinai who had studied at least 20 cases of hoax calls, Section 66 was not invoked in even one of these cases. Neither does it pinpoint the responsibility of service providers who are liable for instances of cyber defamation. An important anomaly in the Act is that there is a different set of laws governing defamation applicable to online media, which do not apply to the print media. While defamation in print is a non-cognisable offence, defamation online is a cognisable offence.

Additional Sections 66E and 67 A and B, related to privacy laws, do not have a clear definition of what constitutes a violation. For example, S.66 E refers to “violation of privacy through capturing, publishing ortransmitting image of private area of person without consent.” However, it is not clear why the restriction is for violation only of private parts. Likewise, the definition of “private parts” has huge implications for larger issues of privacy.

Indeed, while trying to define “privacy”, the law is stuck defining pornography. While there is an emphasis on online pornography, it does not consider “obscenity” in acts and songs; outraging the modesty of a woman; morphing (for instance hacking into a Facebook account and putting up derogatory wall posts or changing photographs to make it pornographic) as instances that require punitive measures. It must be noted that while the offence of pornography has been defined in the Indian Penal Code, it is its online transmission that invites prosecution under Section 66A.

According to Nappinai, anomalies in the law notwithstanding, Section 66A and others could be useful provisions but there needs to be a clearer understanding of the procedural provisions as against the punitive provisions. There is a need to insert illustrations of what constitutes abuse so that law enforcers have a clear understanding of violations and know where they are crossing a line under political pressure.

The EROTICS Project

This intriguing-sounding study (Exploratory Research on ITs and Sexuality – EROTICS) was conducted between 2009 and 2011 in five countries. Researcher Manjima Bhattacharjya, who worked on this project in Mumbai, shared some of the findings of the study. The project was launched around the time that there was a great deal of anxiety about “ITES” (information technology enabled services) – it was a year after the infamous “Delhi MMS case” where an MMS clip of a schoolgirl engaging in oral sex did the rounds. This was also the time when there was a crackdown on “cyber terrorism” and the raids on cyber cafes, banning of the porn video “Savita Bhabhi”, and so on. Indeed, some search engines blocked searches from India that used the word “sex”.

The study aimed to analyse the link, if any, between what women do online and how that impacted virtual sex crimes: deceptions; harassment; and manipulation of personal data which are posing specific risks for women and children who have access to the Internet.

While many believe that online engagement with strangers — revealing personal information and photographs — is safe, the study shows a “scary and shocking picture” of deception, blackmail, harassment, stalking, which is a very real danger they face in real life as a consequence of putting out personal information on a public domain. In most cases such crimes are perpetuated by people known to the victim, Bhattacharjya said.

The in-depth qualitative study of about 150 young people between 18 and 34 years of age divided the participants in the study into four categories: (i) Digital Natives (18-21 years) who had been born into Internet access in India; (ii) Bridge Group – older people who spent online time chatting, exploring, flirting, checking out matrimonial sites and searching for partners; (iii) Guardians – older women who had restricted access because of sharing computers with children or other family members, and (iv) Moderns: bloggers, trans, lesbian, disabled persons, those who expected equality in their relationships.

The study revealed how women from conservative backgrounds seek online information on topics such as sexuality or contraception. They sought answers to questions that they didn’t want to ask others, as such questions would reveal that they were sexually active, exploring their sexual orientation, or anxious about life changes like menopause. Women from orthodox Marwari, Sindhi or Gujarati families sought to bypass social surveillance when they engaged in online chatting and flirting. Many took on a name or persona different from everyday life.

The main features explored in the study were: access to pornography; deception; hacking of personal, data and economic scams. There seemed to be a tension between online life and daily life, but respondents in the study seemed to resolve it in a variety of ways. About porn, for example, one woman said, “It is harmful only if you are caught.” Bhattacharjya opined that the response to porn is also vey gendered, since a woman getting “caught” watching porn is very different from a man who watches porn. There was a sense that porn was very much a part of life of the respondents, many of whom encounter it at 13-14 years of age. At first, many were shocked or found it scary. But it is seen as something “unreal” and therefore not impinging much on life. What they seemed to find more dangerous was “real stuff” and voyeurism – through CCTVs, hidden cameras in toilets or hotel rooms, etc.

About deception, there is a perception of “stranger danger”, but deception was what they could not do in real life. So, flirting or chatting was done as “fun”. There was mostly a letdown when meeting someone offline – a handsome online stranger can be an ordinary person in real life. Harassment does happen, and one woman said, “It took a long time to get one guy out of my network.” She went on to say, “Indian men’s online behaviour shows how they are offline – totally lacking in etiquette.”

Some respondents shared that the solutions to hacking etc were not always through the law. One woman reported the distress she felt when her Facebook identity was stolen, her picture was used to create a profile and porn was posted under her “favourite movies”. But this woman got a hacker friend to deal with it.

Interestingly, just as in rape, nasty incidents in the virtual world also seemed to be committed by men known to the women. They said that the biggest danger was when online harassment spilt over into the offline.

Women thus learn from bad experiences and learn how to make themselves safe in a context where there is very little information on cyber security for women. For most women interviewed, reporting the crimes to the police was not an option. For one thing, they felt that they would themselves be blamed. Secondly, they felt that Internet access would be automatically restricted. The norm seemed to be: don’t go to parents, deal with it in your own network. Bhattacharjya pointed out that policing the Internet is very similar to the ways in which women are policed in real life. Most women, while acknowledging that there were risks, rejected the notion that the Internet is a dangerous space. In fact, most women said that online behaviour – where what they wear, talking to strangers or mobility at all times of the day or night were taken for granted – should be a model for women’s safety in the public space.

Between freedom and abuse

Growing access to the Internet has also thrown up issues on freedom of expression as well as how the Internet can become a tool for spreading hatred; accessing sensitive personal information or undermining issues related to women, said Mumbai-based journalist Geeta Seshu. The bile in comments sections of websites and blogs was particularly sexist and casteist, and represented clear attacks on free speech online. The question of how to deal with online harassment and abuse without impinging on freedom of expression was a sticky one, she continued.

The arenas of hate speech, censorship and privacy are particular tricky. It is also true, however, that the platform provided by the Internet also encourages a willingness to dialogue and engage with people of differing views, when earlier the approach was to blockade, abuse or kill the opponent. A case in point was controversial author Salman Rushdie’s recent visit to Mumbai, when one of the strategies of protest was to abuse him during Friday prayers. This sort of opposition marked a shift from earlier death threats to Rushdie.

With regard to Vishwaroopam — the film by Kamal Haasan that had met with opposition in certain quarters due to objectionable portrayal of Muslims — the issue of law and order was cited by the Tamil Nadu government as a reason for “banning” the film. However, public order, not maintenance of law and order, is one of the justifications for restricting freedom of expression.

Using the legal route had to be done with care, cautioned Seshu, given that Section 66 can be applied in an arbitrary manner, since the definitions were loose. Section 66A can be easily misused, and the increasing clampdown on Internet freedom must of great concern to us all, she added. The possibility of “sensitive personal data” being made available to officials is very worrying, since it represents a grave infringement of privacy and increase in routine surveillance. The government is abrogating the right to intercept any form of electronic correspondence, and corporations like Google construct search engines in ways that retain personal information and allow tracking of individual communication. These are developments that have grave consequences for freedom of expression. Equally worrisome was the government’s move to amend the Indecent Representation of Women Act, 1986 – a law that was already deeply problematic. If online harassment and abuse of women is going to be located under the rhetoric of women’s “modesty” being outraged by “lascivious” or “indecent” content, the patriarchal constructs would change very little. The problem of cyber stalking and trolling, for example, are far more serious than the “indecent” material that women are sought to be protected from. Indeed, stalking, abuse and hate speech are directed at women who express their opinion and thus invite a backlash.

So, what are the strategies available for online safety? Many individuals who are active online have chosen to hack back in order to protect themselves. Technology is constantly evolving, and there is a need to keep up. The important thing is to speak up and generate support to get others to speak up for us. The motive is to silence women, so women should do all they can to resist.

The discussion from the floor saw an intervention from Shaheen Dhadha, the young woman from Palghar who had been arrested for a Facebook post. “It was the worst experience of my life,” she said. Dhadha went on to throw the spotlight on the first female rock band in Kashmir that was facing immense harassment, hate speech and threats of rape. Their Facebook account was hacked and closed down, and they had decided to shut down and stop performing, unable to face the intimidation. “I am addicted to Facebook,” admitted Dhadha, adding that she had now become very careful and thought twice before she posted anything. “My country is resilient by force, not by choice,” she said.

C Vanaja, NWMI member from Hyderabad, recounted the local network’s experience with a recent case of online sexism and anti-women abuse on Facebook, via an open account called “Educated Rogues”. Vanaja and the group tried various interventions, starting with going to the page and posting objections. However, when the abuse was relentless, they decided to take the legal route and filed cases under IPC Section 509 (outraging the modesty of a woman) and Section 66 A of the IT Act.

The discussion focused on the utility of laws like Section 66A, which was passed and amended in great haste. While Kapil Sibal had made noises about going back to the drawing board to redraft the law, no civil society representatives were ever invited to meetings – it was only corporations that were considered stakeholders. Bhattacharjya asked a provocative question: “Who exactly is the law for? Whose security is being protected? Laws such as these are to maintain the idea of the ‘nation’ and to bolster an idea of ‘Indian femininity’.”

Nappinai noted that earlier, law was perceived as a means to justice, while now, it was seen more narrowly as something that ensures rule of law. When law becomes a regulator and not in the interests of the people, the larger picture is lost, she said.

Rapporteurs for the session: Rupa Chinai, Padma Prakash, Laxmi Murthy