Voyeurism And Stalking: A Threat To Security Of Woman In India
With the advent of technology, cybercrime and victimization of women are on the
high and it poses as a major threat to the security of a person as a whole.
Cybercrime against women in India is relatively a new concept. When India
started her journey in the field of Information Technology, the priority was
given to the protection of electronic commerce (e-commerce) and communications
under Information Technology Act, 2000 whereas many crucial areas remained
untouched.
The Act turned out to be a half-baked law. Even though India is one of the very few countries to enact IT Act to combat cybercrimes, issues regarding women still remains untouched in this Act. The said Act has termed certain offences as hacking, publishing of obscene materials in the net, tampering the data as punishable offences. But the grave threat to the privacy and security of women in general is not covered fully by this Act.
Women victimization was recognised long back in the Post-Vedic times which still continue through today the forms of harassment have changed. The position of women has been vulnerable, always. Even if Equality is the key factor as far as a democratic country like India is concerned, there still exists and erupts new ways of suppressing her. And in the present era of technology, Hi-Tech forms of crimes are targeted against women through the use of internet, mobile phones and such type of electronic gadgets. The use of cyber space and its attendant features of anonymity continue to influence negatively the social and cultural aspects of society.
Introduction
"Yatra naryastu pujyante ramante tatra Devata……yatraitaastu na pujyante sarvaastatrafalaah kriyaah" - - Manusmriti 3.56
which reads: - "where Women are honored, divinity blossoms there, and where women are dishonored, all action no matter how noble remain unfruitful". Literary evidence on ancient Indian culture suggests that kings and towns were destroyed because the rulers troubled a single woman.
For example, Valmiki Ramayana teaches us that Ravana and his entire kingdom were wiped out because he abducted Sita. Veda Vyasa's Mahabharata teaches us that all the Kauravas were killed because they humiliated Draupadi in public. Elango Adigal's Sillapathigaram teaches us Madurai, the capital of the Pandyas was burnt because Pandyan Nedunchezhiyan mistakenly did harm to Kannaki.
So far as the Indian conceptions of woman as a mother are concerned, it was believed that there is no greater guru than mother." (Mahabharata, Shantiparva, 30.9). Our own life is a gift from our mother's life. We were nourished by her, we spent nine months in herwomb, and her love sustained us. Through this means, before any child learns hatred or aggression, they first know the love of a mother who can instill the ways of forgiveness and kindness in the child. Scrutinizing the ancient Bharat culture, it is evident that the status and position attached to woman in every phase of her life, as an independent dignified personality, was at its zenith.
In this paper, the researcher mainly focuses on the women victims on cyber space mainly because of certain reason. They are:
Concept Of Cybercrime
The internet has revolutionized the way the individual interacts with each other. The phenomenal growth of internet has provided new vista for computer crimes. A new strain of crime has developed through the invention of the computer and internet. The term cybercrime1 is a misnomer which is not radically different from the concept of conventional crime. The concept of cybercrime is not new in the knowledge society of 21st century, the kind of which is more or less same since 1860.
The new technology has facilitated the commission of old crime in a new-fashioned way as it is easy to be committed with little resources but damage caused could be very huge. Thus, a simple definition of cybercrime is any unlawful act where computer is either a tool or target or both.2
INFORMATION TECHNOLOGY ACT, 2000
There was no statute in India for governing Cyber Laws involving privacy issues, jurisdiction issues, intellectual property rights issues and a number of other legal questions. With the tendency of misusing of technology, there arisen a need of strict statutory laws to regulate the criminal activities in the cyber world and to protect the true sense of technology "INFORMATION TECHNOLOGY ACT, 2000" [ITA- 2000] was enacted by Parliament of India to protect the field of e-commerce, e-governance, e-banking as well as penalties and punishments in the field of cybercrimes. The above Act was further amended in the form of IT Amendment Act, 2008 [ITAA-2008].
The ITA-2000 defines 'Computer' means any electronic magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software, or communication facilities which are connected or related to the computer in a computer system or computer network.
18 The word 'computer' and 'computer system' have been so widely defined and interpreted to mean any electronic device with data processing capability, performing computer functions like logical, arithmetic and memory functions with input, storage and output capabilities and therefore any high-end programmable gadgets like even a washing machine or switches and routers used in a network can all be brought under the definition.19
Objectives of I.T. legislation in India:
"to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as "electronic commerce", which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, the Indian Evidence Act, 1872, the Bankers' Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto."
The Information Technology Act, 2000, was thus passed as the Act No.21 of 2000, got President assent on 9 June and was made effective from 17 October 2000.
The Act essentially deals with the following issues:
Information Technology (Amendment) Act, 2008
Major change that has been incorporated by the amendment Act, 2008 are as follows:
Stalking And Voyeurism:
"While the Internet and other information technologies are bringing enormous benefits to society, they also provide new opportunities for criminal behaviour" - Former U.S. Attorney General Janet Reno, Jan. 10, 2000.
Cyber world provides space for women. It gives her freedom to voice her opinion, pour out her frustration, anger; spell out her dreams. It is where she can share her world with others to find solidarity, affirmation & support. But danger lurks in the cyber world as in physical world in the form of stalking, vilification and verbal abuse. A woman is as vulnerable in cyber space as in physical space. Men intimidate her and seek to shut her up, discourage her from expressing herself. Increasingly, cyber space is being used to wreak vengeance, vendetta and to punish women.45
Cybercrime against women include harassment through email, cyber defamation, morphing, stalking, email spoofing, cyber pornography, cyber flirting & cyber bullying. Other crimes against women include posting vulgar comments & pictures on social media, morphed photographs, identity theft. Men are equally susceptible to all cybercrimes but women are in majority as victims. Studies shows that a majority of cybercrimes are related to obscenity and about 75% of victims are women. Youth and children are the next most targeted. For the purpose of this research, certain cybercrime specifically targeting women alone are highlighted.
Cyber Stalking
Stalking refers to harassing and threatening behavior that an individual engages in repeatedly towards another person. Harassment by e- mails/Cyber teasing/Cyber bullying/Cyber flirting is in effect can be considered equal to cyber stalking. In quasi legal terms, stalking can be defined as 'a willful course of conduct involving repeated or continuing harassment of another individual that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed or molested and that could cause a reasonable person to feel so.46 Cyber stalking is a recent phenomenon and women generally are the main target of this cybercrime.
According to the Oxford Dictionary, Stalking means 'pursuing stealthily'. Cyber stalking involves following a person's movements across the internet by posting messages on the bulletin board or chat rooms frequented by the victim, constantly bombarding the victim with e-mails etc. Therefore cyber stalking involves threatening unwarranted behaviour or advances directed by one net user to another user using the medium of internet and other forms of online communication.47
Cyber stalking is an extension of physical form of stalking where the electronic medium such as the internet are used to pursue, harass or contact another in an unsolicited fashion. The term is used to refer to the use of internet, e-mail or other electronic communication devices to stalk another person. Stalking is a problem that many people especially women, are familiar within real life. Typically, the cyber stalker's victim is new on the web, and inexperienced with the
Cyber stalking is an extension of physical form of stalking where the electronic medium such as the internet are used to pursue, harass or contact another in an unsolicited fashion. The term is used to refer to the use of internet, e-mail or other electronic communication devices to stalk another person. Stalking is a problem that many people especially women, are familiar within real life. Typically, the cyber stalker's victim is new on the web, and inexperienced with the rules of netiquette & Internet safety. Their main targets are the mostly females, children, emotionally weak or unstable, etc.
Cyber stalking can be categorised as follows:
As the internet becomes an even more integral part of our personal and professional lives, stalkers can take advantage of the ease of communications, the net's intrusive capabilities as well as increased access to personal information. It is true that both men and women may be stalked but statistics show that the majority of victims are female. According to a survey on cyber stalking cases conducted for the period of 2000 – 2006 shows that in majority of cases the perpetrator is male and most preferred form of perpetration is through e-mail(38%) followed by message board(17%) and chatting(10%).49
Stalking under Information Technology Act, 2000
Previously, the only provision under IT Act that dealt with cyber stalking was S.66A50 which was repealed by the Hon'ble SC as violative of freedom of speech and expression. In fact there were many cases that were initiated under S.66A of the IT Act, 2000. The Indian Information technology Act 2008(amended) also does not directly address stalking.
But the problem is dealt more as an "intrusion on to the privacy of individual" than as regular cyber offences which are discussed in the IT Act 2008. Hence the most used provision for regulating cyber stalking in India is section 72 of the Indian information technology act (Amended), 2008 which runs as follows;
Breach of confidentiality and privacy 51:
Save as otherwise provided in this Act or any other law for the time being in force, any person who, in pursuant of any of the powers conferred under this Act, rules or regulations made there under, has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such electronic record, book, register, correspondence, information, document or other material to any other person shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both. And also sec. 72A of the Information Technology Act, 2000(amended in 2008), which runs as follows:
Punishment for Disclosure of information in breach of lawful contract 52:
Save as otherwise provided in this Act or any other law for the time being in force, any person including an intermediary who, while providing services under the terms of lawful contract, has secured access to any material containing personal information about another person, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses, without the consent of the person concerned, or in breach of a lawful contract, such material to any other person shall be punished with imprisonment for a term which may extend to three years, or with a fine which may extend to five lakh rupees, or with both.53
In practice, these provisions can be read with S. 441 of the Indian Penal Code, which deals with offences related to Criminal trespass and runs as follows: Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property , or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate , insult or annoy any such person, or with an intent to commit an offence, is said to commit criminal trespass.
However, after the December, 2012 Delhi gang rape incidence, the Indian government had taken several initiatives to review the existing criminal laws. A special committee under Justice Verma was formed for this purpose and basing upon the report of the committee, several new laws were introduced. In this course, anti-stalking law was also introduced.
Whoever follows a person or contacts or attempts to contact such person to foster personal interaction repeatedly despite a clear indication of disinterest by such person or whoever monitors the use by a person of the internet, email or any other form of electronic communication or watches or spies a person in a manner that results in fear of violence or serious alarm or distress, in the mind of such person or interferes with the mental peace of such person, commits the offence of stalking.
Provided that the course of conduct will not amount to stalking if the person who pursued it shows that it was pursued for the purpose of preventing or detecting crime and the person accused of stalking had been entrusted with the responsibility of prevention or detention of crime by the State , or that it was pursued under any enactment or rule of law, or to comply with any condition or requirement imposed by any person under any enactment, or, that in the particular circumstances, the pursuit of the course of conduct was reasonable.54
Whoever commits the offence described in S.354D (1) shall be punished with imprisonment of either description for a term which shall not be less than one year but shall extend to three years and shall also be liable to fine.
The gravity of cyber stalking came into focus in India when Delhi police was asked by Mrs. Ritu Kohli to file complaint against an unknown stalker who flooded a series of e-mails to her. The person through the mail threatened her to either pose nude for him or give an amount of rupees one lakh. Initially she ignored the mail but got alarmed when she started receiving similar threatening letters through post.
The accused threatened her that he would put up her morphed picture along with her phone number and home address. Adding to this, the accused did sent her the photograph which was confirmed to be the same photograph she had in her mail folder. She also received numerous unsolicited phone calls from strangers at odd hours for sexual favours.55
Based on her complaint, authorities traced his IP address and felt that the accused knew a lot about the victim and confirmed that he hacked kohli's email address & password through which he had an access to her photographs. The accused also chatted on behalf of the victim and distributed her phone number to various chatters. The accused Manish Kathuria was booked mail folder. She also received numerous unsolicited phone calls from strangers at odd hours for sexual favours.55
Based on her complaint, authorities traced his IP address and felt that the accused knew a lot about the victim and confirmed that he hacked kohli's email address & password through which he had an access to her photographs. The accused also chatted on behalf of the victim and distributed her phone number to various chatters. The accused Manish Kathuria was booked under S.509 IPC for outraging the modesty of a woman & he pleaded guilty. 56
Reported Instances:
In another instance, Chinmayee,57 a noted singer from South India was harassed by perpetrators who posted threatening and obscene messages in Twitter and FB. The report said that Chinmayee made a formal complaint to the Chennai Police Commissioner on the ground that the perpetrators had threatened to "kill, rape and assault" her on Twitter and FB. Her mother was also targeted with vulgar expressions.
The perpetrators did not stop with making obscene and vulgar comments towards Chinmayee; they also targeted her on the issues of supporting the cause of Tamils. The report stated that on the basis of her complaint, one of the accused was arrested under the provisions in the IT Act and the Tamil Nadu Prohibition of Women Harassment Act.58
The cybercrime cell of Delhi received a complaint from a senior executive of an airlines company stating that he has been flooded with emails of morphed pictures of his wife showing her nude. These emails were also sent to all the colleagues of the complainant. The accused allegedly threatened to put up these mails on sex websites along with her phone number and address. Every time the accused sent a mail, he apparently created a new email account. The police suspected the involvement of any disgruntled employee working in the office of the complainant. 59
Bhubaneswar Case - The Xavier Institute of management lodged a cybercrime complaint with the police in December 2004 that students & staffs of this institution are getting numerous obscene electronic mails. The students were also afraid of the online hacking, spamming & threatening. Police appointed technical experts to investigate & examine the matter. At first these were considered to be spam but later on students were over flooded with obscene mails & continuous sexual harassment through internet. At that time Bhubaneswar Police were weak to fight against cybercrimes as they were not trained enough to tackle the issue.60
A Delhi university law student has been accused of stalking & threatening a woman online over a year. He also created her fake profiles on social networking sites to defame her & made obscene phone calls. The victim while working in Delhi got acquainted with the accused and refused his marriage proposal. He assaulted her and she lodged a complaint on this behalf.
After this he apologized and promised not to bother her in future. The accused also gave a written statement to police station that he will not stalk her. The victim later moved to Goa to live with her parents found out a fake profile of her & a photograph declared her to be his wife. The girl's marriage was called off due to this. A case under S.66 A of I.T Act was lodged.61
Voyerism
In an age of modern & revolutionized communication electronic equipments, the privacy of an individual is under siege. The video surveillance equipments has become smaller, more portable more easily concealed and more accessible to the general public; its clandestine application had contributed to today's cultural fascination with voyeurism. This advance video surveillance equipment has had a profound adverse impact upon our concept of privacy.
India is not untouched by the adverse impact and the newspapers were flooded with various unsavory stories of surreptitiously concealed video cameras. There has been an unprecedented increase in incidents involving video tapping of private parts of unwilling females even in public places Lady's wash rooms or waiting rooms where one can reasonably expect his or her privacy.
With the development in video and image capturing technologies, observation of individuals engaged in private acts in both public and private places, through surreptitious means, has become both easier and more common. Cameras or viewing holes may be placed in changing rooms or public toilets, which are public spaces where individuals generally expect a reasonable degree of privacy, and where their body may be exposed.
Voyeurism is an act which blatantly defies reasonable expectations of privacy that individuals have about their bodies, such as controlling its exposure to others.116 Voyeurism is an offence to both the privacy as well as the dignity of a person, by infringing upon the right of individuals to control the exposure of their bodies without their consent or knowledge, either through unwarranted observation of the individual, or through distribution of images or videos against the wishes or without the knowledge of the victim.
Law To Deal With Voyeristic Conducts
While in many other countries, there are now a variety of statutes dealing with voyeuristic conduct in place that seeks to protect these inviolable rights. India is not lagging behind to check this new form of felony due to the advancements in the technology.
The legislature introduced section 66E via I.T (amendment) Act, 2008. This section recognize the right of privacy as inviolable and makes the felony punishable with imprisonment which may extend to 3 years or with fine not exceeding 2 lakh rupees or with both. This section recognizes the natural human desire of privacy.
116 Lance Rothenberg, Article on Rethinking Privacy: Peeping Toms, Video Voyeurs, and the failure of criminal law to recognize a reasonable expectation of privacy in the public space, American University Law Review, 49, 1127, (1999)
With flagrant disregard, the video voyeur blatantly defies the legitimate desire for privacy by utilizing technology to observe, record and often to disseminate images of the very acts and the body parts that were never intended or reasonably assumed to be open to public inspection. In effect, the video voyeur disrobes the victim without knowledge or consent & in doing so, strips the victim of both privacy and dignity.
Punishment For Violation Of Privacy 117
Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both. Explanation - For the purposes of this section:
Punishment for publishing or transmitting obscene material in electronic form118
whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt person who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on 1st conviction with imprisonment of either description for a term which may extend to 3yrs & with fine which may extends to 5 lakh rupees & in the event of 2nd conviction with imprisonment of either description for a term which may extends to 5 yrs & also with fine which may extend to 10 lakh rupees.
Provision under IPC for Voyeurism
Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.119
Explanation 1. For the purpose of this section, "private act" includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy and where the victim's genitals, posterior or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is not of a kind ordinarily done in public.
Explanation 2. Where the victim consents to the capture of the images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination shall be considered an offence under this section.
Voyeurism is a criminal offence in many jurisdictions across the world such as Australia120, the United States,121 Canada,122 and the UK123, which criminalises either the capturing of certain images, or observation of individuals, or both. However, the inclusion of voyeurism as an offence under IPC has closed several loopholes in the voyeurism law and is a precedent for the state to better work towards securing the bodily privacy of its citizens.
Reported Incidents
Ghaziabad changing room incident shines spotlight on video voyeurism where the store room owner was arrested for allegedly planting secret cameras to make clippings of the female customer while using the trial room, has shown adverse impact up on the concept of privacy.
The peeping cameras are becoming technologically advanced, tiny and easily available at cheaper prices. They can be planted secretly with ease and its pervasive application has contributed to the growing fascination for younger generation obsession with voyeurism.
These incidents are not unprecedented act and various newspapers have reported similar incident of surreptitiously concealed peeping cams prying into locker rooms, changing rooms, swimming pools in prurient attempts to film unsuspecting victims. All these reporting are alarming being a very invasive and intimidating crime which also poses a fundamental challenge to individual privacy.124
In 2005, accused S with the help of N fitted a spy camera in the room of a lady teacher who rejected the friendship request he offered. He was arrested and charged under s.66 of I. T Act.125
Pune police arrested landlord Mohan Kulkarni, who fitted 3 webcams in the room occupied by girls. Police seized this and sent for decoding. Investigation was based on the complaint made by the girls that their landlord was not returning the deposited money & they suspected that they were filmed by the landlord. He was booked under s.509 IPC & s.67 of the IT Act.126
Union HRD Minister Smriti Irani she spotted a hidden camera at an outlet of a Fabindia that was pointed towards the trial room she used while trying out some clothes after which Goa police registered a case of voyeurism. Four staff members of the Fabindia showroom near Panjim were detained as objectionable images were seen from the recordings of the hidden camera that was seized by police.
Police have sealed the shop and inspected the showroom. The CCTV camera was installed on a wall, against a foot-high ventilation gap on the side of the trial room cubicle. A case has been filed under section 354 C (voyeurism) and 509 (intrusion into privacy) of Indian Penal Code against employees who were monitoring the cameras.127
Easy availability of these types of electronic gadgets at cheaper rate and caution less attitude of the society leads to such types of crime. Even though there exist ample provisions to deal with these issues, the ignorance and unawareness of the victims makes the problem extremely bigger. Hence it is considered as a social menace that needs to be curbed by the stringent application of law.
Mobile Phones And Cyber Crimes In India
Telecommunication was introduced in India long back in the year 1882. This was a mushroom growth of telecommunication after the advent of internet and mobile technology in India. It was on 15th august 1995, when the 1st mobile telephone service started on a non-commercial basis in India. On the same day internet was also introduced. After the liberalization and privatization in this area, India didn't look back.
Telecommunication conquered the life of the citizens and in no time, India's telecommunication network became the 2nd largest in the world. In May 2012, there were 929.37 million mobile users in India.
Impact Of Cell Phones On Human Life
Communication technology has left no aspect of human life untouched. Even our morning alarm clocks are replaced by mobile cell phones. Technology is constantly bringing advancements in our mobile cell phones. Internet enabled smart phones, tablets etc …are performing the functions of our computer, but one vital feature is missing and that is security.
Rapid growth in the field of internet enabled cell phones to manage banking transaction, official and institutional transactions, rapid communications through emails, or social networks and many more. Virtually, one can perform the task of a computer in mobile; this means mobile phone is also vulnerable to the risk of fraud, theft of financial information and identity theft etc.
Suggestions And Steps To Tackle Cybercrimes
Besides, depending on legal system against cybercrimes, women have to be aware of cyber victimization by self, because time has come to reject the acceptance of silent.
Moreover cyber laws are not universal, as they vary country to country. Today, every netizen wants to browse web privately and safely especially women. We should take some steps to tackle this problem. Here are some steps and suggestions that how women can save themselves of being victimized in cyber space and how they can make their online perceptions and experiences a safer one, are as follows;
Conclusion
Indian current scenario exemplifies many instances of female abuse and exploitation in the technological era which can be brought forth with a recent instance of Smrithi Irani, Union Minister, HRD who spotted a camera in the changing room of Fabindia, a boutique. This very issue turns on many questions with regard to the safety, security, dignity of Indian women and the culture claimed to be owned by our country. One of the glaring questions in this regard is that, 'So where can a woman be safe?'
It is ironic that even though cyber victimization includes abuse of fundamental rights and also gender harassments, hardly any solid step has been taken to curb this. India is considered as one of the very few countries to enact IT Act 2000 to combat cybercrimes. This Act is widely covered commercial and economic crimes which are clear from the preamble of the IT Act but it is observed that there is no specific provision to protect security of women.
By taking into account the positions of US and UK, there exists much legislation to deal with the issues. In spite of certain enactments got introduced in the pre internet era, much of the legislations in US and UK got birth and capable to curb the issue, either by amendment or got enacted after 2000. However in India, there are few provisions to cover some of the crimes against women in cyber space under IT Act. Still IT Act depends upon Indian Penal Code to deal with the crimes in virtual world.
Crime should be dealt with in their nascent stage and cut off at the first instance so that they don't develop into something serious. It would be best to amend the Indecent Representation of Women (Prevention) Act, 1986 to include within its scope all these different cases since it was made specifically with an object to 'aid in addressing the problem of increased objectification of women and thereby ensuring dignity of woman.' Therefore while the IT Act, 2000 is gender neutral, this act can specifically target and eradicate notion of cybercrime against women at very first stage.
Another benefit is that this act, if amended can punish 'all forms of indecent representations' and it will thereby be wider in its ambit and scope. Anything that might not be lascivious or cater the prurient interest but still is considered as indecent would also be punishable. Any depiction in any manner in the figure of the woman, her form or body or any part thereof in such a way as to have the effect of being indecent, derogatory, or likely to deprave, corrupt or injure public morality, 'is still indecent' and such that shall be included in the purview of this act.
Another important aspect is that, only with the help of international treaties and conventions along with the co-operation of other countries that most of the problem pertaining in the field can be washed off. As cybercrimes are trans-boundary in nature co-operation with other country with regard to extradition and prosecution becomes a must. Speedy disposal of the case is relevant as the evidences are intangible in nature and it shall only be possible if and only if all the states stand together to drive away the issue.
In this direction the European Union has taken certain initiative in the form of European Convention on Cybercrimes, 2001 supported by many other international organizations such as the World Intellectual Property Organization (WIPO), the Copy Right Treaty, 1996, to which many countries like United States of America, European Union and Canada are signatory.
Thus, India also needs certain major changes like United States Internet Crime Complaints Centre (IC3) and Cyber Police in China for reporting and tracing out domestic crimes on Internet. It is for the people to understand that violence against women is nothing but a manifestation of gender discrimination and inequality in gender power relations.
The only international convention pertaining to virtual world being "Convention on Cybercrimes" to which India should be a signatory, also helps to achieve a uniform standard to deal with the issue at global level.
Women should understand that the time has come to reject the silence or reticence and come forward for fighting against cybercrimes and for their rights. And most importantly each individual should be aware of their own rights and duties that he owes to other members of the society. Swami Vivekananda had said,
"The nation which doesn't respect women will never become great now and nor will ever in future" and in order to make India a great nation, let us work towards giving women their much-deserved status and place"
References:
1 The word 'cyber space' has been joined by 'William Gibson' in 1982 in his novelette 'Burning Chrome' in Omni magazine and in his novel 'neuromancer'. The phenomenal growth of internet has provided new vista for computer crimes.
2 Jyothi Rattan, Cyber Laws & Information Technology, Bharat Law House Pvt. Ltd., 3rd Edition, 2012, p. 210.
3 Pavan Duggal, Convergence on Cybercrime//http// www.cyberlawindia.com//
18 Cyber Laws in India//http://www.iibf.org.in/ 22-12-2015 (last seen)
19Article by Rohit K. Gupta, India: An Overview Of Cyber Laws vs. Cybercrimes: In Indian Perspective, 12 August 2013, http://www.mondaq.com/
20 Supra Note 18
45 Dr. R Akhileswari- Article;- Women Vulnerable to Violence in Cyber World too. http//www.thehansindia.com/
46 Nandan kamath, Law relating to computers, internets and E-Commerce, 4th edition,2009, universal law publications, p.248
47 Definition by 'The National Center for Victims of Crime'
48 Dr. Shalini Kashmiria, Article;- Mapping Cybercrimes Against Women in India, International research journal of commerce and law (irjcl)volume -1, issue -5 (December 2014)
49 Prof.R.K Chaubey, An Introduction to Cybercrime and Cyber Law, 2nd edition, 2012, Kamal Law House. P.399- 401
50 Repealed Section 66A of the Information Technology Act, 2000, which was inserted vide the Information Technology Amendment Act of December 2008, states:
"Any person who sends, by means of a computer resource or a communication device:
(a) any information that is grossly offensive or has menacing character; or (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine."
51 Section 72 of IT Act, 2000
52 (Inserted vide ITAA-2008)
53 Ibid
54 S.354D of the IPC55 Ritu Kohli v. Manish Kathuria//, P. Shah, Article on Cyber Stalking & the Impact of its Legislative Provisions in India, http://www.legalindia.in/cyberstalking-the-impact-of-its-legislative-provisions-in-india (last visited Nov. 4, 2012).
56 (the case was registered before coming into force of I.T Act, 2000)
57 Reported on the NDTV website on October 22, 2012
58 Sam Daniel, Chennai professor arrested for tweets about singer Chinmayi, (October 22, 2012) Published @ http://www.ndtv.com/article/cities/chennai-professor-arrested-for-tweets-about-singer-chinmayi-283070 .
59 Dr. M Dasgupta,'Cybercrime in India', first edition Reprint 2014, Eastern Law House, p.146- Reported by Time of India, 16th November, 2004
60 Ibid
61 Supra Note 5
119 S.354C of IPC
120 Crimes Act, 1910
121 Video Voyeurism Protection Act, 2004
122 Section 162, Criminal Code of Canada
123 Section 67, Sexual Offences Act, 2003
124 Supra Note 14
125 ibid
126 Ibid
127 http://www.firstpost.com// 8-2-2015
Written By: Vishal Banga LLM Student at Guru Nanak Dev University Regional Campus Jalandhar Punjab
The Act turned out to be a half-baked law. Even though India is one of the very few countries to enact IT Act to combat cybercrimes, issues regarding women still remains untouched in this Act. The said Act has termed certain offences as hacking, publishing of obscene materials in the net, tampering the data as punishable offences. But the grave threat to the privacy and security of women in general is not covered fully by this Act.
Women victimization was recognised long back in the Post-Vedic times which still continue through today the forms of harassment have changed. The position of women has been vulnerable, always. Even if Equality is the key factor as far as a democratic country like India is concerned, there still exists and erupts new ways of suppressing her. And in the present era of technology, Hi-Tech forms of crimes are targeted against women through the use of internet, mobile phones and such type of electronic gadgets. The use of cyber space and its attendant features of anonymity continue to influence negatively the social and cultural aspects of society.
Introduction
"Yatra naryastu pujyante ramante tatra Devata……yatraitaastu na pujyante sarvaastatrafalaah kriyaah" - - Manusmriti 3.56
which reads: - "where Women are honored, divinity blossoms there, and where women are dishonored, all action no matter how noble remain unfruitful". Literary evidence on ancient Indian culture suggests that kings and towns were destroyed because the rulers troubled a single woman.
For example, Valmiki Ramayana teaches us that Ravana and his entire kingdom were wiped out because he abducted Sita. Veda Vyasa's Mahabharata teaches us that all the Kauravas were killed because they humiliated Draupadi in public. Elango Adigal's Sillapathigaram teaches us Madurai, the capital of the Pandyas was burnt because Pandyan Nedunchezhiyan mistakenly did harm to Kannaki.
So far as the Indian conceptions of woman as a mother are concerned, it was believed that there is no greater guru than mother." (Mahabharata, Shantiparva, 30.9). Our own life is a gift from our mother's life. We were nourished by her, we spent nine months in herwomb, and her love sustained us. Through this means, before any child learns hatred or aggression, they first know the love of a mother who can instill the ways of forgiveness and kindness in the child. Scrutinizing the ancient Bharat culture, it is evident that the status and position attached to woman in every phase of her life, as an independent dignified personality, was at its zenith.
In this paper, the researcher mainly focuses on the women victims on cyber space mainly because of certain reason. They are:
- The unequal ratio of men and women victims of cybercrimes. Various studies and statistical analysis has pointed out that women are more prone to cyber-attack. Despite the fact that the harassers can be both men and women, in the year 2000, there were 87% women victims and among the harassers there were 68% men. In the year 2004, among 196 victims, 65.9% of the victims were women whereas 52.5% harassers were men. And this unequal ratio of men and women continues till date and the consistent high ratio of female victims and male harassers prove that women remained the most vulnerable targets for cybercrimes.
- The difference in the impact of victimization between men and women. Unlike a women victim, a men victim are not subjected to gross humiliation by the society as a whole, he may neither be reduced as a
'sex item' like his female counterpart. His victimization may be judged from the perspective of economic losses. On the other hand, a women victim may be ostracized by the society. Unlike the male counterpart, she may not take the online harassment so easily. It may engulf her into the feeling of shame and hatred for herself. Sexuality still remains the biggest disadvantage for women in establishing equal rights.
- The global approach towards the issue have not gained momentum. The concept of cybercrime against women has therefore become standstill within the meaning of obscenity, pornography and stalking to a certain extent. An analysis of the existing cyber legislation reveals that the drafters are not acquainted with the changed cyber culture so as to include the gender protective regulatory rules.
- New trend of victimization of women in the cyber world are over shadowed by the traditional offences committed against women in the offline world. The existing vacuum in law so as to combat with the cybercrime instigated the growth of ongoing experiments with digital technologies to victimize women.
Concept Of Cybercrime
The internet has revolutionized the way the individual interacts with each other. The phenomenal growth of internet has provided new vista for computer crimes. A new strain of crime has developed through the invention of the computer and internet. The term cybercrime1 is a misnomer which is not radically different from the concept of conventional crime. The concept of cybercrime is not new in the knowledge society of 21st century, the kind of which is more or less same since 1860.
The new technology has facilitated the commission of old crime in a new-fashioned way as it is easy to be committed with little resources but damage caused could be very huge. Thus, a simple definition of cybercrime is any unlawful act where computer is either a tool or target or both.2
Definition:
- The Cambridge English dictionary defines cybercrime as crime committed with the use of computer or relating to computer, especially through internet.
- According to Pawan Duggal, cybercrime is any criminal activity that uses a computer either as an instrumentality, target or means for perpetuating further crimes.
- European Union (EU) defines cybercrime as criminal activities that specifically target a computer or network for damage or infiltration and also refers to the use of computers as a tool to conduct criminal activity.
Features:
- Computer is essentially an element of cyber criminality and it is either a tool or target of cybercrime.
- Cybercrime can be committed without any physical contact.
- Anonymity is the basic feature in cybercrimes. Identity of the person using cyber space remains unknown.
- Cybercrimes transverse jurisdictional boundaries. Presence of the offender is not required and crime can be committed from anywhere in the world with a mouse click.
- Cybercrimes can be committed against any computer, computer system, information, individuals, government or any organisation.
- Magnitude of the cybercrime is comparatively very high.
INFORMATION TECHNOLOGY ACT, 2000
There was no statute in India for governing Cyber Laws involving privacy issues, jurisdiction issues, intellectual property rights issues and a number of other legal questions. With the tendency of misusing of technology, there arisen a need of strict statutory laws to regulate the criminal activities in the cyber world and to protect the true sense of technology "INFORMATION TECHNOLOGY ACT, 2000" [ITA- 2000] was enacted by Parliament of India to protect the field of e-commerce, e-governance, e-banking as well as penalties and punishments in the field of cybercrimes. The above Act was further amended in the form of IT Amendment Act, 2008 [ITAA-2008].
The ITA-2000 defines 'Computer' means any electronic magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software, or communication facilities which are connected or related to the computer in a computer system or computer network.
18 The word 'computer' and 'computer system' have been so widely defined and interpreted to mean any electronic device with data processing capability, performing computer functions like logical, arithmetic and memory functions with input, storage and output capabilities and therefore any high-end programmable gadgets like even a washing machine or switches and routers used in a network can all be brought under the definition.19
Objectives of I.T. legislation in India:
"to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as "electronic commerce", which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, the Indian Evidence Act, 1872, the Bankers' Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto."
The Information Technology Act, 2000, was thus passed as the Act No.21 of 2000, got President assent on 9 June and was made effective from 17 October 2000.
The Act essentially deals with the following issues:
- Legal Recognition of Electronic Documents
- Legal Recognition of Digital Signatures
- Offenses and Contraventions
- Justice Dispensation Systems for cybercrimes
Information Technology (Amendment) Act, 2008
Major change that has been incorporated by the amendment Act, 2008 are as follows:
- The term 'digital signature' has been replaced with 'electronic signature' to make the Act more technology neutral.
- A new sec. has been inserted to define 'communication device' to mean cell phones, personal digital assistance or combination of both or any other device used to communicate, send or transmit any text video, audio or image.
- A new sec. has been inserted to define 'communication device' to mean cell phones, personal digital assistance or combination of both or any other device used to communicate, send or transmit any text video, audio or image.
- A new sec. has been added to define cyber cafe as any facility from where the access to the internet is offered by any person in the ordinary course of business to the members of the public.
- A new definition has been inserted for intermediary.
- A new sec. 10A has been inserted to the effect that contracts concluded electronically shall not be deemed to be unenforceable solely on the ground that electronic form or means was used.
- The damages of Rs. One Crore prescribed under sec. 43 of the earlier Act of 2000 for damage to computer, computer system etc. has been deleted and the relevant parts of the section have been substituted by the words, 'he shall be liable to pay damages by way of compensation to the person so affected'.
- A new sec. 43A has been inserted to protect sensitive personal data or information possessed, dealt or handled by a body corporate in a computer resource which such body corporate owns, controls or operates. If such body corporate is negligent in implementing and maintaining reasonable security practices and procedures and thereby causes wrongful loss or wrongful gain to any person, it shall be liable to pay damages by way of compensation to the person so affected.
- S. 66A to 66F have been added to Sec. 66 prescribing punishment for offences such as obscene electronic message transmissions, identity theft, cheating by impersonation using computer resource, violation of privacy and cyber terrorism, whereby S66A got repealed by SC.
Stalking And Voyeurism:
"While the Internet and other information technologies are bringing enormous benefits to society, they also provide new opportunities for criminal behaviour" - Former U.S. Attorney General Janet Reno, Jan. 10, 2000.
Cyber world provides space for women. It gives her freedom to voice her opinion, pour out her frustration, anger; spell out her dreams. It is where she can share her world with others to find solidarity, affirmation & support. But danger lurks in the cyber world as in physical world in the form of stalking, vilification and verbal abuse. A woman is as vulnerable in cyber space as in physical space. Men intimidate her and seek to shut her up, discourage her from expressing herself. Increasingly, cyber space is being used to wreak vengeance, vendetta and to punish women.45
Cybercrime against women include harassment through email, cyber defamation, morphing, stalking, email spoofing, cyber pornography, cyber flirting & cyber bullying. Other crimes against women include posting vulgar comments & pictures on social media, morphed photographs, identity theft. Men are equally susceptible to all cybercrimes but women are in majority as victims. Studies shows that a majority of cybercrimes are related to obscenity and about 75% of victims are women. Youth and children are the next most targeted. For the purpose of this research, certain cybercrime specifically targeting women alone are highlighted.
Cyber Stalking
Stalking refers to harassing and threatening behavior that an individual engages in repeatedly towards another person. Harassment by e- mails/Cyber teasing/Cyber bullying/Cyber flirting is in effect can be considered equal to cyber stalking. In quasi legal terms, stalking can be defined as 'a willful course of conduct involving repeated or continuing harassment of another individual that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed or molested and that could cause a reasonable person to feel so.46 Cyber stalking is a recent phenomenon and women generally are the main target of this cybercrime.
According to the Oxford Dictionary, Stalking means 'pursuing stealthily'. Cyber stalking involves following a person's movements across the internet by posting messages on the bulletin board or chat rooms frequented by the victim, constantly bombarding the victim with e-mails etc. Therefore cyber stalking involves threatening unwarranted behaviour or advances directed by one net user to another user using the medium of internet and other forms of online communication.47
Cyber stalking is an extension of physical form of stalking where the electronic medium such as the internet are used to pursue, harass or contact another in an unsolicited fashion. The term is used to refer to the use of internet, e-mail or other electronic communication devices to stalk another person. Stalking is a problem that many people especially women, are familiar within real life. Typically, the cyber stalker's victim is new on the web, and inexperienced with the
Cyber stalking is an extension of physical form of stalking where the electronic medium such as the internet are used to pursue, harass or contact another in an unsolicited fashion. The term is used to refer to the use of internet, e-mail or other electronic communication devices to stalk another person. Stalking is a problem that many people especially women, are familiar within real life. Typically, the cyber stalker's victim is new on the web, and inexperienced with the rules of netiquette & Internet safety. Their main targets are the mostly females, children, emotionally weak or unstable, etc.
Cyber stalking can be categorised as follows:
- On-line harassment and stalking that continues over the internet.
- On-line harassment and stalking that is carried out off-line.
As the internet becomes an even more integral part of our personal and professional lives, stalkers can take advantage of the ease of communications, the net's intrusive capabilities as well as increased access to personal information. It is true that both men and women may be stalked but statistics show that the majority of victims are female. According to a survey on cyber stalking cases conducted for the period of 2000 – 2006 shows that in majority of cases the perpetrator is male and most preferred form of perpetration is through e-mail(38%) followed by message board(17%) and chatting(10%).49
Stalking under Information Technology Act, 2000
Previously, the only provision under IT Act that dealt with cyber stalking was S.66A50 which was repealed by the Hon'ble SC as violative of freedom of speech and expression. In fact there were many cases that were initiated under S.66A of the IT Act, 2000. The Indian Information technology Act 2008(amended) also does not directly address stalking.
But the problem is dealt more as an "intrusion on to the privacy of individual" than as regular cyber offences which are discussed in the IT Act 2008. Hence the most used provision for regulating cyber stalking in India is section 72 of the Indian information technology act (Amended), 2008 which runs as follows;
Breach of confidentiality and privacy 51:
Save as otherwise provided in this Act or any other law for the time being in force, any person who, in pursuant of any of the powers conferred under this Act, rules or regulations made there under, has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such electronic record, book, register, correspondence, information, document or other material to any other person shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both. And also sec. 72A of the Information Technology Act, 2000(amended in 2008), which runs as follows:
Punishment for Disclosure of information in breach of lawful contract 52:
Save as otherwise provided in this Act or any other law for the time being in force, any person including an intermediary who, while providing services under the terms of lawful contract, has secured access to any material containing personal information about another person, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses, without the consent of the person concerned, or in breach of a lawful contract, such material to any other person shall be punished with imprisonment for a term which may extend to three years, or with a fine which may extend to five lakh rupees, or with both.53
In practice, these provisions can be read with S. 441 of the Indian Penal Code, which deals with offences related to Criminal trespass and runs as follows: Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property , or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate , insult or annoy any such person, or with an intent to commit an offence, is said to commit criminal trespass.
However, after the December, 2012 Delhi gang rape incidence, the Indian government had taken several initiatives to review the existing criminal laws. A special committee under Justice Verma was formed for this purpose and basing upon the report of the committee, several new laws were introduced. In this course, anti-stalking law was also introduced.
Whoever follows a person or contacts or attempts to contact such person to foster personal interaction repeatedly despite a clear indication of disinterest by such person or whoever monitors the use by a person of the internet, email or any other form of electronic communication or watches or spies a person in a manner that results in fear of violence or serious alarm or distress, in the mind of such person or interferes with the mental peace of such person, commits the offence of stalking.
Provided that the course of conduct will not amount to stalking if the person who pursued it shows that it was pursued for the purpose of preventing or detecting crime and the person accused of stalking had been entrusted with the responsibility of prevention or detention of crime by the State , or that it was pursued under any enactment or rule of law, or to comply with any condition or requirement imposed by any person under any enactment, or, that in the particular circumstances, the pursuit of the course of conduct was reasonable.54
Whoever commits the offence described in S.354D (1) shall be punished with imprisonment of either description for a term which shall not be less than one year but shall extend to three years and shall also be liable to fine.
The gravity of cyber stalking came into focus in India when Delhi police was asked by Mrs. Ritu Kohli to file complaint against an unknown stalker who flooded a series of e-mails to her. The person through the mail threatened her to either pose nude for him or give an amount of rupees one lakh. Initially she ignored the mail but got alarmed when she started receiving similar threatening letters through post.
The accused threatened her that he would put up her morphed picture along with her phone number and home address. Adding to this, the accused did sent her the photograph which was confirmed to be the same photograph she had in her mail folder. She also received numerous unsolicited phone calls from strangers at odd hours for sexual favours.55
Based on her complaint, authorities traced his IP address and felt that the accused knew a lot about the victim and confirmed that he hacked kohli's email address & password through which he had an access to her photographs. The accused also chatted on behalf of the victim and distributed her phone number to various chatters. The accused Manish Kathuria was booked mail folder. She also received numerous unsolicited phone calls from strangers at odd hours for sexual favours.55
Based on her complaint, authorities traced his IP address and felt that the accused knew a lot about the victim and confirmed that he hacked kohli's email address & password through which he had an access to her photographs. The accused also chatted on behalf of the victim and distributed her phone number to various chatters. The accused Manish Kathuria was booked under S.509 IPC for outraging the modesty of a woman & he pleaded guilty. 56
Reported Instances:
In another instance, Chinmayee,57 a noted singer from South India was harassed by perpetrators who posted threatening and obscene messages in Twitter and FB. The report said that Chinmayee made a formal complaint to the Chennai Police Commissioner on the ground that the perpetrators had threatened to "kill, rape and assault" her on Twitter and FB. Her mother was also targeted with vulgar expressions.
The perpetrators did not stop with making obscene and vulgar comments towards Chinmayee; they also targeted her on the issues of supporting the cause of Tamils. The report stated that on the basis of her complaint, one of the accused was arrested under the provisions in the IT Act and the Tamil Nadu Prohibition of Women Harassment Act.58
The cybercrime cell of Delhi received a complaint from a senior executive of an airlines company stating that he has been flooded with emails of morphed pictures of his wife showing her nude. These emails were also sent to all the colleagues of the complainant. The accused allegedly threatened to put up these mails on sex websites along with her phone number and address. Every time the accused sent a mail, he apparently created a new email account. The police suspected the involvement of any disgruntled employee working in the office of the complainant. 59
Bhubaneswar Case - The Xavier Institute of management lodged a cybercrime complaint with the police in December 2004 that students & staffs of this institution are getting numerous obscene electronic mails. The students were also afraid of the online hacking, spamming & threatening. Police appointed technical experts to investigate & examine the matter. At first these were considered to be spam but later on students were over flooded with obscene mails & continuous sexual harassment through internet. At that time Bhubaneswar Police were weak to fight against cybercrimes as they were not trained enough to tackle the issue.60
A Delhi university law student has been accused of stalking & threatening a woman online over a year. He also created her fake profiles on social networking sites to defame her & made obscene phone calls. The victim while working in Delhi got acquainted with the accused and refused his marriage proposal. He assaulted her and she lodged a complaint on this behalf.
After this he apologized and promised not to bother her in future. The accused also gave a written statement to police station that he will not stalk her. The victim later moved to Goa to live with her parents found out a fake profile of her & a photograph declared her to be his wife. The girl's marriage was called off due to this. A case under S.66 A of I.T Act was lodged.61
Voyerism
In an age of modern & revolutionized communication electronic equipments, the privacy of an individual is under siege. The video surveillance equipments has become smaller, more portable more easily concealed and more accessible to the general public; its clandestine application had contributed to today's cultural fascination with voyeurism. This advance video surveillance equipment has had a profound adverse impact upon our concept of privacy.
India is not untouched by the adverse impact and the newspapers were flooded with various unsavory stories of surreptitiously concealed video cameras. There has been an unprecedented increase in incidents involving video tapping of private parts of unwilling females even in public places Lady's wash rooms or waiting rooms where one can reasonably expect his or her privacy.
With the development in video and image capturing technologies, observation of individuals engaged in private acts in both public and private places, through surreptitious means, has become both easier and more common. Cameras or viewing holes may be placed in changing rooms or public toilets, which are public spaces where individuals generally expect a reasonable degree of privacy, and where their body may be exposed.
Voyeurism is an act which blatantly defies reasonable expectations of privacy that individuals have about their bodies, such as controlling its exposure to others.116 Voyeurism is an offence to both the privacy as well as the dignity of a person, by infringing upon the right of individuals to control the exposure of their bodies without their consent or knowledge, either through unwarranted observation of the individual, or through distribution of images or videos against the wishes or without the knowledge of the victim.
Law To Deal With Voyeristic Conducts
While in many other countries, there are now a variety of statutes dealing with voyeuristic conduct in place that seeks to protect these inviolable rights. India is not lagging behind to check this new form of felony due to the advancements in the technology.
The legislature introduced section 66E via I.T (amendment) Act, 2008. This section recognize the right of privacy as inviolable and makes the felony punishable with imprisonment which may extend to 3 years or with fine not exceeding 2 lakh rupees or with both. This section recognizes the natural human desire of privacy.
116 Lance Rothenberg, Article on Rethinking Privacy: Peeping Toms, Video Voyeurs, and the failure of criminal law to recognize a reasonable expectation of privacy in the public space, American University Law Review, 49, 1127, (1999)
With flagrant disregard, the video voyeur blatantly defies the legitimate desire for privacy by utilizing technology to observe, record and often to disseminate images of the very acts and the body parts that were never intended or reasonably assumed to be open to public inspection. In effect, the video voyeur disrobes the victim without knowledge or consent & in doing so, strips the victim of both privacy and dignity.
Punishment For Violation Of Privacy 117
Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both. Explanation - For the purposes of this section:
- "transmit" means to electronically send a visual image with the intent that it be viewed by a person or persons;
- "capture", with respect to an image, means to videotape, photograph, film or record by any means;
- "private area" means the naked or undergarment clad genitals, pubic area, buttocks or female breast;
- "publishes" means reproduction in the printed or electronic form and making it available for public;
- "under circumstances violating privacy" means circumstances in which a person can have a reasonable expectation that--
- he or she could disrobe in privacy, without being concerned that an image of his private area was being captured; or
- any part of his or her private area would not be visible to the public, regardless of whether that person is in a public or private place.
Punishment for publishing or transmitting obscene material in electronic form118
whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt person who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on 1st conviction with imprisonment of either description for a term which may extend to 3yrs & with fine which may extends to 5 lakh rupees & in the event of 2nd conviction with imprisonment of either description for a term which may extends to 5 yrs & also with fine which may extend to 10 lakh rupees.
Provision under IPC for Voyeurism
Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.119
Explanation 1. For the purpose of this section, "private act" includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy and where the victim's genitals, posterior or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is not of a kind ordinarily done in public.
Explanation 2. Where the victim consents to the capture of the images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination shall be considered an offence under this section.
Voyeurism is a criminal offence in many jurisdictions across the world such as Australia120, the United States,121 Canada,122 and the UK123, which criminalises either the capturing of certain images, or observation of individuals, or both. However, the inclusion of voyeurism as an offence under IPC has closed several loopholes in the voyeurism law and is a precedent for the state to better work towards securing the bodily privacy of its citizens.
Reported Incidents
Ghaziabad changing room incident shines spotlight on video voyeurism where the store room owner was arrested for allegedly planting secret cameras to make clippings of the female customer while using the trial room, has shown adverse impact up on the concept of privacy.
The peeping cameras are becoming technologically advanced, tiny and easily available at cheaper prices. They can be planted secretly with ease and its pervasive application has contributed to the growing fascination for younger generation obsession with voyeurism.
These incidents are not unprecedented act and various newspapers have reported similar incident of surreptitiously concealed peeping cams prying into locker rooms, changing rooms, swimming pools in prurient attempts to film unsuspecting victims. All these reporting are alarming being a very invasive and intimidating crime which also poses a fundamental challenge to individual privacy.124
In 2005, accused S with the help of N fitted a spy camera in the room of a lady teacher who rejected the friendship request he offered. He was arrested and charged under s.66 of I. T Act.125
Pune police arrested landlord Mohan Kulkarni, who fitted 3 webcams in the room occupied by girls. Police seized this and sent for decoding. Investigation was based on the complaint made by the girls that their landlord was not returning the deposited money & they suspected that they were filmed by the landlord. He was booked under s.509 IPC & s.67 of the IT Act.126
Union HRD Minister Smriti Irani she spotted a hidden camera at an outlet of a Fabindia that was pointed towards the trial room she used while trying out some clothes after which Goa police registered a case of voyeurism. Four staff members of the Fabindia showroom near Panjim were detained as objectionable images were seen from the recordings of the hidden camera that was seized by police.
Police have sealed the shop and inspected the showroom. The CCTV camera was installed on a wall, against a foot-high ventilation gap on the side of the trial room cubicle. A case has been filed under section 354 C (voyeurism) and 509 (intrusion into privacy) of Indian Penal Code against employees who were monitoring the cameras.127
Easy availability of these types of electronic gadgets at cheaper rate and caution less attitude of the society leads to such types of crime. Even though there exist ample provisions to deal with these issues, the ignorance and unawareness of the victims makes the problem extremely bigger. Hence it is considered as a social menace that needs to be curbed by the stringent application of law.
Mobile Phones And Cyber Crimes In India
Telecommunication was introduced in India long back in the year 1882. This was a mushroom growth of telecommunication after the advent of internet and mobile technology in India. It was on 15th august 1995, when the 1st mobile telephone service started on a non-commercial basis in India. On the same day internet was also introduced. After the liberalization and privatization in this area, India didn't look back.
Telecommunication conquered the life of the citizens and in no time, India's telecommunication network became the 2nd largest in the world. In May 2012, there were 929.37 million mobile users in India.
Impact Of Cell Phones On Human Life
Communication technology has left no aspect of human life untouched. Even our morning alarm clocks are replaced by mobile cell phones. Technology is constantly bringing advancements in our mobile cell phones. Internet enabled smart phones, tablets etc …are performing the functions of our computer, but one vital feature is missing and that is security.
Rapid growth in the field of internet enabled cell phones to manage banking transaction, official and institutional transactions, rapid communications through emails, or social networks and many more. Virtually, one can perform the task of a computer in mobile; this means mobile phone is also vulnerable to the risk of fraud, theft of financial information and identity theft etc.
- Major Loop Holes of The Act:
- Jurisdiction: The elementary problem which are associated with cybercrimes are jurisdiction. Cyber jurisdiction is the real world government's power and court's authority over internet users and their activities in cyber world. However, IT Act does not provide with solution for the issueof jurisdiction which is too important in legal perspective to decide the place of filing of the case.
- Lack of Proper Definition and clarity: Secondly only broad kinds of cybercrimes and contraventions are covered under the Act. Initially only 10 offences were included under the Act and later on 13 new cyber offences were introduced by IT Amendment Act, 2008. But still there exist gap in law.
- Role of Judiciary: Loss of evidence, lack of cyber army and lack of cyber savvy judges is another issue of the day. Judiciary plays a vital role in shaping the enactment according to the order of the day. One such stage which needs the appreciation is the Public Interest Litigation (PIL) which the Kerala High Court has accepted through E-mails.
- Lack of Self Sufficiency: IT Act cannot be called as a self sufficient Act because in the practical view point IT Act cannot stand alone so as to prosecute and punish a victim thereby curbing the issues in cyber field. It can be evident from the amendment provided to the Indian Penal Code, Indian Evidence Act. Still most of the cases are dealt with the assistance of IPC.
- Penalty: IT Act 2000 provides for wide range of penalty for violations but by the introduction of IT (Amendment) Act, 2008 penalties got reduced which shows an unwanted leniency of the legislators towards the offenders.
Suggestions And Steps To Tackle Cybercrimes
Besides, depending on legal system against cybercrimes, women have to be aware of cyber victimization by self, because time has come to reject the acceptance of silent.
Moreover cyber laws are not universal, as they vary country to country. Today, every netizen wants to browse web privately and safely especially women. We should take some steps to tackle this problem. Here are some steps and suggestions that how women can save themselves of being victimized in cyber space and how they can make their online perceptions and experiences a safer one, are as follows;
- There is no mention of the word "women" in the Act: The amended version of the I.T. Act differentiates child pornography from adult obscenity and pornography but there is no mention of any provision in this Act to protect women exclusively. Since IPC has provision to penalize offences against
"modesty of women" (Section 509 of the IPC), if similar ideologies were incorporated for IT Act, protection of women in the Indian cyber space would become more a swift job for the law and justice machinery. Societal trauma related to cybercrime against women wherein women as victim is considered more as an accused in her own case than victim must be removed.
- Change passwords time to time: In fact, people create easy-to-remember passwords because, it is simpler. If one wants to lower internet crime risk, changing password is a great way to make personal data and social networks safe and difficult to access for cyber criminal. Baffling or tricky password protect all accounts including cell phones, emails, landlines, banking, credit card etc. and are difficult for anyone to guess. Safest passwords contain letters, numbers and symbols. However, changing password can be very helpful to keep privacy safe.
- Avoid revealing personal details and address: This is the rule for women in particular who are business professionals and are very visible. They can use work address or a rent private mailbox. Thus, it can help them out in avoiding cyber stalkers. Moreover, women should avoid uploading more material on internet regarding their own information so that no one can easily access them. Avoid furnishing personal details such as family background, picture related to the people with whom you are socializing, your private moments etc on social websites like Face book, Google+, Twitter, LinkedIn as it can be easily misused.
- Beware of unsolicited calls and messages: Woman should avoid unwanted or unsolicited phone calls and messages because cell phone may be monitored. If it happens again and again, one should try to record phone calls of harasser and report to the police. Besides, they should discuss and share the problem regarding cyber harassing with their trusted ones like parents, mates or spouses etc.
- Understand privacy settings of social network: Social networks and other online content and service providers all have privacy policies and private settings. One must try to understand privacy policies and adopt privacy settings that help in protecting oneself from any potential risk or online harm. So, we must have the knowledge about privacy settings of social networking.
- There must be clear cut and uniform guidelines for the ISP fixing liability and accountability. The increasing number of crimes against women is a huge concern for any state however, cybercrimes make it even more challenging as criminals have the opportunity to create fake identities and then after indulge in illegal activities. To counter this government should make stricter laws to apply on the Internet Service Providers (ISP), as they alone have the complete record of all the data being accessed by anyone surfing on net. ISPs should be made to report any suspicious activities that any individual is indulging into, this will help to curb crimes in nascent stage.
- Need to have strong and practicable security policy handling mobile technology and wireless technology along with computer technology and multimedia technology. Police authorities investigating the cases related to cybercrimes must not only be given IT Training but also be trained in dealing women victims psychologically. Thus there is dire necessity of psychological up gradation of women victims which require sensitization of police authorities.
- Need of specialized cybercrimes court with expertise, in the field of information Technology We need training of law enforcing agencies and IT professionals to curb the menace.
- Rigid and stringent laws: India must bring in more rigid and stringent laws for cybercrimes against women in the cyber space. It is evident that present India's Information Technology Act includes only few sections for cybercrime, especially against women, hence to curb cybercrimes, either IT Act must be re-modified or a separate law on cybercrimes should be created. Proper law and order against crimes may lead to create good society.
- Maximum punishments under the Act are bailable thus there is a necessity to increase punishment so as to have deterrent effect.
- Seminars and workshops for better understanding of cyber victimization: Police, Lawyers, social workers, and NGOs must be invited to education institutes, clubs, corporate offices, awareness-campaigns, seminars and workshops to discuss about legalities and illegalities of cyber conduct among adults inclusive of both genders. Reporting of cyber victimization at all levels directly to the police and NGOs working cybercrimes must be encouraged. Secondly, workshops and seminars must be conducted for the police personnel for better understanding of such kinds of victimization and quick responses towards the complaints.
- Awareness campaign against cybercrimes: Awareness campaign must be set up from the grass root level such as schools, collages etc about cybercrimes like stalking cheatings, economic cheatings, defamatory activities, misusing emails and social networking websites, virtual rapes, cyber pornography, email spoofing etc. These campaigns can be fruitful in paralyzing cybercrimes.
- Need to adopt Uniform Law worldwide because Cybercrime is not only a national problem but also an international problem. There is need to adopt specific laws on jurisdiction and international co-operation following European Convention on Cybercrime, 2001.
Conclusion
Indian current scenario exemplifies many instances of female abuse and exploitation in the technological era which can be brought forth with a recent instance of Smrithi Irani, Union Minister, HRD who spotted a camera in the changing room of Fabindia, a boutique. This very issue turns on many questions with regard to the safety, security, dignity of Indian women and the culture claimed to be owned by our country. One of the glaring questions in this regard is that, 'So where can a woman be safe?'
It is ironic that even though cyber victimization includes abuse of fundamental rights and also gender harassments, hardly any solid step has been taken to curb this. India is considered as one of the very few countries to enact IT Act 2000 to combat cybercrimes. This Act is widely covered commercial and economic crimes which are clear from the preamble of the IT Act but it is observed that there is no specific provision to protect security of women.
By taking into account the positions of US and UK, there exists much legislation to deal with the issues. In spite of certain enactments got introduced in the pre internet era, much of the legislations in US and UK got birth and capable to curb the issue, either by amendment or got enacted after 2000. However in India, there are few provisions to cover some of the crimes against women in cyber space under IT Act. Still IT Act depends upon Indian Penal Code to deal with the crimes in virtual world.
Crime should be dealt with in their nascent stage and cut off at the first instance so that they don't develop into something serious. It would be best to amend the Indecent Representation of Women (Prevention) Act, 1986 to include within its scope all these different cases since it was made specifically with an object to 'aid in addressing the problem of increased objectification of women and thereby ensuring dignity of woman.' Therefore while the IT Act, 2000 is gender neutral, this act can specifically target and eradicate notion of cybercrime against women at very first stage.
Another benefit is that this act, if amended can punish 'all forms of indecent representations' and it will thereby be wider in its ambit and scope. Anything that might not be lascivious or cater the prurient interest but still is considered as indecent would also be punishable. Any depiction in any manner in the figure of the woman, her form or body or any part thereof in such a way as to have the effect of being indecent, derogatory, or likely to deprave, corrupt or injure public morality, 'is still indecent' and such that shall be included in the purview of this act.
Another important aspect is that, only with the help of international treaties and conventions along with the co-operation of other countries that most of the problem pertaining in the field can be washed off. As cybercrimes are trans-boundary in nature co-operation with other country with regard to extradition and prosecution becomes a must. Speedy disposal of the case is relevant as the evidences are intangible in nature and it shall only be possible if and only if all the states stand together to drive away the issue.
In this direction the European Union has taken certain initiative in the form of European Convention on Cybercrimes, 2001 supported by many other international organizations such as the World Intellectual Property Organization (WIPO), the Copy Right Treaty, 1996, to which many countries like United States of America, European Union and Canada are signatory.
Thus, India also needs certain major changes like United States Internet Crime Complaints Centre (IC3) and Cyber Police in China for reporting and tracing out domestic crimes on Internet. It is for the people to understand that violence against women is nothing but a manifestation of gender discrimination and inequality in gender power relations.
The only international convention pertaining to virtual world being "Convention on Cybercrimes" to which India should be a signatory, also helps to achieve a uniform standard to deal with the issue at global level.
Women should understand that the time has come to reject the silence or reticence and come forward for fighting against cybercrimes and for their rights. And most importantly each individual should be aware of their own rights and duties that he owes to other members of the society. Swami Vivekananda had said,
"The nation which doesn't respect women will never become great now and nor will ever in future" and in order to make India a great nation, let us work towards giving women their much-deserved status and place"
References:
1 The word 'cyber space' has been joined by 'William Gibson' in 1982 in his novelette 'Burning Chrome' in Omni magazine and in his novel 'neuromancer'. The phenomenal growth of internet has provided new vista for computer crimes.
2 Jyothi Rattan, Cyber Laws & Information Technology, Bharat Law House Pvt. Ltd., 3rd Edition, 2012, p. 210.
3 Pavan Duggal, Convergence on Cybercrime//http// www.cyberlawindia.com//
18 Cyber Laws in India//http://www.iibf.org.in/ 22-12-2015 (last seen)
19Article by Rohit K. Gupta, India: An Overview Of Cyber Laws vs. Cybercrimes: In Indian Perspective, 12 August 2013, http://www.mondaq.com/
20 Supra Note 18
45 Dr. R Akhileswari- Article;- Women Vulnerable to Violence in Cyber World too. http//www.thehansindia.com/
46 Nandan kamath, Law relating to computers, internets and E-Commerce, 4th edition,2009, universal law publications, p.248
47 Definition by 'The National Center for Victims of Crime'
48 Dr. Shalini Kashmiria, Article;- Mapping Cybercrimes Against Women in India, International research journal of commerce and law (irjcl)volume -1, issue -5 (December 2014)
49 Prof.R.K Chaubey, An Introduction to Cybercrime and Cyber Law, 2nd edition, 2012, Kamal Law House. P.399- 401
50 Repealed Section 66A of the Information Technology Act, 2000, which was inserted vide the Information Technology Amendment Act of December 2008, states:
"Any person who sends, by means of a computer resource or a communication device:
(a) any information that is grossly offensive or has menacing character; or (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine."
51 Section 72 of IT Act, 2000
52 (Inserted vide ITAA-2008)
53 Ibid
54 S.354D of the IPC55 Ritu Kohli v. Manish Kathuria//, P. Shah, Article on Cyber Stalking & the Impact of its Legislative Provisions in India, http://www.legalindia.in/cyberstalking-the-impact-of-its-legislative-provisions-in-india (last visited Nov. 4, 2012).
56 (the case was registered before coming into force of I.T Act, 2000)
57 Reported on the NDTV website on October 22, 2012
58 Sam Daniel, Chennai professor arrested for tweets about singer Chinmayi, (October 22, 2012) Published @ http://www.ndtv.com/article/cities/chennai-professor-arrested-for-tweets-about-singer-chinmayi-283070 .
59 Dr. M Dasgupta,'Cybercrime in India', first edition Reprint 2014, Eastern Law House, p.146- Reported by Time of India, 16th November, 2004
60 Ibid
61 Supra Note 5
119 S.354C of IPC
120 Crimes Act, 1910
121 Video Voyeurism Protection Act, 2004
122 Section 162, Criminal Code of Canada
123 Section 67, Sexual Offences Act, 2003
124 Supra Note 14
125 ibid
126 Ibid
127 http://www.firstpost.com// 8-2-2015
Written By: Vishal Banga LLM Student at Guru Nanak Dev University Regional Campus Jalandhar Punjab
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