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Cyberbullying in India: present provisions under the law and the need for a fresh look to make Cyberbullying more deterrent under the law

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Cyber Secure India
[Image: Hana Kimura courtesy Instagram (image used with no prejudice)]

On 24 May 2020, the Internet world woke to one of the worst news of the year, regarding the death of a celebrity, to one of the most heinous crimes that can be done on the World Wide Web. Hana Kimura, the 22 year old celebrity, a Japanese professional wrestler who also starred in the Netflix reality series “Terrace House: Tokyo,” had ended her life on 23 May 2020, due to the adverse effect of cyberbullying committed on her. She had more than 241,000 followers, on instagram and even more followers on other social media platform, across the globe.

In her latest Instagram posted on Friday (22 May 2020), she published a photo of herself and her cat, with a message saying “Goodbye.” Another posting carried a message “I love you, live long and happy. I’m sorry.” Some of her other posts on social media suggested she had been cyber-bullied.

Her untimely death has also brought to light the adverse effects of cyberbullying and the threat that it can be to an innocent being. Also, the ease in which the perpetrators can cause death to an innocent victim through cyber means. She had committed suicide by ingesting hydrogen sulfide on the previous night.

The death of Hana Kimura, has driven many countries across the globe has instigated  them, to enact a more stringent and exclusive laws against Cyberbulling. Hana Kimura’s death has also forced authorities in Japan to apparently contemplate the idea of making cyberbullying a criminal offense. Japan, on the occurrence of this event, is considering bolstering countermeasures against cyberbullying and bringing out an appropriate and exclusive law, said Communications Minister of Japan Mr Sanae Takaichi. A Japanese government official also said that the government is planning to make liable internet service providers, reveal information, including phone numbers, at the victims’ requests.

In India, off-late the number of cyberbullying victims has sharply increased due to the widespread use of smartphones and the penetration of internet to the masses. In a study report published in Indian Media in Mar 2020, it is reported that 1 In 10 Indian Adolescents faces Cyberbullying, and again here we see that over a half are not reported. There are other reasons why cyberbullying is rarely reported. Those abused may be unaware of legal options, fear retaliation or worry about being stuck with defamation charges. Also it is an irony that the LEAs are not aware of the relevant provisions of law to register an FIR on an act of Cyberbullying. Not to squarely blame the LEA, India does not have a special Anti-Cyber Bullying Laws as yet.

What is Bullying?

Bullying is an unwanted act committed by an offender, in which the perpetrator expresses aggressive behaviour among society and in specific against minors that involves a real or perceived power imbalance. The behaviour is repeated, or has the potential to be repeated, over time. Bullying can happen anywhere — in schools and colleges, play-areas, malls, workplaces and also online. Depending on its nature, bullying can be categorised as: (a) Physical, (b) Verbal, (c) Social, (d) Sexual, (e) Prejudicial, and (f) Cyber.

Provisions of IPC for an offence related to Bullying

Bullying under the Indian Penal Code (IPC) is an offence and in most cases the victims are mainly Women, Children below 18 years of age or the down-trodable class in a particular society. Thus, the consequences of criminal acts committed by them would be governed by the IPC and few of the relevant sections under which the offence can be booked is listed below (but not limited to):

Sec 506– Punishment for criminal intimidation

Sec 323 to 326, causing hurt and grievous hurt and their respective punishments.

Sec 304– provisions of culpable homicide will be applicable in case of death of the victim.

Sec 306– Abetment of suicide.

Sec 307– Attempt to murder.

What is Cyberbullying?

Cyberbullying is bullying that takes place using electronic technology. Electronic technology includes devices and equipment such as cell phones, computers and tablets, as well as communication tools including social media sites, text messages, chat and websites.

The Ryan Halligan Case of Vermont (2003) was the first case that dealt with the issue of cyberbullying. Ryan Patrick Halligan (December 18, 1989 – October 7, 2003) was an American student who committed suicide at the age of 13 after being bullied by his classmates in person and was also concurrently cyberbullyed online. Halligan was repeatedly sent homophobic instant messages, and was “threatened, taunted and insulted incessantly”. In this case the defendant (a girl named Ashley) was not held liable for cyberbullying, as the girl had used cyber means to deliver messages that lead to the suicide of Halligan, and consequently the criminal law could not be applied in that matter.

Cyberbullying as an offence in India

Since the advent of IT and ICT in India, the incidents of Cyberbullying has seen an exponential increase Year-on-Year. Cyberbullying was first highlighted as another form of bullying that will hurt a victim, by the Supreme Court of India, in the landmark case of Vishaka vs. the State of Rajasthan. Today, there is no specific legislation that provides for the specific cyberbullying laws in India, but there are adequate provisions under Indian Law to book an individual for an offence related to Cyberbullying. The inner issue is the lack of proficiency in Digital Investigation. India lacks the skill among the investigative/monitoring/reporting agencies to hold the crime culpable. In many cases, India needs to rely on digital logs/evidences from foreign media or service providers to fix the culprit.

Anti-Cyber Bullying Laws in India

India has been on the forefront of Internet penetration among its citizens and the geographical outreach. Cyberbulling incidents are never reported due to the lack of awareness or the cause of such death of victim is not corroborated with digital footprints post the death. India stands at a larger tally, when it comes to death of innocents compared to other Asian countries. However, in India various provisions of the preexisting rules, regulations and acts cover the various forms of cyberbullying:

Sec 66C of Information Technology Act that deals with Identity Theft

Sec 66D of Information Technology Act that deals with Cheating by impersonation by using the computer resource

Sec 66E of Information Technology Act that deals with Violation of privacy

Sec 67B of Information Technology Act that deals with Punishment for publishing or transmitting of material depicting children in any sexually explicit act, etc. in electronic form

Sec 72 of Information Technology Act that deals with Breach of confidentiality and privacy

Sec 503 of the Indian Penal Code (IPC) that deals with Sending threatening messages through email

Sec 509 of the IPC that deals with Word, gesture or act intended to insult the modesty of a woman

Sec 499 of the IPC that deals with Sending defamatory messages (can be used for electronic communication also)

Sec 500 of the IPC that deals defame abuse (can be used for electronic communication also)

Sec 292A of IPC that deals with Printing, etc. of grossly indecent or scurrilous matter or matter intended for blackmail (can be used for electronic media also)

Sec 354A of IPC that deals with Making sexually colored remarks, guilty of the offence of sexual harassment (can be used for electronic communication also)

Sec 354D of IPC that deals with Stalking (even by digital or electronic means)
Sec 507 of IPC that relates to Criminal intimidation by an anonymous communication
Effects of Cyberbullying

MENTAL — feeling upset, embarrassed, stupid, even angry.

EMOTIONAL — feeling ashamed or losing interest in the things you love, fear.

PHYSICAL — tired (lack of sleep), or experiencing symptoms like stomach aches and headaches.

What actions one can take if being a victim of Cyberbullying

-Seek help from someone you trust such as your parents, a close family member or another trusted adult.

-Reach out to a counsellor, a friend or your favourite teacher.

-Consider blocking the bully and formally reporting their behaviour on the platform itself. Social media companies are obligated to keep their users safe.

-Collect evidence – text messages and screen shots of social media posts – to lodge complaint with police.

Conclusion

Many countries have been able to enact a separate law to address offences related to Cyberbullying. South Africa is among the many countries that have exclusively defined Cyberbullying and is using exclusive laws to handle Cyberbullying. Australia has extensive provisions in place to counter bullying, both in schools and the workplace, but does not have a dedicated law. China has strict anti-bullying laws, and is especially aggressive in its attempts to tackle cyber bullying. In 2014, Singapore criminalised cyber bullying as part of a sweeping set of laws targeting anti-social behaviour that cover both the workplace and school. In 2014, Belgium brought new anti-bullying laws into effect. Bullying is referred to as ‘moral harassment’ in France, and the country has laws in place to outlaw such acts. Sweden was the first, and remains one of the few, nations with laws that specifically prohibit bullying (what it terms ‘mobbing’). The UK has comprehensive harassment laws outlawing harassment against a person’s age, gender, disability, marriage, pregnancy, race, religion, or sexual orientation.

India, with one of the world’s largest population, need to cater for the citizens and ensure their safety by enacting a separate law for Cyberbullying.

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