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Cyber Crime In India: Are Women A Soft Target

The world of internet today has become a parallel form of life and living. People are now capable of doing things which were not imaginable a few years ago. The internet is fast becoming a way of life for millions of people and also a way of living because of growing dependence and reliance of mankind on these machines. Internet has enabled the use of website communication, email and a lot of anytime anywhere IT solutions for the betterment of human kind. Internet though offers great benefit to society, also present opportunities for crime using new and highly sophisticated technological tools. Today e-mail and websites have become the preferred means of communication. Although internet is one of the fastest modes of communication and has spread its sphere, covering all possible shades of mankind. But as the saying goes, ‘every good side has a bad side too.’ The same is true with the computer and internet technologies too.

The rapid technological advancements like the internet clearly threaten to leave the law behind. The open and unregulated nature of the internet and the irrelevance of geography means that the internet also provides futile ground for criminal enterprise. The existing criminal law seems to be ill equipped to deal with this up-gradation in methods and media of committing crime. Cyber-crime has thus become a reality in India, difficult to detect, seldom reported and even difficult to prove. Computer related crime lacks a traditional paper audit, is away from conventional policing and requires specialists with a sound understanding of computer technology. Paperless contracts, digital signatures, online transactions and cyber crimes have taken the legal world by surprise. Traditional laws formulated to govern the simple and less criminal world are dumb and toothless. Evidence, the foundation stone of the great legal edifice suffers jolt. The biggest blow is given by lack of visual evidence. The internet matrix has disturbed the legal ambiance whereas the legal provisions are chasing the cyber criminals who are resorting to new modus operandi now and then.

The constitution of India guarantees equal right to life, education, health, food and work to women but the same modesty of women seems not to be protected in general in the Information Technology Act, 2000. There are no specific provision in the IT Act, 2000 that specifically deal with the crime against women as does the provisions of the Indian Penal Code, the Constitution of India or the Code of Criminal Procedure for that matter.
In a recent development, the government constituted an expert group to study the gaps and challenges in handling cybercrimes and prepare a road map for effectively tackling cybercrimes and based on the group’s recommendations, the Cyber Crime against Women and Children (CCPWC) scheme has been approved by the government.

The substantive provision of Section 77 of the IT Act provides that the provisions of Indian Penal Code will still apply to all the circumstances and that the penalty under any provision of the IT Act do not release the offender from the liability under any other law.Crimes which are especially targeted against women may be enumerated as cyber- stalking, cyber defamation, cyber sex, dissemination of obscene material and trespassing into one’s privacy domain is very common now-a-days.

Cyber Stalking

‘Stalkers are strengthened by the anonymity the internet offers.He may be on the other side of the earth, or a next door neighbour or a near relative!’

The internet mirrors the real world. That means it also reflects the real life and real people with real life problems. Cyber stalking usually occurs with women, who are stalked by men. There is no universally accepted definition of cyber stalking. It involves following a person’s movements across the Internet by posting messages (sometimes threatening) on the bulletin boards frequented by the victim, entering the chat-rooms frequented by the victim, constantly bombarding the victim with emails etc. In general, the stalker intends to cause emotional distress and has no legitimate purpose to his communications. He does not need to leave his home to find or harass his target, and has no fear of physical violence since he believes he cannot be physically touched in cyber space. The batterers thus surreptitiously place their target under constant surveillance without her knowledge and use the information to threaten her or discredit her by putting misinformation on the internet.

Typically a cyber stalker’s victim are new on the web, and inexperienced with the rules of netiquette and internet safety. It is believed that over 75% are females. The figures are more on assumed basis and the actual figure can never be known since most crimes of such nature goes unreported. Given the enormous amount of personal information available through the net. A cyber stalker can therefore easily locate private information about a potential victim with a few mouse clicks or key strokes.

A study conducted on 72 women by Megha Desai and K. Jaishankar titled 'Cyber Stalking - Victimization of Girl Students: An Empirical Study', states that 12.5% of the respondents had intimate relationship with their cyber stalker before the stalking started. According to the research, 62.5% of harassment started through emails and online chats.

The investigating agency and psychologists both agree that stalking has become more rampant with the advent of unregulated internet. In the recent NCRB 2016 statistics, amongst all South Indian metros, Hyderabad had a whopping 74 cases when Bangalore faired with 45 and Chennai 10 making Hyderabad the stalking capital of South India. Stalkers want a cloak of anonymity and what better place to enjoy anonymity than the internet? A majority of the cases coming to fore have some element of cyberstalking as well, with assailants leaking pictures — sometimes even morphed ones — on the internet, or hacking into accounts and using multiple email IDs and IP addresses to do the same. Though it may be more rampant, tracking virtual stalkers may be simpler than putting the real life stalkers behind the bars. That is because if the stalking is done via electronic means, then tracing an IP address is enough to prove the crime of the assailant. Said so, it becomes the duty of the womanto lodge a complaint as it is very important for police to initiate any action. For lodging a suo-moto case in stalking crimes, evidence collection is tricky as it's not possible to put in so much manpower to look into each case without any tip off.

Unfortunately, both the victims and sometimes even the police wait until things take a grave turn to act and that's precisely what happened in the case of a 13-year-old girl who went missing from the Old City of Hyderabad in August 2017. She was being stalked and harassed by a 22-year-old for over 6 months. But only when she was abducted by him and taken to Gulbarga did her parents finally file a police complaint. 'If I can use a knife to slit my hand, I can use it to slit your throat too' the offender had told her, recounted the girl, upon being rescued.’ There is no other way to fight this menace than by bringing these perpetrator to the book.

Ritu Kohli’s Case: Warning Bell To The Government

Ritu Kohli’s case was India’s first case of cyber stalking reported in India. The victim complained to the police against the person, who was using her identity to chat over the internet she further complained that the perpetrator was also giving away her address online and using obscene language. Her contact details were also leaked leading to frequent calls at odd hours. Consequently the ‘IP’ address was traced and police investigated the entire matter and ultimately arrested the offender, Manish Kathuria.

The police had registered the case under Section 509 of the Indian Penal Code for outraging the modesty of Ritu Kohli. But Section 509 of the Indian Penal Code only refers to word, gesture or act intended to insult modesty of a woman and when same things are done on internet, then there is no mention about it in the said section. None of the conditions mentioned in the section covered cyber stalking thus, Ritu Kolhi’s case was analarm to the Government,to make laws regarding the aforesaid crime and regarding protection of victims under the same.

As a result Section 66A was added in Information Technology Act, 2008 (ITAA 2008) and it prescribes imprisonment for a term which may extend to three years and with finefor sending offensive messages through communication service etc.

Explanation: For the purposes of this section, terms “Electronic mail” and “Electronic Mail Message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.”

Likewise the Indian Parliament made amendments to the Indian Penal Code, 1860 introducing cyber stalking as a criminal offence. The Criminal Law (Amendment) Act 2013 added Section 354 D in IPC, 1860. It defines Stalking as a man who follows or contacts a woman, despite clear indication of disinterest to such contact by that woman, or monitoring of use of internet or electronic communication of a woman.
A man or a woman committing the offence of stalking would be liable for imprisonment up to three years for the first offence, and shall also be liable to fine and for any subsequent conviction would be liable for imprisonment up to five years and with fine.

Cyber Defamation

The internet and social media are certainly a great thing for people and society in general, but they are also uniquely effective breeding ground for potentially libellous statements.

As India, burgeons as an information super power, the internet related issues concerns the country equally well and it being a democracy as well, freedom of speech and expression is also preserved as a fundamental constitutional right. Defamation in India is regarded both as a tort and as a crime. It harms the reputation and prestige of a person and makes the wrong doer equally liable as harming the body of the person. The personal prestige of a person is jealously guarded by law. Like any other criminal activity, defamation also received a boost and crime rate went up as the electron became the powerful medium of proliferation of information weather healthy or incriminating.

Cyber defamation also called Cyber smearing can be understood as the intentional infringement of ‘another person's right to his good name. ’Cyber Defamation occurswith the help of computers and / or the Internet.It is considered more of a menace owing to its expeditious nature. A defamatory material could be distributed among a large number of persons without much hassle. A concrete proof of the gravity of the offence comes to light much later after the damage has been attributed. A single false rumour spread through the internet possesses the ability to cause unanticipated and unprecedented change in the worth of the woman victim in the eyes of the general public. Women suffer most from it as the Indian societal structure is such that the modesty, reputation and social standing of women are delicate.

The internet allows people to speak their mind almost too easily. The internet is chock-full of interesting web sites where someone could intentionally or accidentally leave a potentially defamatory comment or post. Just a few of these locations are: public comments on web sites; blogs and comments to blog postings; social media like Facebook, Linkedin, and Twitter, and chat rooms or list servers and e-mail containing defamatory information to all of the person’s friends. While some web sites screen posts for inflammatory or illegal content, the screening systems are not geared to examine every post for defamatory content, and so many defamatory postings end up online.

The IT Act does not expressly talk of cyber defamation. Though it provides for punishment to a person who transmits or publishes or causes to be published or transmitted, any material which is obscene in electronic form, on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh and in the event of subsequent conviction with imprisonment for a term which may extend to two years and with fine which may extend to ten lakh. However this provision chiefly seems to aim at curbing the increasing number of child pornography cases and does not encompass other crimes which could have been expressly brought within its ambit such as cyber defamation, well that is a debatable topic.

However, Section 499 of the Criminal Law (Amendment) Act, 2013 exclusively talks of defamation. It states whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said . . . to defame that person. Here it is envisaged that the definition of ‘publishing’ is wide enough to take within its ambit, statements made on the internet.

S.499 IPC together with S.4 of IT Act gives recognition to electronic records. Therefore S.499 of IPC read with S.4 of IT Act bridges the gap and provides relief in situations in cases of cyber defamation. Hence, defamatory material posted on the internet using emails or social networking websites, it could draw the attention of S. 499 of Indian Penal Code. The most important question of whether writing on the internet amounts to ‘publication’ or not? To examine this question it is essential to examine the distinct sites where defamation may occur.

These are:

1) One To One Mail Message

Email is remarkably quick and easy to use method of correspondence. It has a close resemblance to spoken conversation rather than written interaction. Psychologically, electronic interaction combines a sort of deceptive intimacy. There is a tendency to make inappropriate statements. Hence email senders are dangerously prone to making defamatory statements.

2) Newsgroups

These are discussion forums that are made up of comments from their subscribers and sorted out by subject matter. Hence, any comment posted to Usenet’s news groups is virtually guaranteed to be published and read within days in hundreds of countries across the world. Newsgroups are the most problematic from the point of view of defamation.

3) World Wide

Web The world wide web is the largest growing component on internet. It combines a user friendly interface with freedom of articulation and information. This results in people who have no knowledge of law of defamation writing defamatory statements without appreciating their potential liability.

4) Mailing List

The format of an electronic mailing list is that various parties subscribe by email to it. It is administered by a ‘Central Host.’ In mailing list the user sends mail to every member of the list. This increases the possibility of being liable for defamation.

Statements made on mailing lists, UseNet’s and the world wide web would definitely be defamatory in nature as they would be, by definition, available to persons other than the person they refer to.
Here it is important to note that, since the matter originated by the ‘defamer’ can the intermediary be also held liable for making it, as it is him who has put the defamatory statement on to his Bulletin Board and can he be regarded as the publisher of the material is a tricky question? The position of a service provider is much more powerful when compared to the publisher of the newspaper and magazines, hence the liability of service provider, so far as the offence of defamation is must , be strict and should not be susceptible of being lost in the legal jargon. As the matter of defamation, the exemption given to a service provider in Section 79 of the Information Technology Act, 2000 on the basis of absence of knowledge of incriminating material is as in matter of publication of defamatory statement the law under section 499 is strict and various judicial decisions also signifies that the publisher cannot escape liability under the simple pretext of being unaware of disputed material, perhaps this is because murdering a man’s reputation by libel may be compared to murdering man’s person, all who were present and encouraging the act are guilty though the wound was given by one alone. Thus the publication carries with it direct and unconditional responsibility to the content published.

Unfortunately cyber defamation is not defined by the IT Act and it is treated by the criminal justice system under the same provision of cyber pornography or publication of obscene material on internet.

Harassment Via Email

The proliferation of e-mail as the preferred method of communication has given rise to various issues of concern to the legislators and employers alike. By its very nature, email encourages people to be frank and open in the discussion and given the ease with which it is composed and sent, people are ordinarily not as careful on the email as they would have been, if they had committed the contents of email to the letter. Harassment via email, includes black mailing, threatening and constant sending of love letters in anonymous names or regular sending of embarrassing mails. Email is capable of performing all the functions of a normal mail (or ‘snail- mail’ as it has been dubbed.)

The criminal law contains various sections that address crimes of verbal abuse against and the harassment of women example Section 509(IPC), Section 354D of the criminal law (Amendment) Act 2013 pertains to stalking, explicitly including crimes that involve monitoring the electronic communication of a woman.The IT(Amendment) Act, 2008 have inserted Sections 66A; 67A to 67 C. Section 67 A and B insert penal provisions in respect of offences of publishing and transmitting of material containing sexually explicit act and child pornography in electronic form respectively. Whereas Section 67 C deals with the obligation of an intermediary to preserve and retain such information as may be specified for such duration and in such manner and format as the Central government may prescribe.

In 2001, a young man in the 11th Grade was convicted under section 509 for making vulgar remarks about female classmates on a website called Amazing.com. It was not only a successful use of Section 509 to curb online harassment, but the first time a minor had been booked under the law.

There are, thus, various provisions that pre-exist the Internet which women can draw on to fight online abuse without having to inscribe themselves in the problematic discourse of the obscenity and indecency laws or off section 66A. However, the question remains: can a woman choose to use another law in lieu of 66A?

Even though S 67, prescribes punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form. In contrast,66A is a cognisable offence – where the police decide whether or not a crime has been perpetrated under it, rather than a magistrate – a woman may argue for another law (or set of laws) to be used when she goes to register a complaint; however, given the mistrust of and unfavourable experiences with the police the extent to which women will be willing and able to make these arguments with success is perhaps questionable. Ultimately, the decision is in the hands of law enforcement, for whom the grounds on which someone may reject Section 66A may be a subject that seems as alien as unnecessary. Generally the crime of harassment is regulated by general laws and not by the provisions of the IT Act.

Cyber Pornography

"Nothing can more efficiently destroy a person, fizzle their mind, evaporate their future, eliminate their potential or destroy society like pornography.” - Kamlesh Vaswani, Activist

Section 67 of the Information Technology Act makes publication, transmission and causing to be transmitted and published in electronic form any material containing sexually explicit act or conduct, punishable. This means viewing Cyber pornography is not illegal in India. Merely downloading, viewing and storing such content does not amount to an offence. However publishing and transmitting cyber pornography via instant messaging, emails or any other mode of digital transmission is an offence. In my opiniononline pornography should be completely banned as it is responsible for declining values and sexual permissiveness leading to sex crimes against women and children. As many of these pornographic sites depict women and children as sex objects, demeaning their position and showing them as passive recipients of degrading and/or violent acts leading to unrealistic and artificial expectations and various forms of physical, mental and sexual abuse. These unrealistic and artificial representations often pressures the victims to enact or consent to acts which they find demeaning having negative mental and psychological health outcomes and consequences.

An attempt was made by the government in 2015 asking the telecom companies around the country to block public access to 857 porn sites, citing the need to protect public morality. Days later, the telecoms minister, Ravi Shankar Prasad, had to back down and the ban was lifted. Those against the ban argue that the government has no business to interfere in individual choice; considering eroticism is a personal choice, the people of the country should have a right to decide what to watch and what not and the state has no role in it and should not impose their morals on others. Furthermore, there are various bottlenecks and challenges beyond government control such as jurisdiction over foreign pornographic websites, control over foreign internet service providers. The IT act prohibits and make child pornography an offence but does not talk about pornography per se. Watching porn at home is not illegal. Saving it on your personal laptop, smartphone, storage media is also not illegal.

The IT Act does not provide specific wording for blocking of cyber pornography for public access and one has to include cyber pornography into the definition of ‘pubic order’ to put check on cyber pornography, where Courts in India have already interpreted public order as ‘maintenance of Law.’

The cyber pornography is mainly defined under section 66 A E, 67, 67A and 67 B. All pornography related offences are bailable as per Section 77B of the Information Technology Act, 2000 the only exception being Section 67 A and 67B. This is the main reason why the offenders are committing pornography related offences and still have the audacity to repeat it, as they are entitled to bail as of right and not to mention the long trial period. These sections of the Act should be made non-bailable so as to strike fear into the minds of offenders, this will definitely reduce the crime rate to some extent.

Conclusion
With increasing traffic in the virtual world, the chances of falling prey to cyber crime loom large all the while, more so in the case of women who are often seen as soft targets. The categories of online crimes targeting women have expanded and the wave has neither left India alone. A few more new generation crimes that are worth a mention here are cyber flames, cyber eve- teasing, and cyber flirting and cheating.Women in India by and large shy away from reporting matters, fearing potential negative media publicity, which may irreparably impact their reputations. The more time women spend online, without being completely aware of the pitfalls of the internet, the more vulnerable they become. Women should be more alert to protect themselves from targeted online attacks.

Suggestion
# The IT (Amendment) Act, 2008, reduced the quantum of punishment for a majority of cyber crimes. This needs to be rectified.
# The majority of cyber crimes need to be made non-bailable offences.
# A comprehensive data protection regime needs to be incorporated in the law to make it more effective.
# Parts of Section 66A of the IT Act are beyond the reasonable restrictions on freedom of speech and expression under the Constitution of India. These need to be removed to make the provisions legally sustainable.
# The government should work towards bilateral cooperation with other countries for exchanging of information on cyber crimes.

Reference
# Information Technology( Amendment) Act, 2008
# Ahmed Farooq, ‘Cyber law in India (Laws on internet)’, Pioneer Books.
# Fatima Talat, ‘Cyber Crimes’, Eastern Book Company, Lucknow
# Kamath Nandan, ‘ law relating to computers internet & e-commerce- A guide to cyber laws and Information Technology Act, 2000’ , Universal Law Publishing Co. Pvt Ltd.
# Mathan Rahul, ‘The law relating to computer and internet’, Butterworths India
# Kumar Krishna,’ Cyber laws Intellectal property and e- commerce security’, Dominant Publishers and Distributors
# Reed Chris, ‘Computer law’, Universal law publishing co. Pvt. Ltd.
# Dhupdale Y. Vivek, ‘Cyber Crime in India and Challenges ahead’, Indian Journal of Law and Justice, Vol I No2 Sept, 2010.
# Dr. Singh Raghuinder & Sood Geetika, ‘Cyber Crime : the new technology of crime’, Orient Journal of Law and Social Science. Vol V, Iss. 8 July, 2011.
# http://ncrb.gov.in
# https://www.economist.com/blogs/economist-explains/2015/08/economist-explains-2?zid=319&ah=17af09b0281b01505c226b1e574f5cc1
# http://www.financialexpress.com/industry/technology/porn-ban-in-india-sparks-censorship-debate/113070/
# https://economictimes.indiatimes.com

Written by: Deepshikha Sharma, Research Scholar, H P University [DS1] [DS2].

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