What is Cyberbullying or Cyber-harassment ?

Cyberbullying or cyber-harassment is a form of bullying or harassment using electronic means. In short it is online bullying. Wikipedia defines cyberbullying as “ an aggressive intentional act or behaviour that is carried out by a group or an individual, using electronic forms of contact, repeatedly and over time against a victim who cannot easily defend himself or herself. It is a process of using internet, cell phones or other devices to send or post text or images intended to hurt or embarrass another person. Harmful bullying behaviour can include posting rumours, threats, sexual remarks, posting victim’s personal information, or pejorative labels such as hate speech. Bullying or harassment can be identified by repeated behaviour or an intent to harm’’.

According to the site https://www.parentcircle.com cyberbullying has evolved to take many forms. As per this site here are some common types of cyberbullying: *Flaming: Using hurtful language in emails, text messages or chat rooms against an individual; *Harassment: Sending hurtful, hateful and/or threatening messages; *Cyberstalking: Following an individual online and sending emails or messages to scare, harm or intimidate him; *Exclusion: Deliberately excluding an individual from a group and posting malicious comments/messages about her; *Impersonation/masquerading: Using a fake identity to damage an individual's reputation, and publicly sharing real or false information about him; *Trolling: Intentionally hurting an individual by posting insulting or inflammatory comments; *Fraping: Using an individual's social networking account to post inappropriate content to ruin her reputation ”.

What is Cyberstalking?

Cyberstalking is one form of online harassment in which perpetrators use electronic communication to stalk a victim. By far the most dangerous form of cyberbullying it generally poses a credible threat to the victim’s safety. Cyberstalkers may send messages, often repeatedly, intended to threaten or harass, they may encourage others to do the same, either explicitly or by impersonating their victim and asking others to contact their target.

Trolls & Trolling

Internet trolls try to provoke intentionally or offend others in order to elicit a reaction. Trolls and cyberbullies do not always have the same goals. Some trolls take their business of cyberbullying seriously where as others are in it for comparatively harmless mischief. As per WIKIPEDIA.com, “ in internet slang, a troll is a person who starts flame wars or upsets people on the internet by posting inflammatory and digressive, extraneous, or off-topic messages in an online community (such as a newsgroup, forum, chat room, or blog) with the intent of provoking readers into displaying emotional responses and normalizing tangential discussion, either for the troll's amusement or a specific gain’’.

Methods Used By Cyberbullies, trolls & Cyberstalkers

Cyberbullying can be as simple as sending continuous emails or text messages harassing someone who has already stated that they no more want any further contact with the sender. Something that may start off as simple, harmless online teasing may become alarmingly dangerous the moment the bullies decide they want more which is when things may spiral out of control. Then they take to threats, sexual remarks, pejorative labels and defamatory accusations, also ganging up on a victim by making them the subject of ridicule in online forums, hacking into or vandalising sites of a person, and posting false statements as true facts aimed at discrediting or humiliating their target person. According to USLEGAL.COM, “Cyberbullying could be limited to posting rumours about a victim on the internet with the intention of bringing about hatred in other’s minds or confining others to dislike or participate in online denigration of a target. It may to the extent of personally identifying victims of crime and publishing materials defaming or humiliating the victims”.

Cyberbullies may disclose the personal data of their target like their name, home or work address, on websites or online forums. The term for this is “doxing”. According to Cambridge Dictionary “doxing” means “the action of finding or publishing private information about someone on the internet without their permission, especially in a way that reveals their name, address, etc”. Online site “www.HowStuffWorks.com” says, “Doxxing, also called “Doxing”, refers to the practice of using the internet to source out and collect someone’s personal and private information and then publicly releasing that into online”. The site further adds, “Both private and public figures have been “doxxed” and, surprisingly, the practice is often legal, although it is widely frowned upon in established online community, doxxing gained mainstream exposure when celebrities including Beyonce’, Ashton Kutcher and even Hillary Clinton had closely guarded information such as their home address and cell phone numbers revealed online”.

Cyberbullies use impersonations, fake accounts, comments or sites for the purpose of publishing material in their name that defames, discredits or ridicules their victim. Their modus operandi is to work anonymously in a way that will make their detection and subsequent punishment difficult.

The book - “Shame Nation : The Global Epidemic of Online Hate”, points out that celebrities are the most targeted online. There is a complete chapter dedicated to famous people who have been victims of harassment, shame and digital abuse. Cyberbullies presume that they automatically hold a right to criticise, hurt and harm these public figures online. Little does it matter to them that these people who are famous feel hurt, anguish or pain by their online abuse/harassment/shaming just as anyone else.

Meghan McCain is an American columnist, author, and television personality, who had to tell her fans and followers that for the time being, she was turning off the comments on her Instagram page with the following message, “ Turning off commenting on Instagram for the time being. I have a family and young people in my life that can read it. You can disagree with my politics all you want but the abuse and threats is too far”.

Idris Elba, an English actor, writer, producer and rapper also announced his decision to quit social media because he found that it was turning into a breeding ground for negativity and a primary cause of depression.

A young 28 year old South Korean singer and actress, died suddenly and she had become a victim of cyberbullying. Her death was ruled out as a possible suicide. The recent death of 22-year-old reality show celebrity and professional wrestler from Japan, Hana Kimura, is being linked to abusive comments toward her on social media. Hana Kimura supposedly took her own life, amidst a barrage of hate and negativity sent her way online. Back home bollywood actresses Sonam Kapoor, Sonakshi Sinha and Priyanka Chopra have been victims of cyberbullying and have spoken against social media users who mock celebrities for their views and ideas on socio-political issues.

Adele, the famous U.K. singer found out the hard way that even family isn't off limits to cyberbullies. After the birth of her son, Adele and her husband experienced some real major hate from users on Twitter. Many of these messages were offensive and cruel, with multiple users targeting jokes about Adele’s weight. Singer and actress, Salena Gomez, has found herself the victim of internet bullies after pictures surfaced with Gomez gaining a few pounds. She admitted in an interview that all the hate did “kind of hurt her feelings”.

What To Do When Cyberbullying Or Trolling Happens?

Likewise actor Deepika Padukone was also bullied by a national newspaper. The Twitter handle of the newspaper caught hold of one of her pictures where she was wearing a dress with a revealing neckline. They released the picture and marked an arrow around the neckline claiming she was showing her skin off. The actor did not take too kindly to this and replied, “ Yes/ am a woman, and I have breast. Do you have a problem with that?”. Her terse reply had an outpouring of support from the film industry for her.

• Notice warning signs: In case of minors, if one notices warning signs that a child may be involved or subjected to cyberbullying, take immediate steps to investigate the digital behaviour of the child.
• Record Evidence: Keep a record of what is happening and where. Save evidence of cyberbullying incidents. Take screen-shots of harmful posts or contents whenever possible. Save emails, messages, etc separately on a different device as far as possible. It is possible to track down and identify most internet cyberbullies/trolls. Internet trolls often take risks and they become complacent over time . They could also become over protective of their identity to the extent that they leave unintentional footprints behind.
• Don’t Respond or Retaliate: Sometimes a reaction is what the aggressors are looking for because it gives them power over the victim. If one can remove oneself from the situation, it will be the best thing to do. But if the victim is someone with capacity to withstand the onslaught or take on bullies head on online , perhaps hitting back also helps. When actor Anushka Sharma had her lip job done and appeared on a chat show thereafter, twitter went abuzz with frenzied trolls who made fun of her face. Admirably, the intrepid actor jolted the trolls with her reply where she stated that,“what to do with her body was her decision’’.
• Report: It is absolutely important and advisable to report every incident of cyberbullying irrespective of whether one wants to pursue a legal or investigative recourse or not. Social media platforms have clear policies and reporting processes. Offensive content should be reported immediately to the social media platform by following due prescribed procedure.
• Support: Garner support and obtain guidance to tackle cyberbullying. The victim deserves a backup and should try to determine whether professional support is needed . Seek professional assistance whenever they are unable to tackle this on their own.
• Protect Your Account: It’s important to remember that password should absolutely never be shared with anyone - even with closest friends. Sharing of passwords at times leads to hacking of social media accounts.
• Legal Recourse: As a first step if the cyberbully/troll is identified then obtaining an injunction against them will ensure that their harassment stops . Ensuring that all evidence against them is preserved by the social media company is important . Later on the victim can claim damages for defamation caused and/or initiate criminal prosecution against the perpetrators.

Laws Against Cyberbullying/Trolling In India

There is no specific legislation that provides for cyberbullying remedies. However certain provisions under Information Technology Act (IT Act) and Indian Penal Code (IPC) deal with cyberbullying/trolling in a way. The following are some of the provisions:

Section 66A of IT Act, deals with sending offensive messages through communication service. Supreme Court of India by its decision in (2015) 5 SCC 1- Shreya Singhal V. Union of India struck down Section 66A of the IT Act,2000, in its entirety being violative of Article 19(1) (a) and not saved under Article 19(2)’’.

Section 66C of IT Act - Identity theft and cheating by personation: Section 66C of the IT Act prescribes punishment for identity theft and provides that anyone who fraudulently or dishonestly makes use of the electronic signature, password or any other unique identification feature of any other person shall be punished with imprisonment of either description for a term which may extend to 3 (three) years and shall also be liable to fine which may extend to Rs. 1,00,000 (Rupees one lac) ”.

Section 66E of IT Act deals with violation of privacy. Section 66E reads as: “66E. 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–

(i) he or she could disrobe in privacy, without being concerned that an image of his private area was being captured; or

(ii) 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.”

Section 67 of IT Act This the Section prescribes punishment for publishing or transmitting obscene material in electronic form for a term which may extend to five years and also fine which may extend upto Rs 10 lakh. Section 67 of the IT Act reads as follows : “67. Whoever publishes or transmits or causes to be published 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 persons 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 first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.”

This Section prescribes punishment for publishing or transmitting obscene material in electronic form for a term which may extend to five years and also fine which may extend upto Rs 10 lakh.”

Section 67B of IT Act deals with punishment for publishing or transmitting of material depicting children in any sexually explicit act in electronic form.Section 67 B of IT Act reads as follows:

“67B. Whoever,-

• publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct or
• creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner or
• cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource or
• facilitates abusing children online or
• records in any electronic form own abuse or that of others pertaining to sexually explicit act with children,

shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with a fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees:

Provided that the provisions of section 67, section 67A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting, representation or figure in electronic form-

(i) The publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern; or

(ii) which is kept or used for bonafide heritage or religious purposes

Explanation: For the purposes of this section, “children” means a person who has not completed the age of 18 years.”

Section 69 of the IT Act: This Section deals with lawful Interception and monitoring of electronic communications. Supreme Court which struck down Section 66A of IT Act,2000 in (2015) 5 SCC 1, has held Section 69 and IT Rules,2009, constitutionally valid.

Section 69 provides a brief overview of the provisions in the IT Act which circumscribe the powers of the state to intercept electronic communications.The newly amended IT Act completely rewrote its provisions in relation to lawful interception. The new section 69 dealing with “power to issue directions for interception or monitoring or decryption of any information through any computer resource” is much more elaborate than the one it replaced, In October 2009, the Central Government notified rules under section 69 which laid down procedures and safeguards for interception, monitoring and decryption of information (the “Interception Rules 2009”).

Section 69 empowers the “Central Government or a state government or any of its officers specially authorised by the Central Government or the state government, as the case may be” to exercise powers of interception under this section.

Under the Interception Rules 2009, the secretary in the Ministry of Home Affairs has been designated as the "competent authority", with respect to the Central Government, to issue directions pertaining to interception, monitoring and decryption. Similarly, the respective state secretaries in charge of Home Departments of the various states and union territories are designated as "competent authorities" to issue directions with respect to the state government. Under section 69, the powers of interception may be exercised by the authorized officers “when they are satisfied that it is necessary or expedient” to do so in the interest of:

• sovereignty or integrity of India,
• defence of India,
• security of the state,
• friendly relations with foreign states or
• public order or
• preventing incitement to the commission of any cognizable offence relating to above or
• for investigation of any offence.

Under section 69B, the competent authority may issue directions for monitoring for a range of “cyber security” purposes including, inter alia, “identifying or tracking of any person who has breached, or is suspected of having breached or being likely to breach cyber security”.

Section 72 of IT Act deals with breach of confidentiality and privacy. Section 72 of IT Act reads as follows: “72. Breach of confidentiality and privacy.- 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”.

Section 354A and Section 354D of IPC deal with sexual harassment, stalking, including harassment via electronic mode.This section clearly states that the act of sexual harassment caused by a person is punishable. Sexual harassment is not only an offence against an individual woman, rather it is a wrong against public morals and decent behaviour. The term of imprisonment differs on the basis of the gravity of the offence.

Section 354A reads as follows: “1. A man committing any of the following acts-

• Physical contact and advances involving unwelcome and explicit sexual overtures; or
• A demand or request for sexual favours; or
• Showing pornography against the will of a woman; or
• Making sexually coloured remarks.

Shall be guilty of the offence of sexual harassment.

2. Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of subsection (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.

3. Any man who commits the offence specified in the clause (iv) of subsection (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.”

Section 354D of IPC deals with Stalking.This section clearly explains that the act of a person, where despite the interest of a woman, if he is found continuously stalking her, using different measures, such as by following, contacting, stalking her activities on internet and so on, shall be liable for committing the offence Stalking under the Indian Penal Code.

With respect to the acts that amount to stalking, there are certain exceptions provided in lieu of this section. If the person was continuously doing an act in relation to prevent or detect a crime, where he was bound by the law, or if he justifies the reason for following or keeping a check on the activities of a woman, shall not be liable for the offence of stalking. Section 354D of IPC reads as follows: “1. Any man who-

• Follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or
• Monitors the use by a woman of the internet, email or any other form of electronic communication, Commits the offence of stalking: Provided that such conduct shall not amount to stalking if the man who pursued it proves that-
• It was pursued the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or
• It was pursued under any law or to comply with any conditions or requirement imposed by any person under any law; or
• In particular circumstances, such conduct was reasonable and justified

2. Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and also shall be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.”

Section 499 of IPC deals with sending derogatory messages through email.Section 499 reads as follows: “499. Defamation.—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, except in the cases hereinafter expected, to defame that person.

Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2.—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4.—No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.”

Section 507 of IPC deals with criminal intimidation by an anonymous communication. Section 507 reads as follows: “507. Criminal intimidation by an anonymous communication.—Whoever commits the offence of criminal intimidation by an anonymous communication, or having taken precaution to conceal the name or abode of the person from whom the threat comes, shall be punished with imprisonment of either description for a term which may extend to two years, in addition to the punishment provided for the offence by the last preceding section.”

Section 509 of IPC deals with word, gesture or act intended to insult the modesty of a woman. Section 509 reads as follows: “509. Word, gesture or act intended to insult the modesty of a woman.—Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.”

Final Word

Selena Gomez, the American singer, songwriter, actor and TV producer, has the biggest fan following on Instagram in the world, but by her own admission she says she doesn't love using the app because she becomes obsessed with negative comments, despite thousands of positive messages she receives.

Selena told New York Times in 2017, “You can’t avoid it sometimes. I delete the app from my phone at least once in a week. You fixate on the [negative] ones. They’re not like, ‘You’re ugly’.It’s like they want to cut to your soul.” She says online bullies find a way to target exactly what she dislikes about herself already, making cyberbullying more hurtful.

For all of us or our clients who use different handles of social media cyberbullying or trolling may not be new. We can tackle this menace and take on the bullies. All it takes is resolve, firmness and right kind of legal advice.