The issue of cyber bullying has been highly disregarded in legal context in India. With the advent of the age of technology, access to the internet and the virtual world is far easier in the teenage. This raises concerns over regulation of online harassment on social media platforms and cyberspace at large in the absence of any specific legislation dealing with the menace of cyber bullying. The article aims to analyze the legal provisions that indirectly deal with the issue in context of recent notice issued by the Hon’ble Supreme Court in Skand Bajpai v. Union of India.
The Internet has non-arguably created a parallel world for us where we are one click away from our friends and family, as well as the strangers. The double-edged sword of technology can pose serious challenges if not used with precaution and due care. The global shift from physical to online communication, even among the teenagers, has led to the creation of potentially harmful dynamics of social relationships such as “cyber bullying”.
Cyber bullying – Scope and meaning
Cyber bullying is defined as an “aggressive, intentional act carried out by a group or individual, using electronic forms of contact, repeatedly and over time against a victim who cannot easily defend himself or herself”. Most definitions of bullying rely upon three criteria; intent to harm, imbalance of power, and repetition of the act. Scope as well as the means of cyberbullying is so vast as to reach thousands of people in a matter of seconds, creating exponential impact and enormous humiliation. Cyber bullying can occur in various forms:
- Impersonal messages via the instant messages on various social networking sites, text messages, and e-mails;
- Posting fake information in the form of derogatory comments, hurtful words on public forums or blogs.
- Revenge pornography: Non-consensual posting of sexually explicit images or videos of a person (typically former sexual partner) on the Internet.
- Impersonation of someone in order to damage their reputation
- Conducting online polls intended to body shame the victim.
- Sending targeting messages to someone; amounting to cyber stalking
- Hacking someone’s personal account repeatedly
Laws against cyber bullying in India
Cyber bullying is an alarming issue in the Indian context as our political leaders gear up to envisioning the nation as “Digital India” in the coming years. Children, especially teenagers, are the most vulnerable groups who are being catapulted into cyberspace before they are actually capable of making sense of it psychologically. India was ranked third by The Global Youth Online Behavior Survey conducted by Microsoft in cyber bullying wherein 53% of the respondents, mostly children admitted to have experienced cyber bullying.
The silence enumerated by Indian laws to directly curb the issue of cyber bullying has further encouraged victimization. The legislation specific to computer-related offences is the Information Technology Act, 2000 (IT Act). However, the IT Act does not contain any specific provision to deal with cyber bullying. Section 66A of the IT Act, 2000 that penalized ‘sending false and offensive messages through communication services’ was struck down in the landmark judgment of Shreya Singhal v. Union of India as it posed unreasonable restrictions on the freedom of speech and expression of the citizens guaranteed in Article 19 of the Indian Constitution. As of now, a few sections that indirectly address the menace of cyber bullying are:
- Section 66C: provides punishment for identity theft.
- Section 66D: provides punishment for cheating by personating; using a computer resource.
- Section 67: provides punishment for publishing or transmitting obscene material in electronic form.
- Section 67A: provides punishment for publishing or transmitting material containing sexually explicit acts, etc., in electronic form.
- Section 67B: provides punishment for publishing or transmitting material depicting children in sexually explicit acts, etc., in electronic form.
Additionally, Section 14 of the Protection of Children from Sexual Offences Act, 2012 also penalizes using a child or children for pornographic purposes. Further, the provisions of the Indian Penal Code, 1860 that address the issue of cyber bullying are:
- Section 354A: provides punishment for sexual harassment i.e. a demand or request for sexual favors; or making sexually colored remarks.
- Section 354 D: penalizes stalking and provides that whoever monitors the use by a woman of the internet, email or any other form of electronic communication commits the offence of stalking.
- Section 509: provides punishment for invading the privacy of a woman.
Recent Judicial Pronouncement
Recently, in the case of Skand Bajpai v. Union of India, the 3-judge bench of the Hon’ble Supreme Court issued notice which sought directions for formulation of laws to regulate social media access of minors and setting up of an efficient profile verification mechanism.
It was stated by the petitioner that a market has been established dealing with sale, purchase and transmission of obscene material on public accounts, defeating the purpose of “Age Appropriate Content Policy” of the intermediaries.
Scarce regard to the law is further buttressed by the fact that “When one gets reported or blocked a new one is created mentioning “Old account blocked, hence new one”.
It was further contended by the petitioner that that no minimum prescribed age or any other provision regarding minors’ access to social media has led to unregulated access to any age group, which further points out towards the vulnerability of children with respect to manipulation and exploitation by the predators on these social media platforms.
The additional dispute around the age of ‘consent’ for creation of an account on social media platforms has also been raised. “As per the terms and conditions of Facebook, an individual aged not less than 13 years or any other lawful age as per law applicable can hold an account on their platforms. Individuals agree and provide consent for several conducts on such platforms; however in India any person below the age of majority cannot give a valid consent, there is no law governing age eligibility for using social media in India.”
The Petitioner has further stated that “Lack of knowledge amongst individuals regarding the functioning of these platforms, associated risks and the security features has made these platforms felicitating exploitation of many; dedicated efforts are required to spread awareness on this subject.” However, it is yet to be seen as to whether the plethora of issues raised by the petitioners is adequately addressed by the Hon’ble Supreme Court subsequently.
In the absence of a specific legislation to regulate the ever-increasing menace of cyber bullying in India, the Hon’ble Supreme Court of India can come to the immediate rescue of the victims by filling the legal lacuna through judicial pronouncements. Additionally, the Hon’ble Supreme Court, while exercising its inherent power under Article 142 of the Indian Constitution, can also issue guidelines to address the issue at hand until a specific legislation is enacted by the Parliament.
(Author: SARABJIT KAUR)