C Y B E R S A A T H I

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CYBER STALKING & THE LAW

Persistent and unwanted attention by a man of a woman, which may become obsessive later on and results in the harassment and intimidation of that person amounts to stalking. If this same obsessive behaviour is committed either on or by using electronic technology, it could be classified, as cyber stalking.

 

A lady receives unsavoury messages from a former classmate on WhatsApp. He proposed to her earlier and she refused. Classic case of a known person stalking you. She blocks his number and believes that would end this matter. The male classmate however does not stop. He creates fake Facebook accounts and shares photos of her with soliciting messages and comments, indicating that she was “available for sexual favors in return for money”.

Stalking is not just the domain of jilted lovers. In USA, one case demonstrated how a person could lose their life to a stalker, whose very existence the person did not know. Obsessions over a person leads to delusions where stalkers may actually believe that they have relationships with their victims, with the victims being totally oblivious to their very existence. Some instances of such obsessive stalking are listed in “Tackling Women’s Digital Freedoms and Unfreedoms Online – Through Law & Technology. By N. S. Nappinai” (Available at: https://itforchange.net/e-vaw/wp-content/uploads/2017/12/OPinion-piece-II.pdf).

Stalking could be committed by any person against another and there is no gender assumptions on the persons who commit such violations. Unfortunately in India, stalking is a gender based offence. Section 354D of the Indian Penal Code, 1860 (“IPC”) was included through an amendment in 2013 which made unsolicited following, contacting or attempts to contact a woman to foster personal interaction despite the woman’s indication of disinterest or when a man monitors the use of internet or email or other electronic communications by a woman, the offence of stalking is deemed to have been committed. Sentences range from 3 years for first time offenders to 5 years for repeat offenders.

Given the trends that have emerged in the misuse of technology, such a gendered definition may be outdated and will not address this very serious offence that needs stringent laws.

Section 66A of the Information Technology Act, 2000 (as amended) (“IT Act”) with its expansive provisions for circulation of offensive messages could have been called into account for cyber stalking. However, the open-ended language and leeway for grave abuse of this provision resulted in this section being struck down by the Supreme Court of India in Shreya Singhal v. Union of India (2015 (5) SCC1).

Other provisions of the IT Act such as Section 67 or 67A may still be invoked if obscene or sexually explicit content is shared using digital platforms including social media or chat apps. These ofcourse will depend on the mode and manner of commission of the crime.

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There is however some succour for male victims also. Provisions such as Section 507 IPC, which makes criminal intimidation through anonymous communications an offence may be invoked if a male falls victim to cyber stalking. Depending the mode and manner of commission of the crime, many other provisions may also be applicable. The issue of the specific provision for stalking however overriding others is an issue which will be open for judicial review. At present, given the constraints of Section 354D IPC, male victims will be required to verify facts of their cases before being advised on applicable provisions. This becomes more aggravated when the victim could be a young male child or adult. It is imperative that legislature takes note of these cases and brings about changes expeditiously.

Pending the same victims may take recourse to general laws and provisions. It is important to initiate action at early stages of stalking. Else the offence merely gets aggravated with the Criminal getting emboldened that they will get away with such crimes.

File your complaint online on cybercrime.gov.in. Offences against women and children can also be filed anonymously. You are the victim – you are not at fault. Seek justice and ensure that criminals do not harm you or others. Be A Cyber Saathi!

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