While two recent cases of online sexual harassment against Muslim women have managed to hit the headlines with alleged perpetrators being arrested, legal experts stressed fighting these cases is often an uphill battle for victims.
They said that while there are enough provisions under the law, challenges remain. For one, victims are still afraid to speak out and many fear and face judgement and humiliation from the police and courts, they pointed out.
“Women feel that they are responsible for attracting the victimisation. They fear going to the police station because they worry about the insulting and humiliating questions which will be asked,” Debarati Halder, a Professor of Law at Gujarat’s Parul University, told indianexpress.com.
Halder, who also runs an NGO called Cybercrime Victim Counselling for victims of cybercrime, said women often blame themselves in cases of sextortion or revenge porn and are reluctant to report.
The experience is also borne out by victims themselves, even when evidence of harassment is glaring. For instance, A*, a Muslim woman faced continuous harassment on Twitter, even before her name eventually ended up on the notorious Github app.
And when in May 2021 she tried to file a police complaint against one of the accounts that put up a Twitter poll auctioning her for nearly 24 hours, she got very little support. “They (police) asked, ‘What is the evidence? Do you know who these people are? You will have to leave your phone with us’,” the victim said. She said she tried to offer screenshots and archival links to the tweets as well, but all of that was brushed aside. The police, she claimed, never filed an FIR in her case.
Halder’s view is seconded by N S Nappinai, an advocate at the Supreme Court and the Founder of Cyber Saathi. “In the early days of investigation, the police will ask questions, which make victims uncomfortable. But there are plenty of case laws now to support victims, especially from character assassination. So knowing the law and how to apply it are very important,” she said.
The delay in prosecution also makes things worse. “According to me, the only way cybercrimes will be deterred is if you show that the law actually works. Copycat cases such as the recent one on Github in my opinion occur when enforcement through investigations and arrests do not happen quickly enough in the first instance of crime,” Nappinai stressed.
This “lack of action” has been experienced by most victims of online sexual harassment. N*, another victim in the Github app, said she filed a complaint in July 2021, but no action has been taken as yet.
“The only reason the app got taken down in July was because we constantly tweeted to Github to do so. And then it was horrible to start New Year’s with that app once again. It was worse than the previous time because I didn’t have any hope and just knew it would go on and on,” she told indianexpress.com.
In theory, though, women now have a much easier route in ensuring that at least some of the offensive content is taken down. The intermediary guidelines of 2021—which impact social media companies such as Twitter, Facebook or anyone with a significant presence—allow women victims to ask for nude or morphed images to be taken down by these platforms. The request has to be completed within 24 hours.
Nappinai said this takedown should not mean the erasure of evidence either, which needs to be preserved in online harassment cases. “When a victim or law enforcement writes to intermediaries they have to specify this i.e. that evidence pertaining to the case should be retained, as prosecution will or is intended to be commenced. Often there is confusion between takedowns and retention of evidence as proof,” she said.
However, in many cases, the lack of incriminating electronic evidence means getting a conviction is much harder, according to cybercrime lawyer Pavan Duggal, who practises at the Supreme Court. That’s also why most legal experts ask victims to retain all evidence of sexual harassment, no matter how distressing or traumatising. Keeping screenshots, the original messages and files can go a long way in building a strong case.
Duggal also feels that while cyberstalking is mentioned under Section 354 of the Indian Penal Code (IPC), not “all comprehensive aspects” are covered. Currently, Section 354D talks about cyberstalking as anyone who “monitors the use by a woman of the internet, email or any other form of electronic communication.” The Information Technology Act itself does not mention cyberstalking, per se.
Nappinai, however, stressed that the problem is not the lack of law. “The problem is in effectively enforcing it in a timely manner. It is therefore important to not only ensure that law works but also make sure that sufficient awareness of such success stories is spread or shared widely,” she said. This will encourage more victims to go ahead with the prosecution, she feels.