Cyberstalking And The Indian Jurisprudence – Social Media

The cliché portrayal of stalkers as a man in black coat
who follows a woman in dark alleys on a rainy night has changed
over the years. Stalking is not restricted to unwanted following
but also includes repeated phone calls or sending unwarranted
letters. With the technological advancements the crime of stalking
has assumed multiple new forms and dimensions in the form of cyber
stalking. It is characterized by repeated victimization. Almost all
the developed nations have directly or indirectly criminalized this
offence. The definition of cyber stalking was aptly given in the
case of State (Cyber Cell) v Yogesh Pandurang
Prabhu:

“Cyber stalking is a crime in which the attacker harasses a
victim using electronic communication, such as e-mail or instant
messaging (IM), or messages posted to a Web site or a discussion
group. A cyber stalker relies upon the anonymity afforded by the
Internet to allow them to stalk their victim without being
detected.”

There are multiple factors which amount to stalking like
Jealousy or hatred arising out of broken relationships, obsession
or attraction, Erotomania (where a person believes that the victim
is in love with him and is sexually inclined) and FOMO (Fear Of
Missing Out). A surge in the offence of stalking has been seen in
the country from 6,266 reported cases in 2015 to 8,415 in 2017.
More than 75% of the women are victims of cyber stalking but the
data is insufficient as most of the cases go unreported.

Stalking is criminalized under the Indian Penal Code, 1860. The
Criminal Law (Amendment) Act of 2013 to the
IPC introduced section 354D which deals with stalking. It
specifies that a man who follows a woman or contacts her or
attempts to do so even on clear indication that she is not
interested in making such acquaintance amounts to stalking. The
ambit of this section also extends to online stalking over the
internet or any other form of electronic communication. Section 507 of the code indirectly addresses
the issue of stalking as it reads criminal intimidation by
anonymous means. This can put to use when the stalker wishes to
remain anonymous and threaten the victim by cloaking his identity.
Section 509 aims at punishing the person who
insults the modesty of a woman by words or gestures. He can be held
liable if he violates a woman’s privacy by persistently sending
her offensive messages or mails on social media platforms.

Though the Information Technology Act, 2000 lacks a clear
framework in this regard. Section 67 of the IT Act, 2000 deals with
publication of obscene content in electronic forms. If the
perpetrator publishes anything disparaging about the victim, then
he shall be liable under this section. Section 67A deals with the transmission of
‘sexually explicit’ content. In a situation where the
stalker tries to publish any content explicitly of sexual nature,
then he can be held liable. The offence of stalking can also be
subsumed under section 66E of the IT Act which primarily deals
with voyeurism. In order to instil fear in the mind of the victim
the stalker might try to find out victim’s private pictures
posted on social media accounts and misuse them. Section 66A which was struck down by the court
in the landmark judgement of Shreya Singhal v Union of
India on the grounds of vagueness and chilling effect
doctrine could have been effective in dealing with issues of
stalking. It specifically dealt with the punishment for sending
offensive messages through communication.

 Manish Kathuria v Ritu Kohli was the
first case of cyber stalking in India which was reported. The
accused Manish Kathuria was stalking a lady named Ritu Kohli. He
used her identity to send obscene messages to people. He even
distributed her contact and address to people. She started
receiving obnoxious messages from people. He was booked under
section 509 of IPC. Since then, the country has witnessed
innumerable cases relating to cyber stalking and there seems no end
to it

In USA, the offence of stalking has been dealt within The Federal Statute of the United States of
America (USA), Title 18, United States Code (U.S.C) section 2261-A
subsection 1. Under sub-section 2 of the same statute the
offence of cyber stalking has also been mentioned. An amendment was
made in the year 2006 in the Federal Telephone Harassment Statute,
1934 where the definition of telecommunication was expanded to
include any device or software which operates by the means of
internet. No specific legislation in the UK deals with the issue of
cyber stalking. The issue has been addressed through a combination
of laws including: The protection from Harassment Act,1997, the
Malicious Communications Act, 1988, the computer misuse act,1990
etc

Stalking directly encroaches upon privacy which according to Justice K.S. Puttaswamy and Anr. vs. Union of
India (UOI) and Ors. is a fundamental right
under Article 21 of the Indian Constitution. Apart from creating
fear, it also results in lack of social interaction. It leads to
unwanted behavioural and psychological changes, stress and trauma.
Multifactor Authentication is one way of reducing the risk of
stalking. It is a method of authentication requiring two or more
factors to login into a particular account rather than a simple
username and password. Data leakage protection software can be
installed and updated to safeguard the data. The GPS location tag
should be avoided while posting a picture as it may help the online
stalker to trace a person physically.

Though these measures are of preventive nature, in case a person
is stalked the best method to avoid further damage is to speak up
and address the problem. One should resort to complaints in the
cyber cell or online redressal mechanisms. The websites are
dutybound to take down the reported content within 24 hours as per
rule 2(b) of part II of the IT (Intermediary Guidelines and Digital Media
Ethics Code) Rules, 2021. The victims can also resort to
reporting to CERT-IN (Indian Computer Emergency Response Team)
which is a designated nodal agency specified under Section 70B of the IT Act. The victim can also
lodge a complaint on the website of National Cyber Crime Reporting
Portal. Silence of the victim puts the perpetrator in an
advantageous position which may lead to further repercussions. But
now the time has come that a specific section related with cyber
stalking should be added via amendment to the IT Act, 2000 to
safeguard women who are mostly the soft targets.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.