Key recommendations for institutional change on gender-based cyber violence: Call for endorsements
Introduction
The National Dialogue on Gender-based cyber violence was organized by IT for Change, and the Advanced Centre for Women’s Studies, Tata Institute of Social Sciences (TISS) at the TISS Mumbai campus between 1-2 February 2018. It brought together 75 participants – women’s rights lawyers, digital rights, gender rights and media rights activists; feminist practitioners; and students to understand gender-based cyber violence and discuss how laws and institutional actors have responded and need to respond to the issues thrown up by the phenomenon.
Gender-based cyber violence in India cannot be discounted on the premise that access to the Internet is low. Various panelists at the National Dialogue shared their professional and personal experiences of facing cyber violence. The grim reality is that from students, women journalists (from both metropolitan cities as well as smaller towns), women’s rights activists writing online, to anyone from a discriminated gender location or sexual orientation who dares to exist online, the demographic and geographic extent of such violence is vast. Matrimonial courts in the country too are seeing that cases invariably have a tech element, underlining the fact that gender-based cyber violence is not just perpetrated by strangers, but often by known persons.
Since the union as well as state ministries of women and child development have shown an interest in tackling the issue, we felt that it is important to share some key highlights and recommendations that emerged from the National Dialogue, which the government may wish to take forward.1
Understanding what is gender-based cyber violence
There are three broad ways in which gender-based cyber violence needs to be understood:
Firstly, it may be seen as a continuum of offline violence. This builds on the fact that gender-based violence is structural and the structures of gender-based discrimination and exploitation offline are present online as well. So, for instance, stalking offline is often followed up by stalking online, and vice-versa.
The second mode of conceptualizing cyber violence is to view the cyber and the real as parallel to each other. So, just as gender-based violence in the offline space is seen as causing harm that may be physical, psychological or sexual, gender-based violence online also causes harm that is physical, psychological or sexual. There is an equivalence of harm between the mediums, that is, cyber touch can be as harmful as physical touch.
The third approach accounts for differences between the offline and online. According to this, the online space and its distinct architecture must be acknowledged for the operational logic of gender-based cyber violence. Hence, jurisprudence developed for the offline world cannot be transferred to the online. Take for example the consent framework, a hard fought and partially won feminist battle, which may not apply very well on social media. The latter is programmed towards ‘virality’ or the quick spread of information facilitated by the network structures of the online, making it impossible to transact within the parenthesis of informed, meaningful consent. Further, the effects of consent online can acquire permanence, so mechanisms for revocation need to be consciously added. Features of the online – like invisibility, anonymity, time lag between occurrence of action and felt impact, absence of physical co-presence and face to face communication, and absence of a visible authority figure policing the violence, etc. encourage an impulse towards violence, referred to as toxic disinhibition. While these individual characteristics may also be observed in offline violence, their confluence in online actions produces forms of violence unknown to the offline.
Legal frameworks must respond to gender-based cyber violence from a combination of the approaches listed above. That the violence is different but not wholly separate from offline violence becomes key to such a paradigm shift.
Recommendations for the way forward
1. For legislative changes
1.1 Laws that seek to remedy gender-based violence must shed the protectionist framework. They must recognize that violence inhibits women’s right to equality, dignity and privacy (understood as bodily integrity, personal autonomy and informational privacy). Further, laws must underscore the fact that gender-based violence is an act of discrimination.
1.2 The law must recognize sex, sexual orientation and gender identity as legitimate grounds of hate speech. This has already been suggested by the Law Commission and the T. K. Viswanathan expert committee. Gender-based hate speech, that may or may not be sexual, is a form of gendered violence that seeks to deprive persons from discriminated gender locations of dignity and equal participation in society. While acknowledging the historic marginality of some communities and their vulnerability to harm caused by hate speech, the law must be drafted within the reasonable restrictions to the freedom of speech and expression as provided by the Constitution.
1.3 Section 66E of the Information Technology Act, 2000 (IT Act) should explicitly include, in the clause on ‘under circumstances violating privacy’, the assumption that when a person shares a photograph with another, it is meant to be viewed by only the other person/persons and no one else, unless explicitly consented otherwise. Further, knowledge that no consent was given must be interpreted at three levels : actual knowledge (inferred from the conduct of the person whose image it is), constructive knowledge (also known as knowledge in the second degree, attributable to a person if she/he/they deliberately did not make inquires when she/he/they should have) and knowledge in the third degree (assigned to a person even if there was an unintentional failure to make inquiries, if, in the given the circumstances, it was reasonable to do so). Such an interpretation will ensure that secondary perpetrators can also be held liable in legitimate circumstances.
1.4 Section 66E of the IT Act must be expanded to punish the practice of morphing of images usually in sexually explicit ways without the consent of the person whose image is being morphed as well as the sending of images of genitals or pubic area to a person without her/his/their consent.
1.5 New legal provisions are needed to recognize the informational privacy of persons and punish acts of ‘doxxing’, that is, posting online of personal information like residential address, phone numbers, place of work, without the consent of the person whose information it is, with the intention of harassing that person or causing harm.
1.6 Considering that the terrain of the digital is new, and existing laws apply imperfectly, drafting a new law that focuses exclusively on gender-based cyber violence may be required.² Simultaneously, the IT Act and the IPC must be amended to address the issues raised above.
2. For policy development
2.1 To improve the prosecution of gender-based cyber violence, it would be important to invest in infrastructure such as special courts, cyber investigation teams and appoint state prosecutors specialized in cyber crimes.
2.2 Training investigating officers in the collection of digital evidence and developing guidelines or standard operating procedures for the collection of and presentation of digital evidence will encourage law enforcement officials to pursue cases of gender-based cyber violence. This could be one of the key points of the “Capacity building programme for prevention of cybercrime against women …” that the Ministry of Home Affairs has in mind.
2.3 When employing apps for crisis support, it is important that sensitive data like location, photographs, contact lists that may be collected by the app is protected. Further, before the app is rolled out, a pilot study should be conducted in order to ensure that response is forthcoming at the time of emergency
3. For law enforcement agencies
3.1 Police must be aware of all provisions of the IT Act that can be applied to cases of gender-based cyber violence, and make use of both provisions of the IT Act as well as of the Indian Penal Code (IPC) while filing a First Information Report (FIR) on receiving complaints of such violence.
3.2 The police must acknowledge and be responsive to the multiple layers of violence when cases are filed. Persons at the intersection of multiple marginal social identities experience multiple types of discrimination online. Identity is central to acts of trolling. For instance, dalit women online are not only at the receiving end of sexist messages but also casteist slurs. So, while filing a FIR, it is not just the IPC or the IT Act that becomes applicable, but for instance, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 may also need to be utilized.
3.3 Women have noted that when they approach the police with experience of violence faced on social media or through their mobiles, they are often told to block the number or approach the social media intermediary themselves. While such advice can work concomitantly, it is the duty of the police to file a FIR for any legitimate infraction of the law that a complainant brings to the police. The burden of redress should not be shifted on to the complainant.
3.4 Gender sensitization of police officers is crucial if we are to work against the stigma complainants feel in reporting gender-based crimes. Further it would be important to recruit personnel from diverse gender and social locations to cyber cells. Police must realize that impact of gender-based cyber crimes on the complainant is as severe as the impact of physical acts and must be treated with the same urgency.
3.5 In cases of circulation of intimate images without the consent of the person whose image it is, the police must use consent based provisions like Section 66E of the IT Act rather than anti-obscenity based provisions like Sections 67 and 67A of the IT Act. The latter provisions can end up punishing the complainant if she/he/they shared intimate images with another/others, but without consent to its circulation to a wider audience. Further, these anti-obscenity Sections are protectionist and do not seek to redress the person who has faced violence.
3.6 In some cases of gender-based cyber crimes, the complainant and the accused may reside in different states. In these cases, if the complainant approaches the police in the state she/he/they resides to file an FIR, the police must assist the complainant and file the FIR even if the case is not within its jurisdictional limits, as is recommended by the Justice Verma Committee report. After the FIR is filed it can be transferred to the police station in the correct jurisdiction. Refusal to file FIR can discourage the victim from filing a formal complaint altogether.
4. For internal complaints committees
4.1 There must be a wider interpretation of harassment of women in workplaces, and educational institutions that includes harassment that is gender-based, but not necessarily sexual.
4.2 Gender-based harassment must include the experiences of those from marginalized and discriminated gender identities and sexual orientations. Anti-sexual harassment policies at educational institutions and at workplaces must specifically include persons from discriminated gender locations and sexual orientations within their ambit.
4.3 While interpreting gender-based harassment, the particular experience of each complainant must be accounted for.
4.4 Steps must be taken to guide a complainant on preserving digital evidence. The Internal Complaints Committee may also approach digital experts for advice on the recovery of evidence.
5. For educational institutions
5.1 Efforts must be taken to raise awareness on how to positively engage with technology, instead of banning the use of technology. Students must be provided the support needed to formally pursue cases of gender-based cyber violence.
6. For Internet intermediaries
6.1 There must be greater investment for making users aware about existing methods for take down of content/images, such as image hashing.
6.2 Accountability mechanisms that comply with international human rights standards must be adopted, including due process measures like timely response to complaints of gender-based cyber violence and releasing transparency reports on measures taken when complaints are received.
A blog on the highlights from the National Dialogue can be viewed here: https://projects.itforchange.net/e-vaw/event-blog/
2. For example see the Philippines Anti Gender-based Electronic Violence Bill – https://www.senate.gov.ph/lisdata/2513321647!.pdf
Endorsement List:
1) Vibhuti Patel, Chairperson & Professor, Advanced Centre for Women’s Studies, School of Development Studies, Tata Institute of Social Sciences, Mumbai
2) Sreeparna Chattopadhyay, Faculty, Srishti Institute of Art, Design and Technology, Bengaluru
3) Srijan Sandip Mandal, Faculty, Srishti Institute of Art, Design and Technology, Bengaluru
4) Shreya Sethuraman, Independent researcher
5) Partha Sarathi Sarkar
6) Dyuti Sudipta, Feminist researcher
7) Justice Prabha Sridevan (Retired), Madras High Court
8) Molly Ghosh, Faculty, Barrackpore Rastraguru Surendranath College, Barrackpore
9) J. Devika, Faculty, Centre for Development Studies, Trivandrum
10) Radhika Radhakrishnan, Student, M.A. in Women’s Studies, Tata Institute of Social Sciences, Mumbai
11) Gayatri Menon, Faculty, Azim Premji University, Bengaluru
12) Archismita Choudhury, Media and Communications Coordinator, Breakthrough India, New Delhi
13) Divya G.S, Doctoral Student, School of Social Sciences Tata Institute of Social Sciences, Mumbai
14) Indumugi C -Student, BA., LL. B(Hons.) – Tamil Nadu National Law School
15) Saumya Bhandari
16) Asaf Ali Lone, Independent Researcher
17) Japleen Pasricha, Feminism In India
18) Sonali Kumar, Research Assistant, iCALL, Tata Institute of Social Sciences, Mumbai
19) The YP Foundation (institutional endorsement from Manak Maitiyani, Executive Director)
20) Ayushi Singh. University School of Law and Legal Studies, GGSIPU, New Delhi
21) Shreya Sen
22) Shruti Kapoor, Sayfty
23) Kunal Parmar, Sayfty
24) Lakshmi Lingam, Faculty, School of Media and Cultural Studies, Tata Institute of Social Sciences, Mumbai
25) Ahmar Afaq, Assistant Professor, Symbiosis Law School, Hyderabad, Constituent of Symbiosis International (Deemed University), Pune
26) Shewli Kumar, Associate Professor & Chairperson, GAC, Center for Women-Centered Social Work School of Social Work, Tata Institute of Social Sciences, Mumbai
27) Asha Achuthan,Faculty, Advanced Centre for Women’s Studies, Tata Institute of Social Sciences, Mumbai