2.9 Online Intimidation and Threats

In dealing with a case of online intimidation and threats against a woman, courts must be sensitive to the gendered impact of such acts. For instance, sharing personal details of a woman online, with the aim to harass her, may cause harm that is more invasive and sexist than revealing the details of a man. The act of intimidation or threat could not only create fear of injury to the person, property, and reputation of the victim and the people close to her, but also damage her credibility and cause psychological and emotional harm that may restrict her participation in the online space.

More often than not, intimidation and threats accompany other forms of gender-based online abuse such as NCIID, cyberstalking, and doxxing.

Section 503 of the Indian Penal Code (IPC) defines the offense of criminal intimidation as “threatening injury to the person, reputation or property of a person or of those in whom that person has an interest with the intent to cause alarm to such person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat”.⁵Indian Penal Code, 1860, Section 503. The offense of criminal intimidation is punishable with imprisonment for a term of up to two years, or a fine, or both, and if the threat made is of death or grievous hurt, with imprisonment for up to seven years, or a fine, or both. Further, Section 507 of the IPC penalizes criminal intimidation by anonymous communication. This Section can be particularly useful for women who face threats from anonymous trolls.⁶Gurumurthy, A., Vasudevan, A., & Chami, N. (2018). Examining Technology-Mediated Violence against Women through a Feminist Perspective. IT for Change. https://itforchange.net/sites/default/files/1513/ITFC-DISCUSSION-PAPER.pdf 

The crux of the offense of criminal intimidation is the intention of the accused to cause alarm to the recipient of the threat or intimidation; it is immaterial whether the act alarms the recipient of the threat. As the court observed in Vasant Waman Pradhan v. Dattatraya Vihal Salvi (2003),⁷Vasant Waman Pradhan v. Dattatraya Vihal Salvi, 2004 (1) MhLj 487, judgment dated 12 March 2003, Bombay High Court. intention is the soul of the definition of criminal intimidation, and it needs to be determined based on surrounding circumstances.⁸Vasant Waman Pradhan v. Dattatraya Vihal Salvi, 2004 (1) MhLj 487, judgment dated 12 March 2003, Bombay High Court. For instance, in cases of online trolling, the intention to cause the victim alarm or fear is often easy to ascertain from the coordinated, systematic, and planned nature of the attack.

Additionally, since offenses like cyberstalking, NCIID, morphing, etc., are often accompanied by intimidation of victims with threats of injury to their person, property, or reputation, the accused can be charged under Section 503 or 507 of the IPC, if intention is ascertained. Further, where the intimidation or threat is against a member of a Scheduled Caste or a Scheduled Tribe, Section 3(1)(r) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC and ST Act) will also apply.

Most cases involving intimidation of women through digital technologies that come before the court are accompanied by other offenses such as rape, voyeurism, cyberstalking, non-consensual dissemination of images, etc.

2.9.4.1 Rahul @ Mayank v. State (2020)⁹Rahul @ Mayank v. State, (2019) CRL. A. 587/2019, judgment dated 18 May 2020, Delhi High Court.

This case involved the rape of a woman and capturing photos and videos of the woman naked. The accused used to threaten the victim that if she told others about the incident, he would put her video and photos on the internet and defame her. Since intimidation and threat were involved, along with Section 376 of the IPC (rape), the Delhi High Court convicted the accused under Sections 506 (punishment for criminal intimidation) and 354C (voyeurism) of the IPC for taking pictures and videos of the woman and for threatening to upload the same.

2.9.4.2 State v. Madachirayil Gopinathan Suni (2018)¹⁰State v. Madachirayil Gopinathan Suni, CNR no. DLCT02-000212-2005, judgment dated 31 August 2018, Delhi District Court.

In some cases, courts have misjudged the real harm faced by women in criminal intimidation cases by invoking Sections that penalize the publication of sexually explicit images or outraging the modesty of a woman, along with Sections 506 and 507 of the IPC.

In State v. Madachirayil Gopinathan Suni (2018),¹¹State v. Madachirayil Gopinathan Suni, CNR no. DLCT02-000212-2005, judgment dated 31 August 2018, Delhi District Court.the accused sent obscene and threatening emails to the complainant along with a morphed image of hers. He then demanded sexual favors from her by threatening to upload those images on pornographic websites. When the complainant refused, the accused uploaded the images to the homepage of a website. The accused was charged with offenses under Sections 506, 507, and 509 of the IPC, and Section 67 of the Information Technology (IT) Act, 2000 (IT Act). Recognizing that the accused’s threat of uploading the morphed images and his act of publishing them caused the victim alarm and harmed her reputation, the court convicted the accused under Sections 506 and 507 of the IPC.

In addition, the court convicted the accused under Section 509 of the IPC (outraging modesty of woman) and Section 67 of the IT Act (dissemination of obscene materials). The conviction under Section 509 was done on the ground that the language and photographs mentioned in the accused’s email were intended to insult the modesty of the complainant. But, by invoking Section 509 of the IPC and Section 67 of the IT Act, the court dithered from the actual harm caused to the victim – violation of privacy and bodily integrity, causing the victim alarm, and injuring her reputation – and misjudged the issue as one concerned with the dissemination of obscene images and insulting the modesty of a woman.

Jurisdictions across the globe are either using existing laws similar to Sections 503 and 507 of the IPC to deal with online threats and intimidation against women, or framing specific laws that address various cybercrimes and violence against women, including offenses such as intimidation and threats.

The US relies on Section 875(c) of the federal statute Title 18–Crimes and Criminal Procedure to deal with online threats against women. This provision penalizes interstate or foreign communication (including over the internet) that contains a threat to kidnap any person; or a threat to injure the person, property, or reputation of the addressee; or a threat to accuse the addressee of a crime.¹²U.S. Code: Title 18 U.S.C § 875 (c). Similar statutory provisions have been adopted by many US states.¹³United States Courts. (n.d). Facts and Case Summary - Elonis v. U.S. United States Court. https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-elonis-v-us However, a major obstacle in the effectiveness of this Section to deal with online threats and violence against women is the US Supreme Court’s ruling in Elonis v. State (2015),¹⁴Elonis v. State, 135 S. Ct. 2001, 2001 (2015), judgment dated 1 June 2015, Supreme Court of the United States of America. wherein it held that conviction under Section 875(c) requires proof that the defendant intended to threaten the addressee through his communication. This is a higher standard and difficult to prove, as compared to proving recklessness on the part of the accused regarding the risk of harm to the addressee or an objective proof of the mental state that considers what reasonable persons would make of the communication. This interpretation of the US Supreme Court has been criticized for making it difficult for women who are threatened or intimidated online to claim effective remedies due to the higher standard of proof required.¹⁵Formichella, J.K. (2017). A Reckless Guessing Game: Online Threats against Women in the Aftermath of Elonis v. United States. Seton Hall University. https://core.ac.uk/download/pdf/151527692.pdf.

In contrast to the US, the province of Nova Scotia of Canada has passed a specific legislation, Unauthorised Distribution of Intimate Images and Protection Against Cyber-bullying Act, 2017 to “create civil remedies to deter, prevent and respond to the harms of non-consensual sharing of intimate images and cyber-bullying”.¹⁶Unauthorised Distribution of Intimate Images and Protection Against Cyber-bullying Act, 2017, Section 2(a). (Nova Scotia, Canada). The Act defines cyberbullying to include different types of harassment that a woman may face online, and also includes acts that constitute threat, intimidation, and menacing conduct.¹⁷ Unauthorized Distribution of Intimate Images and Protection Against Cyber-bullying Act, 2017, Section 3(c). (Nova Scotia, Canada). These acts should be carried out through direct or indirect electronic communication and should cause or be likely to cause harm to another individual’s health or well-being, and the perpetrator should have either maliciously intended to cause harm or was reckless with regard to the risk of harm to another. Though Canadian law is gender-neutral, the act of cyberbullying has been defined in such a way that it can accommodate the harms that a woman may face from online threats and intimidation.