5.2 Right to Safe Online Spaces

The right to safe online spaces entails that all individuals must be able to navigate these spaces without the fear of online violence and should be able to enjoy all human rights online that they enjoy offline. The UN Resolution of 2021 on the promotion, protection, and enjoyment of human rights on the internet emphasized the importance of ensuring an online environment that is safe and conducive to engagement by all, without discrimination, and with consideration for individuals facing systemic inequalities.

Women and gender minorities experience the internet differently. Due to their gender identity and the patriarchal environment in which they are embedded, they are more vulnerable to abuse and violence on the internet in the form of trolling, cyberbullying, non-consensual intimate image distribution (NCIID), morphing, etc. Even expressing their opinions on certain issues online may trigger violence and abuse.

The elimination of such online violence is crucial to enhance “the use of enabling technology, in particular information and communications technology, to promote the empowerment of women.”1Due Diligence Project. (2016). Eliminating Online VIolence against Women and Engendering Digital Equality. OHCHR. https://www.ohchr.org/sites/default/files/Documents/Issues/Women/WRGS/GenderDigital/DueDiligenceProject.pdf; Sustainable Development Goals. (n.d.). Goal 5: Achieve Gender Equality and Empower All Women and Girls. United Nations. https://www.un.org/sustainabledevelopment/gender-equality/  As our lives are increasingly lived in online spaces, whether it is social media, messaging platforms, interactive augmented reality (AR)-virtual reality (VR) platforms, and now possibly the metaverse, it becomes critical to ensure that these spaces are safe and accessible. Effective realization of safe online space also requires speedy and efficient redressal processes that provide remedies for any violence or abuse that individuals face online.

5.2.1 Constitutional source of the right

Article 21 of the Constitution of India guarantees the right to life and the right to live with dignity. Further, the Supreme Court in Anuradha Bhasin v. Union of India (2020),2Anuradha Bhasin v. Union of India, WP(C).No. 1031 of 2019, judgment dated 10 January 2020, Supreme Court of India. expanded the scope of Article 19 to include freedom of expression on the internet. However, the right to safe online spaces has not been expressly recognized by the Supreme Court, although various case laws have acknowledged certain facets that fall within its ambit.

In the past, the Supreme Court has taken action against threats in digital spaces that pose a danger to an individual’s life and safety. In Sneha Kalita v. Union of India (2017), the apex court recognized that the Blue Whale challenge (in which tasks were administered to players over a 50-day period, and included elements of self-harm, in some cases, leading to suicide) led to death of many individuals by suicide, and directed social media and email sites to remove all links to it.3Sneha Kalita v. Union Of India, (2017) WP(C).No. 943/2017, judgment dated 20 November 2017, Supreme Court of India. Similarly, in In re: Prajwala (2015),4In re: Prajwala, SMW (Crl.) No(s).3/2015, MANU/SCOR/45933/2017, order dated 23 October 2017, Supreme Court of India. a non-governmental organization (NGO) approached the Supreme Court raising concerns about the distribution of videos depicting sexual violence on the internet. A suo moto petition was registered, and the court directed that a committee be constituted to ascertain the feasibility of ensuring that videos depicting rape, gang rape, and child pornography are not available for circulation.

While the jurisprudence regarding the protection of rights in digital spaces is nascent, there are strong indications from the judiciary that the rights recognized in physical spaces, such as the right to dignity, the right to privacy, the right to just and humane conditions of work, and the prohibition of sexual harassment of women in the workplace, etc., also extend to online spaces. Recently, in a case of NCIID, the Delhi High Court observed that gender-based violence (GBV) constitutes an infringement of privacy, including information privacy as laid down in the Puttaswamy case.5Mrs X v. Union of India, 2023: DHC:2806, judgment dated 26 April 2023, Delhi High Court. In Silajit Guha v. Sikkim University and Ors (2019),6Silajit Guha v. Sikkim University and Ors, WP(C) (2019) No. 30 of 2019, judgment dated 3 July 2021, Sikkim High Court. the Sikkim High Court noted that the term ‘workplace’ under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) is inclusive rather than exclusive. A similar observation was made by the Bombay High Court in Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University (2014).7Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University, Writ Petition Nos. 3449, 3450 and 3451 of 2013, judgment dated 13 June 2014, Bombay High Court. The court said that the definition of a workplace under the POSH Act is deliberately kept wide to ensure that no area where women may be subjected to sexual harassment is left unattended. These rulings provide a strong basis to extend the legal protections against violence accorded to women in offline spaces to online spaces as well.

5.2.2 International sources of the right

5.2.2.1 Conventions

  1. Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention):8Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (CETS No. 210). https://www.coe.int/en/web/conventions/full-list?module=treaty-detail&treatynum=210 :
    This human rights treaty of the Council of Europe opposing all forms of violence against women was enforced on 1 August 2014. The Istanbul Convention, as it is also known, calls upon signatories to protect women against all forms of violence and prevent, prosecute, and eliminate violence against women, including domestic violence. It requires states to take the necessary legislative and other measures to ensure effective cooperation between all relevant state agencies, including the judiciary, public prosecutors, law enforcement agencies, local and regional authorities, as well as NGOs and other relevant organizations and entities, in protecting and supporting victims and witnesses of all forms of violence.9Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, (CETS No. 210), Article 18. https://www.coe.int/en/web/conventions/full-list?module=treaty-detail&treatynum=210 The Convention defines “violence against women” as a violation of human rights and a form of discrimination against women, which includes all acts of GBV that result in, or are likely to result in, physical, sexual, psychological, or economic harm or suffering to women, including threats of such acts and coercion or arbitrary deprivation of liberty, whether occurring in public or private life.10Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, (CETS No. 210), Article 3.a. https://www.coe.int/en/web/conventions/full-list?module=treaty-detail&treatynum=210In October 2021, the Group of Experts on Action against Violence against Women and Domestic Violence, the independent expert body responsible for monitoring the implementation of the Istanbul Convention, recommended that it be applied to the digital dimension of violence against women as well.11GREVIO General Recommendation No. 1 on the Digital Dimension of Violence against Women, General Recommendation 1. (2021). Council of Europe. https://rm.coe.int/grevio-rec-no-on-digital-violence-against-women/1680a49147
  2. The Budapest Convention on Cybercrime and Additional Protocols, European Treaty Series No. 185:12The Budapest Convention on Cybercrime. (2004). Convention on Cybercrime. Council of Europe. https://www.coe.int/en/web/cybercrime/the-budapest-convention:
    Drafted by the Council of Europe, this is the first international treaty to address internet and cybercrime. The Convention asks signatories to adopt domestic legal provisions that establish the interception of domestic networks, systems, or data with dishonest intent as an offense.13The Budapest Convention on Cybercrime. (2004). Convention on Cybercrime, Council of Europe, Article 3.  https://www.coe.int/en/web/cybercrime/the-budapest-convention Further, the Convention states that every party must adopt legislative measures to establish the production of child pornography, making it available through a computer system, distributing it, or possessing it as a criminal offense.14The Budapest Convention on Cybercrime. (2004). Convention on Cybercrime, Council of Europe, Article 9. https://www.coe.int/en/web/cybercrime/the-budapest-convention
  3. Convention of the Elimination of All Forms of Discrimination Against Women (CEDAW):15Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 1979 (entered into force 3 September 1981).: This Convention reaffirms some essential rights women have, including the right to work and safe working conditions. It calls upon states to ensure women’s equal access to and equal opportunities in political and public life, including the right to education, health, employment, and safe working conditions.16Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 1979 (entered into force 3 September 1981), Article 2. Today, these different aspects of public-political life are conducted with the help of the internet, and therefore, the state has the duty to ensure these rights in the digital space as well. CEDAW also requires states to take appropriate measures against all forms of exploitation of women.17Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 1979 (entered into force 3 September 1981), Article 2.

5.2.2.2 UN resolutions

  1. The Promotion, Protection, and Enjoyment of Human Rights on the Internet: Resolution adopted by the Human Rights Council on 13 July 2021 A/HRC/RES/47/1618The Promotion, Protection and Enjoyment of Human Rights on the Internet: Resolution. (2021). Human Rights Council. A/HRC/RES/47/16. https://digitallibrary.un.org/record/3937534?ln=en
  2. The Promotion, Protection, and Enjoyment of Human Rights on the Internet: Resolution adopted by the Human Rights Council on 5 July 2018 A/HRC/RES/38/719The Promotion, Protection and Enjoyment of Human Rights on the Internet: Resolution. (2018). Human Rights Council. A/HRC/RES/38/7. https://digitallibrary.un.org/record/1639840?ln=en
  3. Accelerating Efforts to Eliminate Violence against Women and Girls: Preventing and Responding to Violence against Women and Girls in Digital Contexts: Resolution adopted by the Human Rights Council on 5 July 2018 A/HRC/RES/38/520Accelerating Efforts to Eliminate Violence against Women and Girls: Preventing and Responding to Violence against Women and Girls in Digital Contexts: Resolution adopted by the Human Rights Council. (2018). UN Human Rights Council. A/HRC/RES/38/5. https://digitallibrary.un.org/record/1640463?ln=en

5.2.2.3 Declarations

  1. The European Declaration on Digital Rights and Principles for the Digital Decade:21Declaration on European Digital Rights and Principles. (2022). European Commission. https://digital-strategy.ec.europa.eu/en/policies/digital-principles :
    The Declaration calls upon member states to commit to fostering responsible and diligent action by all digital actors for a safe and secure digital environment. It is intended to guide policymakers to take suitable measures to foster participation in the digital public space, such as increasing safety, security, and empowerment in the digital environment, particularly for children and young people, while ensuring privacy and individual control over data and promoting sustainability.
  2. Declaration on the Elimination of Violence against Women:22Declaration on the Elimination of Violence against Women. (2013). General Assembly Resolution 48/104. https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-elimination-violence-against-women:
    Article 1 of the Declaration defines “violence against women” as any act of GBV that results in or is likely to result in, physical, sexual, or psychological harm or suffering to women, including threats of such acts and coercion or arbitrary deprivation of liberty, whether occurring in public or private life. This definition is broad enough to include violence carried out online or facilitated through digital technologies. The Declaration calls upon states to condemn all forms of violence against women and pursue appropriate means to put an end to such violence.23Declaration on the Elimination of Violence against Women. (2013). General Assembly Resolution 48/104. Article 4. https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-elimination-violence-against-women This includes developing penal, civil, labor, and administrative sanctions in domestic legislation to punish and redress the wrongs caused to women who are subjected to violence, and exercising due diligence to prevent, investigate, and punish acts of violence against women.24Declaration on the Elimination of Violence against Women. (2013). General Assembly Resolution 48/104. https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-elimination-violence-against-women

5.2.2.4 International advocacy efforts

  1. Feminist Principles of the Internet:25Feminist Principles of the Internet. (2016). Association for Progressive Communications. https://feministinternet.org/en/principles:
    The Feminist Principles of the Internet are a series of statements that view digital rights through the lens of gender and sexuality rights. It is an initiative spearheaded by the Association for Progressive Communications. It calls upon all internet stakeholders to address the issue of online harassment, threats, and intimidation of women and queer individuals.26Violence, Feminist Principles of the Internet. (2016). Association for Progressive Communications. https://feministinternet.org/en/principles

Footnotes

Sub-sections on this page: