2.4 Online Sexual Harassment

Online sexual harassment controls and limits women’s access to public spaces, whether for work, education, or pleasure, thereby deplatforming them and restricting their right to free expression. It is meant to humiliate and sexualize women, and send them a clear message that they are better off not being on the internet.¹¹Megarry, J. (2014). Online Incivility or Sexual Harassment? Conceptualising Women’s Experiences in the Digital Age. Women’s Studies International Forum, 47, pp. 46–55. https://www.researchgate.net/publication/264980169_Online_incivility_or_sexual_harassment_Conceptualising_women%27s_experiences_in_the_digital_age. This is a form of gender discrimination and violence that infringes on women’s right to dignity and equality. Unwanted sexual attention resulting from harassment also constitutes a serious invasion of privacy.

A gender-sensitive approach to a case of online sexual harassment should pay due attention to the impact on a woman’s rights to equal participation in the online public sphere, and the infraction of her right to dignity and privacy. At the same time, care should be taken to desist from making irrelevant moral judgments about a woman’s conduct on social media and other internet platforms.

The most important statutory provision in place to deal with online sexual harassment is 354A of the the Indian Penal Code (IPC), which was inserted through the Criminal Law Amendment Act, 2013. It defines sexual harassment to mean the commission of any of the following acts:

"(i) physical contact and advances involving unwelcome and explicit sexual overtures; or

(ii) a demand or request for sexual favors; or

(iii) showing pornography against the will of a woman; or

(iv) making sexually colored remarks."

Though not specific to cyberspace, Section 354A, and especially its sub-sections (ii) to (iv), cover many forms of sexual harassment on the internet, such as graphic sexual abuse on social media and blogs, including trolling and sending videos and pictures with sexually explicit content and images to a woman against her will. However, the narrow construction of the Section may make it difficult to prosecute diverse and emergent forms of online sexual harassment such as cyberflashing, i.e., the act of sending unsolicited sexual images or videos which are not limited to pornography and could include pictures or videos of one’s genitalia or other such items which may evoke feelings of repulsiveness in the receiver.

To account for forms of sexual harassment that may not be covered under Section 354A, Section 509 of the IPC can be evoked. As mentioned earlier, this Section punishes the act of insulting the modesty of a woman through words, gestures, sounds, etc., as well as the act of intruding into her privacy. However, in light of prior instances where courts have used the modesty clause to pass unwarranted moral judgments about the complainant’s conduct, it is essential that the application of this Section and examination of harm under it adopts a rights-based approach that focuses on the violations of the right to dignity, privacy, and equality of the victim resulting from the impugned act.

If gender harassment takes the form of comments, which, in addition to humiliating and harassing a woman on the basis of her gender, also injure her reputation before the public, then Sections 499 and 500 of the IPC, which define and punish the act of defamation, can be invoked.

Online sexual harassment in the workplace can invite charges under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). If the victim belongs to a Scheduled Caste or a Scheduled Tribe, punishment will be applicable as per the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC and ST Act). Finally, if the victim is a child, then relevant provisions, i.e., Sections 11 and 12 of the Protection of Children from Sexual Offences Act, 2012, will apply.

2.4.4.1 Chandrakant S/o Nathusaheb Witkar v. State of Bombay (2018)¹² Chandrakant S/o Nathusaheb Witkar v. State of Bombay, Anticipatory Bail Application No.2004 of 2018, judgment dated 28 September 2018, Bombay High Court.

The accused in this case harassed the complainant woman by sending objectionable and unwelcome WhatsApp messages and also threatened to defame her if she were to show the messages to anybody. The accused was charged under Sections 354A(1) (i) and (iv), 500, and 506 of the IPC, and Section 67 of the Information Technology (IT) Act, 2000 (IT Act). The petition was for a grant of bail to the accused. Though the court granted conditional bail, it observed that there was no merit in the accused’s contention that the WhatsApp messages he sent were not obscene and hence did not outrage the modesty of the victim. The court went on to say that “any act which outrages the dignity of the woman would amount to outraging her modesty”. By viewing the sexual harassment faced by the complainant as an issue of violation of dignity, the court, in this case, took a gender-sensitive approach.

2.4.4.2 The Present Petition Has Been ... v. Unknown (2021)¹³The Present Petition Has Been ... v. Unknown, Crl. O.P. No.12604/2020, judgment dated 27 April 2021, Madras High Court, at para 14.

This case is an example of an online sexual harassment case that saw both gender-sensitive and gender-insensitive observations being made by the court during its adjudication. The accused in this case spread fake and scandalous news against many women, and also made filthy and derogatory posts against them. He was charged under Section 509 (outraging the modesty of a woman) and Sections 354D (stalking) of the IPC, and Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 1988. The court correctly recognized that the act of the accused violated the affected women’s right to equal participation in the online space, and impinged on their constitutionally guaranteed freedom and dignity.¹⁴The Present Petition Has Been ... v. Unknown, Crl. O.P. No.12604/2020, judgment dated 27 April 2021, Madras High Court. The court also recognized the privacy violation faced by women “who incur the wrath of the unscrupulous persons, who post such scandalous posts, without any rhyme or reason”.¹⁵The Present Petition Has Been ... v. Unknown, Crl. O.P. No.12604/2020, judgment dated 27 April 2021, Madras High Court at para 14.

Unfortunately, this rights-based approach was accompanied by observations on the modesty and chastity of women, such as when the court remarked that “modesty is an attribute associated with female human beings and it is a virtue which attaches to a female owing to her sex”.¹⁶The Present Petition Has Been ... v. Unknown, Crl. O.P. No.12604/2020, judgment dated 27 April 2021, Madras High Court, at para 13. Though this observation did not ultimately detract the court from recognizing the real harm in this case, in general, such remarks could reinforce patriarchal notions in the framing of the law. It is doubtful whether such a notion of modesty would have led the court to the same decision if the woman in question was not deemed virtuous or modest.

With rising incidents of online sexual harassment against women, many countries are grappling with ways to address such crimes. While some continue to use existing criminal harassment laws to deal with online harassment, others are deliberating new legislations to make the online space safe and secure for its users, especially women.

The UK has come up with the Online Safety Bill which is currently pending deliberation in the House of Commons, and it seeks to protect children and adults from illegal, abusive, and harmful content online.¹⁷ Online Safety Bill. (United Kingdom). https://publications.parliament.uk/pa/bills/cbill/58-03/0121/220121.pdf Recently, the Bill was amended to include cyberflashing, which is defined as an act of sending unsolicited images of a person’s genitals to cause alarm, distress, or humiliation to the recipient, or to obtain sexual gratification.¹⁸Online Safety Bill, Section 157. (United Kingdom). Countries such as Singapore¹⁹Penal Code 1871. (Singapore). https://sso.agc.gov.sg/Act/PC1871?ProvIds=pr377BF-#pr377BF- and Scotland,²⁰Section 6, Sexual Offences Act, 2009. (Scotland). and the state of Texas in the US²¹Neal Davis. (n.d.). Texas Stalking & Cyberstalking Laws, Penalties & Defenses. https://www.nealdavislaw.com/criminal-defense-guides/texas-stalking-laws.html have also introduced specific laws to deal with this form of sexual harassment.

In South Africa and Sweden, anti-discrimination laws prohibit discriminatory acts, including harassment based on gender. Sweden’s Discrimination Act, 2008, defines sexual harassment to mean conduct of a sexual nature that violates someone’s dignity and treats it as a discriminatory act.²²Discrimination Act, 2008, Section 4(5). (Sweden). In South Africa, the Protection from Harassment Act, 2011, defines sexual harassment to include, “unwelcome sexual attention, unwelcome explicit or implicit behaviour, messages, etc., of a sexual nature; implied or express promise of reward or threat or reprisal for complying with or refusing to comply with a sexually oriented request, etc.”²³Protection from Harassment Act, 2011, Section 1(1). (South Africa). It explicitly includes harassment carried out through “verbal, electronic or any other communication”.²⁴Protection from Harassment Act, 2011, Section 1(1). (South Africa).