2.5 Gender Trolling

In contrast to generic trolling, gender trolling is done not only for the amusement of trolls, but also to systematically target and inspire fear in women, with the ultimate aim of preventing them from occupying public spaces such as the internet.¹⁴Mantilla, K., 2013. Gendertrolling: Misogyny Adapts to New Media. Feminist Studies, 39(2), pp. 563-570. https://muse.jhu.edu/article/831729/summary As such, it is an attempt to “maintain the online milieu as a male-dominated space”.¹⁵Mantilla, K., 2013. Gendertrolling: Misogyny Adapts to New Media. Feminist Studies, 39(2), pp. 563-570. https://muse.jhu.edu/article/831729/summary Further, gender trolling is similar to disciplinary rhetoric, as trolls use violent language to deter and discipline women and marginalized genders in online spaces, turning these spaces into contested sites of control, subjugation, and surveillance.¹⁶Cole, K. K. (2015). “It’s Like She's Eager to be Verbally Abused”: Twitter, Trolls, and(En) Gendering Disciplinary Rhetoric. Feminist Media Studies, 15(2), pp. 356-358.

A gender-sensitive approach to a case of gender trolling should, therefore, recognize and give due consideration to its impact on women’s online participation, and their right to equality, dignity, freedom of expression, and privacy. Even trolls who do not use explicitly threatening language but couch their remarks in tongue-in-cheek humor can have a debilitating effect on women’s online participation, especially when they make coordinated attacks. These should not be dismissed as minor acts of inconvenience, offense, or annoyance. Further, a gender-sensitive approach to a case of trolling will desist from advising women to stay out of or self-police their conduct on social media in order to avoid being trolled.

India does not have specific laws to deal with gender trolling but depends on existing statutory provisions to provide some form of remedy, albeit inadequate.

Section 354A of the Indian Penal Code (IPC) (sexual harassment) can be used to book perpetrators for posting lewd comments, messaging pornographic content to a woman against her will, or asking for sexual favors. Gender trolls that make imputations to harm the reputation of a woman can attract punishment for defamation under Sections 499 and 500 of the IPC. Gender trolling that threatens and intimidates a woman can attract punishment for criminal intimidation under Sections 503 and 507 of the IPC.

Gender trolling also often takes the form of cyberstalking when repeated attempts are made to contact a woman despite a clear indication of disinterest from her side, and to monitor her online activities. This attracts punishment under Section 354D of the IPC. The transmission of private or non-consensual intimate images of women as part of trolling constitutes voyeurism and can be punished under Section 354C of the IPC and Section 66E of the Information Technology (IT) Act, 2000 (IT Act). Finally, Section 509 of the IPC can be invoked if acts of gender trolling intrude into the privacy of a woman.

While the above-mentioned provisions of law can address cases of trolling, especially those involving threats and certain forms of harassment, many others may not be amenable to strict legal definitions required by criminal law. For instance, trolling in the form of memes, wordplay, and tongue-in-cheek remarks tread the thin line between free speech and offensive speech, and attempts to define it for the purpose of criminalization either risk being vague or going overbroad, which are not in the interest of freedom of speech. It is important to note that these forms of trolling gain their potency and toxicity from their frequency and volume, which is exacerbated by the amplification of sensationalist and viral content by social media algorithms. Instead of relying on criminal law to deal with these forms of trolling, we need regulatory efforts to hold platforms accountable for facilitating online abuse and harassment through their algorithms.

2.5.4.1 P. Saravanakumar v. State rep. by its Inspector of Police, Cyber Cell, Central Crime Branch, Egmore, Chennai & Another (2019)¹⁷P. Saravanakumar v. State rep.by its Inspector of Police, Cyber Cell, Central Crime Branch, Egmore, Chennai & Another, (2019) Crl.O.P.No.232 of 2013, order dated 5 August 2019, Madras High Court.

The case involved a well-known singer in South India facing a “chronic stream of extremely vulgar references and innuendoes”¹⁸P. Saravanakumar v. State rep.by its Inspector of Police, Cyber Cell, Central Crime Branch, Egmore, Chennai & Another, Crl.O.P.No.232 of 2013, order dated 5 August 2019, Madras High Court, at para 3.   against her and her mother, messages that insulted her based on gender, and threats of murder, rape, and acid attacks. In addition to cyberstalking and harassing the singer, the complainant, on Twitter, the accused engaged in coordinated Twitter attacks against her and her mother by starting many Twitter hashtags and also targeted her through various blog posts. While considering the petition of the accused persons to quash the First Information Report (FIR), the court rightly recognized the psychological, emotional, reputational, and livelihood damage that the complainant had to face due to online trolling by the accused. The court took serious consideration of the fact that the harassment continued despite the complainant making clear her sensitivity to such messages. Most importantly, the court held that the acts of the accused violated the right to dignity and the right to equality of the complainant and her mother.

2.5.4.2 Tajinder Pal Singh Bagga v. State of Karnataka and Ors (2016)¹⁹Tajinder Pal Singh Bagga v. State of Karnataka and Ors, MANU/KA/1667/2016.

The petitioner in the case prayed to quash an FIR registered against him following the complaint of a woman who belonged to the oppressed caste. The complainant alleged that the petitioner and his friends harassed and engaged in mass trolling against her on social media. During this time, one of the trolls posted the complainant’s MCI(Medical Council of India) degree certificate and harassed her based on her religion and caste. He called the complainant a “low caste” and abused her by saying that she deserved to be humiliated. Subsequently, an FIR was filed against the petitioner under Section 66A of the IT Act (sending offensive messages through communication service) and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC and ST Act). During the course of submission, the counsel of the respondent (complainant) argued that the petitioner should have been charged under Section 3(1)(x) of the SC and ST Act, instead.

(Please note that this case involved an incident that happened before the SC and ST Act was amended in 2016. Hence, the legal provisions invoked here are those of the earlier Act. Under the earlier Act, Section 3(1)(x) punishes the act of intentionally insulting or intimidating with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view. Section 3(1)(xi) punishes the act of assaulting or using force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonor or outrage her modesty.)

The court allowed the petition to quash the FIR on the following grounds:

1. No charges can be brought under Section 66A of the IT Act, which was declared unconstitutional by the Supreme Court in 2015 in Shreya Singhal v. Union of India.²⁰Shreya Singhal v. Union of India, (2015) AIR 2015 SC 1523.
2. Section 3(1)(xi) of the SC and ST Act requires assault or use of force, neither of which were alleged by the complainant.
3. The respondent counsel’s submission that Section 3(1)(x) will apply could not be accepted as the date, time, or place of abuse or harassment is not mentioned in the FIR, and “there is nothing to indicate that the complainant was intentionally insulted or intimidated in any place within public view”.²¹Tajinder Pal Singh Bagga v. State of Karnataka and Ors, MANU/KA/1667/2016, at para 22.
4. No case is registered for the offense punishable under Section 3(1)(x) of the SC and ST Act.

Reasons 1, 2, and 4 offered by the court sufficiently justified the quashing of the FIR. However, for reason 3, its observation on the applicability of Section 3(1)(x), especially its argument that the complainant was not insulted or intimidated “in any place within public view”, displays ignorance or indifference to the dynamics of online communication. As the court itself observed, the complaint had mentioned mass trolling against her on social media by the petitioner and his troll gang, and the publishing of her MCI certificate online, making it visible to a wider audience. It is baffling why the court did not consider these as acts of insult carried out in public view.

This case demonstrates that existing laws are ill-equipped to effectively deal with online harassment and navigate the fluidity of private-public spaces. Doing so requires a cognitive leap of imagination in judicial decision-making to reflect the lived realities of people in the digital world, something the court clearly lacked in this case. While the final outcome did not solely hinge on the court’s decision on the applicability of Section 3(1)(x), it points to the injustice that can be meted out if courts are insensitive to the peculiarities and spatial fluidity of online communications.

As in India, many jurisdictions are attempting to deal with gender trolling using existing legal provisions. In Australia, Section 474.17 of the Criminal Code Act, 1995, which criminalizes the use of a phone or the internet to threaten, harass, or seriously offend somebody, can be invoked against gender trolling. Under this Section, a message or post could be considered offensive if it is likely to cause serious anger, outrage, humiliation, or disgust.

Similarly, in the UK, Section 1 of the Malicious Communication Act, 1988, penalizes sending of indecent, grossly offensive, or threatening messages for the purpose of causing distress or anxiety to the recipient. Online trolling can also be prosecuted under Section 127 of the Communication Act, 2003, which penalizes the sending of messages that are grossly offensive, indecent, obscene, or of a menacing character over a public electronic communication network, as well as the act of persistently engaging in such conduct. Currently, the UK parliament is considering the Online Safety Bill, which if enacted would penalize the act of sending harmful, false, and threatening communication online, with an eye on the harm caused by such acts, including psychological acts.²²Online Safety Bill, Section 151-154. (United Kingdom). Further, the new Crown Prosecution Service guidelines of the UK, which guide prosecutors on how to deal with a case of violence against women committed using social media, may be helpful in understanding how such acts exercise power and control over women.²³CPS. (2022). Social Media and Other Electronic Communications. UK Government. https://www.cps.gov.uk/legal-guidance/social-media-guidelines-prosecuting-cases-involving-communications-sent-social-media For instance, the Guidelines ask prosecutors to be cognizant of the fact that in cases of violence against women and girls, social media may be used to exert power and control over the victim or to silence or coerce them.

In the province of Nova Scotia of Canada, the Unauthorised Distribution of Intimate Images and Protection against Cyber-Bullying Act, 2017, penalizes electronic communications that are grossly offensive, indecent, or obscene; communications that constitute harassment or make false allegations; and communications that denigrate an individual on any of the prohibited grounds of discrimination (which includes gender).²⁴Unauthorised Distribution of Intimate Images and Protection against Cyber-Bullying Act, 2017, Section 3(c). (Canada). The acts described by this provision are broad enough to include harassment by gender trolls.