4.1 Contours of Online Gender-Based Violence

“All publics are socially constructed, and cyber publics are no exception.”³Travers, A. (2003). Parallel Subaltern Feminist Counterpublics in Cyberspace. Sociological Perspectives, 46(2), pp. 223-37. The asymmetries in power that are reproduced in online spaces facilitate abuse and harassment of women and other persons who lie outside dominant cisgender and heterosexual categories. The internet is often hailed for its perceived disembodiment and the anonymity it offers users. However, while digital platforms enable women to speak without fear of immediate repercussions on many occasions, their anonymity also facilitates abuse, which translates into offline repercussions, whether immediate or not. Moreover, disembodiment on the internet is little more than a myth. A person’s online persona, which they establish online, is never fully divorced from their offline realities.⁴Galpin, C. (2022). At the Digital Margins? A Theoretical Examination of Social Media Engagement Using Intersectional Feminism. Politics and Governance, 10(1), pp. 161-171. One always relies on the codes, values, and morals of their offline selves to construct their online identities and perceive that of others, which reproduces offline societal inequalities in the online sphere. Therefore, OGBV arises from and in tandem with offline, intersecting structural inequalities.⁵Bailey, J., Henry, N., & Flynn, A. (2021). Technology-Facilitated Violence and Abuse: International Perspectives and Experiences. In The Emerald International Handbook of Technology-Facilitated Violence and Abuse (pp. 1-17). Emerald Publishing Limited. Also see, Brophy, J. E. (2010). Developing a Corporeal Cyberfeminism: Beyond Cyberutopia. New Media & Society, 12(6), 929–945. https://doi.org/10.1177/1461444809350901

Additionally, it must be noted that OGBV is experienced along the online-offline continuum. In Shemeer A. v. State of Kerala (2020),⁶Shemeer A. v. State of Kerala, Bail Application No. 4800 of 2020, Judgment dated 7 August 2020, High Court of Kerala. the bail petitioner, charged with criminal intimidation, was accused of taking nude photographs of the victim, threatening her of uploading the same on social media, trespassing into her house, and raping her. In State v. Lalit Kumar (2014),⁷State v. Lalit Kumar, SC No. 140/14, Judgment dated 20 June 2014, Uttarakhand High Court. a tuition teacher, the accused, sexually harassed the victim, a minor student, sent her messages via phone and Facebook.⁸State v. Lalit Kumar, SC No.140/14, Judgment dated 20 June 2014, Uttarakhand High Court.

The flow of harm between online and offline spaces exacerbates the effects of such violence. In many cases involving sexual abuse, such as the two cases given above, the survivors were threatened with the dissemination of their intimate images recorded before, during, or after the crime.

The use of intimate images to intimidate survivors, and prevent them from reporting a crime, for instance, intensifies the effects of the abuse because survivors are forced to live with the fear of their images being released in online spaces. Online violence can also lead to continued abuse when survivors are repeatedly victimized through blackmail.⁹AISET. (2021). Cyber Violence Against Women and Girls (CVAWG), The Algorithms of the Online-Offline Continuum of Gender Discrimination. International Journal of Humanities and Social Sciences. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3953292 Crimes like these contain both online and offline elements, which often contribute to additional harm to the survivor. The non-seriousness with which law enforcement agencies view online violence coupled with their reluctance to take prompt action contributes to it leading to offline violence.¹⁰AISET. (2021). Cyber Violence Against Women and Girls (CVAWG), The Algorithms of the Online-Offline Continuum of Gender Discrimination. International Journal of Humanities and Social Sciences. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3953292 This highlights the need for training various stakeholders, including the police and the courts,¹¹Rajkumar, M., & Sen, S. (2022). Draft Case Law Research Report. IT for Change. https://itforchange.net/sites/default/files/2190/ITfC-Draft-Case-Law-Research-Report_1.pdf to recognize that online and offline violence complement each other and action must be taken against both, with equal seriousness.

There is a consistent propensity in societies to overlook the harms caused by OGBV since most of these are not physical. However, the consequences of OGBV are real and varied, ranging from emotional and social to professional.¹²Gurumurthy, A., Vasudevan, A., & Chami, N. (2019). Born Digital Born Free? A Socio-Legal Study on Young Women’s Experiences of Online Violence in South India. IT for Change. https://itforchange.net/sites/default/files/1618/Born-Digital_Born-Free_SynthesisReport.pdf   Most commonly, women targeted by acts of OGBV, such as the sharing of intimate images without their knowledge, undergo severe mental trauma and face personal and professional losses and stigmatization.¹³Gurumurthy, A., Vasudevan, A., & Chami, N. (2019). Born Digital Born Free? A Socio-Legal Study on Young Women’s Experiences of Online Violence in South India. IT for Change. https://itforchange.net/sites/default/files/1618/Born-Digital_Born-Free_SynthesisReport.pdf   Research shows that, often, the very intent of sexualized abuse that derives from the private domain is to invoke a feeling of shame and intimidate women into leaving the online public sphere.¹⁴Gurumurthy, A., & Dasarathy, A. (2022). Profitable Provocations A Study of Abuse and Misogynistic Trolling on Twitter Directed at Indian Women in Public-Political Life. IT for Change. https://itforchange.net/sites/default/files/2132/ITfC-Twitter-Report-Profitable-Provocations.pdf Indeed, many women who face such trauma consciously reduce their presence on digital platforms.¹⁵Lamensch, M. (2022). Women Activists Lead the Struggle against Online Gender-Based Violence Worldwide. Centre for International Governance Innovation. https://www.cigionline.org/articles/women-activists-lead-the-struggle-against-online-gender-based-violence-worldwide/

Another major concern with OGBV is that, unlike in cases that do not involve digital tools, abusive content has a longer lifespan, and can be disseminated very quickly, if not via the internet, then by means of tools such as Bluetooth. It is nearly impossible to conclusively take down abusive content, such as non-consensual intimate images, since it takes a short time to save, forward, or take a screenshot of it. The fear that a stray copy of such content can find its way back to public domain, long after the incident, leaves survivors in perpetual fear of having to go through the same trauma again.

The increasing popularity of online spaces to discuss a wide range of topics, including those that were earlier relegated to the private sphere, has blurred this rigid separation between the public and the private. For instance, issues such as reproductive justice or abortion rights are now commonly seen on social media platforms.¹⁹Carey, L. (2022). A Gift and a Curse: Social Media Serves as a Channel for Reproductive Justice Advocacy. Daily Northwestern. https://dailynorthwestern.com/2022/05/13/city/a-gift-and-a-curse-social-media-serves-as-channel-for-reproductive-justice-advocacy/

Despite this necessary blurring of the rigid boundaries between the public and private spheres, patriarchal and misogynistic societal attitudes still attempt to govern and regulate what ought to be public and what must be kept private. For instance, matters concerning women, such as menstruation, have consistently been shunned as private, a segregation that is reproduced in digital spaces as well.²⁰Galpin, C. (2022). At the Digital Margins? A Theoretical Examination of Social Media Engagement Using Intersectional Feminism. Politics and Governance, 10(1), pp. 161-171. This persistent notion that the public is a space reserved for men and the private for women is a narrative upon which the online public sphere is built. Hence, women’s attempts to engage in the online public sphere generate the same or similar backlash faced by women claiming their rights over offline public spaces. While the digital public sphere has accorded women greater agency by enabling their public political participation, women who actively engage in online spaces are, at the same time, routinely subjected to various forms of OGBV, the harms of which are experienced both in digital and physical spaces.²¹Gurumurthy, A., Vasudevan, A., & Chami, N. (2019). Born Digital Born Free? A Socio-Legal Study on Young Women’s Experiences of Online Violence in South India. IT for Change. https://itforchange.net/sites/default/files/1618/Born-Digital_Born-Free_SynthesisReport.pdf 

In cases of OGBV, there is often a lack of understanding as to where the online public sphere ends and the private sphere begins. For instance, if a person receives death threats on a social media platform while sitting within the confines of their home, would that be considered as happening in the public sphere or private?²²Jha, B. (2020). What’s So Private About Online Sexual Harassment? Bot Populi. https://botpopuli.net/whats-so-private-about-online-sexual-harassment/ This was the case in Logeswaran v. State (2018),²³G. Logeshwaran v. State, Crl.O.P.No.7405 of 2017, Judgment dated 6 December 2018, Madras High Court. in which the Madras High Court observed that since the abusive messages received via a mobile phone did not constitute harassment in a public place, Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 1998,²⁴Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 1998. Whoever commits or participates in or abets harassment of woman in or within the precincts of any educational institution, temple or other place of worship, bus stop, road, railway station, cinema theatre, park, beach, place of festival, public service vehicle or vessel or any other place shall be punished with imprisonment for a term which may extend to three years and with fine which shall not be less than ten thousand rupees. would not apply. This indicates the spatial limitations of Indian laws in identifying the public/private boundaries of digital communication with respect to OGBV cases.²⁵Jha, B. (2020). What’s So Private About Online Sexual Harassment? Bot Populi. https://botpopuli.net/whats-so-private-about-online-sexual-harassment/

Another instance of the court adopting a spatially limited interpretation of the law was observed in Tajinder Singh Bagga v. State (2016), in which the accused and his friends continually harassed the complainant, who belonged to a Scheduled Caste, on social media, and breached her privacy by putting up her MCI (Medical Council of India) degree certificate online.²⁶Tajinder Pal Singh Bagga v. State of Karnataka and Ors, MANU/KA/1667/2016, Judgment dated 14 July 2016, Karnataka High Court. The counsel for the complainant argued that the accused should be charged under Section 3(i)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act (SC and ST Act), which is concerned with intentional insult to humiliate “a member of a Scheduled Caste or a Scheduled Tribe in any place within public view” (this is now Section 3(1)(r) of the SC and ST Act after the 2016 amendment).²⁷ The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989. https://www.indiacode.nic.in/bitstream/123456789/1920/1/a1989-33.pdf . Please note, the case pertains to the SC and ST Act before the 2016 amendment. The old version of the Act can be found here: https://tribal.nic.in/actRules/SCSTpoaact1989.pdf This argument was quashed, along with the other charges, by the Karnataka High Court, which said there was nothing in the complaint that proved that the accused intended to “humiliate” the complainant “in any place within public view”.²⁸ Tajinder Pal Singh Bagga v. State of Karnataka and Ors, MANU/KA/1667/2016, Judgment dated 14 July 2016, Karnataka High Court. This exhibits the inadequacy of existing laws and the insensitivity of legal systems when dealing with gender-based violence in scenarios that occur and are experienced across fluid public-private realities.

Even seemingly innocuous facets of the digital public sphere raise legal dilemmas when it becomes a site of OGBV. For instance, creating a private account or profile is the most common way to establish one’s presence on online platforms. Consider a scenario where a post created by an individual’s profile generates a lot of engagement, both positive and negative. How must the law interpret this series of exchanges when they are anchored by an individual’s personal profile? Is it still just a private account if it has hosted a discourse on matters of common concern, or is it now a public forum?²⁹Sinha, A. (2020). Beyond Public Squares, Dumb Conduits, and Gatekeepers: The Need for a New Legal Metaphor for Social Media. IT for Change. https://projects.itforchange.net/digital-new-deal/2020/11/01/beyond-public-squares-dumb-conduits-and-gatekeepers-the-need-for-a-new-legal-metaphor-for-social-media/ Such questions become pertinent when the law must decide on cases where owners of such private accounts experience abuse along this blurred public-private boundary.

It is worryingly common for public profiles of women, who are active in the public sphere, to be targets of OGBV. Research by IT for Change reveals that the abuse faced by women politicians, for instance, is often severely gendered and aimed at conveying the message that politics is not a woman’s business.³⁰Gurumurthy, A., & Dasarathy, A. (2022). Profitable Provocations A Study of Abuse and Misogynistic Trolling on Twitter Directed at Indian Women in Public-Political Life. IT for Change. https://itforchange.net/sites/default/files/2132/ITfC-Twitter-Report-Profitable-Provocations.pdf Abusive comments that make references to how a woman politician would do better to stick to “make-up”, and insinuate that women do not understand “political affairs”, must be understood as seeking to relegate women to stereotypically assigned fields, such as household work.³¹Gurumurthy, A., & Dasarathy, A. (2022). Profitable Provocations A Study of Abuse and Misogynistic Trolling on Twitter Directed at Indian Women in Public-Political Life. IT for Change. https://itforchange.net/sites/default/files/2132/ITfC-Twitter-Report-Profitable-Provocations.pdf The blurring of public and private spheres materially influences their contributions in online platforms as per traditional roles and stereotypes perpetuated offline.

On social media platforms, every action has a monetary consequence, incentivizing people to behave in ways that generate personal benefits, often at the cost of ruining the civility expected of a public sphere.³⁵Gurumurthy, A., & Dasarathy, A. (2022). Profitable Provocations a Study of Abuse and Misogynistic Trolling on Twitter Directed at Indian Women in Public-Political Life. IT for Change. https://itforchange.net/sites/default/files/2132/ITfC-Twitter-Report-Profitable-Provocations.pdf In turn, the fact that virality, or the tendency of something to go viral on social media, generates profits for the platform, slows its responses to content that may be abusive, if it has the potential to garner attention.³⁶ Korjan, A., & Tewari, A. (2023). Feminist Perspectives on Social Media Governance - A Snapshot. Bot Populi. https://botpopuli.net/feminist-perspectives-on-social-media-governance-a-snapshot/   The platform’s primary aim is to increase engagement, which is calculated by quantifying certain metrics such as the number of followers and the number of responses to a post. The architecture of the platform, therefore, supports virality and, consequently, enables and fails to regulate abusive content that generates good engagement.³⁷Gurumurthy, A., & Dasarathy, A. (2022). Profitable Provocations a Study of Abuse and Misogynistic Trolling on Twitter Directed at Indian Women in Public-Political Life. IT for Change. https://itforchange.net/sites/default/files/2132/ITfC-Twitter-Report-Profitable-Provocations.pdf Going viral also influences the importance attributed to harmful content online, while opposition to it generates severe backlash and abuse.³⁸Gurumurthy, A., & Dasarathy, A. (2022). Profitable Provocations a Study of Abuse and Misogynistic Trolling on Twitter Directed at Indian Women in Public-Political Life. IT for Change. https://itforchange.net/sites/default/files/2132/ITfC-Twitter-Report-Profitable-Provocations.pdf This digital capitalism helps totalitarian regimes disseminate majoritarian populist narratives, and thwart and delegitimize all counternarratives. For instance, in India, women who dissent from majoritarian opinions are attacked through coordinated harassment and disinformation campaigns.³⁹Gurumurthy, A., & Dasarathy, A. (2022). Profitable Provocations a Study of Abuse and Misogynistic Trolling on Twitter Directed at Indian Women in Public-Political Life. IT for Change. https://itforchange.net/sites/default/files/2132/ITfC-Twitter-Report-Profitable-Provocations.pdf These campaigns are commonly executed by thousands of (mostly anonymous) accounts retweeting or sharing an abusive post intended to humiliate a target. The ensuing virality ensures that the content is spread across the platform. Strong regulatory measures are necessary to break up the monopolies enjoyed by the platform business models that profit from enabling such violent discourses.

Moreover, grievance redressal mechanisms of social media platforms suffer from inconsistencies and delays. Often, people who report objectionable content that personally offends them or breaches their privacy are made to wait for long periods while the platform investigates if the content violates its community guidelines.⁴⁰Gurumurthy, A., & Dasarathy, A. (2022). Profitable Provocations a Study of Abuse and Misogynistic Trolling on Twitter Directed at Indian Women in Public-Political Life. IT for Change. https://itforchange.net/sites/default/files/2132/ITfC-Twitter-Report-Profitable-Provocations.pdf In cases of privacy breaches, such delays give perpetrators and others access to the complainant’s personal information for a long duration. Most often, the platform’s grievance redressal system is the first stop for women who face abuse and violence on social media, because of the fear of stigma that would be attached to them if they were to go to the police.⁴¹IT for Change. (2023). Response from IT for Change to the 'UNESCO Guidance for Regulating Digital Platforms: A Multistakeholder Approach'. https://itforchange.net/response-from-it-for-change-to-unesco-guidance-for-regulating-digital-platforms-a-multistakeholder Under such circumstances, the delays they face in receiving a response and the lack of transparency in how such issues are decided by platforms are deeply problematic. Such issues related to grievance redressal indicate a lack of accountability on the part of platforms, which get away with even grievous rights violations due to the impunity enjoyed by the corporations that own them.⁴²IT for Change. (2023). Response from IT for Change to the 'UNESCO Guidance for Regulating Digital Platforms: A Multistakeholder Approach'. https://itforchange.net/response-from-it-for-change-to-unesco-guidance-for-regulating-digital-platforms-a-multistakeholder

The totalizing power held by social media companies enables them to guide and control major discourses, including dominant political narratives. At the same time, given ineffective moderation of the content circulating on their platforms, and the slow and disagreeable resolution of complaints received from survivors of OGBV, the online public sphere becomes a dangerous space with little to no accountability.⁴³Sinha, A. (2020). Beyond Public Squares, Dumb Conduits, and Gatekeepers: The Need for a New Legal Metaphor for Social Media. IT for Change. https://projects.itforchange.net/digital-new-deal/2020/11/01/beyond-public-squares-dumb-conduits-and-gatekeepers-the-need-for-a-new-legal-metaphor-for-social-media/ Most social media platforms rely on automated content moderation systems, which are mostly machine learning-based operations that are taught to detect problematic content and remove them if required. Needless to say, these are not foolproof.⁴⁴IT for Change. (2023). Response from IT for Change to the 'UNESCO Guidance for Regulating Digital Platforms: A Multistakeholder Approach'. https://itforchange.net/response-from-it-for-change-to-unesco-guidance-for-regulating-digital-platforms-a-multistakeholder

The issues with such automated systems are many and varied. Firstly, they are often not equipped to detect abusive content in non-dominant languages, which means, abuses in local languages slip through the system. For example, the algorithms designed to detect abuse in Indian regional languages are not as competent as those for English or French. Abusers take advantage of this by switching to languages such as Bengali or Punjabi to escape detection, irrespective of whether their messages are written in these scripts or using English alphabets. Even when the language is one that the algorithm is familiar with, there are ways to sidestep detection, such as the use of special characters and alternative spellings in abusive text. For instance, the letter ‘s’ is often replaced with ‘$’ to avoid detection, like spelling the abusive term “asshole” as “a$$hole”.⁴⁵Gurumurthy, A., & Dasarathy, A. (2022). Profitable Provocations A Study of Abuse and Misogynistic Trolling on Twitter Directed at Indian Women in Public-Political Life. IT for Change. https://itforchange.net/sites/default/files/2132/ITfC-Twitter-Report-Profitable-Provocations.pdf This disrupts the automated system’s ability to detect the word as abusive. Finally, automated systems are incapable of identifying the intent behind content that may be read as offensive or violent, but is, in reality, aimed at informing people and is disseminated in the public interest. For instance, videos and statements posted by activists and journalists to expose human rights violations in Syria during the civil conflict were flagged and taken down by YouTube, which considered these as “objectionable” content.⁴⁶IT for Change. (2023). Response from IT for Change to the 'UNESCO Guidance for Regulating Digital Platforms: A Multistakeholder Approach’. https://itforchange.net/response-from-it-for-change-to-unesco-guidance-for-regulating-digital-platforms-a-multistakeholder

As mentioned earlier, the grievance redressal systems of social media platforms are the first option for many women who face abuse in these spaces. A strong regulatory mechanism needs to be in place to ensure that the content on social media platforms is well-moderated in order to make the online public sphere safe. Further, the courts must recognize the importance of platform accountability as being the larger end goal, and also acknowledge the role of algorithmic amplification of hateful content which perpetuates violence in the online public sphere.