{"id":311,"date":"2023-08-09T12:54:10","date_gmt":"2023-08-09T12:54:10","guid":{"rendered":"https:\/\/projects-dev.itforchange.net\/online-violence-gender-and-law-guide\/?page_id=311"},"modified":"2024-10-29T12:15:32","modified_gmt":"2024-10-29T06:45:32","slug":"2-4-online-sexual-harassment","status":"publish","type":"page","link":"https:\/\/projects.itforchange.net\/online-violence-gender-and-law-guide\/module-2-typologies-of-online-gender-based-offenses-in-law\/2-4-online-sexual-harassment\/","title":{"rendered":"2.4 Online Sexual Harassment"},"content":{"rendered":"
Navigate:Online Gender-based Violence Judicial Resource Guide<\/span><\/a><\/span><\/div><\/div><\/div><\/div><\/div><\/div>
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2.4.1 What is online sexual harassment?<\/h3>\n
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Sexual harassment has been defined as, \u201cUnwelcome sexually determined behavior such as physical contact and advances, sexually colored remarks, showing pornography and sexual demands, whether by words or actions.\u201d1<\/a><\/sup>UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW General Recommendation No. 19: Violence against women, 1992.<\/span> The impact of sexual harassment is as real and pernicious in cyberspace as it is in physical spaces. Online sexual harassment denotes a broad category of online gender-based violence (OGBV) and may include many of the specific forms of violence discussed here. For example, online gender-based hate speech, cyberstalking, digital voyeurism, non-consensual intimate image distribution (NCIID), etc., constitute separate offenses, but are also forms of online sexual harassment. Nevertheless, designating online sexual harassment as a separate category has value, as it helps to account for many other forms of unwanted or unwelcome sexual behavior targeting the gender of the victim.<\/p>\n

Scholarly attempts to describe sexual harassment and understand its causes and impact on survivors have led to the categorization of three types of sexual harassment, which also applies in the online space. They include:<\/p>\n

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  1. Gender harassment<\/b>: Gender harassment \u201cinvolves unwelcome verbal and visual comments and remarks that insult individuals because of their gender or that use stimuli known or intended to provoke negative emotions\u201d.2<\/a><\/sup> Barak, A. (2005). Sexual Harassment on the Internet. Social Science Computer Review, <\/i>23<\/em>(1), pp. 77\u201392. https:\/\/journals.sagepub.com\/doi\/10.1177\/0894439304271540<\/a> <\/span>In the virtual world, gender harassment takes the form of gender-humiliating comments, sexual remarks, or dirty jokes in online forums, chat rooms, or private communication channels. These are meant to offend and harass the targeted person who neither invited such comments nor consented to hear them.3<\/a><\/sup> Barak, A. (2005). Sexual Harassment on the Internet. Social Science Computer Review, <\/i>23<\/em>(1), pp. 77\u201392. https:\/\/journals.sagepub.com\/doi\/10.1177\/0894439304271540<\/a> <\/span> Further, even messages or behavior that are not directed at any particular individual, such as gender-offensive nicknames and terms attached to the perpetrator\u2019s online identification (e.g., CockSucker, WetPussy, XLargeTool, or GreatFuck for nicknames), carry an intention to denigrate women as a group.<\/li>\n
  2. Unwanted sexual attention: <\/b>Unwanted sexual attention is a form of sexual harassment involving uninvited behavior that explicitly communicates sexual desire or intention toward another individual. Women frequently face such unwanted sexual attention online, which can include unsolicited and unwelcome messages asking for sexual favors, questions about their sex lives, sex organs, and other intimate subjects, and sharing unsolicited nude photos of exposed private parts of the perpetrator, sex-related sounds, or other images sent via messages, emails, etc.<\/li>\n
  3. Sexual coercion: <\/b>Sexual coercion refers to the act of \u201cputting physical or psychological pressure on a person to elicit sexual cooperation\u201d.4<\/a><\/sup> Barak, A. (2005). Sexual Harassment on the Internet. Social Science Computer Review, <\/i>23<\/em>(1), pp. 77\u201392. https:\/\/journals.sagepub.com\/doi\/10.1177\/0894439304271540<\/a> <\/span> In the online space, it takes the form of eliciting \u201csexual cooperation by putting some kind of pressure on a victim\u201d,5<\/a><\/sup> Barak, A. (2005). Sexual Harassment on the Internet. Social Science Computer Review, <\/i>23<\/em>(1), pp. 77\u201392. https:\/\/journals.sagepub.com\/doi\/10.1177\/0894439304271540<\/a> <\/span> by making explicit threats of harm or injury to the victim or her near ones, or through offers of bribes and seductions.6<\/a><\/sup> Barak, A. (2005). Sexual Harassment on the Internet. Social Science Computer Review, <\/i>23<\/em>(1), pp. 77\u201392. https:\/\/journals.sagepub.com\/doi\/10.1177\/0894439304271540<\/a> <\/span> Even following a person\u2019s virtual track, also known as cyberstalking, can amount to sexual coercion.7<\/a><\/sup> Barak, A. (2005). Sexual Harassment on the Internet. Social Science Computer Review, <\/i>23<\/em>(1), pp. 77\u201392. https:\/\/journals.sagepub.com\/doi\/10.1177\/0894439304271540<\/a> <\/span> Further, with the leap to the metaverse, the near-physical experience of sexual harassment on the internet is a reality, as the many reports of groping and rape in virtual-reality worlds reveal.8<\/a><\/sup>Basu, T. (2021). The Metaverse has a Groping Problem Already.<\/i> Technology Review. https:\/\/www.technologyreview.com\/2021\/12\/16\/1042516\/the-metaverse-has-a-groping-problem\/<\/a>; Health, A.\u00a0 (2021). Meta Opens Up Access to its VR Social Platform Horizon Worlds.<\/i> The Verge. https:\/\/www.theverge.com\/2021\/12\/9\/22825139\/meta-horizon-worlds-access-open-metaverse<\/a><\/span><\/li>\n<\/ol>\n

    As can be seen from the above discussion, sexual harassment takes many forms in online spaces and can interfere with women\u2019s participation on the internet and internet platforms. The anonymity, invisibility, and asynchronicity of communication offered by the internet enable perpetrators to make easy, repetitive, and intentional contact with the victims without fear of immediate sanction or reprisal. Such toxic disinhibition in users\u2019 online behavior is one of the major contributors to online sexual harassment.9<\/a><\/sup>Suler, J. (2004). The Online Disinhibition Effect. Cyberpsychology & Behaviour<\/em>, 7:3. https:\/\/www.researchgate.net\/publication\/8451443_The_Online_Disinhibition_Effect<\/a>.<\/span> Additionally, perpetrators also exploit social media algorithms, which tend to amplify and prioritize content that receives a high engagement rate, by engaging in coordinated attacks against women.10<\/a><\/sup>Gurumurthy, A., & Dasarathy, A. (2022). Profitable Provocations. A Study of Abuse and Misogynistic Trolling on Twitter Directed at Indian Women in Public-political Life<\/i>. IT for Change. https:\/\/itforchange.net\/sites\/default\/files\/2132\/ITfC-Twitter-Report-Profitable-Provocations.pdf<\/a>; Massanari, A. (2015). #Gamergate and The Fappening: How Reddit\u2019s Algorithm, Governance, and Culture Support Toxic Technocultures.<\/i> New Media and Society<\/i>, 19(3). https:\/\/www.researchgate.net\/publication\/283848479_Gamergate_and_The_Fappening_How_Reddit%27s_algorithm_governance_and_culture_support_toxic_technocultures<\/a>.<\/span> As a result, sexist and misogynistic content gains high visibility on social media platforms and contributes to the harm suffered by the targeted women.<\/p>\n<\/div>\n<\/div><\/div><\/div>

    2.4.2 What is a gender-sensitive way to read a case of online sexual harassment?<\/h3>\n
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    Online sexual harassment controls and limits women\u2019s 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.11<\/a><\/sup>Megarry, J. (2014). Online Incivility or Sexual Harassment? Conceptualising Women\u2019s Experiences in the Digital Age. Women\u2019s Studies International Forum<\/em>, 47, pp. 46\u201355. https:\/\/www.researchgate.net\/publication\/264980169_Online_incivility_or_sexual_harassment_Conceptualising_women%27s_experiences_in_the_digital_age<\/a>.<\/span> This is a form of gender discrimination and violence that infringes on women\u2019s right to dignity and equality. Unwanted sexual attention resulting from harassment also constitutes a serious invasion of privacy.<\/p>\n

    A gender-sensitive approach to a case of online sexual harassment should pay due attention to the impact on a woman\u2019s 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\u2019s conduct on social media and other internet platforms.<\/p>\n<\/div>\n<\/div><\/div><\/div>

    2.4.3 Which laws are applicable?<\/h3>\n
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    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:<\/p>\n

    \"(i) physical contact and advances involving unwelcome and explicit sexual overtures; or<\/p>\n

    (ii) a demand or request for sexual favors; or<\/p>\n

    (iii) showing pornography against the will of a woman; or<\/p>\n

    (iv) making sexually colored remarks.\"<\/p>\n

    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\u2019s genitalia or other such items which may evoke feelings of repulsiveness in the receiver.<\/p>\n

    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\u2019s 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.<\/p>\n

    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.<\/p>\n

    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.<\/p>\n<\/div>\n<\/div><\/div><\/div>

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    1. Section 75 of the BNS (Sexual Harassment):<\/b> Under the IPC, the offense of sexual harassment is given in Section 354A, and under the BNS, it is an offense under Section 75. The elements of the offense are the same under both laws. A man shall be guilty of sexual harassment if he engages in unwelcome and explicit sexual contact or advances, demands sexual favors, shows pornography against a woman's will, or makes sexually colored remarks.<\/span><\/li>\n
    2. Section 79 of the BNS (Word, Gesture or Act Intended to Insult Modesty of a Woman): <\/b>Under the IPC, the definition of outraging the modesty of a woman is given under Section 509. However, in the BNS, it is an offense under Section 79. The elements of the offense are the same under both laws. Section 79 discusses the offense of insulting a woman's modesty through words, sounds, gestures, or the display of objects, as well as intruding on her privacy.\u00a0 <\/span><\/li>\n
    3. Section 356 of the BNS (Defamation): <\/b>Under the IPC, the definition of criminal defamation and its punishment are provided in Sections 499 and 500. However in the BNS, these sections are consolidated into one provision: Section 356. The elements of the offense have not been changed in the BNS provision. The section discusses the harm caused by publication, verbalization, or other forms of offensive material that is false, defamatory in nature, and causes harm to the reputation of a person. The main difference between the two laws is that in the BNS, community service has been added as an alternative punishment along with imprisonment and fines.<\/span><\/li>\n
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      2.4.4 How have courts dealt with cases of online sexual harassment?<\/h3>\n
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      2.4.4.1 Chandrakant S\/o Nathusaheb Witkar v. State of Bombay<\/em> (2018)12<\/a><\/sup> Chandrakant S\/o Nathusaheb Witkar v. State of Bombay,<\/i> Anticipatory Bail Application No.2004 of 2018, judgment dated 28 September 2018, Bombay High Court.<\/span><\/h4>\n

      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\u2019s 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 \u201cany act which outrages the dignity of the woman would amount to outraging her modesty\u201d. 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.<\/p>\n

      2.4.4.2 The Present Petition Has Been ... v. Unknown<\/em> (2021)13<\/a><\/sup>The Present Petition Has Been ... v. Unknown, Crl.<\/em> O.P. No.12604\/2020, judgment dated 27 April 2021, Madras High Court, at para 14.<\/span><\/h4>\n

      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\u2019s right to equal participation in the online space, and impinged on their constitutionally guaranteed freedom and dignity.14<\/a><\/sup>The Present Petition Has Been ... v. Unknown, Crl. O.P. No.12604\/2020, judgment dated 27 April 2021, Madras High Court.<\/span> The court also recognized the privacy violation faced by women \u201cwho incur the wrath of the unscrupulous persons, who post such scandalous posts, without any rhyme or reason\u201d.15<\/a><\/sup>The Present Petition Has Been ... v. Unknow<\/i>n, Crl. O.P. No.12604\/2020, judgment dated 27 April 2021, Madras High Court at para 14.<\/span><\/p>\n

      Unfortunately, this rights-based approach was accompanied by observations on the modesty and chastity of women, such as when the court remarked that \u201cmodesty is an attribute associated with female human beings and it is a virtue which attaches to a female owing to her sex\u201d.16<\/a><\/sup>The Present Petition Has Been ... v. Unknown,<\/em> Crl. O.P. No.12604\/2020, judgment dated 27 April 2021, Madras High Court, at para 13.<\/span> 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.<\/p>\n<\/div>\n<\/div><\/div><\/div>

      2.4.5 How have other jurisdictions dealt with online sexual harassment?<\/h3>\n
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      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.<\/p>\n

      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<\/a><\/sup> Online Safety Bill. (United Kingdom). https:\/\/publications.parliament.uk\/pa\/bills\/cbill\/58-03\/0121\/220121.pdf<\/a> <\/span> Recently, the Bill was amended to include cyberflashing, which is defined as an act of sending unsolicited images of a person\u2019s genitals to cause alarm, distress, or humiliation to the recipient, or to obtain sexual gratification.18<\/a><\/sup>Online Safety Bill, Section 157. (United Kingdom).<\/span> Countries such as Singapore19<\/a><\/sup>Penal Code 1871. (Singapore). https:\/\/sso.agc.gov.sg\/Act\/PC1871?ProvIds=pr377BF-#pr377BF-<\/a> <\/span> and Scotland,20<\/a><\/sup>Section 6, Sexual Offences Act, 2009. (Scotland).<\/span> and the state of Texas in the US21<\/a><\/sup>Neal Davis. (n.d.). Texas Stalking & Cyberstalking Laws, Penalties & Defenses. <\/i>https:\/\/www.nealdavislaw.com\/criminal-defense-guides\/texas-stalking-laws.html<\/a><\/span> have also introduced specific laws to deal with this form of sexual harassment.<\/p>\n

      In South Africa and Sweden, anti-discrimination laws prohibit discriminatory acts, including harassment based on gender. Sweden\u2019s Discrimination Act, 2008, defines sexual harassment to mean conduct of a sexual nature that violates someone\u2019s dignity and treats it as a discriminatory act.22<\/a><\/sup>Discrimination Act, 2008, Section 4(5). (Sweden).<\/span> In South Africa, the Protection from Harassment Act, 2011, defines sexual harassment to include, \u201cunwelcome 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.\u201d23<\/a><\/sup>Protection from Harassment Act, 2011, Section 1(1). (South Africa).<\/span> It explicitly includes harassment carried out through \u201cverbal, electronic or any other communication\u201d.24<\/a><\/sup>Protection from Harassment Act, 2011, Section 1(1). (South Africa).<\/span><\/p>\n<\/div>\n<\/div><\/div><\/div>

      Footnotes<\/h3>\n
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