By: Akshat Agarwal and Anvita Dulluri
Recently, the #SelfieWithDaughter campaign launched by the Prime Minister became trending news on the internet, more so for the controversy, it generated than for the social cause it sought to espouse. The attempt was aimed at raising awareness about the prevalence of female foeticide in India and the rapidly declining sex ratio. It received a sensational response across the country, with fathers uploading selfies with their daughters on social media websites such as Facebook and Twitter.
However, the initiative also received its share of critical and sceptical responses. One of such responses was the opinion voiced by the actress Shruti Seth on Twitter. While dissentient views against a Government scheme are not uncommon, it is the slew of personal insults and abusive remarks that followed her statement which demands some amount of concern. The sensitivity of the issue and the propriety of her statement apart, the vicious verbal onslaught that she was subject to for mere voicing an opinion on a public forum took on the unmistakable character of the act of bullying on the cyberspace. Given the inherent violence of the act and its repercussions in terms of psychological harm and injury to reputation, an attempt is made here to explore the remedies available in law to persons aggrieved by such attacks. The ability of the present Information Technology laws of India to address this problem is also examined. It suggests a view of the cyberspace as a domain that is fundamentally distinct from the real or the physical world in terms of the possibilities it creates and the issues that arise within it. It seeks to make out a case for a different model of regulation of crimes arising within the cyberspace thereby suggesting a rethinking of the applicability of conventional principles of criminal law to regulate the cyberspace.
The phenomenon of cyberbullying may be understood as a flip side of the privileges of anonymity and a disregard for physical distances bestowed upon the world by the cyberspace. Typically, several countries, as noted in the cases of the United States and New Zealand in their dealing with this problem, appear to have conceptualized it simply as an extension of the act of bullying or harassment occurring in the physical world into the cyberspace. Thus, liability can be fastened on the individual offender, i.e., the one who has committed the act of bullying. Under conventional criminal law, this requires proof of mens rea and actus reus. Characteristics of cyberspace such as, the anonymity of the harasser, the inability to demonstrate tangible harm resulting from mere threats and verbal assaults, the continuing nature of the attacks through multiple user accounts, the ability to elicit hatred against a targeted individual etc. however, make it difficult to discharge this burden of proof under conventional law.
Prior to the decision in Shreya Singhal, Section 66A of the Information Technology Act, 2000 (hereinafter, the IT Act) could have been utilized in cases such as that of Shruti Seth. However, as the decision indicated, such provisions end up becoming unnecessarily vague thereby impinging on legitimate constitutional free speech rights. The Indian Penal Code, 1860 on the other hand, does not contain specific provisions dealing with cyberbullying. While section 354D of the Code covers the offence of stalking in terms of monitoring the use of the internet by a woman, the same is not specifically directed towards bullying, and hence, interpretation may have to be stretched to include the same within its ambit. Criminalizing individual offenders also raises issues of efficacy since the very nature of the internet makes it difficult to pin liability on individual offenders. There may be instances where the offenders may be anonymous or too many in numbers to bring criminal prosecutions against each of them.
However, the difficulty in bringing about prosecutions does not take away from the seriousness of the issue. In fact, several instances of suicide across various states of the U.S. owing to the high incidence of cyberbullying persisting among teenagers on social media websites have attracted the attention of policymakers and driven them to make laws to address them in the first place. A major flaw in these laws has been that they clearly overlook the role of the service provider. The fact that a social networking website sets up an interface for people across the world to interact through their user accounts and allows them to manage all kinds of content as they may choose to, calls for a certain level of responsibility on the part of the service provider in regulating the activity occurring within it. This responsibility should extend to strictly prohibit any form of bullying or harassment against a targeted individual.
While mechanisms such as getting the account of the offender blocked are already in place for an individual user to deal with undesirable content, it is argued that a minimum legal requirement must be imposed upon service providers to take immediate steps to disable or disallow comments in situations which may otherwise escalate to extreme and offensive reactions against the person of an individual. The principle underlying this contention is the recognition of the act of cyberbullying as a violation of one’s personality rights. In a recent decision in the case of Delfi A.S. v. Estonia, involving the question of hate speech on the cyberspace, the European Court of Human Rights (ECHR) upheld the principle of ‘personality rights’. The Court, in this case, considered the question of liability of an internet news portal which provided a platform for user-generated comments on previously published content. It observed that the steps taken by Delfi in taking down the offensive content without any delay were highly inadequate. Holding that the liability imposed was a reasonable and proportionate restriction on the freedom of expression of the portal, a fine of 320 euros was levied.
In India, concerns have, however, been raised in terms of the cost involved in regulating content and the inherent problems which major websites may face in scrutinizing the quantity of content and traffic online. It is probably with this in mind that Section 79 of the IT Act provides the intermediary with immunity from liability. However, this immunity will no longer hold good if the intermediary has aided or abetted the offence, or if they had actual knowledge that an unlawful offence had been committed, or a take-down notice had been issued through a court order or by a government notification. Post the decision in the case of Shreya Singhal, the position had undergone change and the intermediary could no longer sit in judgement over whether something is unlawful or not, rather a take-down could only be affected if there has been a court order or government notification to that effect. This has been done keeping in mind the practice of intermediaries to undertake overbroad blocking in order to escape liability. Here the conflict between free speech concerns and regulation becomes apparent since the intermediary has no duty to regulate content unless ordered to do so.
These contrasting positions thus raise interesting questions about the exact role of the intermediary in regulation. The authors argue that regulation of the cyberspace ought to be viewed as an area of overlap between the Government and the service providers where, through a little coordination and cooperation, the freedom of expression is regulated in a manner that it may not cause injury to the person of the internet user. Such sharing of responsibility is perhaps the only way in which the infinite domain of the cyberspace may be regulated and the rights of its users or “internet citizens” may be protected. Thus while regulation through intermediaries, as the Indian experience shows, raises free speech concerns. The characteristics of the internet as a medium necessitates that the intermediary be involved in some sort of joint-regulation in partnership with the state. One possible way out could be to provide clearly defined parameters, which take care of free speech concerns, in accordance with which intermediaries should regulate online content. This does not in any way negate the need for further research in the area.
In the particular instance of Shruti Seth, the verbal abuse against her continued for over 48 hours following her single tweet. A situation where the public humiliation meted out to her for merely voicing an opinion on social media going unnoticed and unchecked should have no place in a democratic society that India prides itself on. While the current situation of the IT law in India is not even as close to being equipped to deal with instances of cyberbullying, the Government, deriving from the experiences of such countries that already have cyberbullying legislation in place, may use the Shruti Seth controversy as an important learning to frame a suitable regulatory model for the cyberspace. This regulatory model should not only include liability for individual offenders but also take into account the role of the intermediary.
(Akshat and Anvita are currently in their fourth year of study at National Law School of India University, Bangalore.)
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