By: Aryan Ahmed
Ever been using WhatsApp or been in a Zoom video call to suddenly find yourself greeted by an unexpected, unsolicited and unwanted picture of someone’s genitalia or pornography? Guess what? You have just been cyber flashed! A friend or colleague sent you a Whatsapp forward, saying it was a funny or an informative video, you open it, it runs normally for a while but then suddenly and unexpectedly it starts displaying pornography or plays loud sexual sounds, all in the name of a prank? Well, you’ve been cyber flashed yet again.
As instances of cyber flashing are expected to rise, aided in part by the coronavirus situation, this article tries to explore the issue of cyber flashing in greater depth, analyses why the current laws have major shortcomings thereby creating the need for new laws, and what we can learn from the experience of other countries.
WHAT IS CYBER-FLASHING?
Intentionally sending unsolicited media which may be considered obscene is referred to as cyber-flashing. These may include pictures of one’s genitalia, pornography or other such items which may evoke feelings of repulsiveness in the minds of the receiver. Though reported cases are rare in India, and there has not been much legal development in this sphere, it is quite likely that you or someone you know has encountered such an incident at least once if not more. It should be understood without a doubt that cyber flashing amounts to cyber sexual harassment.
The rising menace of cyber-flashing has forced countries such as Singapore and Scotland, and the State of Texas, USA, to come up with specific laws to deal with this digital form of sexual harassment. The United Kingdom too is working on a legal framework for its prevention. It is high time that India follows suit as well.
WHY THE CURRENT CIRCUMSTANCES MAKE THE ISSUE OF CYBER-FLASHING MORE CONCERNING?
The coronavirus lockdown situation has seen many of us increasingly finding ourselves on online platforms for various purposes such as work, leisure, communication, academia, etc. In the lack of a proper legal framework meant for dealing with this issue, incidents of cyber-flashing are already on the rise and are likely to be on an upward trend from here on. Online classes being attended by children, held via Zoom, have already been cyber- flashed.
The Inherent Risks Of Cyber-Flashing
India is rife with sexual abuse and harassment. For many, the online world is a safe space from the sexual harassment faced daily in the physical world. Thus, facing harassment even online in the form of cyber-flashing leaves many with no safe space, be it physical or virtual. Cyber-flashing can be especially traumatising for victims of sexual abuse or assault.
Moreover, cyber flashing by friends or other known people under the garb of ‘pranks’ ends up wrongly trivialising an act of sexual harassment as a mere joke or something to be laughed off rather than being taken seriously. In a patriarchal and conservative society like ours, if such an incident of cyber flashing occurs in front of family members, a woman may end up losing access to her phone or computer for literally no fault of her, losing access to the online world as well.
The threat posed by cyber flashing is the greatest for children. They may not understand that they’ve been cyber-flashed. Due to their lack of understanding of the matter or because of fear or the shame involved they may find it extremely hard to convey it to their parents or guardians that they’ve been cyber flashed. Multiple studies have shown the highly damaging effect unwanted exposure to pornography can have on children.
HOW THE CURRENT LEGAL FRAMEWORK FALLS SHORT, CREATING THE NEED FOR A NEW ONE
As has been pointed out, reporting of cases of cyber-flashing is rare. This is because of multiple factors, primary among them being having to deal with the police. The lack of proper legal training and sensitisation of the police, combined with the negligible number of reported cases of cyber flashing makes it quite likely that the personnel at the police station wouldn’t know under what sections of the law to register the complaint, which can be quite frustrating for the complainant.
Currently, Indian laws only partially cover this sort of activity, related to sexual harassment or communication, leading to ambiguity and confusion. As a result, there exists an argument over exactly which sections should incidents of cyber flashing be booked under.
Due to the lack of a proper legal framework to deal with this specific kind of act, most incidents of cyber flashing in India are as of now booked under various existing sections of the IPC and IT Act, 2000, on a very wide and subjective application of the provisions originally meant to deal with other kinds of offences and thereby having their own shortcomings.
For instance, Vijayshankar Na, a cyber law expert, has argued how, though Section 67, IT Act, does deal with obscene content, and is the section under which incidents of cyber flashing are booked as of now, it is not foolproof. In his opinion, the now-scrapped Section 66A of the IT Act, meant for penalising ‘offensive’ content sent through electronic media would have been a more appropriate section for dealing with incidents of cyber-flashing had it still been in force.
The IT laws in India have no separate provision to report an unwanted sexually-explicit picture or video. This combined with the general difficulty of dealing with and reporting of sexual harassment due to the stigma that is still attached to it and the undeniable fact that there is hardly any legal awareness regarding cyber flashing and cyber sexual harassment, in general, contributes significantly to the problem. All these factors mixed in with the slow and cumbersome legal processes results in the victim’s reluctance to report such incidents.
This lack of proper relevant and contemporary laws has resulted in a situation where victims of cyber-flashing do not have proper legal recourse. As a result, the current legal framework fails in the prevention of crimes like cyber flashing, let alone protect people from it.
LESSONS FROM OTHER JURISDICTIONS
Only a few jurisdictions around the world have recognised the unique challenges and risks that cyber flashing poses as a new-age form of sexual harassment and have come up with specific laws to tackle the growing nuisance. Indian legislators could draw inspiration from the provisions of these countries and use them to either come up with new laws to deal with such crimes or to integrate such provisions into existing laws.
Under Section 377BF(2), of the Penal Code of Singapore, if any person is found guilty of cyber-flashing for the purpose of obtaining sexual gratification or to cause another person humiliation, alarm or distress, he/she shall be punished with imprisonment for a term which may extend to one year, or with fine, or with both. Stricter punishment is provided if the victim is below 14 years of age.
The Sexual Offences (Scotland) Act 2009, provides for the offence of ‘coercing a person into looking at a sexual image’ under Section 6. If a person is found guilty of cyber-flashing for the purposes of obtaining sexual gratification, humiliating, distressing or alarming the person exposed, then he or she shall be held liable under the Act.
As per the Act, a sexual image is an image of the offender engaging in sexual activity or of a third person or imaginary person so engaging, or the offender’s genitals or the genitals of a third person or imaginary person. The image may be moving or non-moving in nature.
Texas, United States of America
Section 21.19 of the Penal Code of Texas deals with ‘Unlawful Electronic Transmission of Sexually Explicit Visual Material’. A person commits an offence if the person knowingly transmits by electronic means visual material depicting any person engaging in sexual conduct or with the person’s intimate parts exposed; or covered genitals of a male person that are in a discernibly turgid state; and is unsolicited and sent without the express consent of the recipient. An offence under this section is held to be a Class C Misdemeanour.
IMPLICATIONS FOR INDIA
Considering that the Penal Code of Singapore is basically a derivative of the Indian Penal Code, 1860, and both having a lot of commonalities, a section based on the Section 377BF(2) of the Penal Code of Singapore, sans the caning, could possibly be inserted directly into the IPC without being inconsonant with other sections of the legislation.
Taking lessons from Scotland, India could possibly come up with similar legislation focusing explicitly on Sexual Offences, under which all the required provisions to deal with cyber flashing and other forms of cyber sexual harassment can be included.
Section 21.19 of the Penal Code of Texas is quite comparable in its expected purpose and ambit to section 67A of the IT Act, 2000. However, unlike 67A which doesn’t define ‘sexually explicit’, Section 21.19 is much more specific and expressly lays down what would qualify as sexually explicit. Thus, it can be used as a guide for making amendments to Section 67A so that vague terms like ‘sexually explicit’ may be clearly defined to avoid any confusion.
Cyber flashing is an unfortunate reality of the ever-evolving cyber landscape. It is a dangerous new-age form of sexual harassment which must be dealt with before it spirals out of control. If current laws are unable to keep up with how technology is facilitating sexual harassment and abuse – old crimes end up being perpetrated in new ways. Thus, the need for new and specific laws to deal with it was realised and addressed by Scotland, Singapore and Texas, USA.
India too must come up with its own specific laws regarding cyber flashing. The government needs to spread awareness among the masses about such forms of cyber sexual harassment. Doing so will send the much-needed signal that the state takes sexual harassment seriously, thereby deterring the to-be offenders, and providing a sense of security and confidence to people accessing the online world. Specific laws will hopefully solve the legal mess that currently exists for dealing with such crimes, giving victims and authorities a clear idea of what to do in such cases. Most importantly, it may convince the victims of cyber-flashing to report incidents of cyber sexual harassment to the police rather than just ignoring an incident and moving on, which ends up further perpetuating the dangerous cycle of sexual violence and harassment.
(Aryan is currently a law undergraduate at Dr. Ram Manohar Lohiya National Law University, Lucknow. He may be contacted at email@example.com.)
Cite as: Aryan Ahmed, ‘Cyber Flashing – A New-Age Form of Cyber Sexual Harassment’ (The RMLNLU Law Review Blog, 11 May 2020) <https://rmlnlulawreview.com/2020/05/11/cyber-flashing-a-new-age-form-of-cyber-sexual-harassment > date of access.