What is CyberStalking and its legal Remedies in India?

The term cyberstalking is definitely not a new inculcation. Both the concept and its practice have been in full operation ever since the field of communication and interaction via the internet has been strengthened. Etymologically the term cyber means “anything related to computer or computer network (such as the internet)” and the term stalking means “an act of surveillance in an aggressive, illegal and threatening manner without one’s prior consent and such an act also involves harassment”.

Cyberstalking means illegal and unlawful surveillance with the help of cyber platforms including social media and various network modes. The term stalking itself denotes that it is an act of illegality thereby making it a heinous criminal offense. Hence cyberstalking, ipso facto, becomes an act of crime that can have grave consequences.

The term cyberstalking includes within itself a wide variety and numerous categories of criminal activities. Cyberstalking may involve using electronic means to stalk or harass an individual or a group of individuals or a specific class of persons.

It has been observed after sheer analysis that cyberstalking is often conducted with an underlying objective of falsely accusing, blackmailing, threatening, or vandalizing a person. It is often conducted to commit an identity-theft, coercive manipulation, and intimidation.

The first instance of cybercrime and cyberstalking that got to reported and penalized was in the year 2001 when the Delhi police arrested Manish Kathuria for impersonating a woman in an Internet chat room. Kathuria was charged under a section of the Indian Penal Code for outraging the modesty of his victim Ritu Kohli. The Indian Penal Code in 2001 however did not cover all the remedies for cyber-crimes and crimes involving stalking and harassment.

Delhi based Cyber Law experts who work in this case Pavan Duggal stated that Ms. Kohli was forced to move out of India when she became acutely frustrated by the deficiency and lacunae of legal remedies. It was only after Nirbhaya’s case that the Indian Penal Code was amended in 2013 and the provision of stalking was included as a criminal offense. The main question that arises is what are the possible legal remedies that are available in case a person is being cyber-stalked?

So, what are the events that need to be clarified in order to prove that stalking has taken place? Firstly, the person who claims to have been stalked must have some concrete evidence and the claim must not be solely on the basis of presumption. Such evidence may be electronic or documentary. Generally, it has been found out by intricate analysis that the evidence comes in the form of defamation, threatening, harassment, obscene use of language, etc.

Secondly, if the evidence bearing the stalking activity does not reflect any dire consequence then no serious steps can be taken. If a person stalks another person out of sheer curiosity and appreciation for the latter then such a person does not fulfill the criteria to be a cyber-criminal. Thus, the factors of unnecessary intrusion of privacy, harassment, leakage of information, threats are important to be present to suffice a case to be a cyber-stalking.

Now comes the most important arena of legal remedies-the the statues that will enable a person to punish a stalker. One of the most important legal remedies is embedded in section 354 of the Indian Penal Code, 1860. After the horrific occurrence of the Nirbhaya incident, the Criminal Law (Amendment) Act, 2013 was passed that included numerous provisions under the Indian Penal Code for strengthening women’s protection, safety, and security.

  • Section: 354D which provides that Whoever commits the offense of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.Such an action of stalking must have been committed even when the person stalked had forbidden to do so. Furthermore, it has been provided that if the stalker is able to prove that the activity was committed solely with the purpose of warning the former that any crime may be committed against him/her and in good faith then the liability under Section 354D can be made void.
  • Section 292 of the Indian Penal Code, 1860 deals with matters related to the printing of indecent material with the purpose of blackmailing the targeted victim.
  • Section 499 of IPC deals with matters related to defamatory messages via email or any other social networking platform.
  • Sections 507 and 509 of IPC dealing with criminal intimidation by anonymous communication and outraging the modesty of women.

Under the Information Technology Act, 2000 there is no direct provision in relation to online-stalking. This is because when a person is being stalked via network/social media there needs to be proof of the same which is usually in the form of harassment, defamation, forgery, leakage of information, and the like. These activities are made punishable under the IT Act, 2000.

  • Section: 67 of the IT Act, 2000 provides that whoever transmits or causes another to transmit any obscene or any material of prurient interest shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.
  • Section 67A of the Information Technology Act, 2000 provides that whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.
  • Section: 72 of the IT Act, 2000 provides that any person who has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such electronic record, book, register, correspondence, information, document or other material to any other person shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.

Procedure To Register A complaint:

The next issue that has to be dealt with is the place or the court where the victim can file a suit against the possible offender. In the case of cyberstalking there is no particular place of action.

  • The crime takes place via the internet and not in a particular location. So the victim has two options- he/she can register a complaint in the cybercrime cell of the local Police Station. The term ‘local’ signifies the police station which has jurisdiction over the residence of the victim. In addition, provisions have now been made for the filing of ‘E-FIR’ in most of the states. The Ministry of Home Affairs is also launching a website for registering cyber-crimes against women and children. Another step that can be taken by the victim is that in case the victim has already identified the offender and the residence then he/she can register a complaint in the police station having jurisdiction over the offender’s residence.
  • If the local police fail to register the complaint made by the victim then there are two solutions. The superintendent of the police has to be reported by sending a letter via post. It has also been found that in many cases the women do not have easy access to a police station for sheer hesitation in reporting an incident of harassment. In such cases, there are ‘Online Grievance Redressal Cell’ under the National Commission for Women. The commission takes up the matter with the police and expedites the investigation.
  • Most of the social media websites where users make their accounts provide a reporting mechanism. These websites are obliged under the IT (Intermediary Guidelines) Rules, 2011 to act within 36 hours to disable information related to the offending content.
  • The Information Technology (Amendment) Act 2008 has designated the Indian Computer Emergency Response Team (CERT-IN) as the national nodal agency for tackling the issues occurring in tow with computer security threats. It functions under the Ministry of Electronics and Information Technology. CERT makes available an e-form that has to be filled up by mentioning the cyber-crime that has taken place and submitted accordingly.

With the development in the field of communication via the internet, the number of crimes in relation to the internet has increased considerably and so has the intricacies of criminal activities. The sections in relation to the cyber offenses are not exhaustive. Numerous provisions are constantly being inculcated by way of amendments. Before the evolution of the IT Act, 2000 dealing with cyber-crimes was extremely difficult. But with its introduction it has been used vigorously to provide the victims of cyber-crimes with possible remedies, thereby giving a larger section of the population a hope that in recent times the development of network systems will be accompanied with the development of stringent laws so as to severe the possibility of occurrence of any cyber-crime.

 

One Response

  1. IGh June 27, 2020

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