Cyber-stalking in India

Introduction

One example of this kind of cybercrime is cyberstalking, also known as online stalking or internet stalking. Cyberstalking, or the stalking of a person by electronic means (often the internet), is a kind of electronic harassment. Harassment takes many forms and might include monitoring someone’s online behavior, making threats, stealing their identity or data, or even faking their data.

In cyberstalking, one individual illegally and repeatedly stalks another person via their online actions.

“Stalking is an obvious violation of Article 21 of the Indian Constitution, which protects the right to privacy. The case was Justice K.S. Puttaswamy and Others v. Union of India and Others, and this was the decision.” Its primary function is to make individuals feel afraid, but a secondary consequence is social isolation.

Negative mental states such as extreme narcissism, rage, vengeance, envy, obsession, psychiatric condition, desire for control, sadomasochistic fantasies, sexual deviance, internet addiction, and religious fanaticism may all contribute to the development of stalker behavior. Different types of mental disturbance might lead to cyberstalking. A few examples are as follows:

1. Jealousy: Anxiety is an unpleasant feeling. Jealousy may play a role in a person’s decision to stalk, particularly when it concerns a current or former romantic relationship.
2. Obsession and attraction: Stalking may also stem from unhealthy obsession or desire. The stalker could have an intensely emotional or sexual pull toward the target. There is a fine line between admiration and stalking.
3. Erotomania: As a kind of stalking, this theory holds that the target, who is often a stranger or a famous person, secretly has romantic feelings for the stalker. The attraction of a sexual nature is a necessary condition.
4. Sexual harassment: Sexual harassment is often believed to be the primary motivator for cyberstalking. The reason for this is that online life generally resembles the actual world.
5. Revenge and hate: The victim may not always be the initial inspiration for the stalker’s feelings of rage and resentment, but he or she may nonetheless become the stalker’ primary focus anyway. It would seem that the stalker uses the internet as a means of venting their rage and seeking revenge.

Seema Khanna (not her real name), a worker at the American embassy in New Delhi, was unaware that her use of the internet might compromise her personal security. A man who appears to be cyberstalking 32-year-old Khanna asked her in a series of emails to strip for him or pay him Rs 1 lakh. “The woman said in her report to the Delhi Police that the threatening emails first appeared in the third week of November 2020.

Khanna was threatened by the defendant, who threatened to post her modified images and personal details (including her phone number and address) on sex websites. He allegedly threatened to distribute the photos widely in her southwest Delhi neighborhood.

“She initially ignored the emails, but she soon began receiving letters through posts, all of which had the same threat. She was compelled to report the incident to the authorities” stated an officer of the cybercrime cell.

This was not the end of her ordeal, however. The accused lady received images of herself from the accused male through email. The lady said they were the same pictures she had kept in her mail. The authorities claim that the suspect gained access to the victim’s personal images by cracking her email password.

An initial inquiry following the allegation revealed that the victim’s emails had originated from a cyber-café in South Delhi. Police Deputy Commissioner Dependra Pathak said, “We hope to locate the guilty as swiftly as possible” (crime). The suspect’s apparent familiarity with the victim prompted law enforcement to conclude that the two knew one other.

Laws in India for Stalking and their Loopholes

Indian Penal Code, 1860

Section 354D of IPC

Section 354D of the Indian Penal Code, which criminalizes stalking, was added after the 2013 Delhi gang rape case. Both traditional stalking and newer forms of online harassment are discussed here. The scope of this section is articulated in terms of what constitutes “stalking.” Anyone who tries to keep tabs on a woman’s internet life is committing stalking, as the Section makes clear. Because of this, the stalker is breaking Section 354D of the Indian Penal Code if he commits any of the crimes described there.

Loopholes

First, it ignores the possibility that males, too, might be victims by focusing only on “women” as victims. A violation of this clause constitutes cyberstalking if the offender tries to keep tabs on a woman’ online activities using e-mail, instant messaging, or other electronic means. As we can see, it caters only to females. Therefore, the law is biased towards females. The second issue is that the lawmakers have not addressed the “means of monitoring.” Although the individual may not want to stalk, his actions suggest otherwise.

Section 292 of IPC

The IPC defines obscenity under Section 292. In the context of cyberstalking, the sending of sexually explicit messages or images to a victim through a social networking site, email, or text message is considered to be an act of harassment. A violation of Section 292 of the Indian Penal Code has been committed if a stalker transmits obscene material to another person through the internet with the intent that the target would read, see, or hear it.

Section 507 of IPC

Criminal intimidation through anonymous communication is the topic of this section. This provision makes it illegal for a stalker to try to keep his victim in the dark about who is posing a danger to her. Because of this, cyberstalking’s hallmark anonymity is preserved. This provision applies if the stalker makes an effort to conceal his or her identity.

Section 509 of IPC

Specifically, this clause may be used in the event of a man’s violation of a woman’s right to privacy, such as by sending her unwelcome electronic communications or making derogatory remarks about her online. Section 509 of IPC may apply if he is found guilty of any of these acts.

Loopholes

It is discriminatory towards men since it singles out women and ignores the fact that cyberstalking is a crime that affects both sexes equally.

In this paragraph, the words, voice, or gesture must be spoken out, heard, or seen. Cyberstalkers may easily circumvent the punishment imposed by this provision since they are unable to communicate with their victims in the usual ways (using words, gestures, and sound) while communicating online. Finally, it is impossible to know whether or not a person communicating online has the goal of offending a woman’s modesty.

Information Technology Act, 2000

Section 67 of the IT Act

Section 292A of the Indian Penal Code was used as the basis for this provision. Pornographic content in electronic format is discussed here. Therefore, the topic of cyberstalking will be discussed here. Stalkers may be prosecuted under Section 67 of the Information Technology Act if they use social media or other electronic means to broadcast obscene information about the victim with the intent to harass or intimidate that person.

Section 67A of the IT Act

In this Section, we discuss cyberstalking and its connected topics. The amendment of 2008 brought about the addition of this subsection. Section 67A of the Information Technology Act makes it illegal for a stalker to distribute “sexually explicit” information electronically (including through email, text message, or social networking site) and outlines the penalties for doing so.

Section 67B of the IT Act

The Amendment Act of 2008 initially included this particular Section. This section is dedicated to the topic of stalkers who prey on children under the age of 18 by spreading information showing minors engaged in sexual behavior for the express purpose of frightening them.

Section 66E of IT Act, 2000 and Section 354C of IPC

Voyeurism is addressed under both the Information Technology Act, 2000 (Section 66E) and the Indian Penal Code (Section 354C).”

A common tactic used by stalkers to make their victims feel uncomfortable and miserable is the release of intimate photos of them online. To make it illegal to publish or take images of a private act without the consent of the person is the purpose of both of these proposals.

The victim in Section 66E is simply “any individual,” but in Section 354C the gender of the victim is specified. In order to qualify as a “woman” under Section 354C, the victim must be one.

“What is remarkable here is that, while all offline regulations apply to digital media, the penalties under the IT Act are significantly more severe.”

“It is worth noting that the IT Act places a strong emphasis on women’s bodies and sexualities: Section 66A of the Act deals with a broad category of “offensive messages.”

Section 354C of the Indian Penal Code outlaws voyeurism. Given that this provision applies only if the victim is a “woman,” its scope is restricted. It is true that Section 354C of the Indian Penal Code prohibits voyeurism, but unlike Section 66E of the Information Technology Act, its reach is far narrower.

A victim under Section 66E might be anybody. Because of this, the victim’s gender plays no role in determining whether or not this rule applies to them. Section 66E of the Information Technology Act of 2000 might be used by male victims to obtain compensation for their losses.

Cyberstalking, which may occur over the web or other technological means, falls within the scope of this provision as well. As the text of Section 507 of the law indicates, criminal intimidation by anonymous methods, it is clear that this section is meant to address the problem of stalking.

When the stalker has to hide his true identity in order to continue posing a danger to his victim, this tactic might be used. Penalties under Section 509 are intended for those who verbally or physically assault a woman’s modesty. If he sends a lady repeated harassing communications through email or social media, he may be accountable for a privacy invasion on her part.

Although there is not a specific structure for this under the Information Technology Act of 2000. Publishing pornographic material online is addressed under Section 67 of the Information Technology Act, 2000. The wrongdoer will face legal consequences under this provision if he or she publishes defamatory material about the victim.

Transmission of sexually explicit material is addressed under Section 67A. It is possible to prosecute a stalker if he attempts to spread material that is overtly sexual in character. Section 66E of the IT Act, which mainly addresses voyeurism, may also be seen to include the act of stalking.

Kinds of Cyberstalking

Cyberstalking can be classified into three different types, which are as follows:

1. Email stalking;
2. Internet stalking;
3. Computer stalking.

Email stalking

As with other forms of stalking such as phone calls, letters, and physical monitoring, email stalking has become more widespread in the real world. On the other hand, cyberstalking may take various forms. One of the most prevalent types of harassment is unsolicited electronic mail, which may include hateful, offensive, or even dangerous messages.

Other forms of electronic harassment include the sending of viruses or an excessive volume of junk mail to the victim. Note that spreading viruses or making telemarketing calls is not stalking in and of itself.

However, if such messages are delivered often with the intent to intimidate (much like physical-world stalkers who send victims pornographic magazine subscriptions), this might constitute stalking.

Internet stalking

There is a real possibility that stalkers would use the internet extensively to spread rumors about their victims and put them in danger. In many cases, cyberstalking becomes more of a public issue than an individual one. This kind of online stalking is especially worrisome since it seems to have the most potential for expansion into real life.

Traditional stalking behaviors including persistent phone calls, graffiti, threatening letters, and even physical attacks sometimes accompany cyberstalking. The experiences of someone being stalked from 2,000 miles away and someone who is often within gunshot range of their stalker are quite different.

As a result of this, most criminal punishments take into account mental anguish, although it is not considered as harmful as a true physical threat. Internet stalking continues to concentrate on inflicting emotional distress, fear, and anxiety, despite experimental and real-world evidence linking stalking to domestic violence and feticide. This does not negate the need to punish those who intentionally cause fear and anxiety.

Computer stalking

Finally, computer stalking is a subset of cyberstalking that involves gaining access to a victim’s Windows PC via the victim’s web browser. Few individuals are likely to be aware that any Windows PC with an active Internet connection may be found and linked to another computer remotely. With this connection, the hacker may take control of the victim’s computer without any other parties getting in the way.

When a victim’s computer establishes any kind of Internet connection, the cyberstalker is typically able to initiate direct communication with them. If a stalker has access to a victim’s computer, the only way to protect oneself is for the victim to stop using the Internet and change their IP address.

Enforcement Problem

Section 75 “extraterritorial jurisdiction“ is the primary obstacle to enforcing the Information Technology Act in India. This part makes it quite clear that anybody who commits a crime involving computer systems or networks in India, regardless of whether or not they are citizens of India, is liable to the provisions of the Information Technology Act. The scope of the legislation has to be expanded.

Furthermore, when the laws of two countries are in direct opposition to one another. In certain jurisdictions, stalking may be illegal but in others, the same behavior may not be considered criminal at all. As so, we have what is called a jurisdictional problem. As a result, there is an enforcement issue to consider. Both nations will benefit from working together to address this problem.

Conclusion and Suggestions

The best place to lodge concerns is via an online help desk or cyber cell. To comply with Rule 2(b) of Chapter II of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, websites must remove reported material within 24 hours. Victims have the option of contacting CERT-IN (Indian Computer Emergency Response Team), a nodal body designated under Section 70B of the IT Act, in addition to the police. The victim may also submit a complaint via the National Cyber Crime Reporting Portal.

The most effective way involves the individual creating their own rules, such as requiring a complex password with both letters and digits. Equally important is limiting the amount of personally identifiable information shared about oneself on social media. The Information Technology Act has to be revised to make law enforcement easier, and the scope of existing laws should be expanded to encompass extraterritorial jurisdiction.

References:

1. https://www.mondaq.com/india/social-media/1193320/cyberstalking-and-the-indian-jurisprudence
2. https://blog.ipleaders.in/virtual-reality-cyberstalking-india/
3. http://docs.manupatra.in/newsline/articles/Upload/455C1055-C2B6-4839-82AC-5AB08CBA7489.pdf

This article has been submitted by Panya Sethi, a student at Symbiosis Law School, NOIDA.