Right to Privacy of Women and Cyber Regime in India

About the Author

The author of this article is Jineesha P Unnikrishnan. She is a Coordinator of Ljrf Teachers Development Program(TDP) and a Member of the Ljrf chapter, Kozhikode.

“Violence against women isn’t cultural, it’s criminal. Equality cannot come eventually, it’s something we must fight for now.“

–Samantha Power

INTRODUCTION

The use of the internet has become indispensable in this age of advanced technologies. The internet opens up new windows of knowledge for young and old alike and enables them to communicate quickly with all the information they need. Everybody is turning the internet into a valuable source of knowledge. If at first computer and mobile phone were monopolized by men, now it is used by children, women and elderly persons etc., of these, the category of women draws more attention. This is because from time-to-time women are considered as a creator of life as mothers and goddesses but the atrocities against them are increasing day by day. Not only is the age-old concept of patriarchy still existing, but the perception of women as sexual objects and portraying them in a derogatory and obscene manner is on the rise. Despite women’s empowerment, they are still considered inferior to men in various social spheres and activities. Everywhere women are considered just a mere commodity. One of the most common of these is in the cyber area. A lot of crimes are being committed against women through the internet. Cyber stalking^{^[ii]}, Harassment through e-mails^{^[iii]}, defamation^{^[iv]}, phishing^{^[v]} etc., are some of the types of cybercrimes. Most importantly, criminal-minded people exploit women by creating fake profiles and without revealing their identities, in the belief that they will not be caught in the cyber world.

The most common use of the internet is through social media sites such as Facebook, WhatsApp, Instagram etc. India is becoming digitized in relation to education, governance, and economy. The modern method of communication itself is not possible without the internet as a means. Especially with the advent of the Covid-19 pandemic, it has shrunk to the internet world from preschool to the highest level. Although it is the most useful and safest method, its misuses are on the rise.

Any crime is a social and economic phenomenon, it is as old as man. The crime is a legal offence. Crime and criminals are destroying the very order of the society. Women are the largest victims of these crimes which target various sections of the society.

CYBERCRIMES AGAINST WOMEN

Cybercrime refers to crimes relating to Internet and Computers. Any criminal activity that uses a computer or internet either as an instrument to commit fraud or an illegal act comes within the ambit of cybercrime. Nowadays cybercrime against women is increasing day by day. It is a very familiar issue. In every second, at least one woman in India becomes a victim of cybercrime. Every online platform is becoming a challenge to the privacy, dignity, and security of women. Criminal-minded person targets to defame women by sending obscene email messages, WhatsApp messages, by stalking and through chat rooms. They also create pornographic videos without her consent, blackmail and threaten them using the morphed images and videos.

Women trust these criminals without realizing their evil motive and pass on their personal information and become the victims of cybercrime. The important thing is that if there is a crime in India, especially if it is a crime in cyberspace, the victimized women do not know how to deal with it, where to file a complaint, or whom to approach. The main reason for this is that a considerably large number of women do not speak out due to fear of harm to their family, dignity, pride, and due to the stigma that they might face in the society if the world finds out that they were victims of cybercrime. There are no special laws in India to deal specifically with the information security issues of data that we upload on social media.

Impact of lack of privacy in the cyber world

In 2017, Supreme Court of India Ruled that the Right to Privacy is a Fundamental Right. Right to privacy is protected as an integral part of the Right to Life and Personal Liberty under Article 21 of Part 3 of the Constitution of India. In the United Nations Declaration of Human Rights, Numerous National and International treaties have recognized privacy as an important Right. There are four major international treaties for the protection of the Right to Privacy: Universal Declaration of Human Rights (UDHR-Article12)[vi], International Covenant on Civil and Political Rights (ICCCPR- Article 17)[vii], European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR- Article 8)[viii] and the Organization for Economic Development & Cooperation (OECD)[ix]. All of them emphasise s a Universal Right to Privacy. This includes the Right to Privacy of one’s own body, space, communication, and the Right to Privacy of information and observation about person and freedom from surveillance.

Due to the lack of protection of privacy, personal images and personal data shared by users through any of the social media sites like Facebook, twitter, or Instagram, are more likely to be accessed by criminals or intruders. Studies show that social media websites are used by more than half of the population in India, with most users uploading photos and personal data into public feeds. Cybercrime using the internet can be committed with the help of a computer or mobile phone.

LEGAL ASPECTS TO PREVENT CYBER CRIMES AGAINST WOMEN IN INDIA

Although cybercrimes and privacy issues have existed for a long time, there was no specific law in India to address this. But as the problems worsened and women began to react, there was a need for strict laws which became possible after 2000. The Information Technology Act 2000 was enacted in India to deal with cybercrime and cyber criminals. The main purpose of this Act is to give legal recognition to transactions made through electronic data transfer and other electronic means of communication. And the various provisions of the Act provide for fines and penalties for perpetrators of cybercrimes. However, due to some inconsistencies in this Act, the Act was amended again in 2008 and afterward known as the Information Technology Amendment Act,2008. This Act contains a number of provisions that protect the privacy of a person which may be lost through online hacking.

Relevant Provisions of Information Technology Act, 2000^{^[x]}

Section 66A^{^[xi]} made email spoofing a punishable offence.( Shall be punishable with imprisonment for three years or fine).

Section 66B^{^[xii]} deals with dishonestly receiving stolen computer resources or communication devices knowingly shall be punished with three-year imprisonment which may extend and fine

Section 66C^{^[xiii]} deals with Identity Theft, Anyone who fraudulently or dishonestly commits identity theft is punishable with three years imprisonment and fine up to 1 lakh rupees.

Section 66E^{^[xiv]} deals with violation of a person’s privacy which is punishable up to three years imprisonment and fine

Section 67A^{^[xv]} deals with, Publishing or transmitting any pornographic pictures, etc., is punishable up to 5 to 7 years imprisonment and fine.

Section 67B^{^[xvi]} deals with any kind of publication that exposes child sexual abuse, misconduct or broadcast is punishable

Section 72^{^[xvii]} deals with punishment for breaching privacy and confidential diaries were included in the ambit.

Relevant Provisions of Indian Penal Code,1860

Prior to 2013, the Indian Penal Code did not provide for the protection of women victims of cyber bullying, and for handling offenders and curbing crimes. However, in 2013, the Indian Penal Code was amended to criminalize section 354 A to Section 354 D of the Indian Penal Code.

Under Section 354A^{^[xviii]}, it is an offence for a man to show pornography without her consent, which is punishable up to one year imprisonment and fine.

Section 354C^{^[xix]}, deals with voyeurism, which is also punishable as per this section,

Section 354D^{^[xx]} deals with stalking. It’s a punishable crime.

Section 499^{^[xxi]} deals with defamation, it is a criminal offence punishable with imprisonment for a term not exceeding two years.

Section 503^{^[xxii]} deals with criminal intimidation which is also a punishable offence.

PREVENTIVE MEASURES FOR PROTECTING WOMEN FROM CYBERCRIME: WHAT THE OTHER COUNTRIES DO?

According to the National Crime Agency^{^[xxiii]}, Cybercrime is a global threat. Criminals and the technical infrastructure they use are often based overseas, making international collaboration essential. The UK Police, locally organized crime units, and partners in international law enforcement agencies such as Europol^{^[xxiv]}, the FBI^{^[xxv]}, and the US Secret Service^{^[xxvi]} for sharing intelligence and coordinating activities are commendable.[1] Their aim is to stop the current generation of cyber criminals and prevent young people from falling prey to cybercrime. The National Cyber Agency’s “Cyber Choices” Campaign encourages parents of young people with cyber skills to talk to them about their aspirations and opportunities to use their talents creatively.

NATIONAL CRIME AGENCY’S SUGGESTIONS:

Most cyber-attacks could be prevented by taking these basic security steps:

Choose strong passwords and don’t reuse them for multiple logins
Install security software such as anti-virus and two-factor authentication. This kind of software is often available for free.
Keep all security software and operating systems updated (this can be set to update automatically.

WAY TO GET JUSTICE: WHAT THE VICTIMS NEED TO DO

Although there are so many laws and protections in India, unfortunately the Indian police system does not take cybercrime seriously. There can be many reasons for that. That is, the strong influence of the accused or criminals which can be political or monetary influence. As a result, victims of cyber crimes especially women do not know how to get justice. They are also ignorant of how to deal with such criminals without falling prey to cybercrimes. However, women and girls who have been victims of cybercrime can contact the Women’s Assistance cell or concerned NGOs (Such as all India women’s conference, Sakshi, Navjyoti, Centre for cyber victims counseling). Due to their strong intervention, the police may take such crimes seriously.

RIGHT TO PRIVACY: CONSTITUTIONAL LIABILITY

The Constitution of India does not specifically provide for “right to privacy” as one of the fundamental rights guaranteed to Indian citizens. Protecting one’s privacy is an essential right of a human being. Yet Right to Privacy cannot be considered as an absolute right. This is because Right to Privacy is subject to reasonable restrictions to prevent many crimes, irregularities and to protect the rights and freedom of others.

Article 21^{^[xxvii]} of the Indian constitution states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights are two international documents that address the right to privacy. The court has interpreted the Right of Privacy from Article 21 by interpreting it in conformity with Article 12 of the Universal Declaration of Human Rights and Article17 of the International Covenant for Civil and Political Rights,1966. The Right to Life was further interpreted under Article 21. It encompasses all aspects of life in a more meaningful and complete way, beyond mere existence and survival, whether human or animal. The Right to Privacy is one such thing. Therefore, it is a violation of Article 21 for any criminal to infringe on the privacy of women and children on social media sites in cyberspace and specific remedies can be availed.

LANDMARK JUDGEMENTS DEALING WITH CYBERCRIME AGAINST WOMEN

Manish Kathuria V. Ritukohli^{^[xxviii]}

Ritukohli’s case is the first case reported in India relating to Cyber Stalking. This was a landmark judgment regarding the punishment for Cyber Stalking, as a result, Section 66A was inserted in Information Technology Amendment Act, 2008 which provides punishment for sending offensive messages through communication service.

2. Ajeet singh V. State of Jharkhan^{^[xxix]}

Accused’s bail was denied by the court on the charge of publishing or broadcasting pornographic material under Section 67 of the IT Act, for disseminating rape scenes of the victim.

3. State of Tamil Nādu V. Suhas Katti^{^[xxx]}

This is the first case reported under the IT Act, 2000. The Court sentenced the accused to two years of rigorous imprisonment and a fine under Section 67 of the IT Act, 2008 and Sections 469 and 509 of the Indian Penal Code for posting obscene and defamatory messages against a divorced woman.

4. Avnish Bajaj V. State (N.C.T.) of Delhi^{^[xxxi]}

Accused was convicted under Sections 292 and 294 of the Indian Penal Code for publishing or distributing any material with sexual immorality under Section 67 of IT Act, 2000.

GUIDELINESS / SUGGESTIONS FOR PROTECTING WOMEN FROM CYBERCRIME

First and foremost, women need to develop the mental capacity to face adversity without fear.
Use a strong password to protect any social media sites one uses. No matter how loyal your friend or your partner is, do not share the password.
Do not try to make friends with strangers. Do not try to chat or send videos or photos.
Do not try to meet online friends alone.
Share everything you can with your parents.
If there is any cybercrime, try to report it immediately and take action.

CONCLUSION

The main reason for the rise of cybercrime and cyber criminals is the lack of action against it. It is the responsibility of the machineries of legal system and regulatory agencies to ensure that the latest technologies do not become a haven for criminals or intruders and that they become tools of exploitation and harassment. As governments take more effective legal action to ensure human rights, such as privacy, they will be able to prevent violence against women in cyberspace and protect their rights online, as in the physical realm. It is essential to conduct an awareness campaign among women and children on how to take precautionary measures in cyberspace and how to seek help if such rights are violated. Despite the initial difficulties in dealing with cybercrimes such as the lack of a cyber army, loss of evidence, and inability to find criminals, more than half of these problems have been solved with the enactment of the Criminal Law Amendment Act of 2013.

Cybercrimes against women are seen as trivial in India as there is still a society that demeans women. Cybercrime, such as morphing and email fraud is on the rise because women today fear what society will think of them if the outside world finds out about them. The growing new generation needs to be taught to respect women in society and not to infringe on the privacy of others. Therefore, in addition to law punishing criminals severely to prevent cybercrime in India, awareness as a part of the school curriculum is essential to prevent crime. Instead of restricting women’s empowerment within words alone, society, government, and NGOs need to work together. One should be careful while posting photos and video clips online and be careful while interacting with strangers online. One should protect their passwords and other information related to social media sites. Women need to be made aware of the dangers of using the internet. It is also important to empower them to fight cybercrime on their own and to speak out against it.