What is Cyberstalking?

India is a very diverse country. We have different religions, different cultures, different languages, and so on. But despite all our differences, it seems to us that we are a nation bound together by a love of movies that legitimize, normalize even romanticize stalkers. No wonder one could see many Dhanush stalking their “ lovers” on the roads and when their romantic overtures are rejected instances like acid attack, rape, and sexual harassment soon follow. But, this is the 21st century and everything is getting advanced and more complex. And Stalking is not an exception to this trend for old problems and nuisances often find their way and are reborn and reconstructed in such a way that new medium becomes the sites for such problems.

What is cyberstalking?

Cyberstalking can take many different forms, but in the broadest sense, it is stalking or harassment that takes place via online channels such as social media, forums, or email. It is typically planned and sustained over a period of time. Cases of cyberstalking can often begin as seemingly harmless interactions. Sometimes, especially at the beginning, a few strange or perhaps unpleasant messages may even amuse you. However, if they become systematic, it becomes annoying and even frightening. For example, if you've received a few negative comments on Facebook and Instagram, it may upset or annoy you, but this isn't cyberstalking yet. For some people, such as semi-celebrities looking for attention, negative comments are actually welcomed. However, once you start receiving unwanted and annoying messages repeatedly and feel harassed, then the line has likely been crossed. Cyberstalkers might terrorize victims by sending unpleasant messages systematically, perhaps even several times a day. It is especially unnerving when such messages come from different accounts managed by the same person. It is probably a good idea to report this to both the website owners and law enforcement agencies.

What is Stalking?
Stalking means consistently following any particular person over a long period of time. This activity also involves harassment or threatening behavior. The stalker consistently follows a person everywhere at home, market, etc., and the stalker also threatens that person by repeatedly sending messages, and doing blank phone calls. But, in cyberstalking there is a use of the internet or any other electronic media by which the communication can be done through E-mails or SMS to stalk that person. A cyberstalker totally relies upon the inconspicuousness given by the internet, which allows them to stalk their victim without being detected. Cyberstalking is totally different from the spamming of messages by a spammer. Cyberstalking is a serious crime and there are many cases against it in India.

Legal Provisions on Cyberstalking and Online Harassment

The following provisions deal with cyberstalking in India:

The Indian Penal Code

Section 354 D of the Indian Penal Code which was added by the Criminal Law (Amendment) Act 2013 specifically proscribes the act of stalking as Whoever follows a person and contacts or attempts to contact such person to foster personal interaction repeatedly, despite a clear indication of disinterest by such person, or whoever, monitors the use by a person of the Internet, email or any other form of electronic communication, or watches or spies on a person in a manner that results in a fear of violence or serious alarm or distress in the mind of such person, or interferes with the mental peace of such person, commits the offense of stalking. The victim can also additionally file a case of defamation (Section 499, IPC) against the offender. The section has bailed out those acts of stalking which are performed for the purpose of preventing and detecting crime by a person who has been entrusted with such responsibility by the state. Also, instances where pursuing such conduct was reasonable or where the person was authorized under any act cannot allude to the offense of stalking. Section 354A of IPC punishes the offense of sexual harassment with 3 years of imprisonment and/or a fine. Section 354C criminalizes the offense of Voyeurism. It is defined as the act of capturing the image of a woman engaging in a private act, and/or disseminating said image, without her consent. The section prescribes 3 years of imprisonment for the first conviction and 7 years of imprisonment for the second conviction along with a fine. Section 503 punishes criminal intimidation as threats made to any person with an injury to her reputation, either in order to cause alarm to her or to make her change her course of action regarding anything she would otherwise do/not do. The offenses under S. 499 and S. 503 are punishable with imprisonment which may extend to two years, and/or a fine. Section 509 of IPC comes to your rescue if someone is constantly bugging you with derogatory verbal abuse because of your gender. The section provides that any person who utters any word or makes any sound or gesture, intending that such word, sound, or gesture be heard or seen by a woman and insult her modesty, shall be punished with one-year imprisonment and/or fine. Section 507 punishes criminal intimidation by anonymous communication with a term that may extend to two years of imprisonment. Vengeful posting of images or videos of rape victims is punishable with imprisonment which may extend to two years and a fine under section 228a of IPC.

The Information Technology Act, 2008

The IT Act of 2008 does not directly deal with the offense of stalking. Section 72 of the Act is used to deal with the offense of stalking which reads as follows: Any person who, in pursuant of any of the powers conferred under this Act, rules or regulations made thereunder, 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. Section 67 prohibits and punishes with imprisonment extending up to three years and a fine for the first conviction and to five years and fine upon a second conviction, the publication, transmission, and causing of transmission of obscene content. Section 67A has culled out a special category called material containing a & lsquo sexually explicit act'. The publication, transmission, or causing of transmission of such material is punishable with imprisonment extending up to five years and a fine for the first conviction and to seven years and a fine upon a second conviction. Section 66A of the IT Act, 2008 provides: “ Any person who sends, by means of a computer resource or a communication device (a) any information that is grossly offensive or has a menacing character or (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently by making use of such computer resource or a communication device, (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or mislead the addressee or recipient about the origin of such messages shall be punishable with imprisonment for a term which may extend to three years and with a fine.” This section was struck down in Shreya Singhal v. Union of India in 2015 as it arbitrarily, excessively, and disproportionately invaded the right of free speech and was so wide that any opinion on any subject would come under its ambit.

How to file a complaint about cyberstalking?

The Information Technology Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, any police officer, not below the rank of a Deputy Superintendent of Police, or any other officer of the Central Government or a State Government authorized by the Central Government in this behalf may enter any public place and search and arrest without warrant any person found therein who is reasonably suspected of having committed or of committing or of being about to commit any offense under this Act. (Section 80)

1. Cybercrimes do not have jurisdiction as these crimes are committed without any barriers or boundaries. So, you can report a cybercrime to the cybercrime units of any city irrespective of the place where it was committed.

2. Cyber Cells: Cyber Cells have been established to provide redressal to the victims of cybercrime. These cells function as a part of the criminal investigation department and specifically deal with internet-related criminal activity. If you do not a cyber cell at your place of residence, then you can file an F.I.R in a local police station. You can also approach the commissioner or the judicial magistrate of your city if for any reason you are unable to file an F.I.R. Any police station is bound to register an F.I.R., irrespective of its jurisdiction.

3. Online Grievance Redressal: The police is the most notorious law enforcement agency in India when it comes to dealing with women victims. Even when women have easy access to a police station, they hesitate in reporting the incident to them, under the fear of being harassed and being made to suffer additional ordeal. As a result, such crimes committed against women remain swept under the rug and women continue to bear the brunt of harassment. So, women who do not want to come out in the open can file a complaint against stalking at the National Commission for Women. The Commission takes up the matter with the police and expedites the investigation. In cases of serious offenses, the commission can set up an inquiry committee to probe into the matter and conduct spot inquiries, collect evidence, examine witnesses, summon accused and police records, etc to further the investigation.

4. Report to the websites: 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 intermediary shall have to preserve such information and associated records for at least ninety days for investigation purposes. The affected person can bring to the knowledge of the intermediary, any offending content which is hosted, stored, or published on his computer system, in writing, or through email signed with an electronic signature.

5. Report to CERT: 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. They issue guidelines on the procedure, prevention, reporting, and response to cyber incidents, among other functions.

How can a lawyer help you?

As stated above, cyberstalking or similar offenses may attract criminal charges, and the same warrant the assistance of a criminal lawyer. A criminal lawyer is an expert in dealing with such cases and can guide you with the right procedure to start your prosecution and can help you through each step. He can also represent you when the case goes to court and can help you formulate a correct strategy to be followed to ensure the accused gets punished. Even in scenarios where a false case has been filed against you implying a criminal charge, he can help you with proving the same with the right strategy to be adopted.

Advocate Chikirsha Mohanty

4.0 | 2+ user ratings Greater Kailash - 1, Delhi
5 years

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