What is Cyberstalking?

India, being a very diverse country has different religions, different cultures, different languages, etc. But despite all the differences, it seems that India is a nation bound together by a love of movies that legitimize, normalize and even romanticize stalkers. It's no suprise one could see many stalking their "lovers" on the streets and when their romantic advances are rejected, instances like acid attack, rape, and sexual harassment soon follow. But this is the 21st century, and everything is getting more advanced and more complex. Stalking is no exception to this trend, as old problems and nuisances often resurface and are reconstructed in such a way that new mediums become the sites for such problems.
 

What is cyberstalking?

Cyberstalking takes many forms; in its broadest sense it includes stalking or harassment occurring over online platforms like social media platforms, forums or emails. Cyberstalking typically begins with seemingly innocent exchanges. A few strange or maybe unpleasant messages may occasionally entertain you, especially at first. However, if they become systematic, it becomes both annoying and terrifying. For example, you may be outraged or annoyed if you receive a few negative comments on Facebook and Instagram, but this is not cyberstalking. Some people, such as semi-celebrities looking for attention, welcome negative comments. However, if you continue to get unwanted and annoying messages and feel harassed, the line has most definitely been crossed. Cyberstalkers may terrorise victims by sending unpleasant messages regularly, perhaps many times each day. It's extremely unnerving when similar messages arrive from many accounts operated by the same person. Instead of trying to do something on your own, it is usually a better idea to report this to both the website owners and law enforcement agencies to deal with such situations.
 

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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, in the market, etc., and the stalker also threatens that person by repeatedly sending messages and making blank phone calls. BBut, cyberstalking involves the use of the internet or other electronic media to communicate with and stalk that individual via E-mails or SMS. A cyberstalker completely relies on the internet's inconspicuousness, which allows them to stalk their target without being detected. Cyberstalking is not the same as spamming of messages by a spammer. Cyberstalking is a severe offence with several instances filed in India.
 

Legal Provisions on Cyberstalking and Online Harassment

The following provisions deal with cyberstalking in India:
 

The Indian Penal Code, 1860

Stalking is specifically defined under Section 354D of the Indian Penal Code, 1860, added by the Criminal Law (Amendment) Act 2013. It states that whoever follows a person and repeatedly contacts or attempts to contact such person to foster personal interaction, despite a clear indication of disinterest, or monitors the use of the Internet, email, or any other form of electronic communication by a person, or watches or spies on a person in a manner that causes fear of violence, serious alarm or distress, or interferes with the mental peace of such person, commits the offense of stalking.

Victims can also file a defamation case under Section 499, IPC against their offender. This section exempts stalking acts performed for crime prevention and detection by individuals entrusted with such responsibilities by the state. Furthermore, actions deemed reasonable or authorized under any act do not constitute the offense of stalking.

The victim can also file a defamation case under Section 499, IPC against the offender. The section has bailed out stalking acts which are performed so as to prevent and detect crime by a person entrusted with such responsibility by the state. Furthermore, instances where such conduct was deemed reasonable or where the person was authorized under any act cannot allude to the offense of stalking. Under IPC Section 354A, sexual harassment can be punished with up to three years imprisonment and/or fine. Under Section 354C of IPC, Voyeurism (capturing images of women engaged in private acts without their consent and disseminating said images without her knowledge and consent) is illegal and punishable with three to seven years imprisonment upon conviction as well as fine. Finally, Section 503 defines criminal intimidation as any threat made towards an individual with an injury to her reputation with an aim of creating alarm or changing her course of action regarding anything she would normally do/not do otherwise. 

Offenses under Sections 499 and 503 can lead to imprisonment of up to two years and/or fines, but if someone regularly harasses you with verbal attacks that is disparaging to you because of your gender, Section 509 of the IPC can provide protection. According to this section, anyone who utters words, makes noises or gestures with the intent that such behaviour reach women will be subject to imprisonment for up to one year and/or fine. Section 507 of the IPC prohibits criminal intimidation through anonymous communication with jail time of up to two years and fine. Section 228a penalises publishing images or videos depicting victims of sexual violence with imprisonment of two years along with a fine.
 

The Information Technology Act, 2008

Stalking is not explicitly defined under the IT Act of 2008; rather, in certain situations it can be invoked using Section 72. According to this provision, anyone gaining access to electronic records, books, registers, correspondence, information documents or any relevant material obtained with authorization granted under either this or related acts and then divulging it without the relevant party's consent is punishable with imprisonment of up to two years and/or fine of up to Rs 1 Lakh or both.

Publication, transmission and inciting the transmission of obscene material are punishable with imprisonment of up to three years and a fine on first conviction and up to five years and fine on subsequent offenses. Section 67A also removed special categories known as "material containing sexually explicit acts," punishing publication, transmission or instigating its transmission with imprisonment of five years plus fine on first offense and seven years with fine on subsequent conviction.
 

Section 66A of the IT Act, 2008 states: 

"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." 

In Shreya Singhal v. Union of India (2015), this section was held as unconstitutional due to its arbitrary, unreasonable, and disproportionate infringement on freedom of expression rights; as well as its overly broad application encompassing any and every opinion regarding any topic under discussion.
 

How to file a complaint about cyberstalking?

The Information Technology Act states that notwithstanding anything contained in the Code of Criminal Procedure 1973, any police officer not less than Deputy Superintendent of Police or other officer of either the Central Government or a State Government authorized by it in this regard, may enter any public place and search and arrest without warrant any person reasonably suspected of having committed, committed, or attempted to commit an offence under this Act (Section 80).
 

1. Cybercrimes pose unique jurisdictional difficulties. Therefore, regardless of where the offense takes place, a cybercrime can be reported in any cybercrime unit of any city.

2. Cyber Cells: Cyber Cells have been established to assist victims of cybercrime. As components of the criminal investigation department, they specialize in internet crimes. If there isn't one nearby, you may file a First Information Report at your nearest police station; alternatively you may contact your city commissioner or magistrate for assistance; it should be noted that all police stations must register an F.I.R regardless of jurisdiction.

3. Online Grievance Redressal: Police are the most notorious law enforcement body when it comes to dealing with women victims in India. Women are reluctant to report incidents to the police because of the fear of possible harassment they might face even if they have easy access to police stations. Women continue to experience the burden of harassment as a result of such crimes against them being ignored. Therefore, women who choose to remain anonymous can report stalking to the National Commission for Women. The Commission contacts the police about the issue and expediates the inquiry right away. The commission has the authority to form an inquiry committee in situations of serious offences in order to inquire into the situation further, gather information, examine witnesses, summon the accused and police records, and conduct spot inquiries.

4. Report to the websites: Most social media platforms allowing users to create accounts include a reporting mechanism. The IT (Intermediary Guidelines) Rules, 2011 require these websites to take action and disable information connected to the prohibited content within 36 hours. In order to conduct an inquiry, the intermediary must keep these documents and related data for a minimum of ninety days. Any offensive information housed, saved, or published on his computer system may be reported by the affected party in writing or by email and signed with an electronic signature.

5. Report to CERT: The Indian Computer Emergency Response Team (CERT-IN) has been recognised as the national nodal agency responsible for responding to concerns related to computer security threats under the Information Technology Amendment Act 2008. They offer advice and recommendations regarding procedures, prevention measures, reporting mechanisms and managing cyber incidents.

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How can a lawyer help you?

As stated above, cyberstalking or similar offences 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

Greater Kailash - 1, Delhi
5 years

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