Updated: Oct 10, 2020
Cyber sexual harassment refers to the act of sending unsolicited media which may be considered obscene, via the digital medium. Such media may include pictures or videos of one’s genitalia, pornography or other such items which may evoke feelings of repulsiveness in the minds of the receiver.
Though reported cases of such incidents are fairly low in India, and there has not been much legal development in this sphere, it is quite likely that you or someone you know has encountered such an incident at least once, if not more.
This new age form of sexual harassment is unfortunate reality due to increasing ease of access to information and communication in the digital age. With the lack of proper legal provisions to deal with this issue and the current lockdown forcing most of us to come online to carry out many of our daily activities, the risks are higher than ever.
India has no laws dedicated specifically to the act of cyber sexual harassment. However, combination of various laws that can possibly be used to tackle such incidents, primarily under the Indian Penal Code, 1860 and the Information Technology Act, 2005.
The specific provisions that may apply to cyber sexual harassment are discussed below:
𝐈𝐧𝐝𝐢𝐚𝐧 𝐏𝐞𝐧𝐚𝐥 𝐂𝐨𝐝𝐞
𝐚) 𝐅𝐨𝐫 𝐰𝐨𝐦𝐞𝐧
Section 509 of the IPC deals with words, gestures or acts intended to insult the modesty of a woman. As per the section, whoever, intending to insult the modesty of any woman, utters any words, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, shall be liable for punishment.
Acts such as cyber flashing of genitalia, pornography and sexual sounds fall primarily under this section of the law. This is the section which has been previously applied by the police in instances of cyber flashing along with Section 67 of the IT Act.
Section 354A(iii) on the other hand provides that a man who shows pornography against the will of a woman, shall be guilty of the offence of sexual harassment and shall be punished.
Cyber flashing pertaining specifically to pornography, including pornographic content hidden in videos, links or files appearing to deal with some other subject matter on the surface, or in cases where the sender convinces the receiver to open a file or media, misleading them to believe that it contains something other rather than the pornographic content hidden in it, is most likely to be held liable under this Section of the IPC.
Exposing a woman to pornography against her will over video call should also technically fall under the ambit of this section.
𝐛) 𝐅𝐨𝐫 𝐜𝐡𝐢𝐥𝐝𝐫𝐞𝐧
In the case of children, Section 293 of the IPC provides punishment for whoever distributes, exhibits or circulates to any person under the age of twenty years any obscene object, or attempts to do so.
This section should reasonably apply to cyber flashing of pornography, genitalia and other such obscene objects to children.
𝐜) 𝐅𝐨𝐫 𝐌𝐞𝐧
The IPC seems to be lacking any provisions for crimes in which the victim of cyber flashing or sexual harassment may be a man.
The Information Technology Act, 2000
Most of the provisions of the IT Act are largely gender-neutral. Thus, the sections mentioned below apply equally in the cases of men, women and children.
Section 67 of the Act prescribes punitive action for publishing or transmitting obscene material in electronic form. Cyber flashing of genitalia or other similar obscene or repulsive items shall fall under this section. This section has been previously used by the police to book offenders of cyber flashing.
Similarly, Section 67A deals with punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form. Cyber flashing of pornography shall attract this Section of the IT Act.
In the special circumstance where one gets cyber flashed with child pornography, Section 67B, which provides for punishment for publishing or transmitting material depicting children in sexually explicit act in electronic form, along with Section 13 read with Section 14 of The Protection of Children from Sexual Offences (POCSO) Act, 2012, which pertain to the issue of usage of children for pornographic purposes, shall also apply.
We all should be aware of our legal rights and the legal provisions under which such an offence like cyber sexual harassment can be registered. There is a need to report such offences in larger numbers so that it may stir authorities into action and take the issue of cyber sexual harassment more seriously.
There is a need of proper legal provisions and amendments to existing laws to keep up with such ever-evolving forms of cyber sexual harassment to ensure a free and safe virtual experience for all.
Informative work by team of SUBCONTECHNOLEGAL. If you have any questions or if we could be of any assistance, please feel free to write to us at firstname.lastname@example.org or visit us at www.subcontechnolegal.com