#LegallySpeaking: Read SFLC’s report on online harassment

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After two rounds of discussions with various stakeholders, the Software Freedom Law Centre, India recently conducted an event for the launch of its report on ‘Online Harassment’ [pdf].

The crux of this issue can be conceptually associated with the right to freedom of speech and expression, which is, widely considered one of the most ‘sacrosanct of fundamental human rights’. This right, however, more often than not, crosses the line to the point of ‘wanton abuse’.

At the very outset, it is important to distinguish between the different manifestations of harmful speech online, which are often used interchangeably. The report recognises the ambiguity and the inconclusive nature of the terms associated with the subject, thus adopting the ones that seemed more inclusive. While ‘harassment’ and ‘hate speech’, both fall under the larger set of ‘harmful speech’, they differ in some respects, which is best explained in the report,

“Simply put, whereas hate speech is generally understood to signify speech that denigrates and/or advocates violence against a racial, ethnic or religious community on the basis of their actual or perceived characteristics, harassment is targeted at individuals rather than groups. Moreover, hate speech is generally considered a more serious offense than harassment, due to its potential to encourage deep-seated prejudices against entire communities, and its tendency to incite large-scale violence against these communities.”

Further, professor Susan Benesch, of the Berkman Klein Center for Internet and Society, Harvard Law School, proposes the use of term “dangerous speech”, to be understood as one which catalyses violence by one group against another, under certain circumstances, which have been provided for in the report.

Legal landscape to tackle online harassment

Online harassment, by its very nature is not limited to the use of certain harassing words but is wide enough to encompass within itself several acts of abusive nature conducted over the Internet.

Legally speaking, unless inciting violence, such words/speeches by themselves are not punishable. If they were, most variants of online harassment would have constituted offences under Section 66A of the Information Technology Act, 2000, which was struck down by the Supreme Court as being, among other things, unconstitutional. It was being seen as a direct violation of the principles enshrined in Articles 14, 19(1)(a) and 22 of the Indian Constitution.

As per a press release issued by SFLC.in , Baijayant Panda, Member of Parliament, Lok Sabha said that,

There is a need for adequate legal protections against online harassment. However, this should not be seen under any circumstance as an endorsement of draconian laws like the now-repealed Section 66A of the Information Technology Act, 2000 (IT Act), which lent itself to wanton abuse due to its over-broad and ambiguous language”.

Recourse may, however, be taken to the provisions of the Indian Penal Code, 1860, which by Sections 153A (1), 153B(1), 295A and 505 sanctions punishments for ‘more socially targeted instances of harmful speech’ whereas Sections 354D, 503, 504 and 507 penalizes ‘individually targeted instances of harmful speech’.

Experience with law enforcement agencies

As a part of this report, 17 individuals were interviewed including legislators, journalists, civil society actors and targets of online harassment campaigns, who have had first hand glimpses at the plight of the harassed.

Although one might assume at first blush that, most of these acts are committed against females, one of the respondents, Rakshit Tandon, who is a cyber security expert and consultant, in his engagement with various law enforcement agencies has said that there is a growing number of reports against males as well, and the underlying problem is more or less, gender-neutral.

Largely, the respondents felt that the law enforcement officials were ‘woefully under-prepared’ to tackle instances of online harassment, and were unaware on the modalities of handling Internet-related grievances.

Representing that element of the state that enforces ‘reasonable restrictions’ on freedom of expression, Anyesh Roy – Deputy Commissioner of Delhi Police (Cyber Crime) said,

We often face jurisdiction issues with platforms; who sometimes refuse to share information. All platforms with consumers in India should respect the law of the land and share information when requested by the law enforcement.”

Most of the respondents felt that the though the platform does have certain liabilities, but as observed, it is only the “first line of defense, and not the sole line of defense”. Given the volume at which data is churned out on a daily basis, the platform’s ability to filter content is definitely an obstacle.

Recommendations

Dr. Anja Kovacs, Director of Internet Democracy Project, said that more law was not the solution to tackling the issue of online harassment.

I think it’s really important to not have the same standard for all intermediaries. Even though in this debate of Facebook versus Twitter, Facebook is often seen as the more safe platform but many activists still prefer Twitter because it allows anonymity.

The recommendations include instituting easier and more transparent processes to complain to online platforms, provisions for legal process that allows lifting of anonymity for trolling beyond a certain threshold, and the platforms to mould their policies to fit the requirements of different regions. Educating people about existing mechanisms is also necessary since it was observed that many well-educated individuals also lacked awareness regarding the laws against harassment. Most importantly, training and empowering law enforcement officials to handle such complaints can go a long way.

(Read the press release below)

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