Cyber-Flashing: What are the legal options available to victims of this new-age form of cyber sexual harassment?

Put simply, cyber flashing 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.

There should be no confusion over the fact that cyber flashing amounts to cyber sexual harassment.

Even acts such as sending pornography or obscene content disguised in the form of something else - for instance in a case where someone might send you a video, file or link upon playing or opening of which it is revealed to contain obscene content - also falls under the purview of cyber flashing.

Such acts of cyber flashing are often committed by friends, colleagues or other known people on mediums like WhatsApp, Facebook etc. Exposing someone to unwanted obscene content over video-conferencing, as has frequently happened in the recent Zoom-bombing fiasco, also technically qualifies as cyber flashing.

In fact, it has become such a menace that countries such as Singapore and Scotland, and the state of Texas, USA, have had to bring in specific laws to deal with this new-age form of sexual harassment. The United Kingdom too is working on a legal framework for the prevention of cyber flashing.

What are the harms of cyber flashing?

As per multiple studies, unwanted exposure to pornography can have a highly damaging effect on children, women and everyone else in general. It may be especially traumatising for victims of sexual abuse or assault recovering from their ordeals, and could possibly result in the onset of or add to mental health issues such as anxiety, panic attacks, depression and post-traumatic stress disorder in them.

In a highly patriarchal society rife with sexual abuse and harassment, cyber flashing on online platforms, which may be considered by many to be a safe space from the daily sexual harassment faced in the physical world, can understandably cause a great of amount of distress to its victims.

Moreover, cyber flashing by friends under the garb of so-called ‘pranks’ ends up wrongly trivialising an act of sexual harassment as a mere joke or something to be laughed off rather than being taken seriously.

Children are the demographic most endangered by cyber flashing. They may be unable to identify what the material flashed before them is. It may not be possible for them to understand that they’ve been involuntarily exposed to pornography or other obscene material. Further, they may find it extremely hard to convey it to their parents or guardians that they’ve been cyber flashed, due to their lack of understanding of the matter or because of fear or the shame involved.

What are the legal options available if you have been cyber-flashed?

India has no laws dedicated specifically to the act of cyber flashing. Neither is the term cyber flashing specifically defined or dealt with in any current law.

However, there is a 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 flashing under both the legislations to specific demographics 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.

Conclusion

Cyber flashing is a new-age form of cyber sexual harassment which is an unfortunate reality of the 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 of cyber-flashing are higher than ever.

Thus, every person should be aware of their legal rights and the legal provisions under which such an offence like cyber flashing 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 flashing more seriously.

We must also demand the introduction 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.

The author is a student of Dr Ram Manohar Lohiya National Law University, Lucknow.