Gendered Hate Speech & Crimes Online: Why We Need More Effective Enforcement

Type … pause… correct … review… modify … review … pause … evaluate … iterate … analyze … delete??? … yes … and sometimes… post. – Ask any woman and she will confirm this reflects their approach to social media. Even a 280-character Twitter message may have to be weighed with deep deliberation before posting.

Normalisation Of Online Violence

Contrast this with the ease with which posts are shared containing threatening, violent, lewd, vulgar, sexist and disturbing content against women and children. Take for instance the recent case of a 16-year-old school kid allegedly posting an online rape threat to cricketer M S Dhoni’s five-year-old daughter.

Threats of ‘I know where you live’; ‘I will rape / gang rape you and upload videos online’  and worse abound online. One aspect is the increasing dilution of moral fibre that removes societal filters from the minds of a perpetrator, who would otherwise restrain such posts. The other and more serious outcome is the impact of such posts on victims and the consequent need for strengthened and specific laws to deal with violent content online.

“Put her back in her box”

Online hate or misogyny is not just about threats and violence or causing alarm through intimidation. It is more about silencing voices. Shutting out opinions. Using fear to intimidate. Such violent rhetoric not only causes alarm and fear, but also deprives women of their right to free speech and expression and results in substantial psychological harm and damage.

In a way, death and rape threats are the trolls way of telling people to ‘stay out’, as Amanda Hess (a journalist) notes, after getting death threats including: “Happy to say we live in the same state. I’m looking you up, and when I find you, I’m going to rape you and remove your head.” and “You are going to die and I am the one who is going to kill you. I promise you this.” A 2006 University of Maryland experiment of setting up several fake online accounts, showed an average of 100 sexually explicit or threatening messages a day for feminine sounding usernames, as opposed to 3.7 such messages per day for masculine names.

The threat by a ‘hacker’ to upload online “Harry Potter babe’s stolen sex pics”, in response to Emma Watson’s 2014 feminism speech, is a classic ‘put the actor back in her box’ rhetoric of misogyny, as the Guardian phrases it.  Kirsti K. Cole (2015)<1> refers to the ‘disciplinary rhetoric’ on “Violent anti-feminist engagement in social media” through threats of bodily violence. Quoting Laurie Penny (2014), she says “The nature of the backlash towards women is ubiquitous. Every single female writer I know has had threats of violence and rape…Every…Single…One.”

It’s Only Online – It’s Harmless

In most of the instances quoted above including that of Amanda Hess, there is substantial apathy to the plight of victims of online hate speech. There is an assumption of ‘over sensitivity’ to online threats. Toxic online hate speech is often relegated to the realms of ‘juvenile pranks’ or “harmless locker-room talk,” (Danielle Citron (2009) and failure to give due weightage to this increasingly toxic form of crime could result in multiple harms, not only to the victims but also society at large.

Toxic chats in chat apps on assumptions of encrypted protections are no ‘locker room’ fraternising. To even claim so, legitimises such locker room conduct, aka rape culture.

The other issue is of treating online toxic posts as an ‘empty threat’ or the ‘subjective intent argument’, which assumes that harm is occasioned only when a threat online is carried out but ignores reality i.e., that the threat itself is an act of violence that harms and debilitates a victim.

Online hate or misogyny is not just about threats and violence or causing alarm through intimidation. It is more about silencing voices. Shutting out opinions. Using fear to intimidate.

Physical & Psychological Violence & Financial Harm – Not Just Virtual Rhetoric

Trivialising, normalising and failing to treat this online malaise have intensified and amplified online misogyny and anti-feminism narratives online to heightened levels of toxicity, that cause harms equivalent to or of much higher impact those resulting from physical violence. Many studies bust the above myths, including the Child Relief & You (‘CRY’) 2020 Report on ‘Online Safety & Internet Addiction’ and EU Parliament’s 2018 Study on ‘Cyber violence and hate speech online against women’. Negative impact from online hate speech and crimes include “create a genuine fear of violence with all its attendant psychological, emotional, economic, and social disruptions.”

Statistics from Amnesty International’s 2017 Report reveal that across Countries, 61% of victims of online abuse experienced ‘lower self-esteem or loss of self-confidence’; 55% experienced stress, anxiety or panic attacks; and 76% changed their online usage patterns including pausing or stopping posts on certain issues. The suicide of an 18-year-old in front of her parents due to incessant cyberbullying illustrates the transitioning of virtual threats to physical harms. The reality of rape and gang rape videos and images being shared online (In Re: Prajwala Letter Dated 18.2.2015; Videos Of Sexual Violence And Recommendations”<2>) and of victims suffering repeated violation of their dignity and privacy.

The ‘Gamergate’ scandal that exposed collective targeting and trolling through hundreds of rape and death threats of women gaming professionals such as Brianna Wu, Zoe Quinn or Anita Sarkeesian for criticising sexism and toxicity in online games, points to the impact that online hate crimes cause to professional and employment opportunities for women. It also reflects that such acts are not just ‘juvenile pranks’ but misogyny targeting ‘threats’ perceived to established male hegemonies.

There is no reason to assume, however, that online hate crimes or misogyny are male bastions requiring gender-specific laws to combat them. Body shaming of a 70-year-old lady, by a former playboy playmate through snapping her nude picture inside the changing room of a gym and sharing online is just one instance of the harm that women could cause. It is also important to keep in mind the aggravated harm that online hate crimes cause to other genders and law and policy needs to relook even their gendered laws to make it more inclusive.

Balancing Fundamental Rights

In Shreya Singhal v. UOI ((2015) 5 SCC 1), Supreme Court of India struck down Section 66A of the Information Technology Act, 2000 (as amended) (“IT Act”), which inter alia criminalised offensive messages with menacing character, as unconstitutional. Unreasonable restrictions on free speech through ambiguous draftsmanship, lending itself to misuse was the crux of the reason for this decision. That the loosely worded provision was an open invitation for abuse, was apparent on the face of it. The splash effect of this strike down was the quashing of many criminal cases filed by cyberbully victims. The decision of the Supreme Court is sustainable on the grounds of the sheer violation of Criminal jurisprudential first principles for specificity in criminalising acts.

However, the Supreme Court did not consider the provision in the light of cyberbullying or online hate speech or hate crimes. It consequently did not analyse the violation of fundamental rights of victims, of the silencing of their voices and the consequent irremediable breach of their very same fundamental right - of free speech. It was not called upon to evaluate the violation of other fundamental rights of victims, including the harmful restraints on their right to pursue their professions through online domains or their rights to life and liberty online. That such fundamental rights assure victims of a safe and secure existence, which will not call for victims to resort to unreasonable restrictions or restraints on their fundamental rights, were not contentions raised or addressed. That the victims have a right to protection of their human rights of dignity, privacy and safety was again not the issue to be decided before the Supreme Court of India.

Nearly five years after the above decision, armed with substantial empirical and analytical research from multiple sources, India’s legislature has the opportunity to formulate laws that will be precise and unambiguous to not only prevent online violent crimes but also protect the fundamental rights of victims.

Social Media Platforms & Hate Crimes

The above decision of the Supreme Court of India also impacted user rights for takedowns from social media platforms. The Information Technology (Intermediaries guidelines) Rules, 2011 (“Intermediary Rules”) mandated takedowns within 36 hours, inter alia by social media platforms, upon obtaining knowledge or when informed by a victim. This Rule was read down by striking down the requirement for Intermediaries to act on user notice (under Rule 3(4) Intermediary Rules) and to make Intermediaries liable for inaction only if the notice were from a Government agency (Section 79(3)(b) IT Act) or Court.

Under extant laws in India, intermediaries are not liable for content hosted on their platforms, if it is third party content temporarily stored hosted or transmitted or they had no control over the transmission, receiver or the information transmitted (Section 79). Intermediaries are also required to exercise due diligence and follow the Rules framed under IT Act which includes compliance with the Intermediary Rules and also ensure reasonable security practices under Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 (“SPD Rules”).

Immediate remedies that victims of violent online crimes seek is for prompt takedowns and preservation of proof. Prajwala (Supra) also evaluated the feasibility of AI enabled blocking of violent videos of women and children but the same is still pending finality. India is on the threshold of a revamped Intermediary Rules being notified by the Government.

The wish list for the much-awaited amendments to Intermediary Rules would be for reasonable restrictions compliant with the constitutional mandates that would ensure takedowns based on user notices. This may require precise interpretation of ‘upon receiving actual knowledge’ under Section 79. Whilst the issue of pre-emptive filtration with the option for ‘unblocking’ after verification through human intervention is pending decision, Rules that would provide modalities for speedy action for identified content and ensuring its blocking from future uploads and removal of earlier uploads from all sources would in itself alleviate the travails of victims.

The assurance that users and social media platforms seek of free speech and protection of fundamental rights has to be balanced with the same assurance that victims seek. It remains to be seen if the proposed amended Intermediary Rules would succeed in attaining the same.

Laws To Combat Online Hate Crimes

 There is an incorrect assumption that since India does not have laws with specific headings such as ‘cyberbullying’ or ‘revenge porn’, victims are powerless. This is yet another myth to be busted. Depending on the mode and manner of commission of online violence, there are sufficient provisions under the IT Act and Indian Penal Code, 1860 (“IPC”), criminalising acts such as rape or death threats online and non-consensual uploading of nude or sexually explicit content. For instance, the death and rape threats referred above would squarely attract Sections 506 (Parts I & II) IPC, which makes the ‘intent to cause alarm’ that results in commission of acts not legally bound or omission by victim to exercise their legal rights. Unlike the discussions in the US case of Anthony Elonis, the intent here is not about committing the acts of killing or rape but to cause alarm, which evidently every single victim of online hate speech would vouch for.

Similarly, ‘revenge porn’ cases may be dealt with through applying Sections 354C and Section 509 IPC  and Sections 66E, 67 and 67A IT Act. If such offence is committed against a minor, Section 67B IT Act and possibly offences under The Protection of Children from Sexual Offences Act, 2012 (‘POCSO’) will be applicable. Chhattisgarh has incidentally also introduced a State Amendment under Section 509B IPC, for electronic transmission of ‘obscene, lewd, lascivious, filthy or indecent content’ with intent to harass or cause or knowing that it would  harass or cause annoyance or mental agony to a woman. These are only illustrative and not a comprehensive list of existing provisions that may be applied for combatting online crimes against women and children.

Future of Technology Policy

Existing provisions lend some succour to victims. However, in the absence of specific provisions criminalizing such acts and with ‘gender’ not being a category for hate crimes (Section 153A IPC, which may be invoked if the crime committed intersects gender and racism) there is no apparent or visible deterrence against such crimes. The stories shared on gendered hate crimes also point to a global reality – of ineffective and possibly non-existent enforcement against perpetrators of online hate crimes. Such abject absence of effective enforcement leads to ‘Broken Windows in Cyberspace’ (Nappinai.N.S (2017). Technology Laws Decoded.

A recent development in India through orders of the Supreme Court in Prajwala Case (supra) is the setting up of an online portal for receiving complaints against cybercrimes. This is expected to alleviate the travails of victims substantially, as it is intended to provide ease of access, ease of choice of jurisdiction, transparency of status of complaints filed and consequent accountability. The efficacy of this online portal and its impact in deterring online hate crimes against women, however, remains to be tested.

With the proposed amendments to the Intermediary Rules, the immediate possibility is of shorter timeframes for takedowns, clarity on Intermediaries requiring to act ‘upon receiving actual knowledge’ and liability of Intermediaries for failure to act as mandated.

Along with various additions to combat gendered crimes, in 2013, Section 166A IPC was also introduced, which criminalized inaction by police to register complaints. This provision requires to be strengthened with clarity on the modalities for exercise of this right by victims and with more visibility and awareness about the same.

The efficacy of this online portal and its impact in deterring online hate crimes against women, however, remains to be tested.

India has vocalized the need for two reviews – that of its Criminal laws and also of its cyber laws. When this exercise is being undertaken it is imperative that the fundamental and human rights of victims are not sidelined and due focus is placed on justice for victims through well - crafted provisions that would not only enable prosecutions but deter crimes.

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The writer is an Advocate, Supreme Court of India & Founder – Cyber Saathi Foundation. This column in collaboration with SheThePeople.TV takes forward the initiative to empower victims through knowledge threats and vulnerabilities on electronic domains and remedies to combat them through laws and remedies. The launch also coincides with the Cyber Awareness Month of October. This will be a monthly column that will be published on the first Friday of the month. 

The views expressed herein are that of the author.

Bibliography

<1> Kirsti K. Cole (2015) “It's Like She's Eager to be Verbally Abused”: Twitter, Trolls, and (En)Gendering Disciplinary Rhetoric, Feminist Media Studies, 15:2, 356-358. 10.1080/14680777.2015.1008750;

<2> Suo Motu Criminal Writ Petition No. 3 / 2015;