Kerala court rejects anticipatory bail pleas of Bhagyalakshmi and 2 activists for attacking YouTuber
Recently, in an incident that shook up Kerala, Bhagyalakshmi, a leading dubbing artiste in the Malayalam film industry, along with two other women, entered the house of YouTuber Vijay P Nair and slapped him for posting lewd videos maligning them and other prominent women personalities from Kerala. They bathed his face in black, burnt-out lubricating oil, and telecast the whole action live over social media.
At this time when the whole world is shrinking into the internet, real life misogyny is also spilling into the virtual world. From verbal abuse to obscene videos and morphed photos, there are many ways in which men harass women in cyberspace.
However, though there are legal provisions for slapping a police case on Bhagyalakshmi, Divya Sana and Sreelakshmi Arackal for entering Vijay’s house and thrashing him, ranging from illegal assembly to attempted murder, the laws to safeguard the women’s interests online are insufficient. The architects of the Constitution could never have envisaged such a world where technology enables harassment.
K Sanjay Kumar IPS, Deputy Inspector General (DIG), Thiruvananthapuram Range, Investigator and Cyber Crime Specialist, speaks to TNM on what he thinks about the incident and how online abuse can be dealt with.
1.Why did the police not take timely action against Vijay Nair for his YouTube video? If the police had taken a decisive step, such an incident could have been avoided.
Firstly, I would like to state that the Kerala Police take proper action against all cybercrimes in accordance with the law. In fact, the Kerala police follow a zero-tolerance policy regarding cyber crimes against women and children.
Secondly, if you are asking me particularly about this incident, the complaint was filed by the victim on the morning of September 26, and appropriate action was taken on the same day. On the afternoon of the receipt of the complaint, an FIR was registered as per the details of the offences under the appropriate Sections of the law under IT Act and IPC. The accused was arrested and remanded. There was no delay or inaction on the part of the police.
Thirdly, it was mentioned in the petition that this video was aired one month ago, but no complaint was given to the police about this. On September 25, at 7.15 pm, an email was sent by a lawyer to the Hitech Cell, informing them about the video. Within two hours of the receipt of the email, at 9.15 pm, the email was forwarded to City Police to take action, and that fact was informed to the complainant (the lawyer). On the morning of September 26, the City Police Cyber Cell went through the complaint immediately after the petition was sent to the Museum Police Station for registration of the FIR. The police took action against the accused in less than 12 hours, based solely on the complaint received on email.
Committing this act, which is illegal, within 12 hours of sending the email complaint to the police and without waiting to see the police response/action, cannot be justified. The complainant should have waited at least a day to see what action is being carried out by the police, but they decided to commit this act. An eye for an eye will make the whole world blind. The accused who put the video on YouTube was indulging in an illegal act and has committed a crime, and action according to the law has been taken against him. The victims going about engaging in such activities, in the meanwhile, is also illegal and not acceptable. Hence, to say that the ladies carried out this operation because the police did not act on the complaint is factually wrong.
I want to reiterate that we follow zero-tolerance against crimes, especially cybercrimes against women and children.
2. But there is a general belief that no action takes place from the police’s side and criminals go scot-free, and that is the reason why such people are encouraged to commit more crimes.
It is not true that people can get away after committing online crime. Instead, the chances of being punished in cybercrimes are much higher than in the case of traditional physical crimes. Because if anything is done online, it automatically leaves a digital footprint behind, which will be treated as evidence against the cybercriminal. There are more than one hundred types of cybercrimes which are registered by the police; in all cases, the criminals are tracked down and arrested. All the cybercrime complaints that are received by the police are converted into FIRs and cases are adequately investigated, but there are a few complaints in which we receive sketchy details, which will hardly invite any legal action. In such cases, the complainant may feel that though a cybercrime has taken place, the police has not taken any action. But the fact may be that there may not be sufficient grounds in the given complaint as per the provisions of the current IT Act.
3. Compared with other states in India, Kerala is now witnessing a sudden spike in the number of cybercrimes targeting women. As an official entrusted with the task of the safety and security of people using cyberspace, how do you view the situation? What are your challenges? What are your limitations? And what are the possibilities?
No doubt, it is a serious concern to law enforcement agencies. The increasing reach of the internet, and the widespread use of the internet and social media, coupled with the malicious intention of some persons who use this kind of technological advancement as a tool to target the vulnerable, has led to the sharp increase in the rate of cybercrimes against women. It is evident not only in Kerala; it is indeed a growing global problem with potentially significant societal consequences. Cybercrimes, if properly investigated, will bring the criminals before the law. At the same time, there are a few challenges when it comes to the investigation of cybercrimes. Firstly, various forms of cybercrimes are experienced by Indian women who use the internet in the contemporary context. Neither the provisions of the IPC nor the provisions of the IT Act fully reflect the contemporary ground realities of women’s experiences. Hence it becomes tough to take legal action in the absence of appropriate legal requirements. Secondly, the collection of digital evidence takes time as it has to be provided by the service providers.
4. The police’s record in catching people who harass others on the web is abysmal.
I have partly answered this question in my answer to the second question. I would like to further explain the following:
It should be understood very clearly whether the content of a complaint may amount to a crime or not. For instance:
Misuse of the complainant’s photo
• The photo is used to create a fake profile (It's a crime)
• Picture morphed into a cartoon or used to create a troll or to give an opinion (not sexual, not abusive, not threatening), which is not to the liking of the complainant or disturbs her/him. (It's not a crime)
• If the photo is morphed to make an obscene, vulgar image (It's a crime)
• If the photo is used along with sexually obscene content, abusive language, etc. (It's an offence)
Not all trolling is considered a crime under the IT Act, unless it contains sexual, abusive material and outrages the modesty of women.
Trolling which defames the complainant based on misinformation, or fake news does not amount to a crime under the IT Act, but the complainant can proceed legally under various IPC Sections, related to offences of defamation, etc.
In the same way, every offence of cyberbullying, trolling, defamation or any other such complaint has to be seen and analysed on a case to case basis to determine what the contents are. Depending upon the content of the post or comment, we decide whether it amounts to a crime or not, as per the IT Act.
5. Many people are pointing out that the existing laws are feeble in dealing with cyberbullying and cyber terror. What is your take on it? If new legislation is required, what are the components you wish to see in them?
Yes, there are a few issues directly affecting women which are discussed nowhere in the Information Technology Act. Although the IT Act contains a chapter on offences, including computer-related offences, the provisions deal mainly with economic and financial issues; there are no specific provisions on cyber-crimes against women, such as cyberstalking, cyberbullying, morphing, email spoofing and trolling (unless the remarks made are sexual). The IT Act does not provide appropriate legal provisions even though such crimes are rampant and are widely reported. In such cases, the IPC provisions are applied by extrapolation and interpretation, for want of more specific definitions of the cybercrime crime as required by the law to prosecute the criminals concerned.
The first step towards providing legal remedies for women is to ensure that the online incidents of harassment, threat, intimidation or violence caused to women are accurately detailed and explained, adopting them into the provisions of the written law through amendments. Secondly, the liabilities of the intermediaries (service providers) have to be assessed and responsibility fixed to ensure that such posts are brought down immediately, and that they provide all details required for the investigation. Thirdly, many women are unaware of their rights under law vis-à-vis cybercrimes. Raising the awareness of women is of prime importance in preventing such offences and punishing the offenders.
6. There are complaints that the police force is insensitive to women and marginalised communities when they get targeted in the cyber world. What is preventing the police from defending the rights of women and children? Is the police insensitive to cyber sexual crimes?
It is not true that the police are insensitive towards online crimes against women. As I mentioned earlier, there are a few online offences directly affecting the person but they are nowhere discussed in the IT Act. Typical cybercrimes like cyberstalking, online defaming, online threatening and email spoofing are not even considered as offences in the Act. That is the main reason why police are not able to take action against the perpetrators. And this problem is faced by everyone, not necessarily by women. At the same time, it is also a known fact that these types of offences are targeted more at women. This loophole gives a feeling that the police are insensitive towards such crimes, but the fact is that we find ourselves legally handicapped. Despite the lack of the legal provisions in the IT Act, the police make maximum effort to trace whatever lawful provision is in IPC, to proceed against the offender, and share them with the concerned police station. And this limitation encourages cybercriminals or stalkers to persist in these activities.
7. The perception is that cybercrimes against women and children are thriving. Why does it seem as if the police are unable to stop this?
We are duty-bound to prevent all types of crimes and take action against the criminals, and the same is right about cyber crimes as well; we do our duty with utmost sincerity. Most of the complaints which we receive are connected with posts, comments, remarks made on social media platforms, which appear to be defamatory. Still they may not amount to a crime under the IT Act, as I have already explained in detail. When it does not amount to an offence under the IT Act, then the cyber police station cannot take any action. In such a situation, the cyber police personnel look for any other legal provisions under the IPC or any other Act, which can be initiated against the offender. If no legal provisions exist for booking the offender named in the complaint, then obviously no action can be taken. In such a situation, it does not mean that the police are allowing the cybercriminals to thrive.
8. Will you please elaborate on the steps you have taken as the head of cybersecurity in Kerala to end cybercrimes?
Kerala Police has taken many steps to tackle online crimes. If we talk about infrastructure, every district has cyber cells; there are four cyber police stations (one for each Range). All police personnel working with cyber cells and cyber police stations are trained professionals. They are also sensitised to deal with such cases confidentially and professionally. There are online portals where the complainant can register their complaints and email address to forward them if the complainant so desires. Apart from that, several programmes and sessions are being arranged by Kerala Police to make people aware of cybercrimes, and to take precautionary steps to prevent them from being victimised.
9. Social media sites rarely show responsibility or accountability. What is the solution? How can we fight the situation?
Social media platforms, which are called “Intermediaries”, are not liable for posts. They are protected under specific provisions. An effort has to be made to fix the responsibilities and mandatory duties of the intermediaries to prevent such offences and provide all assistance to the investigating agencies without delay. The framing of this rule is underway.
10. Is it impossible to track all cyberbullies and cybercriminals? How does this system cope with this?
No, it is not impossible. Tracking any cybercriminal is possible. There may be difficulty and delay in collecting pieces of evidence from various sources across the world. There is a particular advantage to the cybercriminals: they can impersonate, they can be anonymous, and they can take technological cover to hide. However, all these cybercriminals can be traced; it's just a matter of time and effort.
Lekshmi Rajeev is a Thiruvananthapuram based writer, translator and socio-cultural activist.