1. WHEN SHOULD AN INCIDENT OF ONLINE TEASING, EMBARRASSMENT, OR CONFLICT BE CONSIDERED CYBER BULLYING? WHAT CRITERIA MUST IT MEET?
There is no special Anti – Cyber Bullying Laws in India. Incases of sexual offences against children. Protection of children from sexual offences (POSCO) Act, 2012 is applicable.
An action becomes bullying or cyber bullying when there`s a pattern of repeated actions that are intended to cause harm to the other person. One such form of Cyber bullying is harassment, which is repeatedly sending offensive, rude or insulting text messages to somebody. Then there`s also denigration, and that`s, say when somebody`s on facebook or any other social media, write a status post about somebody else and that status post is untrue, and it`s intended to hurt the other person.
Another such form is, impersonation, which is when a person has taken over the account of somebody, whom he wants to totally demean socially, and starts posting content about things they might be concerned about, for example – “I cheat on all my exams”.
Then there are things like outing and trickery. For example – somebody tells me something important in confidence and I share that with others with or without the intention of causing harm. And if a best friend shares this online, this would be outing. If the best friend threatened to go public with the information, and I feel blackmailed and manipulated, then this could also be considered cyber bullying even though the information never came out.
And then there is cyber stalking, which is sending of repeated messages. Whereas, he difference between cyber stalking and cyber bullying is that of age. When an adolescent is involved, the term used is cyber bullying but in case when a major is involved, it is cyber stalking. There is no legal distinction between the two other than that of age. The act in cyber stalking is same as that of the cyber bullying; only difference being is that of age. Cyber stalking is a form of cyber bullying. In case of Cyber bullying, it is very much essential for the act to be repeated in nature, if the act is not repeated in nature, then, that will not constitute cyber bullying.
School personnel likewise, should be very clear on what the expectation for the use of technology in the school.
LEGAL REMEDY UNDER INFORMATION TECHNOLOGY ACT, 2000.
After the amendment of the Indian penal Code of 1860 in the year 2013, Cyber Stalking has been added as a criminal offence.
CHAPTER 11 OF THE INFORMATION TECHNOLOGY ACT consist of offenses, where there is no clear definition of the offence of cyber bullying. Still the provision of the act provides remedy against the same under SECTION 66, 66 (E)1 AND SECTION 672 OF THE ACT.
REMEDIES UNDER INDIAN PENAL CODE
Indian penal code provided remedies against defamatory act or an act outraging the modesty of
the women. The amendment of the Act in 2013 introduced other offences and also made cyber
stalking as an offence. Under Section 354C, a person who takes pictures of a woman, or watches her where she expects privacy or when she is indulged in some private activity and expects no one to be observing, shall be punished with imprisonment in between one year to three years and also liable to fine under first conviction. For the second or subsequent conviction there is imprisonment between the terms of three to seven years and also fine. Under this section, a cyber bully can be punished for taking pictures and can held liable under this section along with other sections if he transmits or publishes the same.
Section 354A provides punishment for sexual harassment. Section 354D provides punishment against stalking. If a man contacts a woman or attempts to even after her expressed disinterest, or monitors her activities on the internet, shall be liable for punishment of imprisonment up to three years and fine under first conviction. Under second or subsequent conviction, he shall be punished with imprisonment up to five years and fine.
Section 507 - Criminal intimidation by an anonymous communication and Section 509 of the IPC - Word, gesture, or act intended to insult the modesty of a woman.
1 Section 66 (E) – Punishment for violation of privacy.
2 Section 67 of IT Act,2000 – publishing or transmitting obscene material in electronic form; See also, Section 67 A – Publishing or transmitting of material containing sexually explicit act, etc. in electronic form.
3 Section 499 and Section 500 of the IPC,1860.
Section 292 (A) - Printing, selling, advertising grossly indecent or scurrilous matter or matter intended for blackmail.
The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) which protects children below the age of 18 years from any form of sexual harassment, sexual assault, and pornography which would include any form of sexual cyber-bullying which would be punishable under the provisions of this Act.
2. HOW DO THE CONSEQUENCES OF CYBER BULLYING DIFFER WHEN THE ACCUSED BULLY IS A MINOR?
The IT Act, 2000 does not include any provisions relating to prevention /punishment /judicial procedure for crimes like cyber bullying by school students or minors. Whereas, f the accused bully is a minor, then the provisions of the Juvenile Justice Act of 2015 would apply. The maximum punishment on a juvenile offender would be up to three years in jail. The trial would be conducted by the Juvenile Justice Board. Cyber bullying would fall under the category of “petty” or “serious offences” and hence, the maximum punishment for juvenile offender would be up to three years in jail.
3. CAN SCHOOLS LEGALLY BE HELD ACCOUNTABLE IF REPORTED CASES GO UNNOTICED?
There are no uniform regulations for schools preventing school bullying, especially cyber bullying like the Anti Ragging Acts prevalent in many states in India. The issue of cyber bullying by the school students has to be dealt with as per the Juvenile Justice Act as the offenders and victims are mostly not fully adults or young adults. But such a delicate issue has to be handled by counselors and cyber experts as well as parents and not through the usual judicial procedure. If bullying takes place in schools, then the Maharashtra Prohibition of Ragging Act, 1999 would apply. Under Section 6, any student against whom a ragging complaint must be immediately suspended. If convicted of ragging, the student would be dismissed and not be eligible for re-admission for 5 years. If the head of the educational institution fails to take action against ragging, it would amount to a case of 'deemed abetment' under Section 7, punishable with up to two years in jail.