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NON-FICTION: YET ANOTHER WAY TO DISCRIMINATE

July 02, 2017

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Illustration by Abro
Illustration by Abro

Recently, the non-governmental organisation Digital Rights Foundation received a request for Facebook founder Mark Zuckerberg’s phone number. The request was serious and came from an exhausted caller who complained that she was being directly impacted by Facebook’s policies and wanted to hold the social media giant accountable. The caller’s request was borne out of a frustration and concern faced by users of the internet and social media platforms the world over, and especially in developing countries: gendered harassment and online violence, with an apparent lack of stringent accountability measures and reporting mechanisms on the part of Facebook, Twitter and other social media entities.

In Cyber Crimes Against Women in India, Debarati Halder and H. Jaishankar aim to address the Indian context of gendered digital violence, obstacles in reporting and tackling said violence, legal frameworks for reporting mechanisms and how to go forward. This review looks at the Indian context and explores lessons that can be applicable to Pakistan.

The authors posit that gendered harassment should be categorised as discrimination when marginalised groups are harassed in a manner that reinforces their marginalised status. It is important to regard online harassment, Halder and Jaishankar write, as discrimination and not simply as crimes or tort, both of which are regarded as individual offences. The authors write that the “role of offensive speech and expression ... may not always be considered worthy to be criminalised” as authorities “including the police are ignorant of the laws as well as technological measures.” However, when harassment happens to a woman because she is a woman, there is a structural and societal aspect to it that must be acknowledged by the law in the form of discrimination.

As freedom of speech and other cyber rights become issues of growing concern, it is important to recognise that gender-based harassment is also a very real problem

The authors point out that trivialisation of reported instances of harassment further discourages women from reporting it, thus creating and affirming a possible environment of discrimination against female victims. This echoes the Digital Rights Foundation’s own experiences and research in this area where a majority of harassment victims do not approach Pakistan’s Federal Investigation Agency (FIA) with their complaints, for the same reasons as those in India. 

The authors express concern that some of the forms of discrimination covered in the book are not considered illegal under the law, which does indicate possible tensions between free speech and online harassment in India. This debate is at the core of the discourse on online harassment and must inform future theories of harassment that the authors seek to discuss and push forward. To this end, the book deals at length with Section 66A of the (Indian) Information Technology Act and the tension that exists between regulation of the internet and the right to free speech. Section 66A was struck down by the Indian Supreme Court (Shreya Singhal v. Union of India case) on grounds of vagueness and broadness of language that gave too much room for possible abuse.

It is here that the book falls a bit short in regards to effectively tackling the tension between free speech and online harassment. It touches on the dangers of online harassment and the urgency in its effective criminalisation, but does not address freedom of speech issues and how the law can deftly come to a viable compromise. This may also be a reflection of the continuity and newness of the problem of freedom of expression and online harassment — one that is fervently discussed in the Global North — and the lack of an effective response to free speech absolutists by the authors also points to the gap in literature that addresses these concerns effectively.

Another problem that arises is an apparent lack of adequate quantitative data regarding online harassment — a problem that permeates research in the South Asian region in general and impacts analysis. While data is available pertaining to gendered information and communications technology (ICT) access, it is missing and incomplete when it comes to usage of these technologies and the experiences that women face. Further to this, though the authors cite statistics, none of the chapters are based upon on quantitative datasets (especially noticeable in Chapter 4), whereas empirical data would have bolstered the core thesis of the book. However, this does not take away from the vital observations made by the authors.

An important point raised by the authors — an example directly applicable to Pakistani legal contexts as well — is the requirement of intent to harm when it comes to non-consensual use of pictures. Halder and Jaishankar argue that laws requiring intent to harm or harass are under-inclusive as they exclude situations where the motive is profit and not harm. Given that these are also requirements under Article 21 of Pakistan’s Prevention of Electronic Crimes Act in particular, it is an important observation. The authors also make a distinction between different types of ICTs: 1) internet communication technologies; and 2) digital communication technologies. This distinction holds relevance in Pakistan given that the FIA refuses to pursue cases regarding calls or text messages, but has entertained complaints pertaining to messages over the internet and through instant messaging services such as WhatsApp.

Another area of concern that the authors look at is that the servers utilised by Facebook et al. are outside Indian borders, which exacerbates the difficulty in holding these social media outlets accountable towards Indian citizens, in particular Indian women. The decisions taken and criteria utilised to ascertain what material is taken down or removed is usually predicated on the community standards developed by each company, and which in and of themselves differ from each territory of operation. Chapter 7 of the book grapples with the question of intermediary liability and the concept of “right to be forgotten”, which has been implemented by the European Union (EU) and Argentina since 2006. From their writing, the authors do not appear to be too encouraged or enthused with the “right to be forgotten”, as they see possible obstacles and problems for countries that do not have the same legal or financial incentives or ability to put pressure on Google, Facebook, etc, unlike a number of EU and non-EU nations.

The authors also highlight the need to consider the particular problems of Indian women and not simply adopt Indian-style jurisprudence. Not all forms of harassment described in this book are covered by existing Indian law. Again, this is relevant to Pakistan, where laws pertaining to harassment and violence require updating, given that the legal framework in Pakistan is not able to adequately meet and tackle cyber harassment crimes.

Halder and Jaishankar’s work highlights that although a lot of literature is available regarding cyber crimes and digital freedoms, there is far less on identifying and effectively tackling cyber harassment. This is borne out by the work of initiatives such as the Dangerous Speech Project, based in the United States, and the work of Digital Rights Foundation and its Hamara Internet project, both of which examine hate speech and online harassment — the latter in a Pakistani context.

Cyber Crimes Against Women in India, in spite of concerns pertaining to empirical data, remains an important piece of analysis in tackling gendered online harassment in the Global South, in particular South Asia, and can aid activists and policymakers in recognising local contextual problems and develop indigenous solutions.

The reviewer is a founder of the Digital Rights Foundation, a lawyer and an internet rights activist

Cyber Crimes Against Women in India 
By Debarati Halder, H. Jaishankar
SAGE, India
ISBN 978-9385985775
252pp.

Published in Dawn, Books & Authors, July 2nd, 2017