Meaning and Scope of Cyber Stalking
Human activities in the age of digitization have increasingly become dependent on technology, especially information technology. The Internet and the plexus of computer networks have provided an instantaneous means of exchanging and accessing information around the globe, transcending national and geopolitical boundaries. The cyberspace is a virtual space within which communications and transactions are concluded electronically. Besides having a borderless and intangible character, cyberspace is intangible in its scope and expanding exponentially in its magnitude, affluence and political importance.
This ‘virtual space’ has enabled people to interact with one another and provides a convenient and accessible medium to facilitate the exchange of information, ideas, and data. In today’s digital age, people are influenced as well as become increasingly dependent on the Internet for entertainment, communication via electronic mails, instant messages, video chats, voice mails and messages, business transactions, banking etc.
However, the anonymity that is accorded by the cyberspace to its users can be misused, exploited and abused by miscreants to carry out illegal and fraudulent activities. It is this category of offences that are committed in an electronic form, especially within cyberspace which has resulted in the emergence of a new species of crimes known as cybercrimes.
Among the wide array of cybercrimes that are facilitated, organized and orchestrated within cyberspace, one such category of offence that has become increasingly prevalent in recent times owing to the ever-pervasive nature of the Internet is cyberstalking. The dictionary meaning of the word ‘stalking’ is an “act of illegally pursuing, following, watching or stealthily approaching someone over a period of time.”1 This definition of stalking, when applied in the context of cyberspace, manifests itself into what is known as cyberstalking.
Therefore, cyberstalking is an act which involves the use of information and communication technology (ICT) i.e., Internet, wireless networks, mobile phones, computers, laptops, e-mails, instant messaging, etc. to repeatedly and incessantly harassing, annoy, threaten, attack, frighten and abuse individuals verbally.2 Therefore, cyberstalking involves a series of persistent and purposeful behaviour and actions on the part of the perpetrator (stalker) over a period of time with an intention to intimidate, harass, annoy, threaten or frighten the victim.
Modes of Cyber Stalking
Cyberstalking can manifest itself through direct or indirect actions of the perpetrator. A perpetrator can directly engage in cyberstalking in the following ways:
- by emailing;
- instant messaging through various social networking sites like Facebook, Twitter, Instagram, chat rooms etc.;
- calling and texting the victim;
- using other modes of ICTs and electronic communications to communicate vulgar, obscene, offensive, indecent, abusive and/or defamatory remarks and comments;
- communicating threatening, intimidating and/or fearsome statements to the victim or the victim’s family and friends using the electronic medium;
- also, the use of communication technology to monitor, track, pursue and follow, in other words, stalk the online activities that the victim is engaged in or even the victim’s movements via GPS.
Indirect cyberstalking of a victim by a perpetrator can be accomplished in the following ways:
- by remotely hacking into the victim’s computer or phone to infect it with malware or furtively installing software to monitor and track the victim;
- compromise the victim’s device through such malware and also steal or misappropriate information about the victim;
- by posting malicious, false, harmful, defamatory, vindictive and offensive information or comments about the victim online, especially on social media platforms, chat rooms, chat apps like WhatsApp, Telegram, Hike etc.;
- creating fake accounts in the name of the victim and also using the victim’s photograph and personal details to post material on social media accounts, chat rooms, websites etc.
Commonly Used Tactics for Cyber Stalking
Cyberstalking involves behaviour on the part of the perpetrator that is persistent and almost bordering on being voyeuristic, over a span of time that is intended to harass, threaten, instil fear and intimidate the victim and in certain cases the victim’s family and/or friends. The perpetrators do this in the following ways:
- by sending countless emails in the victim’s mail inbox;
- frequently posting or commenting on the victim’s social media accounts like Facebook, Twitter or Instagram, and other online sites;
- incessantly calling, texting or emailing the victim, despite vehement disapproval and objection expressed by the victim;
- leaving voicemails;
- sending friend and follow requests to the victim’s social media accounts. The perpetrator can continue to send such friend and follow requests by creating new accounts every time the victim blocks that particular account from which a friend or follow request is sent. Therefore, there is a persistent need to pursue the victim to establish a contact;
- by connecting to all online groups, forums, and communities of which the victim is a part;
- following the victim’s online activities, posts, comments etc. through the social media accounts of common friends, colleagues or classmates;
- closely scrutinize and incessantly view the victim’s page. Some online platforms also provide an option that notifies the person every time anything is posted, commented or shared by the victim.
It is also important to understand as to what forms the basis or instigates such behaviour of stalking people online. Some commonly known psychological reasons for stalking are:
- harassment, which can assume the form of online sexual harassment of women;
- one-sided romantic inclination or infatuation towards the person being stalked;
- to seek revenge against the victim or a feeling of hatred towards the victim;
- to impress friends and peers;
- harbouring jealousy towards the victim, especially towards ex-partners;
- obsessive and voyeuristic tendencies;
- believing that the victim, who is a stranger, is in love with the stalker. This is known as erotomania and often involves sexual proclivity.
Therefore, the online cyberspace provides a safe haven to the perpetrators who, under the garb of anonymity can watch, monitor, observe and track online/offline activities of the victim round the clock either with or without their knowledge. The cyberspace provides an ideal environment for the perpetrators for committing the offence of cyberstalking by effectively concealing their identity. The behaviour and conduct of cyberstalkers not only threatens the safety, security, and well-being of the victim but also result in flagrant violation of the privacy of the victim.
Legislative Framework on Cyber Stalking
The offence of cyberstalking has been broadly dealt with under the following legislation:
- The Indian Penal Code, 1860
- The Information and Technology Act, 2000
The Indian Penal Code, 1860
As originally enacted, the IPC did not contain any provision on ‘stalking’ per se. It was only in January 2013 after the gruesome Delhi gang-rape case (Nirbhaya case) in December 2012 that the Justice J.S. Verma Committee3 in its Report on the Amendments to Criminal Law addressed the offence of ‘stalking’ pursuant to which Section 354D was inserted by the Criminal Law (Amendment) Act, 2013 in the Indian Penal Code.
Section 354D of IPC defines Stalking and reads as follows:
“(1) Any man who-
(i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or
(ii) monitors the use by a woman of the internet, email or any other form of electronic communication,
commits the offence of stalking.”
On a closer analysis of the provision, it is apparent that the section is gender-specific and refers to the stalking of ‘women’ alone. Does this mean that men are not victims of stalking? The extensive use and dependence on the Internet via computers, laptops, mobile phones, and other communication devices, has made it indispensable as well as intrusive in many aspects. In this backdrop, a gender-neutral provision is the need of the hour.
However, the Section has addressed both physical stalking (offline) and cyberstalking (online). The key ingredients that constitute an offence of physical stalking are when a man:
- follows a woman;
- contacts or attempts to contact a woman;
- In order to facilitate or develop a personal interaction with such a woman.
the above-mentioned acts must be done:
- even when the woman has clearly indicated or expressed her disinterest.
The key ingredients to constitute an offence of cyberstalking are, when a man:
- monitors the Internet, email or any other form of electronic communication used by a woman.
The expression ‘any other form of electronic communication’ is very wide in its scope and includes every mode of communication which is concluded electronically i.e., via computers, laptops, mobile phones, wireless devices etc. However, the major shortcomings with the said provision are:
- Firstly, it is gender-specific. In other words, the provision protects only women and not men. This in no way suggests that men cannot be victims of stalking;
- Secondly, the provision fails to deal with one of the most essential ingredients which constitute a criminal offence i.e., mens rea. Therefore, the provision is silent on the mental element of a person’s ‘intention’ to commit a crime.
- the technique or the strategy employed by the perpetrator to monitor or watch a woman’s online activity is not indicated under the said provision.4 Therefore, it may so happen that where a person has no intention of stalking but his actions are to the contrary, he will be excluded from the purview of the said provision.
A person found guilty of committing an offence of stalking under Section 354D shall be punished:5
- with imprisonment for a term which may extend to 3 years and also liable to fine, on first conviction;
- with imprisonment for a term which may extend to 5 years and also liable to fine, on second or subsequent conviction.
Section 507 of IPC deals with “criminal intimidation by an anonymous communication”. Under this section:
- anyone who criminally intimidates another person through anonymous communication; or
- anyone who takes precaution to conceal or hide the identity including the name or address of the person from whom the threat is coming.
shall be punished.
Criminal intimidation6 involves the act of threatening another person with injury to his person, reputation or property, with an intention to cause alarm and in order to avoid such a threat causes that person to do or omit to do any act which he is not legally bound to do or is entitled to do.
However, Section 507 does not specifically refer to the mode through which anonymous communication is made, thereby leaving its scope open to wide interpretation. Thus, the section includes within its scope the act of stalking and more specifically cyberstalking by communicating anonymously to criminally intimidate any person.
A significant characteristic of cyberstalking is that the perpetrator uses cyberspace anonymously i.e., conceals his identity to send offensive and threatening messages or comments with an intention to criminally intimidate the victim. The victim in such cases remains unaware of the person from whom such threats are given. The provision goes a step further to punish even those who take precautions to hide the identity of the person from whom such threats are emanating.
Section 509 of IPC deals with the offence of “words, gesture, or act intended to insult the modesty of a woman”. The section prescribes that “whoever, intending to insult the modesty of any woman, utters any word, 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, or intrudes upon the privacy of such woman, shall be punished.”
Therefore, a person can be booked for cyberstalking under Section 509 IPC were words, gestures or exhibition of any object, sent through emails, instant messages, comments or posts on social media platforms or any other form of electronic communication, he intends to outrage the modesty of a woman or invades the privacy of such woman. This provision is also gender-specific and protects only the modesty of a woman, leaving out men.
Cyberstalking is a gender-neutral offence. Men and women both can be subjected to stalking online. The section is restrictive in its scope to the extent that the words uttered should be spoken, the sounds made heard and the gesture and object are seen so as to amount to insulting a woman’s modesty or violation of her privacy. Therefore, an online perpetrator engaging in cyberstalking can escape penal liability if the words, sounds or gestures are not spoken, heard or seen on the Internet.7 The communications made through the Internet suffer from an inherent drawback wherein the ‘intention’ of the perpetrator to insult the modesty or invade the privacy of a woman cannot be established with certainty.
The Information and Technology Act, 2000
The Information and Technology Act, 2000 was originally enacted to legally recognise the transactions concluded by means of electronic data interchange and other electronic modes of communications and transactions. The Act gave legal recognition to e-commerce and contracts concluded electronically, thereby facilitating the filing of documents electronically to encourage alternatives to paper-based documents.8
The Information and Technology Act, 2000 does not expressly deal with the offence of cyberstalking. However, the problem of cyberstalking is dealt with under the IT Act as an “intrusion or breach of one’s privacy and confidentiality” instead of a regular cyber offence.9 Therefore, the offence of cyberstalking is dealt with under Section 72 of the IT Act, 2000. Section 72 prescribes “penalty for breach of confidentiality and privacy”. The section reads as under:
“Save as otherwise provided in this Act or any other law for the time being in force, if any person who, in pursuance of any of the powers conferred under this Act, rules or regulations made thereunder, has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such electronic record, book, register, correspondence, information, document or other material to any other person shall be punished…”
Therefore, the aforesaid provision clearly includes within its scope the offence of cyberstalking. On a plain reading of the provision, it is amply clear that it is a gender-neutral provision. Where the perpetrator, whether a woman or a man, gains access to any electronic information, document or material of the victim, without his/her consent and discloses such material can be booked under the said provision. The stalker can do so by remotely hacking into the victim’s computer, laptop or mobile phone and compromise the victim’s device by infecting it with malware or spyware which provides access to the victim’s device and the information stored in it.
A spyware known as Stalkerware can collect and transfer all the activities done by the victim on his/her device, including emails, text messages, photographs etc. by running on the victim’s computer, mobile phone and other digital devices that are Internet-enabled.10 In certain cases, the perpetrators through such malware can remotely control the camera or microphone of the victim’s device, track the victim’s location using GPS and other apps. All these acts are the different ways in which victims, men and women alike, are stalked online and their privacy is violated.
The Information Technology Act, 2000 was amended in 2008 by the Information Technology (Amendment) Act, 2008 to address the newer genre of legal challenges faced by society in an increasingly digitized scenario. The 2008 amendment included different categories of cyber offences under Chapter XI of the IT Act. Among these Section 66E which prescribes “punishment for violation of privacy”, Section 67 which prescribes “punishment for publishing or transmitting obscene material in electronic form”, Section 67A which prescribes “punishment for publishing or transmitting of material containing the sexually explicit act, etc. in electronic form” and Section 67B which prescribes “punishment for publishing or transmitting of material depicting children in the sexually explicit act, etc., in electronic form” are the different ways in which cyberstalking manifests itself.
CyberStalking includes within its scope the violation of privacy of the victim by the stalker, the perpetrator can harass, annoy or trouble the victim by electronically sending obscene material via emails, video messages, social networking platforms and other modes of electronic communication. The stalker can also harass, blackmail or threaten to defame or tarnish the victim’s reputation by electronically circulating and sending sexually explicit material depicting the victim. The perpetrator can do so by morphing images of the victim with that of others. All the above instances are the various ways in which the offence of cyberstalking manifests itself.
Despite the fact that the Information Technology Act, 2000 does not expressly address the offence of cyberstalking, a perpetrator can nonetheless be booked under the various provisions mentioned above of which ‘stalking’ is an essential inherent ingredient. Furthermore, the provisions of the IT Act in relation to the various cyber offences are gender-neutral, unlike the IPC.
Cyberstalking is a relatively new genre of cybercrime which has gained prominence in recent times with increased use of the Internet and dependency on electronic devices. Cyberstalking is indicative of an obsessive behavioural pattern on the part of the perpetrator. Stalking has been prevalent in its physical form before digitization and the Internet took over every aspect of our lives. Today, with the ease of access to the Internet and the connectivity which it provides, it has made people virtually more social, integrated and gregarious.
As a result, people are not hesitant to share their photographs, food preferences, where they are travelling, their achievements, their likes, dislikes, political preferences, sexual preferences or religious preferences with the world. Every piece of information shared by a person on the Internet leaves behind what is known as ‘electronic tracks’. This availability and ease of access to personal information are what puts every user at risk of being monitored, watched, tracked and pursued.
In recent times, stalking has permeated into the virtual space with the widespread use of the Internet. The cyberspace can be easily manipulated by the perpetrators to their advantage to harass, annoy and threaten the victims online. The most diabolic weapon that cyberspace presents is the realm of anonymity within which these perpetrators operate. This anonymity is favourable to the commission of most cyber offences.
Cyberstalking has grave and drastic consequences which can psychologically impact the victim. The legislation addressing the offence of cyberstalking is inadequate in many aspects to effectively deal with the multifaceted nature of this offence. The Information Technology Act, 2000 which is the sole legislation in India addressing Internet-facilitated offences needs to clearly demarcate and address cyberstalking as an offence. The number of reported cases on cyberstalking is very low, which reflects the lack of awareness and cognizance the offence should receive.
Since the offence of cyberstalking is committed within the virtual space, the collection of electronic evidence against the offender also poses challenges. Those committing cybercrimes are usually computer savvy and are well versed with the technicalities that are involved which makes it easy for them to hide their online activity and evidence related to those activities.
However, the existing provisions under the Indian Penal Code and the IT Act which have been discussed earlier can be invoked to book a person for the offence of cyberstalking because the offence of cyberstalking does not occur in isolation. It manifests itself into various other forms of offences amounting to sexual harassment, criminal intimidation, outraging the modesty of a woman, threatening, causing annoyance, defamation, publishing or transmitting obscene or material depicting sexual acts, to name a few. Therefore, robust legislation that specifically addresses the issue of ‘cyberstalking’ is the need of the hour to make the virtual space safer and secure for users.
4. Debarati Halder, “Cyber Stalking Victimization of Women: Evaluating the Effectiveness of Current Laws in India from Restorative Justice and Therapeutic Jurisprudential Perspective” TEMIDA (2015) available at https://poseidon01.ssrn.com/delivery.php?ID=122021008084121065086080112121112090046044025046056022093068027006100096097074121014117024102034046124028072122029007068097006026061070069033092006028100085086018003002020023115088068110112070121070090003010017000120011118067113077081007024020005090111&EXT=pdf
5. The Indian Penal Code, 1860 (Act 45 of 1860), s. 354D (2).
6. The Indian Penal Code, 1860 (Act 45 of 1860), s. 503.
7. Pavan Duggal, Cyber Law- The Indian Perspective.
8. The Information Technology Act, 2000 (Act 21 of 2000).
10. Supra note 2.
Anasuya hails from Delhi University and she spends most of her time in Reading, Practising Yoga and Working towards community animal welfare. Her Interest area lies in Intellectual Property Law. For any clarifications, feedback, and advice, you can reach her at firstname.lastname@example.org