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Abstract
Gender harassment through cyberspace has become a common phenomenon in the internet era (CitationCitron, 2009a). But harassment is worsened when victims face further victimization due to denial of justice at the hands of the criminal justice system. Countries such as the United States, the UK, and India have codified laws dealing with cybercrimes and cyber-harassment to protect the victim. Ironically, the same systems pave the way for secondary victimization. CitationCitron (2009b) had pointed out that trivialization of the problems by laws or criminal justice systems further victimize the crime victim. The questions that arise from this are several. Why does the criminal justice system fail to help victims in certain cyber-harassment cases? How are the victims of such crimes dealt with by criminal justice systems and Internet Service Providers (ISPs)? What could be done to end this harassment? This article will try to answer these questions from a comparative perspective of the situations in the United States, the UK, and India.
Notes
1. We call Indian society “orthodox” in comparison to the United States or the UK in light of the social value systems of these three countries.
2. Section 2261A of Title 18 of the United States Code penalizes cyber-stalking as much as physical stalking, with imprisonment for a minimum one year period.
3. Section 1801 of Chapter 88, Part 1 of Title 18 of the United States Code penalizes video voyeurism and the distribution of the same.
4. The First Amendment states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
5. Section 230, Title 47, Chapter 5 (II) Part I. For more see http://www.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000230----000-.html.
7. See security offered by Facebook at http://www.facebook.com/photo.php?pid=1265554&id=1059698882&ref=fbx_album#!/help/?page=420; safety and security offered by Orkut at http://www.google.com/support/orkut/bin/answer.py?hl=en&p=Home&answer=48579; privacy and security tips offered by MySpace at http://faq.myspace.com/.etc.
8. Such as extremist remarks, remarks on religious beliefs, and comments on racial bias, which are already established as crimes by the EU convention on cyber crimes.
9. Section 230 of the CDA also provides immunity for ISPs.
10. For a better understanding, see the privacy and security column of Gmail available at http://mail.google.com/support/bin/topic.py?hl=en&topic=12784; safety and security offered by Yahoo! at http://info.yahoo.com/privacy/us/yahoo/security/; privacy and security offered by Hotmail at http://privacy.microsoft.com/en-us/fullnotice.mspx etc.
11. Several laws including the Computer Misuse Act of 1990, the Protection from Sexual Harassment Act of 1997, the Communications Act of 2003, the Telecommunications Act of 1984, the Malicious Communications Act of 1988, and the Equality Act of 2010 are used to prevent and protect cyber gender harassment cases.
12. See Section 1 of the Protection from Sexual Harassment Act of 1997. It provides that a course of conduct could be termed harassment when it amounts to unwanted and repeated communication with another, and the harasser knows that it is harassment to the victim. Furthermore, Section 4 of this provision adds the “fear factor” which makes the course of conduct punishable.
13. By “sexual harassment” we indicate the general practice of using offensive communication or degrading remarks with the purpose of sexually harassing or creating a threat to commit physical harm to someone.
14. The Protection from Sexual Harassment Act of 1997 is more often used to prevent stalking. For more, see http://www.telegraph.co.uk/news/uknews/law-and-order/8413547/Just-one-in-12-suspected-stalkers-prosecuted.html.
15. Section 67 of the Information Technology Act of 2000 penalized publishing or transmitting any material which (1) is lascivious or appeals to the prurient interest or (2) if its effect is such as to tend to deprave and corrupt persons.
16. Available at http://cybercrime.planetindia.net/it-act-2008.htm.
17. Such immunity is not available when the ISP either knowingly abets the crime or conspiracy or fails to practice due diligence.
18. See Section 79(2) of the Information Technology Act of 2000 (amended in 2008). We have used the term “provided” to signify the third party, which holds the power to withdraw the information.