PRIVACY ISSUES & ITS ECONOMIC SIGNIFICANCE IN THE REALM OF CYBER DEFAMATION, BULLYING AND TROLLING

Meghna Vij & Aniket Dutta, 5th Year B.A. LL. B (Honors), School of Law, CHRIST (Deemed to be University), Bangalore

ABSTRACT

Cyber Defamation, Cyber Bullying and Trolling are different genres of online hostility and cyber harassment; be that as it may, research still cannot seem to survey the concrete relation of the same with the privacy legislations and economics which is what this paper is intended at establishing. Trolling implies a making of strife on the web by use of oppressive unwanted language, prone to fight with an expectation to increase modest exposure and such actions promote Cyber Defamation and Cyber Bullying, thereby contravening the basic privacy rights of the victims. Privacy violation in cases of cyber harassment is punishable only to the extent of posting the images of private areas, of the victim by the troll as per Section 66E of The Information Technology Act, 2000 while other privacy violations still remain in the grey. The increased proximity of people on different online platforms and forums is also a result of the “Crab Mentality”, where people decide to become judges of other people’s lives, actions and achievements and try to pull them down. Even though such incidents can be reported to the appropriate authorities the overall cost to benefit ratio stands unbalanced. The harm caused, that is the cost incurred is not proportional to the remedy provided (benefit derived) to the victim through directive actions such as taking down the defamatory content or imposing a fine or imprisonment for bullying and trolling. This paper attempts to analyze the jurisprudential and contemporary relevance of the cyber security mechanisms against cyber defamation, bullying and trolling on the touchstone of privacy legislations and its significant economic impacts thereby pursuing to find out an amicable or efficient remedy to the victims of such offences.

Keywords: Privacy, Jurisprudence, Economic Analysis, Cyber Crimes, Trolling

INTRODUCTION The era of the 21st century can correctly be referred to as the era and age of technology and its advancements. Given the expeditious growth in the connection and communication scene achieved by participative Internet use and web-based media, it is imperative to build up a better and effective legal system to deal with the contraventions that come with it and also to build a comprehension of these advancements. With such rapid advancements in the realm of social media comes with it equal amount of violations of individual privacy owing to the unquestionable existence of Cyber Defamation, Cyber Bullying and Trolling. Cyber Defamation, Bullying and Trolling are all closely related but vicious forms of Online or Cyber Harassment.

Defamation has been defined under the Indian Penal Code, 1860 and is said to be done by whoever when “whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person”[1] When the same is done on an online platform, it becomes cyber defamation. The laws relating to the same have been defined in a limited scope which shall be discussed in the further part of the paper. When it comes to Cyber Bullying, there is no statute that defines the same but in an attempt to define the same, Cyber Bullying can be referred to “as an act or conduct so forceful coupled with intention that is completed by an individual or a group of individuals, utilizing electronic types of contact, consistently and after some time against a person who can’t safeguard oneself.” Trolling too has not found its definition in the codified law of the land but can be defined as an act or acts made of strife on the web by use of oppressive unwanted language, prone to fight with an expectation to increase modest exposure. All the above stated forms of Online Harassment lack the support written law and hence the contraventions only increase in number. At this outset, it is required that an ex-ante approach is formulated so that the social norm with respect to infringement of privacy transitions.

CYBER HARASSMENT: AN UNDEVIATED VIOLATION OF THE RIGHT TO PRIVACY

Article 21 of the Indian Constitution states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.[2]” The said Article takes into its ambit various rights to ensure and guarantee all the citizens of India a right to a dignified life. This includes the fundamental Right to Privacy which was adopted to be a fundamental right as per the judgement given by the Hon’ble Supreme Court in the case of Justice K.S. Puttaswamy v. Union of India.[3] It could be understood from the judgement that the Right to Privacy is such that it protects one's opportunity to settle on close to home decisions and control huge parts of their life. Likewise, it noticed that individual affections (marriage, multiplication and family), including sexual direction, are at the center of a person's dignity. However, despite the judgement given in favor of Right to Privacy, the legislators failed to come up with any specific law to protect the said right in an online sphere.

The internet and more so the social media can be defined as ‘Anonymity.’ Anonymity forms the basic foundation of the greater part of Cyber violations. It allows users around the globe to undertake such act or acts that they might not undertake under their real identities. It deletes any amount of accountability which might otherwise exist thereby making it easier for wrongdoers to commit act or acts of cyber harassment. The Internet’s diminished capacity for accountability has bred small but powerful communities of Internet trolls.[4] A considerable lot of the most vindictive practices with regards to cyber harassment fall beyond the four customary privacy misdeeds: Intrusion into isolation; misappropriation; public disclosure of private facts; false light. However, the current law fails to provide the required adequate relief to the victims of such harassment. The online sphere has unfortunately become a sphere where exists the monopoly of communities comprised of cyber bullies and cyber trolls. The Internet trolling network is hard to characterize and considerably hard to control, since these communities are fanatical about keeping their seclusion and anonymity intact. Owing to their nearby relationship with savvy programmers and hackers, these communities will in general be shrewd Internet users and significantly more capable at securing their own individual privacy than normal Internet users would. The acts so committed by such communities include stalking, defaming, abusive trolling, identity theft and much worse and because of a well-defined programme of anonymity it become all the easier for them to commit the said acts. With regards to the online sphere, the more the law needed for adequate implementation of the right to Privacy, the less the law is enacted. The current set of legislations protect privacy of the users of the internet only to a generalized basic extent under the Indian Penal Code, 1860 and the informational Technology Act, 2000. These legislations include-

- Section 507, Indian Penal Code, 1860: The Indian Penal Code, 1860 under the said section prohibits Criminal Intimidation by an anonymous communication[5]. The section uses the word, ‘anonymous’ thereby including within its ambit the scope of cyber bullying and cyber harassment.

- Section 509, Indian Penal Code, 1860[6]: The Section protects the modesty of the women and prohibits any act or acts done by an individual or a group of individuals in violation of the same. The said section takes into its ambit the part of privacy violation on the internet that violates a women’s modesty.

- Section 354D, Indian Penal Code, 1860[7]: Section 354D provides protection to women against stalking and is meant to include stalking that arises out of a virtual sphere i.e., the Internet and the same provides for the punishment of the same.

- Section 66E, Information Technology Act, 2000[8]: The section penalizes any person who intentionally violates the privacy by transmitting, capturing or publishing private pictures of other individuals thereby protecting privacy of individuals to the extent of transmission of private photos.

- Section 67, Information Technology Act, 2000[9]: The said section provides for punishment to whoever transmits or publishes or causes to be published or transmitted any material which is obscene in electronic form but however does not speak about defamation or bullying per se.

The above legislations have deeply envisaged issues when implemented in case of privacy violations that occur over the internet. Firstly, the above-mentioned provisions do not explicitly mention Cyber defamation, Cyber Bullying or Cyber Trolling or for that matter their effect on the privacy of web users. The provisions hence lack explicitness and specificity. Secondly, most of the provisions protect privacy violations only to the extent of circulation of private pictures and sexual harassment of sorts and conveniently ignore other kinds of privacy contraventions that exist on the web like daily rampant culture of trolling which becomes the reason of devastating mental health issues to infinite number of users. Thirdly, it is essential to take note of the fact that most of the provisions lack Gender Neutrality making it almost impossible for the men to avail a remedy in cases of gross privacy violations suffered by them over the internet on a daily basis. The Social Media transfer individual information and substance as well as pictures, melodies, recordings, short films, and so on. Such pictures, recordings, and different things can be labeled. Hence, it is fundamental to secure such substance and its goal in entirety by this person to person communication to guarantee privacy.

LAWS GOVERNING CYBER DEFAMATION, CYBER BULLYING & TROLLING: AN INTERNATIONAL PERCEPTIVE

India was a colony of United Kingdom for over 200 years and various Indian legislations still remain the ones as implemented by the British legislators over the span of those years. The United Kingdom hence was be an appropriate choice of country to compare any given set of Indian Legislations. The United Kingdom Law with regards to various forms of Cyber harassment is much more efficient when compared with the existent Indian Law. One of the most important legislations in this regard would be the Malicious Communications Act, 1998. The legislation aimed to manage 'poison pen' letters, and was presented as a Private Member's Bill in 1988 observing the Law Commission's 'Report on Poison-Pen Letters’. The provisions of the said Act broadly prohibit any person from sending to another person a message, letter, comment or anything of such a nature that is indecent, grossly offensive, obscene or threatening/menacing and intends that the message would cause the recipient distress or anxiety. The Act expressly has been applied in terms of the web and electronic media. Furthermore, the act essentially takes note of the distress and anxiety which are mental health issues that arise owing to various forms of Cyber Harassment and penalize any such acts over the internet including comments and trolls that cause the said mental health issues. In a comparison with the Indian laws, it can correctly be stated that the Indian law blatantly ignores the mental health issues that arise out of online harassment.

Another key piece of legislation in this regard is the Protection of Harassment Act, 1997. The legislative intent behind this act is to secure and protect any victims of harassment. It aims to engulf in its ambit- alleged stalking, racial provocation, or any kind of social conduct by neighbors. This act too applies to the web-based harassment and explicitly includes the same.

Additionally, to tackle the issue of anonymity that exists on the internet as discussed in the previous part of the paper, The Regulation of Investigatory Powers Act, 2000 was implemented followed by the Electronic Communication Act, 2000. Prior to the implementation of the act, the anonymity of wrongdoers stood as a barrier in prosecuting such persons for the act or acts so committed by them. The Electronic Communications Act 2000 (ECA) followed the enactment of the Regulation of Investigatory Powers Act, 2000 was a novel regulatory regime to allow documents signed electronically and equated the validity of the same to the printed ones. The technology legalized under the Act is based on an EU directive, called ‘advanced electronic signatures’, is a common part of desktop packages such as AdobeReader. Such signatures, if used with websites could offer a more effective means of pre-venting online abuse, even permitting anonymity, if that digital signature was registered with a provider.

Furthermore, the Communication Act of 2003 was enacted to provide additional protection to the victims of online harassment. Communications Act 2003 preceded the introduction of social media such as Facebook (2004) and Twitter (2006). It was after the introduction of these social media networks that the number of trolls and bullies increased. United Kingdom while implementing the act was far in its vision to safeguard its citizens from Cyber Harassment by enacting the said legislation before the number of contraventions went up. The said Act makes it a punishable offence to send a message that is grossly offensive or of an indecent, obscene or menacing character over a public electronic communication[10] network which means that the said provision is an un-deviated measure of protection provided to the citizens of the United Kingdom against trolling.

The Indian law makers in comparison to the United Kingdom legislators have considerably ignored the laws so needed to prevent Cyber Harassment.

MEDIATISATION OF ECONOMY AND THE IDEAL STRUCTURE OF JUSTICE

The basic idea of mediatization alludes to the fact that when social development takes place, communication is differentiated through the new media into various diverse forms. In such framework, it is not the media that plays the active role but it is the people and their ways of dealing with media. These changes are incorporated by including media more and more in everyday actions and processes that are carried out by the people for whom the changing dimensions in media present better communicative possibilities and potentials. In the language of media economics, mediatization has several significant implications. It brings with itself new avenues of value addition to the existing media-related structures, in the form of storage of knowledge, selection and processing of information, convergence and the most important element, that is access to the said database. Although, it may appear that it takes the role of the coordinator of a value-chain network by adequately allocating the required resources or information, it becomes necessary to analyze the other side of the same coin, that is the conflict between this equitable distribution resources and the ideal meaning of justice.

The equity theory is focused on determining whether the distribution of resources is fair to both relational parties whereas, justice, often identified as the superset to the equity theory deliberates more upon the moral nature of an action. John Rawls shaped the idea of justice by stating in his work A Theory of Justice[11] that the action should be socially ‘just’ and ‘fair’. In the contemporary world, people often tend to make decisions following the cost-benefit approach. For example, in case of cyber-crimes, the punishment prescribed is that of the traditional character, meaning, either imprisonment or fine. No court has ever given a verdict directing that the said wrongdoer will not be allowed to access internet ever in their life probably because such a punishment is deemed extreme (cost is too high) in terms of the wrongful act committed. It would be interesting at this point to analyze the feasibility of such a remedy. The efficacy of the traditional remedy for the complainant would be good enough if the wrongdoer is punished with imprisonment. In this case, the assertion that access to internet to be taken away from the wrongdoer holds good since he will not have access to a mobile phone or computer in the jail but what is the guarantee that the said person will not repeat the same mistake?

One of the possible economic solutions in this scenario would be to follow the model of relationship between demand and price. As the principle of demand says, higher the price of a product, lesser quantity of it will be demanded. Similarly, in the present situation, higher the severity of punishment for such offences, lesser instances of such crimes will be reported as the deterring factor will be more powerful. The law as it exists fail to address this outcome. For instance, Section 500 of the Indian Penal Code provides for punishment for defamation and it is “imprisonment of two years or fine or both”[12]. Let us suppose that in addition to the given punishment, if the clause ‘no access to internet’ is added then in that case, how different will the situation be?

The above position can be analyzed through Amartya Sen’s capability approach[13]. The theory is based on the dilemma as presented in the above discussion, that is, whether the pursuit to fulfil one’s own interests result in social welfare or does it destroy the bonum commune?

The answer lies in the perception of the Legislature in identifying the severity of the said crime. Offences relating to body are often punished with a death penalty but offense such as cyber defamation, cyber bullying or trolling are either not defined or are inadequately punished. The quantum of harm inflicted in these kinds of wrongful acts is relatively proportional to severe offences like murder. Compared to the severity of the offence of Murder under Section 302 of the Indian Penal Code, 1860, the punishment for which can even be death penalty; the severity of offence of cyber defamation, cyber bullying or trolling can be nothing less. In the former scenario, the life of an individual is taken away whereas in the latter, the life of an individual is subjected to a reputational risk. Reputational risk refers to chance of a loss due to some damage or a decline in one’s reputation. For instance, in terms of information technology, when a retailer experiences a security incident in which an attacker publishes their customer’s private information such as name, address or credit card details. Such a person may face severe drop in sales as customers close their accounts or avoid their website. Another example for reputational risk would be revenge porn in which distribution of sexually explicit content with or without the consent of the concerned individual may take place. Billy Graham rightly stated, “...when character is lost, everything is lost”. Character is subsumed under reputational risk and any harm inflicted upon it, be it personal or business character, would have deteriorating consequences in an individual’s current as well as future life. The aim here is to comprehend the seriousness of these wrongful acts in light of its negative externalities that may arise if the same is not attended to by the Legislature and codified into a fool-proof legislation.

Unless and until lesser identified wrongful acts such as cyber bullying, trolling and to a certain extent cyber defamation are not codified and penalized, the path to justice will be surrounded by mist. However, one must ask as to what makes the nature of these wrongful acts so severe?

EMERGENCE OF CRAB MENTALITY

The victims of cyber defamation, cyber bullying and trolling undergo social media character assassination. Unlike the offences against body of a person, the vulnerability of such act does not affect the victim physically instead it takes a toll on the victim’s mental health. The term ‘mental health’ has been comprehensively defined by the WHO and a significant observation is that, “there can be no physical health without mental health”[14]. Thus, any harm inflicted upon the mental health of a person is bound to have a direct impact on the physical health of that person. This is where it becomes pertinent to analyze the involvement of crab mentality as a contributory element to the deteriorating mental health of victims of such wrongful acts. It identifies with the crab bucket syndrome. It refers to the fact that a lone crab can climb out of a bucket but when there are more crabs in the same bucket, they try to pull back those who try to escape. The reason is that crabs did not evolve in buckets, instead, they evolved on seashores where clinging to others promoted survival. A crab is not consciously trying to hold back its mates. It is not consciously trying to save them either. It is just repeating a behavior that was naturally selected for. Man is a social animal and has survived so far by adhering to the norms set by the general society. People care urgently about social position despite their best intentions and it works alike for everybody around those people. The mammalian urge for social importance is obvious and is what gives rise to the ‘crab mentality’.

For instance, victims of revenge porn are likely to build more mental stress by assuming what the society will think or talk about them. The ‘social normalisation’ forces them to think in this way. The increased proximity of people on various virtual platforms have made cyber defamation, bullying and trolling a normal whereby people discuss about the victim’s tragedy openly with or without an ill intention which jeopardizes the privacy of the victim. Humans have evolved over a set up in which they can freely express and exchange views, they may or may not mean harm to another’s reputation or personal life but it is simply repeating a behavior that was naturally selected for. This is referred to as the ‘crab mentality’.

At this juncture, it becomes necessary to appraise the crab mentality behavior. It can be understood by relying on the ‘Law of Diminishing Marginal Utility’. This law states that as and when a person consumes more and more units of a commodity the satisfaction derived from consumption of per additional unit goes on diminishing. The alternate implication of this law is that when the resources are limited, people tend to utilize them for prioritized manner. For example, if there is limited water available then a person might at first save water for drinking and then for gardening. Social media gossip is something that can seldom be restricted. However, not having laws governing such platforms to prevent the privacy from getting infringed is something required to be looked upon.

The above position needs to explained keeping in view the severity of punishment that is required for infringing someone’s privacy in the virtual world on one hand, and on the other hand, the satisfaction derived by the perpetrators by socializing others’ lives. Certainly, if there is no law in place governing the same then the perpetrators may do as they please, however, if a codified law is enacted to govern such aspects then maybe, the number of such instances will decrease as the sanction imposed will have diminished utility (satisfaction).

To critically examine the theory of diminishing marginal utility the above graph can be referred to. In the graph, X-axis denotes the ‘quantity/ severity of punishment’ to be prescribed by the state so as to optimally reduce the incidents of cyber-crimes. Y-axis denotes the ‘marginal utility or satisfaction’ derived by the perpetrators of cyber-crimes by committing such crimes. An immediate observation of the diagram shows that lower the severity of punishment (Q0) higher is the satisfaction from doing it whereas, the satisfaction is lowest when the severity of punishment is highest (Q2). The benefit of an economic analysis of law is that they come with the solutions to the problems posed. Severe crimes have always been dealt with a form of severe punishment. This theory implies that when other members of the society make a perpetrator suffer so much from the punishment then it would deter the same crime from happening any further. Thus, the satisfaction derived from committing cyber-crimes should be converted into suffering for the person planning to do it. However, the goal should not only be to put a deterrence effect but bringing about an absolute change in a person’s approach towards respecting the privacy other individuals.

CONCLUSION

Although the approaches to cure the given situation would be limited but that should not stop one from reflecting upon it. The utmost need of the hour is to have a comprehensive legislation that incorporates cybercrimes that can have a direct or indirect impact on a person’s health. Offences like cyber defamation, bullying and trolling exist mainly because of the crab mentality which is deep rooted in the society, hence, the minimum efforts one can put is to respect another individual’s privacy. It should be incorporated as a subject in the school curriculum so that the importance of privacy is understood from a young age and the social norm changes. The aimed legislation must also address the aspect of mental health. All of it should be regulated by appropriate authority and the penalty provided should be proportional enough to the harm suffered by the victim of such offences.

[1]S. 499, The Indian Penal Code, Act no. 45 of 1860. [2] Ind. Const, Art 21. [3] Justice K.S. Puttaswamy v. Union of India; (2017) 10 SCC 1. [4] Zizi Papacharissi, The Virtual Sphere: The Internet as a Public Sphere, 4 NEW MEDIA & SOC’Y 9, 26 (2002), available at http://tigger.uic.edu/~zizi%20/Site/Research_files/Virtual Sphere.pdf. [5] S. 507, The Indian Penal Code, Act no. 45 of 1860. [6] S. 509, The Indian Penal Code, Act no. 45 of 1860. [7] S. 534D, The Indian Penal Code, Act no. 45 of 1860. [8] S.66E, The Information Technology Act, Act no. 21 of 2000. [9] S.67, The Information Technology Act, Act no. 21 of 2000. [10] S. 127, Communication Act, 2003. [11] John Rawls, A Theory of Justice (1971). [12] S. 500, The Indian Penal Code, Act no. 45 of 1860. [13] Frediani, Alexandre Apsan. "Sen's Capability Approach as a Framework to the Practice of Development." Development in Practice 20, no. 2 (2010): 173-87. Accessed October 30, 2020. http://www.jstor.org/stable/27806685. [14] Mental Health, National Health Portal, https://www.nhp.gov.in/healthlyliving/mental-health#:~:text=World%20Health%20Organisation%20(WHO)%20has,to%20her%20or%20his%20community.