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Here’s How Derek O’Brien Proposes to Amend the IT Act to Criminalise Crimes Against Women Online

The private member’s bill, among other things, proposes a provision for victims or investigating officers to seek injunctions against the accused, preventing the spread or deletion of offensive information online.

A new private member’s bill moved in parliament last week proposed amendments to India’s Information and Technology Act, 2000 (IT Act), to criminalise threatening women online with intimidation, through acts like sexual assault, caste-based abuse, and more.

Introduced by Trinamool Congress Rajya Sabha MP Derek O’Brien, the bill also confers victims or investigating officers with the right to seek an injunction against the accused to prevent them from disseminating or deleting any offensive information they may have. Applications for the injunction, which can only be requested in the case of specific crimes under the IT Act, should be decided by a jurisdictional magistrate on the same day.

“Women’s autonomy of free speech and action is often curtailed by threats, abuse and actions designed to make women feel insecure and uncomfortable in the public sphere, particularly on the internet,” the bill’s statements of objects and reasons observed. “Those who would seek to silence women in this manner use their purported anonymity to further their nefarious intentions. This is driven, at least in part, by a misapprehension that the law will not catch up with them.”

A quick refresher on private members bills: Bills introduced by ministers are known as government bills. Bills introduced by private members (who are members of parliament, but not ministers in the government) are known as private member’s bills.

The proposed amendments

Threatening a woman to express/refrain from her opinion: This newly proposed provision punishes various acts committed against a woman to intimidate her, or discredit her, or force her to express or state a certain view or opinion, or force her to refrain from expressing a view or opinion.

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The various acts mentioned include threatening physical violence against a woman or her family or her property, threatening sexual assault, threatening to reveal her personal information (including location, place of work, or relevant details that can be used to physically or mentally harm her), and threatening to spread false information about her. Other punishable acts used to threaten a woman include questioning a person’s citizenship or claiming their disloyalty towards India, false prosecution, and abuse based on caste, sexuality, or religion.

The bill also proposes new definitions be inserted into the IT Act to help execute this section:

  • False information: Information that is verifiably false, defamatory or “of such a nature as to not be verifiable”;
  • Family: “Any person related by blood or marriage or adoption”;
  • Physical violence: “Assault, simple hurt, grievous hurt, kidnapping, abduction, attempt to murder and murder”;
  • Sexual assault: “Rape, molestation or any act which violates the bodily integrity of a woman”;
  • Threat: “Any expression through word, sound, gesture or any audio-visual communication whatsoever of an intention to cause harm, alarm, intimidation or harassment or for incitement of harm, alarm, intimidation or harassment by any person”;
  • Woman: “Any female regardless of age.”

Fines imposed on the offenders as punishments under this section will be paid to the victim as compensation. First-time offenders will face a maximum punishment of three years (presumably of imprisonment, although this isn’t specified in the bill), or a maximum fine of Rs. 50,000. Second-time offenders face a maximum punishment of seven years (presumably, imprisonment), and a fine of up to Rs. 4 lakh. Third-time and subsequent offenders will face a maximum punishment of 10 years (presumably, imprisonment), and a fine of up to Rs. 10 lakh.

If any of the threats mentioned above are actually carried out by the person making them, or a third party incited by them, then the punishment is 10 years imprisonment and a fine of up to Rs. 10 lakh.

Granting injunctions against deleting or sharing media on offensive acts: The victims of specific offences under the IT Act, or the investigating police officer, have the right to approach the jurisdictional magistrate to grant an injunction (or stay order) against the accused (or anyone else) from deleting any offensive texts, images, audios, videos, or other material. They can also request an injunction prohibiting storing, retransmitting, or repeating the offensive material.

The IT Act has various provisions protecting against sexually coloured offences—and this proposed provision applies to five specific crimes. Section 66E criminalises violating the privacy of an individual, while Section 67 punishes transmitting obscene electronic material. Section 67A punishes transmitting obscene electronic material of sexually explicit acts, while, Section 67B punishes transmitting electronic material of children performing sexually explicit acts.

If inserted into the IT Act, O’Brien’s new provision on threatening women (mentioned above) would be termed Section 66G, and the injunction provision would apply here too.

Applications made for the injunction should be decided on the same day—but the magistrate can dispose of the case within seven days provided that the reasons for this decision are recorded. Magistrates will grant the injunctions without issuing notice to the accused if they’re satisfied that a prime facie offence has been made out under the five sections made above. In such cases, the magistrate’s order will also be served to “any person, company, organisation or entity”, in compliance with the IT Act. Further, orders passed can be subject to revision, as per Section 397 of the Code of Criminal Procedure, 1973.

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Writing on the need for this facility in the bill’s statement of objects and reasons, O’Brien said:

…An effective and easy mechanism has to be available to women to ensure that offensive material is scrubbed quickly and effectively from the internet. Mere punishment of the offender does not protect the victim who may be subject to distress due to the continued existence or transmission of abusive material against her. As such, the facility of obtaining an order of scrubbing such material from the internet is a very necessary one for women who are so targeted on the internet, social media or other digital fora.

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