Remember our parents telling us about the term “stranger danger” and the risk that we might be exposed to on the internet? Today the youth is facing much more insidious threats to its emotional and mental health with the menace of cyber flashing. Have you ever come across a situation when you were using any of your social media platforms and the moment you log in you inexplicably find yourself accosted by an unanticipated and unsolicited pornographic content? If yes, then you have been “Cyber Flashed”! Many a time cyber flashing is carried out in the disguise of ‘pranks’ via different communication mediums, like the message forwards in WhatsApp accosted in the name of ‘fun’ suddenly start displaying pornographic content or playing sexual sounds. The Zoom bombing meeting fiasco is another example wherein the intruders hijacked the video call and posted hate speech and pornographic content, and it also qualifies as Cyber Flashing.
‘Cyber Flashing’ refers to the act of transmitting and sharing an unsolicited and unwarranted form of media (video, image, GIFs, etc.), which are considered as being obscene and pornographic by the receivers, via the internet or Bluetooth or any other medium.[i] Keeping in mind its psychological impact on the minds of the receiver, it has now turned into a form of ‘cyber sexual harassment’. This is a technology-based crime currently in a legal void. Such an act is not only unwelcomed but derogatory too. The receiver could be any individual or even a child who might not understand the consequences of the acts or might even get mentally disturbed and scared by it.
Situation Amidst The COVID-19
The situation is complex because in the present age when children are rapidly getting acquainted with the technology, they are at the more vulnerable end, and with the present COVID-19 situation keeping us all physically restricted, we are relying on the internet as a medium for our entertainment and necessity even more. The risk of cyber flashing is escalating day by day, more than it ever did. Regardless of the fact that such issues are not easily reported in India because of maybe the fear or embarrassment or lack of faith in the investigation system, there has been no legal development in this sphere to cater this problem.[ii]
Why is it Complex?
Advancement in the technology and the easy availability and access to the internet has without a doubt increased our connectivity by leaps and bounds. However, it has also come at a price as it is creating a plethora of ways for sexual predators to use it as a tool for finding victims for the fulfillment of their sexual hedonism. Continuous advancement in technology is giving birth to new ways of harassment, and the problem is not just that, but also that most of the times such crimes go unreported as they occur digitally and by anonymous sources.
For adults, this type of situation may be discomforting or even frightening given the fact that the offender is though miles away, but only a few clicks close. This creates an apprehension that public spaces are not safe anymore. Children are at the more vulnerable end as they lack awareness of how dangerous such acts could become and are not prepared to mentally fathom the ghastly content being showcased in front of their eyes.
Impact of cyber flashing
Cyber Flashing has turned into a form of online harassment and is causing severe mental trauma to the victim. Sometimes such acts are done by close relatives or friends under the umbrella of prank, but this may still traumatize the end receiver. The threat posed by Cyber Flashing is far greater when it comes to children. Owing to their mental makeup they won’t be able to report these acts to their parents or guardian because of fear of being reprimanded. This can affect the individuals who have faced any kind of sexual abuse in the past or are being subjected to one to a greater extent. It will make it further difficult for them to recover.
This might look like as something that an individual may comfortably avoid by reporting on the social media sites, but that’s not the solution, it is a serious crime and more than mere reporting of such acts we need a law to penalize them.
Legislations dealing with cyber flashing
The IT Act, 2000, deals with cyber-crimes. It has categorically divided crimes under various subheads like cyberbullying, cyberstalking, cyber pornography, cyber flirting, cyber defamation, email spoofing, etc. However, a separate provision for the unwanted display of sexually explicit content does not exist. Hence, the victim’s hesitates more when he is asked to report it. Social websites do have a content blocking option, but we still need a law against this to bring the offenders under the radar. A combined reading of the Indian Penal code and the IT Act provides ways to confront this issue:
Section 292 of IPC classifies such content as ‘obscenity’, i.e. any material which is indecent and is having the capacity to deprave morality in whose shoulders hands it might befall. Section 293 provides for punishment to whosoever is found storing, distributing, circulating or exhibiting any obscene material to a person under the age of twenty years. Cyber flashing can very well come under the ambit of this section.
Section 509 of IPC deals with words, gestures or acts that are intended towards harming the modesty of a woman. Cyber flashing is an act that involves flashing of explicit pictures onto the screen of the victim and is enough to create an apprehension of fear in the minds of women. This law should, therefore, be made gender-neutral.
Section 67 of the IT Act penalizes the act of publication, transmission or causing to be published or transmitted, of any obscene content. ‘Obscene Content’ has been defined as:
(i) One which is lascivious; or
(ii) One that appeals to the prurient interest; or
(iii) One that has the effect of depraving and corrupting persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter.
Cyber flashing, put simply, is transmitting such obscene and explicit content to the victim. There are possession and circulation of the material. Hence, the issue of cyber flashing could be taken into its ambit. Section 67A, which is the extension of Section 67, extends its jurisdiction to the transmission, publication and circulation done in electronic form of the sexually explicit act. Cyber flashing is exactly the transmission of sexually explicit content that is grave enough to shock the moral conscience of the receiver.
CCPCW: Cyber Crime Prevention against Women And Children
The Union Home Ministry has launched a portal named “Cyber Crime Prevention against Women and Children” (CCPCW) where victims can report online sexual abuse, incidents of rape, child sexual abuse content from anonymous sources, etc. It allows us to report the abuse of objectionable content and also provides the victims with counselling. Individuals can freely approach this portal for reporting the cases. It provides for the duty of the state in prevention, detection and investigation of cyber offences through the law enforcement machinery. The online portal to report cybercrime cases has also been made operational.
The current legislation is insufficient and offers unpredictable answers to questions like the offender’s motivation, consent of the victim at private/public places. All this put together makes it difficult for the police and lawyers to understand the situation and is also unsatisfactory to the victims.
Steps That Could Be Taken
The Government must introduce an amendment in the Information Technology Act, 2000, to criminalize ‘image-based sexual abuse’ including all non-consensual distribution and creation of explicit sexual content, pornographic content, including altered images and threat messages. They should also provide for anonymity of the complainant. The cyber flashing law must be made gender-neutral as even the male and transgender persons could become a potential victim.
Education and awareness about such cyber crimes are required for all stakeholders, be it parents, children and even school teachers. Capacity-building should be done. To combat this menace we not only need a law but also need a competent technology to deal with it.[iii]
The frequently changing ways in which we are using technology to communicate is having a massive influence on our lives and that of family. Having a law that penalizes cyber flashing would deter the to-be offenders, thus, paving a way for the creation of a safe and secured online platform for all.
Specific provisions would also act as a tool for the victims to report incidents of cyber flashing and will also provide the authorities with a framework to deal with such offences. Required training and awareness can also be undertaken for the police personnel and other stakeholders to understand the situation better.
[i] Gail Hornor, Child and Adolescent Pornography Exposure, Journal of Pediatric Health Care (March/April 2020).
[ii] Japleen Pasricha, Cyber Crimes against Women & Minorities on Social Media, Feminism in India (2016).
[iii] S.V. Joga Rao, Law of Cyber Crimes & Information Technology Law 215, Wadhwa & Co., Ed. 1 (2004).
The article has been written by Shivangi Pandia
This article was first published in the Blog namely The Criminal Law Blog