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Law in the time of #MeToo

Payel Majumdar Upreti | Updated on October 19, 2018

Fact check: In the wake of the #MeToo allegations sweeping through the media, women journalists protest in New Delhi demanding greater accountability from organisations   -  RV MOORTHY

Are accusations of sexual harassment expressed on the internet legally viable?

Across the world, women are raising their voices against sexual harassment. The #MeToo movement has hit India, too, with fingers being pointed at a host of men, many of them in the media and entertainment industry. But are these accusations — mostly expressed on the internet — legally viable?

Ever since the Information Technology Act, passed by Parliament in 2000, social media has also come under the realm of electronic evidence. Pavan Duggal, advocate and cyber law expert, stresses that evidence found on social media sites is admissible in court. But it has to be attested by someone who is seeking to present it as evidence.

“As long as a certificate is produced, along with such evidence that verifies its authenticity, it is admissible in court as evidence, and is at par with any other kind of physical evidence,” he says. Since matter can also be erased from these sites, “stakeholders” have to “capture it, either as a physical copy or a digital one, at the appropriate time,” he says.

In a landmark judgement in the Shreya Singhal vs the Union of India case, the Supreme Court read down Section 79 (3) and Rule 3 (4) of the Act. Singhal had filed a petition in 2015 after charges were levelled against Internet users for their political comments or cartoons in various instances. In the case, the court struck down section 66 A of the IT act (2000), which put restrictions relating to online expression. The section earlier made it a punishable offence to post information that could be interpreted as offensive or threatening through a computer or other communication device.

But while it underlines freedom of expression, there is a flipside to this. Now, social media companies such as Facebook and Google are not bound to remove content on the request of a cyber crime victim if they choose not to. The victims have to approach the court and get an order to have such content removed. This may adversely affect people who have been subjected to cyber bullying or online sexual assault and want some specific content to be deleted. Since the social media companies work according to their own local laws, they can refuse to abide by Indian legal requests. For the victim, legal recourse may translate into years of litigation.

It has been argued that those speaking out as a part of the MeToo movement are ignoring legal frameworks already in place to redress such complaints. Last year, when some academics were accused of sexual misbehaviour on social media sites, a group of women — activists, lawyers and teachers — had rued that the movement on the Internet was bypassing the law. But the Internet is an enabling platform for women, argues Mumbai High Court lawyer Rutuja Shinde, who has offered legal help to victims who have taken to Twitter to voice their complaints.

“With the development of social media, it is difficult to censor anyone who chooses to use it to get justice. What the movement has done is build a sense of solidarity, encouraging more women to share their stories and seek justice. It has also started a dialogue on sexual harassment. In that sense, there are many positives to the movement,” she says.

In some situations, many argue, the law harasses more than it helps. They cite the case of former minister and editor MJ Akbar who has slapped a criminal defamation suit against journalist Priya Ramani, who had accused him of sexual harassment. Senior journalist Seema Mustafa has described the minister’s move against an “ordinary” citizen akin to “bludgeoning a butterfly”.

Shinde, however, believes that a defamation case gives a fair chance to someone fighting for their innocence in court. To prevent a defamation case, it is imperative to ascertain that the allegations people level on another person are true to the best of their knowledge, and what has been written on a public forum is of public interest. It means a #MeToo participant has to make sure that the charges are not false, and that airing them in public has a larger social purpose.

It is mandatory for companies to have an internal complaints committee (ICC) in place to deal with issues of sexual harassment at the workplace under the law. Decisions of the ICC, if unsatisfactory, can be challenged in court. For people working in the unorganised sector or freelancers, there are guilds and associations that are expected to fight on their behalf. The Cine & TV Artists Association (CINTAA), for instance, sent a show-cause notice to actor Alok Nath after he was accused of rape by a television script writer.

Duggal sees social media allegations in a positive light, for he believes the internet is not as intimidating as the courts. “Victims hindered or intimidated by the legal process can use technology to facilitate justice,” he says.

The internet and technology age has been a disruptor in many aspects, and the law is being affected as well. As public sentiment for the movement builds up, it is necessary to look at why women and men are choosing the internet in the first place to level charges of a serious nature. The low conviction rate for crimes against women is one of the reasons. According to National Crime Records Bureau data, the year 2016 recorded the lowest conviction rate (18.6 per cent) in a decade.

When the redress system is not listening, why not turn to the public?

Payel Majumdar Upreti

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Published on October 17, 2018
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