The gross misuse of Section 66A of the Information Technology Act, 2000 led to its striking down by the Supreme Court. However, that has meant that India is left without a law to deal with online trolling, leading to tragic consequences such as the death of artist Priyanshu recently.
PRIYANSHU, a self-taught makeup artist and social media influencer from Ujjain, India, boasting a following of over 23,000 on Instagram, previously shared content related to makeup, beauty, and skincare.
The Diwali reel shared by the artist, showcasing a transition video in a red sari, was bombarded with homophobic hate comments, leading to the artist tragically taking their own life.
This is not the first such occurrence, and given the times we live in, it is unlikely to be the last. The Journal of Public Health published a study discussing the suicide of LGBTQI+ persons between January 2011 and January 2021 and noted that social stigma was the most common factor associated with LGBTQI+ suicides in India. More than half of the suicide victims (54.5 percent), were suffering from psychosocial stress.
There is a lack of dedicated legislation addressing cyberbullying against the LGBTQI+ community in India. While the Supreme Court of India has recognised the plight of the LGBTQI+ population, there exists a notable gap when it comes to constructive measures.
The silence in Indian law
India has an anti-troll law in the form of Section 66A of the Information Technology Act, 2000 that targeted individuals posting “offensive content” on the internet.
However, in the 2015 case of Shreya Singhal versus Union of India, this law came under scrutiny for allegedly infringing upon the right to freedom of speech guaranteed by the Constitution. The Supreme Court, in its ruling, emphasised the supremacy of freedom of speech and, as a result, annulled the provision.
There is a lack of dedicated legislation addressing cyberbullying against the LGBTQI+ community in India.
Nevertheless, unrestricted freedom of online expression in a culturally and politically sensitive nation has led to significant socio-political problems in recent times.
In fact, the Supreme Court itself, in October 2020, declared that the right to freedom of speech is the “most abused right” in India. The judicial intent behind such a judgment was the potential misuse of the said law, however, a less problematic and more effective law has not been instituted as a replacement. As a result, victims are left without a proper remedy in addressing such issues.
Despite assurances from Rajeev Chandrasekhar, the Union Minister of Electronics and Information Technology, regarding the introduction of a law to tackle trolling in December 2022, no such legislation has been enacted yet.
The Union government can take a cue from the governments in the United Kingdom and Australia, where such anti-trolling Bills have been introduced to tackle the menace of online harassment.
Law in the United Kingdom
In 1988, the United Kingdom implemented the Malicious Communication Act (MCA) to combat offensive online content. Subsequently, in 2003, the country’s Parliament expanded the reach of the 1988 Act through the Communication Act.
The initial intent of the MCA was to curb the dissemination of malicious printed materials, but its application has been broadened to encompass problematic electronic communications.
The MCA can be employed to bring charges against individuals for remarks made on social networking sites that are deemed racially or religiously “motivated”.
The Union government can take a cue from the governments in the United Kingdom and Australia, where anti-trolling Bills have been introduced to tackle the menace of online harassment
This has led to the establishment of the Office of Communication (OFCOM), which established guidelines for lawful online communication. Section 3 of the OFCOM Code extended protection against online hate, offence and threats.
Individuals engaging in online trolling may face charges under Section 1 of the MCA and Section 127 of the Communication Act. These legal provisions criminalise online threats, hate speech and indecent messages.
Most notably, in the case R. versus College of Policing, Harry Miller, a former police officer, faced police scrutiny after posting tweets expressing gender-critical and transphobic views.
Unrestricted freedom of online expression in a culturally and politically sensitive nation has led to significant socio-political problems in recent times.
Humberside Police labelled the tweets a “non-crime hate incident”. Miller sought a judicial review, where the court ruled that recording non-crime hate incidents based on speech was not an interference with freedom of expression.
Drawing inspiration from international models, such as the United Kingdom’s Malicious Communication Act and Communication Act, India could benefit from a legal framework specifically addressing online hate, threats and offensive content. In the face of rising cyberbullying incidents, it is imperative for India to enact a comprehensive legislation, learning from global experiences, to provide a robust legal recourse for victims and foster a safer online environment.