Author: Swasti Sonar, Tezpur Law College

This research paper analyses the developing concern of cyberstalking and online harassment in our country, specifically aiming at the weaker sections of our society, i.e., women and underrepresented groups who are generally more unsafe on online platforms like social media and messaging apps. It scrutinizes our current laws, and the new criminal law Bhartiya Nyaya Sanhita (BNS) 2023, which deals with these rising cyber risks.  The Main focal point is Section 78 of the BNS, which precisely explains cybercrime and imposes a severe punishment. The study focuses on the qualitative legal research approach, i.e., it examines real-life court cases, legal texts, articles from experts, and crime statistics from the National Crime Records Bureau (NCRB) rather than interviews or surveys. It also reviews Artificial Intelligence (AI) and how it acts as a double-edged sword, as criminals use it to generate forged photographs and videos or steal the identity of others, at the same time, it is also used by cyber police to identify and trace online crime.

This research discloses that although the current law reforms are a concrete approach, several threats persist, like ignorance of laws, police lack of proper training, and fear of community humiliation. This research concludes that stronger enforcement, public awareness through education, moral use of AI, and improved victim assistance are crucial to fight online crime efficiently.

Keywords

Cyberstalking, Online Harassment, Informational Technology (IT), Indian Penal Code (IPC), Bharatiya Nyay Sanhita (BNS), Artificial Intelligence (AI)

As an online social culture flourishes in our country, online crime is taking place frequently on a regular basis. These digital platforms unite people; however, dependency on technology and increased use of cyber platforms over the period, has seen an increase in cybercrime rate, such as digital stalking, where miscreants regularly forward undesirable texts, and online harassment such as blackmailing, offensive texts, leaking of private videos or pictures against one’s will, stealing the identity of others, or publishing misleading details. Victims specifically from weaker sections of our society, i.e., children and women, and from marginalized groups, i.e., LGBTQIA+ persons, usually stay quiet either due to a lack of knowledge of their rights or in fear of social stigma. Although laws are formed to deal with cybercrime, law enforcers lack proper training to address it, due to which cyber miscreants remain enlarged.  The growth of AI has made cyberbullying a nuisance worse. Today an AI can generate deepfake videos or images, steal the identity of others, and send bots-generated harmful text, making cyber harassment hard to detect.  Experts Apar Gupta and Vrinda Bhandari point out that it is very challenging to strike a balance between individual privacy and government action. As per the Internet Freedom Foundation reports on online Harassment in India (2022), there is an inconsistency between what the law defines and its actual outcome. The research from the Cyberplaces Foundation on AI and Cybersecurity in India (2023) and Harvard on Deepfakes and AI in Disinformation (2022), both, point out that AI is being rapidly used to violate women and marginalized groups. The report from The National Crime Records Bureau, 2023 shows a rapid increase in cybercrimes, mostly cyberstalking and defamation on social websites. In retaliation, the Ministry of Home Affairs, 2023, and the Press Information Bureau, 2023 published Section 78 in the Bharatiya Nyay Sanhita (BNS) to take care of cybercrime. Thus, it proves that there is a need for strict laws, better policing, advanced technology, and public awareness to safeguard people from online abuse.

1. Are current laws like the IT Act, the Indian Penal Code (IPC), and the new Bharatiya Nyay Sanhita (BNS), are efficient enough to counter cyberbullying: cyberstalking and harassment?

2. Do law enforcers and the court use these current laws efficiently to safeguard victim’s rights?

3. What are the obstacles that deprive Victims of justice?

4. Does AI contribute to cyber harassment? And is AI also the solution to track down cyber harassment offenders? 

5. Are current laws equally available to all genders and address the Victim’s needs?

6. What reforms are required in relevant laws, society, and technology to secure a digital platform for people?  

1. To analyze the development of current Indian law in terms of cyberstalking and online harassment and whether they are sufficiently strong to neutralize cyber abuse.

2. To examine Section 78 of the Bharatiya Nyay Sanhita,2023, and how better it is as compared to precedent law.

3. To examine the dual characteristics of AI, as it can contribute to cyber offense and can also help counter it.

4. To provide suggestions to secure digital platforms for people.

   
   

1. Even Section 78 of the BNS distinctly addresses cyberstalking, however, its influence is minimal, due to the lack of its proper implementation, exploitation of AI, and public ignorance of laws.

2. AI acts like a double-edged sword, it can either be used to aggravate the cyber abuse or to track down cyber offenders.

3. The Indian judiciary began recognizing individual privacy and the need for digital rights, which is a big leap against cyber offenses but problems lie in its implementation.

4.  For these laws to be effective, they need to be complemented with well-equipped cyber policing, public awareness, and the moral use of AI and technology.

1. Assist the legislators in perceiving shortcomings of current cyber laws and amendments that need to be done.

2. Guide law enforcers and the judiciary to deal with cyberbullying effectively, by bringing in cyber forensics and modifying techniques.

3. Guide civil society and NGOs in safeguarding cyberbullying victims competently.

4. Support Indian cyber laws to follow up with global standards and technical obstacles.

5. Bring together lawmakers, civil society, and IT experts to secure digital platforms for everyone.

6. Provide an outline for the judiciary to put innovative ideas in terms of cyber harassment, online privacy, and moral usage of AI.

Over the period, cyber laws have gone through various changes and Important verdicts were given by the Indian judiciary. It commenced with the Information Technology Act, 2000, under which Section 66A was incorporated to punish abusive digital messages. But that particular section was indistinct and abused, compelling the Supreme Court to repeal it in 2015 in the Shreya Singhal v. Union of India case, stating it infringed free speech.

In 2013, the lawmaker’s incorporated Section 354D into the Indian Penal Code, after the Nirbhaya Case, criminalizing the stalking of women through any online platform. However, Section 354D had a loophole. As it did not safeguard men, marginalized groups, or any new technological-based harassment. 

In K.S Puttaswamy v. Union of India, 2017, to enhance the legal safeguards against digital stalking and personal data abuse. The Supreme Court of India declared privacy as a fundamental right. Whereas, the Delhi High Court acknowledged the gravity of digital stalking and addressed the need for strict action by courts.

The Indian legislature to fill the loophole and to keep up with global modernization, incorporated Section 78 of the Bharatiya Nyaya Sanhita (BNS), 2023, which precisely outlines the cyberstalking and delivers harsh punishment of up to 3 years in jail for first-time offenders and up to 5 years for repeat offenders. This section is more gender-inclusive and follows up on current cyber problems. Thus, this set forth a landmark in India’s retaliation against digital abuse.

Experts Apar Gupta and Vrinda Bhandari have examined the efficiency of Indian laws in safeguarding the digital rights of people. Apar Gupta cites that free speech has occasionally been exploited to pretext cyber harassment, at the same time Vrinda Bhandari interprets that vague laws can violate both justice and privacy.

Bodies such as the Internet Freedom Foundation state that most cyberbullying is not being reported, and if it does; the organizations formed to tackle it lack the efficiency to deal with it. Their studies reveal that cyber harassment has a distinct impact on women, children, and marginalized groups, which available legal remedy occasionally neglects.  

The CyberPeace Foundation has warned that cyber harassment aggravates the unethical use of AI, like fabricating images or videos or the use of bots to send harmful messages. In the same way, research from Harvard Kennedy School reveals that fabricated images or videos using AI are misused for cyberbullying and publishing fake data.

In general, the studies reveal that although India has cyber laws, most are not up to date, were vaguely implemented, or lack efficiency. As a result, Section 78 of the Bharatiya Nyaya Sanhita is introduced, it distinctly outlines cyberstalking and imposes severe punishment, aiding in eliminating the loopholes of the precedent laws. However, experts state that there is a dire need for effective enforcement, cyber awareness, and AI reforms.   

This research focuses on qualitative legal research methods, like examining legal studies and real-life case laws, to gain insight into laws and legal problems rather than surveys. It pursued secondary sources such as; laws, government reports, institution research, and expert writings. 

This research analyses:

1. IT Act, Indian Penal Code, and Bhartiya Nyaya Sanhita

2. Court case

3. Crime data from the National Crime Records Bureau

4. Study of how AI is utilized in cybercrimes 

This information is examined by understanding these legal sources to search for similar subjects, such as how the law is regulated and the reason for ineffective enforcement. The research has maintained privacy by only examining sources from the public domain and not publishing personal information from the case studies.

Findings 

Table 1: Findings on cyberstalking and online Harassment in India

Table 2:  Reasons why victims do not report online harassment

 Source: Internet Freedom Foundation and Cyber Foundation, 2023

Data as per the National Crime Records Bureau’s “Crime in India report, 2023”; published by the Ministry of Home Affairs.

1. Cybercrimes have surged by 24% from the previous year

2. 35% of the total reported cases; are of cyber harassment, comprising cyber threats, cyberstalking, and stealing of identity. 

3. The highest number of cyberstalking cases being reported are from Uttar Pradesh, Maharashtra, Karnataka, and Delhi.

4. Only 1 out of every 4 cyberstalking cases proceed with a charge sheet

5. In cyberstalking cases, 60% of harassment happened against women, carried by repeat offenders through impersonation.

Source: National Crime Recs, Bureau, Minister of Home Affs., Crime in India Report 2023 (2024),

Cyberstalking and online harassment are surging rapidly in India. Although the new law, section 78 of the Bharatiya Nyay Sanhita,2023 is a huge upgrade, however, many challenges remain unaddressed. 

1. Precedent laws such as Section 66A of IT Act, 2000 and 354D of IPC,1860 were either exploited or failed to address the broad scope of Cyber harassment. Section 66A was imprecise and as people were detained for sharing views, At the same time, Section 354D only safeguarded women and neglected the rest.

2. Section 78 of Bharatiya Nyay Sanhita, 2023, addresses the whole section of society, precisely defines cyberstalking, and penalizes repeat cyber offenders more harshly. It intercepts emerging challenges such as impersonation, cyberbullying, and abuse of videos or photos.   

3. Despite having good statutes, our police are incompetent in intercepting Cybercrimes.  Many Improper reporting, ineffective investigations, and only limited cases see the light of the court.

4. Almost 45% of victims of cyberbullying do not report, as they are afraid of criticism, social stigma, or lack of knowledge in reporting such abuse.

5. In 2023 cybercrimes surged up to 45%, out of which, 35% included cyberstalking and cyberbullying, however, only 1 out of every 4 cases saw a charge sheet being filed. This proves that good laws are enacted, however, not always strongly enforced.

6. The rapid advancement in AI has provoked offenders to turn to AI to generate false identities; and fabricate videos and photos.  But, this rapid change in advancement in AI can also help police and tech companies to apprehend cyber criminals.

7. Experts suggest the legislature, IT companies, and police must collaborate, resulting in access to advanced technologies, easily accessible reporting, and making people aware of their cyber rights and safety.

Interpretation:

Section 78 of the Bharatiya Nyay Sanhita, 2003 (BNS) is a huge step against cyberstalking, as it precisely addresses the menace of Cyberstalking and provides a robust legal framework to safeguard cyber victims. This law makes up for the old repealed Section 66A of the IT Act, 2000.  This law is more victim-oriented law, which is essential in the present cyber world.

Comparison:

First-world countries such as the Australia and UK tackle cyberbullying by constructing a robust network, and making great use of AI to trace and prevent cyber offenders from committing cyber crimes. Whereas; India’s enactment of section 78 of Bharatiya Nyaya Sanhita,2023 is a huge leap to counter cyberstalking, however, its implementation requires development to attain international benchmarks. 

Implications:

The provision of Section 78 of the Bharatiya Nyay Sanhita,2023 is precisely described, which enables cyber police and judiciary to perform better in tackling cyber harassment. However, there is always room for improvement, such as organizing a workshop to train law enforcement in tackling cyber crimes, spreading awareness among people of their digital rights, and creating a friendly environment, where they feel secure in reporting cyber offenses. 

Limitations:

This legal research is conducted by examining statutes, research, articles, and case laws; no surveys or primary data were acquired. It revolves around India’s legal institutions only and not at the global scale.

Summary

India has come a long way where the Indian legislature recognized cybercrimes and further acknowledged the existence of cyberstalking and online harassment, which causes victims to experience significant isolation and feel unsafe, leading to emotional and physical harm, loss of self-esteem, fear of embarrassment, and anxiety. Compelling India to enact a law, i.e., Section 78 of the Bharatiya Nyay Sanhita, 2023, which precisely addresses cyberstalking and provides strict punishment.

However, having only good laws to tackle cyberstalking is not appreciable, until cyber law enforcers are well-trained to deal with the evolving nature of cyber harassment, keep up with rapid advancements in AI, and spread awareness among the public of their cyber rights. Until then, this law will not be as impactful as it could be.

Recommendation

1. Cybercrimes branch in every district

2. Proper training to handle technology, as well as, cases involving women or marginalized groups.

3. Organizing public awareness campaigns about cyberstalking and harassment.

4. Monitoring the rapid advancement of AI and its impact on cyber security offenses.

5. Provide free legal services for cyber harassment victims.

Future Research

1. One-on-one counseling victims to comprehend their pain.

2. Always look out for the evolving nature of IT tools to track and stop cyberbullying.

3. Examine AI’s numerous benefits, and use it to catch cyber offenders.

4. To gain deep insight into the works of other advanced countries in countering cyberbullying. 

1. Information Technology Act, No. 21 of 2000, § 66E, INDIA CODE.

2. Indian Penal Code, No. 45 of 1860, § 354D, INDIA CODE (repealed in part by Bharatiya Nyaya Sanhita, 2023).

3. Bharatiya Nyaya Sanhita, No. 45 of 2023, § 78, INDIA CODE.

4. Shreya Singal v. Union of India, (2015) 5 S.C.C. 1 (India).

5. K.S. Puttaswamy v. Union of India, (2017) 10 S.C.C. 1 (India).

6. State v. Yogendra, 2014 SCC OnLine Del 767 (India).

7. Internet Freedom Found., Online Harassment in India (2022),

https://internetfreedom.in./

8. National Crime Recs, Bureau, Minister of Home Affs., Crime in India Report 2023 (2024),

https://www.ncrb.gov.in/ 

9. Ministry of Home Affs., Press Release on New Criminal Laws (Dec. 2023), https://xn--i1b5bzbybhfo5c8b4bxh.xn--11b7cb3a6a.xn--h2brj9c/en

10. Press Info. Bureau, key Highlights of Bharatiya Nyay Sanhita, 2023 (Dec. 2023), https://pib.gov.in/indexd.aspx?reg=3&lang=1 

11. CyberPeace Found., AI and Cybersecurity in India (2023), https://www.cyberpeace.org/  

12. Harvard Kennedy School., Deepfakes and AI in Disinformation (2022), https://www.hks.harvard.edu./

13. Vrinda Bhandari, Cybersecurity and Privacy in India: Challenges and Way Forward, 5 Indian L. Rev. 213 (2021). 

14. Apar Gupta, Free Speech and Online Abuse: Legal Dilemmas in the Indian Context, 56 Econ. & Pol. Wkly. 34 (2021)