A Study Of Bullying And Cyberbullying And The Legal Angle

Author(s): Journal of Legal Studies and Research
Publication Date: September 2, 2020

Written by Saksham Batra

3rd Year LLB Student, Amity Law School, Amity University, Noida

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ABSTRACT

This article consists of the phenomenon of Bullying which has been prevailing nowadays. Bullying can be explained as aggressive or abusive behaviour which may also involve any kind of threat, force or coercion to the person being bullied. Bullying can be executed by different ways i.e. it can be physically, mentally, emotionally etc. Its effects on people can differ from person to person depending upon their mental state, maturity level, support from family etc. Bullying on a severe level can make any person to even commit suicide as one may think it as the only alternative to get rid of such phenomenon permanently. With enhancements in technology, a new category of bullying has been found out i.e. cyberbullying which involves bullying over social media platforms, through messaging apps or by use of devices etc. It is important for the people around such children and adults who may become victim to cyberbullying to keep an eye over their usage of device and social media, as it can be a major reason for any kind of behavioural change in them, feeling of loneliness in them etc. With growing number of victims and cases of such phenomenon, it should be a subject to worry for the legislature to enact a separate and dedicated legislation for it. To safeguard the interests of victims of bullying and cyberbullying, it is necessary to apply specific provisions and penalise the people who bully others whether offline or online. But as at present, there is no dedicated legislation, provisions from existing laws need to be applied to prevent repetition of such happenings. Some of the existing laws from which provisions are extracted to protect the victims can be Information Technology Act, Indian Penal Code etc, can be based upon circumstances of the case. It is important for everyone to understand that bullying is not a practice that should be done to anyone because it can cause many negative consequences to the people being bullied. And it should be taken as a matter in legislature to build a separate dedicated legislation for bullying and cyberbullying in India to protect the interests of people and children who get bullied and also for the potential victims. It has been said rightly for such phenomenon- “Words scar, rumours destroy, and bullies kill.”

INTRODUCTION

Bullying can be explained as aggressive or abusive behaviour which may also involve any kind of threat, force or coercion to the person being bullied. This kind of behaviour may be repeatedly done to be called as being habitual to bully others. The prime intent to bully someone repeatedly is to hurt the person emotionally, mentally and physically. There can be three minimum criteria by which bullying can be identified: (1) hostile objective, (2) unevenness of power, and (3) repetitiveness.

A premises where humans interact with each other may bud atmosphere for bullying culture. The said premises can be school, the workplace, the home, family and neighbourhood. The prime platform now a days for bullying in contemporary culture is on social media websites. The individual who bully others and who is being bullied, may suffer from serious lasting problems or disorders.

Types of Bullying:

The categories of bullying are as following:

Verbal Bullying: It includes writing or uttering mean things to the person being bullied. It may consist of taunting, unsuitable sexual comments, intimidating to cause harm, teasing, name-calling.
Social Bullying: It can also be termed as relational bullying which will involve hurting someone’s reputation. It will include isolating someone out on purpose, spreading rumours, embarrassing someone in public.
Physical Bullying: It means hurting body or possessions of an individual which comprises of Hitting or kicking, Spitting, snatching or harming individuals’ possessions, making rude hand gestures.
Next categorical division can be based on the participants involved, which will be divided into Individual and Collective bullying.
Another understanding also tells about emotional and relational bullying which is kind of an addition to physical harm caused to another individual or may be to the property as well. The most recent phenomenon which is being prevailing can be termed as [i]

Effects of Bullying:

The phenomenon of bullying is of such a kind that it will make numerous individuals under its impact such as people who are being bullied, people who actively bully others and also those who witness such happenings. It may result in many negative outcomes which includes negation of mental health, depression and severe cases include suicide.

Individuals who are being bullied– often face depression, increased sensations of sadness and loneliness, sudden changes in the day schedule, disturbance in sleeping and eating patterns, unable to enjoy the activities they used to, health complaints, decreased achievements in the individuals’ academic or professional life.
Individuals who bully others- often abuse alcohol and drugs excessively, gets aggressive, tend to damage property, gets involved in early sexual activity, gets indulge in criminal convictions, gets abusive with the family members.[ii]
Individuals who witnesses bullying- becomes more likely to consume tobacco, alcohol or other drugs in greater frequency, visuals of such incidents may increase depression, anxiety and stress.

Bullying and Trauma:

Bullying can have long term impact on the individuals involving those who are being bullied, those who bully others and also those who witness such incidents. For children, bullying is considered and termed as Adverse Childhood Experience. These are the potential negative experiences which can cause traumas to the individuals involved in such activities by any way. Such traumas also have long lasting impact over a person’s development. In many cases, the victims of such happenings tend to exhibit bullying behaviour.

Trauma is explained by Substance Abuse and Mental Health Services Administration (SAMHSA) that it is an outcome of events, series of circumstances that the individuals involved, faces as physically or sentimentally detrimental or being hostile to life. These kinds of experiences may adversely affect individuals’ physical, mental, spiritual, sentimental and social well-being for a longer period of time.[iii]

When the individual loses the ability to cope up the atmosphere, the experiences of bullying created around there, he falls in the next level of trauma, which can be termed as “Traumatic stress”. But due to difference in the age of individuals experiencing traumatic stress, there is a greater probability of having different ways of expressing the trauma they are facing. Children may lose interest in studies or playing their favourite games or they may try to avoid going to school or avoid his friends. Adults may suffer from serious illness, accidents, may create domestic violence, may create intimate partner violence, may physically or sexually abuse.

Warning signs for Bullying:

There may be many signs indicating that the individual is being bullied or bullying others. It is important to recognise the indicating signs in order to take action against bullying.

The person being bullied may show up signs like- Unexplainable damages, feeling of sickness, frequent headache or stomach aches, differences in sleeping and eating patterns, lack of interest in academic or professional front, self-destructive activities such as harming themselves, sense of loneliness, unhappiness, frequent horrible nightmares.

The person bully others may show up sign like- often involved in physical fights, are over-aggressive, irresponsible, blame others for their own actions and problems, have unexplained income and things, have friends and company those who bully others.[iv]

Driving to Suicide:

Bullying and suicide are pondered together as the cause of suicide can be linked to the individual being bullied, whether they are bullied in person or on any social media platform. Analysts found out and gave a term “Bullycide” which is referred by them as suicide caused due to bullying. The research depicted that the individuals who are victims of bullying are more prone to consider suicide as a way to escape such experiences than those who do not have such experiences. There are also some of the victims experienced bullying do not ponder suicide as an option, instead giving positive message to victims of bullying that suicide is not only the option to escape such phenomena.

But for individuals, who are unable to accept such experiences on them, they find suicide as the only way to get rid of it. As mentioned before, it is a horrible experience for the person being bullied specially, it can also make the person to end his life. It is often considered a difficult puzzle to be solved that whether bullying can also cause suicide or not. When someone commits suicide then the discussions also go into air about the deceased’s experience of being victim to bullying. These discussions also conclude that such experiences must have caused the person to end his life. This sort of deaths which are outcomes of being bullied are truly kind of tragedies which happen a lot of times in our society.

To reach any conclusion, it is important to understand the connection between the phenomenon of bullying and suicide. It will be wrong to say that bullying is the main and only reason of suicide as there may be many more reasons which accompanies bullying to make the person commit suicide. But it is a point to be pondered that bullying can make the person to sense a feeling of loneliness and unaccepted which may become unbearable at times. For the children being bullied, it is more miserable for them to face such incidents as age may bring maturity with which the individual gains strength to ignore or overcome such experiences. But in many cases, bullying leads the person to the verge of suicide. [v]

CYBERBULLYING

Cyberbullying is a category of bullying which happens over digital platforms such as mobiles, desktops and tablets which can occur through messages, different apps, social media like Facebook, Instagram, Twitter, Snapchat or others where people can interact or share media files with each other. This phenomenon can be executed by sharing or posting negative, insensitive, harmful and even vulgar media about someone else. These kinds of activities may also humiliate or embarrass due to sharing of their personal or private data or information by the person bullying. In some cases, cyberbullying crosses the limit and turn into unlawful or criminal activities. Such incidents of cyberbullying can take place at social media platforms like Instagram, Facebook, Snapchat etc, via Emails, online chatting websites and rooms, Text messaging etc.[vi] Due to the prevailing use of social media platforms and its components like posts, comments, posts, pictures and material can be viewed by many people which may include strangers and acquaintances also which can violate the individual’s privacy, which ultimately harass the person being bullied, both, emotionally and mentally.

Tactics of cyberbullying:

To take actions against cyberbullying and controlling, first it is important to understand and identify the ways, cyberbullying is committed over. Some of the common ways are:

Spreading rumours or mentioning comments about someone which are meant to harass, hurt the person’s sentiments or embarrasses him.
Posting mean comments and media about any religion, caste or community of the person.
Developing or maintaining a webpage, website or profile in order to embarrass or harass a person.
Doxing which is new sort of online bullying or harassment used to threaten and violate the privacy of individuals by making their personal details public, which can involve addresses, social security, credit card and phone numbers, links to social media accounts, and other private data.
Sharing some pictures or videos which can be hurtful for a person.

Below mentioned are some of the cyberbullying tactics which could be used by the to harass the person. If cyberbullying is being intervened timely then there will be minimal hurt and harm. But if this phenomenon will not be addressed or addressed after a long time then it would result in long ill mental and emotional health. These tactics are:

Lies and deceptive accusations
Bullied for being poor and financially weak
Boosting to commit suicide or doing self-harm
Bare photo sharing
Bullied or harassed being gay
Bullying due to jealousy
Deceptive identity profile [vii]

Prevention of cyberbullying:

In order to prevent Cyberbullying, it is necessary for the parents and guardians of the person to identify the changes in behaviour, activities, temper etc of the person that are sudden. For kids using social media platforms, their parents, guardians, teachers and other adults should know and keep track of what the child does on social media. It is because the more a child uses social media, the more there are prone to get bullied online i.e. being victim to Cyberbullying.

Warning signs for being cyberbullied:

There can be many indications or changes which can be noticed in a person’s activities, behaviour, habits that can be outcome of being cyberbullied. Some of them are:

Evident fluctuations in use of devices, also social media, texting etc.
Person start displaying emotional responses like happiness, sadness, anger, disappointment to what is going on in their social media or device.
It can also happen that they shut their social media down or make new profiles over them deleting the previous ones.
One change can be that suddenly the person becomes disheartened and upset.
The person can even hate company of those people and also those social proceedings and activities which they used to enjoy previously.
Person may develop a habit of hiding the device’s screen when surrounded with people and may also try to escape dialogue their activities on their social media as well as device.[viii]

Actions to be taken:

When a person is frustrated due to anything, then the person may by one way or other displays that everything is not going right with him. And it happens even if the person tries very hard to hide his feelings and frustration. It can happen even in case, when the person is being bullied or cyberbullied. If the person being cyberbullied is mature enough that he would be able to ignore such happenings. When the person is not mature enough and takes everything on a serious note and also feels ashamed of what is being said to him online by the bullying person or group of persons. As cyberbullying takes place over different social media platforms, and other media but all modes are online, that is why, it is to be decided accordingly that what steps should be taken in order to monitor and prevent these happenings. The sort of monitoring solutions can vary from person to person which will be based on mind state, temperament, can be based on their interpretation skills and also their kind of approach to handle the situations. Some of the approaches are as follows:

Notice-It is important to first notice that if there is any change in the behaviour, temper, mentality of the person, and it is to be identified that whether the change has been started increasing during use of their social media accounts on their dedicated devices.
Talk- When a rough idea is obtained about what is going on, one should ask the person about what is going on and should try to learn the details of the happenings like how it began and knowing the involved people in it.
Document- It will be helpful if the whole information should be recorded and kept as an evidence like saving the screenshots of what has been said or sent to bully the person online. It will be convenient to prove the happening of the incident or incidents, with the help of recorded and saved information as documentary evidence.
Reporting- It is the most important step one can take to save the victim of cyberbullying. Almost every social media platform has the clause of reporting in its policy and get the harmful content removed or deleted as soon as possible. If the child is cyberbullied by his peers or classmates then it should be reported to the school administration. If a person is being threatened of getting physically harmed, which may sound as potential crime, then it is safe and important to inform and report about it to the police.
Support- The person who is being bullied would already be mentally and emotionally disturbed which can result in loosing self- confidence. So, it is important for the people around them to support the person. It would be beneficial for the victim to forget the horrible experience of being bullied, when he will be encouraged and also when their qualities will be discussed in front of them by the people around them. The support of people will change the negative sight of the victim to a positive direction and help the person to lift up and heal himself from the experience of bullying. [ix]

Social Media Platforms and Online Gaming:

SOCIAL MEDIA PLATFORMS

Social media provides people a platform to interact with others, showcase their creativity, connect with people and share their feelings. The chances of getting cyberbullied increases when people get involved in such activities. There are many apps and sites available nowadays on which, out of which many are cost-free, where people can share, post about what they feel, emote and can also interact with others anonymously.

For adults who can be victim of cyberbullying, can think of ways to get rid of such content which seems to harmful, hurting and sensitive. Being mature, it is convenient for them to overcome such experiences and to ignore such things as compared to kids who become victim to such happenings.

For kids who can be victim to cyberbullying, their parents may not be knowing about what their child is doing on social media or may not be aware of the harmful effects of it. Nowadays, there are numerous things on apps and sites which can increase the risk of the child being victim of cyberbullying. The hateful content can be hidden in apps and sites which may include calls, messages and posts. In recent times, such web calls are also introduced, which took place but did not show up in the call log. Such new things may not be in knowledge of parents which may result in the child being victim of cyberbullying. There are some apps which are currently the most in use, and it also involve such apps in which material like posts, pictures, videos can be kept hidden, also those apps which let people interact with strangers and may involve feature of being anonymous. Some of these apps are- Askfm, Calculator%, Discord, Line, LiveMe, MeetMe, Sarahah, Snapchat, Instagram, Facebook, Whisper, WeChat, Twitter etc.

ONLINE GAMING

Playing games online is a common happening in present day. Most of the games allow the players to interact with other people, it helps a person to socialise and make new friends online. But the people with bad intent always find a chance to fulfil their negative wishes. Same in case of people who bully others online. They find online gaming platforms as an opportunity to find victims of their evil intent. Anonymity of the people on gaming platforms and use of different avatars make the users to create a fictional character of themselves and leaving the original self to not to get disclosed. Players misuse this feature of online gaming platforms to harass, bully and abuse other players online without getting their identity disclosed. If any person is not playing well then other people may tease him which may turn into negative remarks and eventually may sound as bullying to the person. Ways to prevent cyberbullying causing to children which can be done by adults:

The adults can try to play the game online which the child usually play and notice how much a child and his details is exposed to the game, also to ensure the information should not be misused via that platform.
To monitor the child while he is playing online and try to find out first, about those people with whom they are playing.
Rules and time limit should be fixed regarding playing online gaming for the child.
Make the child aware about the shortcomings of online gaming regarding the risks of being cyberbullied. [x]
There are many choices of software available for monitoring the child’s activity online for parents which can be used to do the same.

LAWS RELATING BULLYING AND CYBERBULLYING IN INDIA

Bullying is a prevalent practice in India at school level but unfortunately there is no clear or separate legislation to deal with such incidents till now. But to control and discourage such activities, CBSE schools were given guidelines to form anti-ragging committees in all the schools. The committees will be empowered to punish the students involved in bullying which can involve rustication as the severest punishment in such cases. One of the duties of such committees is to aware the students about cullying and its negative impacts, for which the related information should be displayed on school notice boards. It was said by the Raghavan committee that the principals and teachers should be held responsible and liable for any such incident of bullying or ragging takes place in the school premises.

In case of colleges, UGC issued guidelines to the approved universities and colleges all over the country to form anti ragging rules and regulations, which if not followed or violated then the recognition to the respective university or college can be cancelled. The regulations which were issue by the Government of India regarding this was “UGC Regulations on Curbing the Menace of Ragging in Higher Education Institutions, 2009”. [xi]

Specific provisions in existing laws:

Apart from schools and colleges, there are many other platforms and places where bullying and cyberbullying can take place like offices, workplaces etc. As there is no specific law to prevent bullying and cyberbullying but there are some of the provisions in the existing laws to safeguard people from such incidents. Those provisions of existing laws are:

THE INFORMATION TECHNOLOGY ACT, 2000

Chapter 11 of the Information Technology Amendment Act entails the offences whose consequences and factors matches them with the phenomenon of cyberbullying, as there is no clarification over its definition. But this act provides some of the provisions for penalties and remedies which can be applied in such cases.[xii]

Such provisions are:

Section 66 contains provision for computer related offences which gives penalty of up to 5 lakh rupees or maximum term of 3 years or both for person harassing or bullying others online.

Section 66A which allocates with the messages which are offensive and of menacing character, or any such information which is full of hatred, enmity or ill will that be sent with the help of communication services etc. This section aids the true victims of cyberbullying because it provides them speedy and instant relief against such posts, messages or content which may insult or can be hurtful or have the potential to cyberbully someone. This provision provides the police an extra power to arrest any person who posts offensive posts or contents online and can give him term for 3 years.
The Supreme Court in Shreya Singhal and Others. v. Union of India, scrapped Section 66A of IT Act, 2000 as such provision causes unreasonable and vague restriction over the citizen’s fundamental right of freedom of speech and expression. A provision which encroaches the fundamental rights of citizens cannot be existing as long as it is of such nature. The grounds to held this section unconstitutional was the terms used in the section like vague, offensive etc as it is difficult to know the components of the offence committed. What may sound offensive to a person, may not sound offensive to the other person. So, Section 66A of IT Act, 2000 was held unconstitutional.[xiii]

Section 66C provisions for punishment of Identity Theft i.e. fraudulently using any other person’s digital signature or identification marks, may be punished with a term which may extend up to 3 years or fine up to 1 lakh rupees or may be both.

Section 66D of this act deals with punishing those who cheats by personation by using the computer source i.e. cheating by pretending to be someone else by using any computer or online device. Penalty is of term which may extend up to 3 years or fine up to 1 lakh rupees or may be both.[xiv]

Section 66E which talks about penalty for violation of privacy i.e. any person who knowingly or intentionally, publishes any image of private part of any person without his or her consent which denotes to violate the person’s privacy would be punished with the term which may extend up to 3 years or fine up to 2 lakh rupees or may be both.
Section 67B which talks about Punishment for publishing of the matter depicting children in any sexually explicit act etc or generates text or digital images, accumulates, browses, downloads, promotes or distributes material in any electronic form portraying children in lewd or indecent or sexually explicit manner; or allures the children to online relationship with other children on sexually explicit act or in a manner which have the capacity to offend any reasonable adult on the computer resource, shall be punishable with term which may extend up to 5 years or fine up to 10 lakh rupees or may be both, on first conviction.[xv]

THE INDIAN PENAL CODE, 1860

As no clear separate law is there for harassments like bullying and cyberbullying, aid can be obtained from different provisions of Indian Penal Code also to punish the people who harass and bully others offline or online. Remedies which are available under this code are those against a defamatory action or such an act which is enraging the modesty of a female. In 2013, there was an amendment done, which brings list of other offences, cyberstalking was one amongst them. Provisions which deals in any way with cyberbullying, are:

Section 292A provisions for any material, picture, video etc posted, conveyed, printed or published so as to exhibit them to public, circulating or distributing such matter, which is obscene or indecent and all this is done to blackmail a person, shall be punished with a term which may extend up to two years of fine or both. [xvi]
Section 354A contains provision for Sexual harassment and penalty for the same. If a person commits any of the following:

Physical contact and also includes undesirable and unambiguous sexual approaches,
Approaches to ask or demand for sexual favours,
Demonstrating pornography against the will of a female,
Making and displaying sexually coloured remarks, then he shall be considered as guilty of sexual harassment and will be penalised for a term which may extend to three years or fine or may be both.[xvii]
iii Section 354C covers the phenomenon of Voyeurism which includes watching and capturing a female involved in any private act and in those situations where she would usually have anticipation of not being seen or observed by any person. Doing such act or circulates such pictures shall be punished for a term which may extend from 1 year to 3 years and shall also be liable for fine, for the first conviction.

Section 354D talks about the phenomenon of Stalking. It states that any man who follows a female with an intent to contact her or tries repeatedly to interact with her by knowing that the female is not interested in such interaction with him. This phenomenon can also be executed by monitoring the use of internet by that female such as checking e-mails, scrolling social media or at any other online service. If any of such activity is doing in good faith or to prevent any wrong happening then it will not be punishable otherwise it will be punishable for a term which may extend up to 3 years and also be liable to fine on first conviction.[xviii]
Section 499 contains provision for Defamation. It provides how a person can be defamed offline or online and it would affect his/her reputation in the society. It states that speaking, writing and publishing some negative assertions about any person which tends to defame a person and injure his reputation will be considered as Defamation. It can be oral or written and sometimes committed on online platforms.
Section 503 provisions for Criminal intimidation. It includes threatening by one person to another, of causing harm to that person, reputation or property or to harm any other in which any other person is interested, or to force a person to do an act which is legally wrong or to omit to do any act for which he is legally bound, will be covered in Criminal Intimidation. [xix]

Section 507 covers Criminal intimidation by an anonymous communication which includes to completely conceal his identity and intimidate other people may be punished for a term which may extend up to 2 years.
Section 509 covers words, gestures or acts intended to insult the modesty of a woman and encroaches the privacy of a female and the person doing so would be punishable for a term which may extend up to 3 years and fine.

There was a conflict raised between Indian Penal Code and Information Technology Act in the case of Sharat Babu Digumarti v. Government of NCT of Delhi. The facts of the case were: An indecent and obscene video has been recorded and enumerated for sale online. It was deliberately concealed amongst the E-books. Some replicas of the video were sold before its online enumeration was disabled. Supreme Court ruled that if any offence encompasses any electronic record or records which are online, then only IT Act will deal with it because it is the legislative intent of the Act. If any conflict arises between IT Act and IPC in any case, special law would overcome the general law. [xx]

POPULAR CASE LAWS

Ritu Koli Case- This was the first case of cyberbullying of India, happened in 2001.The appellant complaint about her identity theft online where the person using her identity was chatting online from her account with different people disguising them to be Ritu Koli, the appellant. Also, her phone number was shared by the defendant online due to which she began to receive calls at odd hours. She received 40 calls within 3 days and it constituted both, national and international calls. The case was filed under Section 509 of the Indian Penal Code. By this case, it was said that the more internet becomes important for us in our lives, the more stalkers get chance to access the personal information of the potential victims. [xxi]
Rithika Sharma Case- The appellant was a school student in Delhi and was stalked over Facebook by a person who pretended to be a businessman and named as Rohit. They chatted and being a teenager, she was not knowing the consequences of such friendship, so she shared her mobile number and residential address with him. According to the complaint, they started chatting on WhatsApp. The defendant started forcing the appellant to go for a date with outside Delhi, for which she denied. She blocked his profile over Facebook as well as over WhatsApp. Later, she was stalked by him and given threats. The complaint was filed against him under IT Act and IPC. It was decided by Delhi police to launch Cyber Safety programs to make students aware about the negative consequences of sharing personal details to anyone over online platforms. [xxii]

CONCLUSION

Bullying has always been considered an underrated matter to be taken seriously. There is no particular kind of people who become victims to such kind of phenomenon. They can be school going children, college students and also adults at their workplace. Effects of bullying can vary from person to person, it can depress some of the victims and some may have the capacity to ignore such things, as it also depends upon the level of maturity in them. To protect the interests of the children facing this, it is very important for their parents to take care of their behavioural changes as well as the actions to be taken by them to avoid any bigger consequence on their kids. Not only the person being bullied gets affected but also those are affected who bully them and also who just witness such phenomenon, gets affected. There is no specific law regarding this till now in India, due to which a new kind of practice emerged to bully others i.e. Cyberbullying in which the phenomenon of bullying take place over online platforms or by use of devices. Due to the lack of specific laws for both, bullying and cyberbullying, the incidents of them are increasing day by day and with evolving technology, sometimes it is difficult to track and locate even any trace of it. As it is important for the parents to supervise their children, it is also important for the government to work for a separate legislation for these incidents. For now, the people involved in it, are handled with provisions of various existing laws like Information Technology Act, 2000 and Indian Penal Code, 1860 but it is the hour of need for a specific and separate legislation for this to save the youth of the country from being on the wrong way. It has been rightly said for such phenomenon- “Words scar, rumours destroy, and bullies kill.” It is important for everyone to understand that bullying is not a practice that should be done to anyone because it can cause many negative consequences to the people being bullied. And it should be taken as a matter in legislature to build a separate dedicated legislation for bullying and cyberbullying in India to protect the interests of people and children who get bullied and also for the potential victims.