Whether it’s catcalling, lewd staring, inappropriate comments, unwanted touching, or harassment in the workplace, there are few parts of the world where sexual harassment is not treated as a serious problem.

The MeToo hashtag (#MeToo) which first went viral on Twitter three years ago, is evidence of the enormity of the above issue. Although the social movement of the same name existed beforehand, the hashtag was popularized in October 2017, when actress Alyssa Milano urged victims of sexual abuse to share their stories on Twitter. The movement gained enormous traction in the following years with the UN CEDAW Committee hailing it as a tipping point for women’s rights.^[1]

Even in India, sexual harassment remains a threat to women’s physical and emotional safety. In a study conducted by Project Monma^[2], female participants were questioned about places where sexual harassment occurs. Most of the participants spoke of sexual harassment as taking place in public places. Interestingly, more than a few referred to schools and the household as places where harassment occurs while one participant strikingly responded: “Anyplace except the temple”. This example highlights the severity of harassment in India.

Though the MeToo movement took off slightly later in India, it has since become a tool frequently used by women from across backgrounds to call out alleged assaulters on social media. However, one of the direct ramifications of such public allegations is the risk of finding oneself at the centre of a defamation suit. This has to a large extent, stymied accusers of sexual harassment from naming and shaming their attackers online.

The conspicuous absence of social media in the Indian law governing sexual harassment

A case which created quite a stir in India were the accusations against notable artist Subodh Gupta in December of 2018. Several survivors voiced their experiences on the anonymous Instagram account Scene and Herd (@Herdsceneand), which has outed several male artists in India.^[3] In the following weeks, Gupta went on to sue Scene and Herd for civil defamation and demand Rs 50 million in damages. But the single concern that arose out of the case was when the Delhi High Court ordered Facebook to unmask the anonymous people behind the Instagram page^[4] by November 18, 2019.

It is interesting that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, the primary Indian legislation in this regard, is silent on the role played by social media in both instances of harassment as well as subsequently, accusations of harassment. While the Information Technology Act, 2000 does penalise online harassment through the posting  of defamatory or obscene material online,^[5] the Indian law is virtually silent when it comes to accusations of sexual harassment published on social media platforms.

Should social media accusations be protected from defamation suits?

She said, He Sued

An increase in allegations of sexual harassment has seen another development. In response to being accused, alleged assailants file defamation suits against their accusers to protect their reputations.^[6] The possibility of such retaliation^[7] discourages victims from reporting their sexual assaults.^[8] The primary question that crosses one’s mind here is whether defamation suits should at all be permitted against alleged victims of sexual harassment. To answer this question, we must first understand why women have started to turn to social media.

Some of the victims find social media a safe space as they want to avoid reporting assaults to the police or an organization’s internal complaints committee out of fear or mistrust of the system.^[9] Lack of legal and financial resources are often key barriers against formally lodging a case in court.^[10] In stark contrast, social media platforms like Facebook and Twitter often offer a sense of security and sisterhood to many women who intend to speak up. Survivors often use these platforms to warn others about their alleged attackers or find vindication and healing.

Having said that, one cannot ignore the fact that the inherent nature of online spaces leaves a lot to be desired. Women have consistently been the targets of trolls and threats for speaking up on gender issues.^[11] A 2015 OECD Development Report highlighted online harassment and the consequent silencing of female activists as a crucial barrier to achieving women’s political agency.^[12] This is indicative of the disciplining tendency of the internet where female voices are involved. Defamation suits filed in the aftermath of a sexual harassment claim are simply one of the many manifestations of the above phenomenon. This constraint has been recognized in the 2018 UNGA Resolution on Sexual Harassment which focuses on the digital context in harassment concerns.^[13] Further, Article 5 of CEDAW obligates states to take measures “To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices…”.^[14]

This brings us to the burning question of whether such posts should be protected from defamation suits under Indian law.

If one were to compare the Indian framework with that in the United States’ (while acknowledging the dissimilar legal contexts in the two countries), the relationship between sexual harassment and defamation has been better drawn out in the latter. The above kinds of defamation suits filed after a sexual harassment allegation are classified as SLAPPs (Strategic Lawsuits Against Public Participation), which are designed to prevent people from speaking out about matters of public interest. It is such a widespread strategy that 30 US states have anti-SLAPP laws that protect defendants from these punitive suits.^[15] In 2018, California passed a law^[16] protecting employees from being sued for defamation for reporting sexual harassment to their employers. The same year, Louisiana enacted a law^[17] allowing defamation lawsuits against accusers to be frozen until all related criminal, civil, or administrative hearings are “complete and final.”

The way forward

In the author’s opinion, defamation suits by rape-accused should be discouraged on the grounds that such suits can have a chilling effect on women and thus, should be considered as SLAPP suits.

Therefore, the author proposes an amendment to Section 199 of the Criminal Procedure Code which deals with prosecution for defamation. A sub-clause can be inserted that bars taking cognizance of any defamation offence alleged in the context of sexual harassment until the complaint has been heard and all the investigation in the matter has concluded.

One must keep in mind that this solution only serves to not discourage women from lodging formal complaints after their social media accusations. In the past, quite a few corporations have taken note of sexual harassment accusations by employees online and treated them as formal complaints. In such cases, an amendment to the law would serve in support of victimised women. On the other hand, women who seek to use social media simply as a platform to share their experience without any intent to file a complaint could face legal consequences. While this is not the ideal scenario, we have to consider the possibility of these platforms being misused and the reputation of individuals being tarnished. The Indian legal framework should not hinder any discussion or discourse on sexual harassment. Neither should it dissuade women from calling out their assaulters. In fact, allowing victimised women to be subject to such suits is in itself an indirect form of violation of human rights as it restrains them from speaking out against their assaulters and re-enforces sceptical responses to women’s accounts (contravening Article 5 of the CEDAW).  However, in any robust legal system, it is crucial that allegations of any sort are adjudicated by impartial courts of the land and not on social media platforms. The above-proposed solution attempts to partially tackle this issue.

References

^[1] Confronting sexual violence, demanding equality, International Women’s Day Statement by United Nations Women’s Human Rights Experts, Tuesday, 6 March 2018, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22759&LangID=E.

^[2] Project Monma is a charity organisation that aims to raise awareness about violence and discrimination against women and girls around the world.

^[3] #MeToo: After activists’ letter, Subodh Gupta’s defamation suit condemned by JNU students in a statement, Firstpost, October 5, 2019, https://www.firstpost.com/india/metoo-after-activists-letter-subodh-guptas-defamation-suit-condemned-by-jnu-students-in-a-statement-7444341.html.

^[4] Ibid.

^[5] Section 67, Information Technology Act, 2000.

^[6] Daniel Jackson, Sex-Assault Accusers Turn to Defamation Lawsuits in #MeToo Era, COURTHOUSE NEWS SERV. (Jan. 25, 2018), https://www.courthousenews.com/sex-assaultaccusers-turn-to-defamation-lawsuits-in-metoo-era].

^[7] Leah M. Slyder, Note, Rape in the Civil and Administrative Contexts: Proposed Solutions to Problems in Tort Cases Brought by Rape Survivors, 68 CASE W. RES. L. REV. 543, 552 (2017).

^[8] RACHEL E. MORGAN & GRACE KENA, U.S. DEP’T OF JUSTICE, NCJ 252121, CRIMINAL VICTIMIZATION, 2016: REVISED 7 (2018), https:// www.bjs.gov/content/pub/pdf/cv16re.pdf .

^[9] Barriers to reporting sexual assault for women and men: Perspectives of college students,  Journal of American Health, Vol. 55, No. 3, http://www.middlebury.edu/media/view/240971/authentic/sable_article.pdf.

^[10] Ibid.

^[11] Kirsti K. Cole, “It’s Like She’s Eager to be Verbally Abused”: Twitter, Trolls, and (En)Gendering Disciplinary Rhetoric, Feminist Media Studies, Vol. 15, 2015.

^[12] Can social media effectively include women’s voices in decision-making processes?, OECD Development Centre, March 2015, https://www.oecd.org/dev/development-gender/DEV_socialmedia-issuespaper-March2015.pdf.

^[13] United Nations General Assembly, Intensification of efforts to prevent and eliminate all forms of violence against women and girls: sexual harassment, A/C.3/73/L.21/Rev.1, 14 November 2018.

^[14] UN General Assembly, Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, A/RES/34/180, Article 5.

^[15] How libel law is being turned against MeToo accusers, Mother Jones, March 2020, https://www.motherjones.com/crime-justice/2020/02/metoo-me-too-defamation-libel-accuser-sexual-assault/.

^[16] AB-2770 Privileged communications: communications by former employer: sexual harassment, September 7, 2018, http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB2770.

^[17] Bill aims to shield rape victims from retaliatory lawsuits, The Advocate, May 14, 2018,  https://www.theadvocate.com/baton_rouge/news/politics/legislature/article_49af80a2-57de-11e8-bb29-17dc6413159b.html.