By Chamathka Ratnayake and Tarangee Mutucumarana (Yeheliya Foundation)

INTRODUCTION 

Over the past two decades, technology has gushed into our lives, altering the way that people interact. It is increasingly observable that social media present enormous risks to individuals.

In a nutshell, cyberbullying involves the use of electronic communication to intimidate or threaten another through social media, messages, and email. A more accurate term would be cyber exploitation and violence – a pandemic where the lack of boundaries in the digital sphere has become a serious cause for concern.

Cyber-violence is also considered to be a component of violence against women. If you’ve grown up as a woman in Sri Lanka, chances are you’ve dealt with some form of cyber-violence: stolen photos, fake social media accounts, harassing messages, cyber-stalking, sextortion, rape, and death threats. One does not need to look further than the many Facebook pages portraying innocent schoolgirls in uniform, “slut-shaming”,  and the increasing rate of “revenge porn”, which show how Sri Lankan society is deeply rooted in patriarchal norms, unnecessary sensationalizing, and a culture of victim-blaming.

All techniques of cyberbullying or cyber violence work towards establishing power. The bullies want to assert power and dominate over the individual being bullied. The advantage that a cyberbully has is that the bully can assume a position of anonymity as they hide behind a screen, which creates a constant feeling of being unsafe anywhere for the victim. Perpetrators of crime have far easier access to victims online than in the real world, for the reasons that they are not limited by geographical (physical) restrictions. They can reach far more third-parties and in just a moment, an image can be shared with thousands online, and once spread can be extremely difficult to retract or trace.

The CID states that in 2018, approximately 90% of university students have been victims of Cyber Harassment. 80% of cyberbullying offenses took place on social media with Facebook being the most common bullying site and the most prevalent bullying offense among university students was the posting of embarrassing videos or photos (65%).

Women in Need published a report recently on a survey conducted that revealed nearly 1 in 4 individuals knew of a friend who had experienced online harassment of a sexual nature, with 1 in 5 individuals knowing of someone who had edited images of them shared on the internet as we as intimate pictures or videos of themselves shared on social media. The survey data also revealed that the highest reporting of instances by women where intimate pictures or videos of a friend were shared on the internet were from Batticaloa (63.9%) followed by Badulla (58.5%).

Victims of cyber violence face intense psychological distress, depression, and post-traumatic stress They may have lower self-esteem, and a variety of emotional responses, including being scared, frustrated, and angry.  It is common for them to feel exposed and humiliated, vulnerable, isolated, and even self-critical. The detrimental impact of this type of harassment goes even further to the extent of suicidal ideation and suicide.

It’s okay to talk and speak up about your experiences and your feelings. Help is available, please reach out.

THE SUBSTANTIVE LAW 

With regard to Sri Lanka’s legal framework, cyber-bullying is not listed as a separate offence and thereby leaves citizens unprotected to cyber stalking and cyber harassment. But certain provisions provide alternatives to take action against the perpetrators. However, the lack of awareness surrounding the issue, unawareness on where to go find some form of redress, victim blaming by the police, a general mistrust in the legal system, high costs and longevity of court proceedings, often lead to a lack of action by victims.

The Penal Code of Sri Lanka includes a limited number of offences that can be used to take measures against Cyber violence, if interpreted widely. Section 285 of Penal code makes it an offence to sell, distribute, import, print for sale, hire, and wilfully exhibit to the public any obscene source and Section 286 makes it an offence to be in possession of such.

If the victim is below eighteen years of age, the act of persuading, inducing or coercing them to send intimate images or videos of themselves, as well as the distribution, possession or publishing of such pictures or images, even when the victim has consented, will fall within the ambit of Section 286A of the Penal Code, obscene publication and exhibition relating to children, which carries a minimum sentence of two years of imprisonment.

Regardless of the age of the victim, it may also be possible to convict for sexual harassment under Section 345, though this would require a wide interpretation of the law. A person is said to commit sexual harassment (1) if by assault or use of criminal force, they sexually harass another or; (2) if by the use of words or actions they cause sexual annoyance or harassment to another. The maximum sentence for sexual harassment is five years.

In the event that a victim is asked to provide any ‘property or valuable security or anything signed or sealed’ in exchange for preventing such image or video being published, such action would amount to extortion under Section 372 of the Penal Code. However, this is unlikely to cover situations in which the victim is blackmailed into staying in a relationship with, or performing sexual acts with the offender.

Section 398 defines cheating as whoever, deceives any person, fraudulently or dishonestly to deliver any property, can be used to cover an action of the perpetrator using the phone of the victim’s boyfriend, pretending to be the latter to obtain compromising images of the victim.

Section 483 of the Penal Code refers to criminal intimidation and will be applicable if a woman is intimidated with the threat of releasing their nude photographs. If she is coerced into intercourse with a man, it may amount to rape as per Section 363(b) of the Penal Code; “with her consent, when her consent has been obtained by use of force or intimidation”. However, the law only recognizes a woman as a victim of rape, and thus this protection does not extend to other genders. If it is a sexual act which does not amount to rape (i.e. is not penile penetration of the vagina), it may be grave sexual abuse under Section 365B of the Penal Code. This is an offence that does not limit the categories of potential victims based on gender.

The act of sharing personal, intimate images without consent, or even sharing images which have been explicitly altered using editing software, can be challenged under Section 2 of the Obscene Publications Ordinance.

Section 7 of The Computer Crime Act, makes it an offense for people to obtain information from a computer or a storage medium of a computer without permission. It also criminalizes downloading, uploading, or making copies of such illegally acquired content.

The Sri Lankan Penal Code came into force at a time when the technology we see today would have been unimaginable. Sri Lanka’s antiquated criminal law requires reform in order to bring it in conformity with the principles of equality, bodily autonomy and non-discrimination between genders. Existing provisions on sexual harassment, criminal intimidation, and sexual exploitation of children could be interpreted to include online exploitation, but the need of the hour is to have specific laws that target cyber bullies.

It is clear that Cyber harassment requires attention from the criminal justice system. There are two approaches: Opt to amend or modify statutes prohibiting harassment by adding language specifying that contact initiated using the Internet would also constitute harassment or add new legislation explicitly defining and prohibiting cyber harassment.

Presently there is a draft bill to amend Chapter 16 of the Penal Code, which addresses the offences of stalking, voyeurism, distribution and possession of voyeuristic image or recording and sexual exposure, under subsections of Section 345 of the Penal Code. Such amendments are a much needed and welcome addition to the antiquated provisions within the Penal Code and we hope that they will be passed by the Legislature.

Substantive Laws in other Commonwealth Jurisdictions

In April 2015, revenge pornography, the sharing of private sexual photographs or films without consent became a criminal offence in the United Kingdom; Section 33 of the Criminal Justice and Courts Act 2015 created an offence of disclosing private sexual photographs or films without the consent of an individual who appears in them and with intent to cause that individual distress. The legislation specifies the offence as “photographs or films which show a person engaged in sexual activity or depicted in a sexual way where part or all of their genitals or pubic area is exposed, and where what is shown would not usually be seen in public”.

This legislation added to the pre-existing legislation used to prosecute sexual images such as the Communications Act of 2003 and the Malicious Communications Act of 1988. The Crown Prosecution Service in the UK introduced a comprehensive set of updated guidelines to prosecutors on cybercrime with the advent of the new legislation. These include malicious and offensive communications via social media, cyber bullying/trolling, virtual mobbing, and offences related to disclosing private sexual images without consent, cyber stalking and online harassment, and coercion and control.

New Zealand’s Harmful Digital Communications Act 2015 is intended to deter and mitigate “serious emotional distress” caused to individuals by digital communications, including text messages and the posting of information online, and to provide victims with a quick and efficient means of redress. It sets out a list of ten “communication principles,” which include concepts drawn from other legislation, including the Privacy Act 1993 and Harassment Act 1997, and from causes of action such as defamation and the tort of intentional infliction of emotional distress.

According to the Act, a digital communication may be deemed harmful if is directed at an individual, makes that person seriously emotionally distressed and if it has or could seriously breach of one or more of the ten communication principles in the Act. The principles in the Act draw on and complement various existing provisions and causes of action under New Zealand law which could also be used in cases of cybercrime. The Act establishes a new criminal offense of causing harm by posting a digital communication. The elements of the new offence includes, posting a digital communication with the intention that it causes harm to the victim; posting the communication would cause harm to an ordinary reasonable person in the position of the victim; and posting the communication causes harm to the victim. It stipulates that the court may take into account any factors it considers relevant, including the extremity of the language used, the age and characteristics of the victim, whether the digital communication was anonymous, whether the digital communication was repeated, the extent of circulation of the digital communication, whether the digital communication is true or false and the context in which the digital communication appeared.

The Indian law does not set out a set of comprehensive laws to combat cyber violence in a single piece of legislation, as is the case with Sri Lanka. However, the existing laws within the penal code (with amendments) have been used to build a body of law in the area, with case law often used as a method to pass down stringent sentences to act as a deterrent for cybercrimes. The Indian Penal Code, 1860 (IPC), neither defines bullying nor punishes it as an offence. Various provisions of the IPC and the Information Technology Act, 2000 (IT Act) can be used to fight cyber bullies. A Press release on ‘Digital Exploitation of Children’, by the Ministry of Women and Child Development stated that the sections 354A and 354D of the IPC provides punishment for cyber bullying and cyber stalking against women. Cyber-stalking of women was recognized as an offence, subsequent to the insertion of section 354D in the IPC through the Criminal Law (Amendment) Act of 2013. The language of Section 354D of IPC makes it clear that the section penalizes both the offence of offline and online stalking, without discriminating on the basis of presence or absence of the ‘cyber’ component. When the creation of a fake Facebook profile is accompanied by the uploading of vulgar or obscene photos of the victim on to such profile, Section 354A (Sexual harassment and punishment for sexual harassment), Section 354D (Stalking), Section 499 read with Section 500 (Defamation and Punishment for defamation), Section 507 (Criminal intimidation by an anonymous communication) and Section 509 (Word, gesture or act intended to insult the modesty of a woman) of IPC may apply.

THE NEED FOR SUBSTANTIVE LAW REFORM 

Recognize the right to privacy 

Cyber harassment is a breach of privacy, but Sri Lankan law does not recognize the right to privacy, either as a Constitutionally guaranteed right or as an Act which attracts penal consequences if violated, a right which is of utmost importance in protecting the autonomy and dignity of victims of sexual violence. The lack of recognition of this important protection is a lacuna in the country’s laws. This right should be included in the Fundamental Rights chapter of the Constitution and should include both the right of a person not to have their privacy transgressed by the State, as well as the recognition of the duty of the State to take proactive steps to ensure that the privacy of its citizens is not violated by any other citizen and to take appropriate remedial steps where it is. While this right comes to light, it is best that we inculcate in ourselves the value of respecting the privacy of another.

Introduction of new offences to counter cyber-exploitation 

Sri Lanka needs to consolidate its existing laws against harassment and computer crimes in order to introduce one single, all-encompassing law to fight online harassment of women and children, as the Computer Crime Act, falls short on addressing cyber violence as it deals only with computer crimes pertaining to hacking, etc. Governments have to be smart about it. There are different types of cyber bullying such as sextortion, grooming and inciting suicide that are not directly addressed by existing legal provisions which leave room for ambiguity.

1. Voyeurismhas been defined as the activity of getting pleasure from secretly watching other people in sexual situations or watching their private lives. Peeping Toms, those who commit the act of up-skirting or taking pictures/ videos down a woman’s blouse or those who place cameras in changing rooms or other private areas would all be partakers of the act of voyeurism. In Sri Lanka, at best this act would fall under the offence of trespass, which is a mere offence against property. Such an action must be prosecuted as a violation of a person’s bodily autonomy and dignity and as a sexual offence, which has a far more serious impact on the victim.

A criminal offence on voyeurism should be introduced which: accepts that the victim and/or the offender can be from either gender. It must cover the offences of physically watching another engage in a private act, in a situation where the victim had a reasonable expectation of privacy, uses equipment to capture or record same/ part of the body which that person may reasonably consider to be private or makes adjustment to any structure or vehicle or installs equipment to commit the actions mentioned above. An exhaustive list of body parts should not be mentioned as what is deemed a private body part differs from woman to woman. Sexual gratification needn’t be proved, only that the act was done to humiliate or alarm another. If the victim is a minor, images/videos have been circulated or published; a profit has been made from such circulation; or if the perpetrator is a repeat offender an aggravated offence will be committed. As should be for all sexual offences, compensation must be granted by the court to the victim.

1. B. The non-consensual distribution of intimate images or videosis a form of image-based sexual abuse, popularly known as non-consensual pornography or ‘revenge porn’, done to shame, stigmatize or harm the victim. In fact, it is reported that videos of women in homemade pornographic videos are the most watched categories among Sri Lankans who consume pornography. As mentioned above such actions can be punished under Sexual harassment, the Obscene Publications Act etc.

However, we believe that a criminal offence on the non-consensual distribution of intimate images or videos should be introduced where: the image/ video can be obtained with/without the victim’s consent and it can be an image that is edited to look like the victim or captioned to be seen as such, even if not of the victim if done to cause humiliation, distress or alarm. The offence should also be wide enough to cover those who share such images. Similar aggravated offences state above can be used here too. This offence should, however, not have an impact on consensual adults sharing sexually explicit pictures/videos, provided that they are not captured or circulated without consent, or with the use of deceit and/or coercion.

1. Sextortionis the use of ICT to blackmail a victim where the perpetrator threatens to release intimate pictures of the victim in order to extort additional explicit photos, videos, sexual acts or sex from the victim. Under existing laws, it can be punished under extortion, criminal intimidation and if the sexual act is indeed committed, then rape or Grave sexual abuse.

A criminal offence on sextortion must be introduced through the introduction of a new section in the Penal Code, or through the amendment of the existing provision on extortion or sexual harassment. It must cover instances where the threat of releasing sexually compromising information, in order to: extort sexual images or videos from the victim; extort some other material or monetary benefit from the victim; or make the victim do an act or refrain from doing an act; (where the acts that the victim is threatened into doing can vary from sexual intercourse, not reporting, to continuing to stay in a relationship), are all encompassed. As previously stated, photo -shopped or falsely captioned images to appear to be the victim, will be equally punishable and aggravating offences if the victim was a minor or the perpetrator was a repeat offender should be drafted.

1. The offence ofSexual Exposure should encompass a person who, for the purpose of obtaining sexual gratification or of causing another humiliation, alarm or distress intentionally distributes an image of  his or any other person’s genitals or intends that another will see such; and does so without the other’s consent.

THE PRESENT SYSTEM 

The key division of the Police Service of Sri Lanka which oversees any misdemeanour occurring in a virtual realm is the Sri Lanka Cyber Crime Unit of The Police. This Division is assisted by the Sri Lanka Computer Emergency Readiness Team and the ICT Agency. Due to this centralization of operations, any complaint received by the Police relating to computer systems and information communication technology, is directed to the Cyber Crime Unit of the Police Force which creates a bottleneck.

Furthermore, the mandate of the Cyber Crime Unit necessitates the entity to focus on offences which fall under the criminal definitions prevalent in The Computer Crime Act. Hence Cyber Bullying may be seen as less important in comparison to more heinous cyber-crimes such as money laundering, e-commerce frauds, and hacking. This has resulted in a reality where the law enforcement authorities and the criminal justice system do not actively encourage complaints regarding cyberbullying.

There is a large lack of reporting by victims of cyber violence. One reason would be fear of repercussions. This could involve worrying about social stigma, or that they’ll make things worse by lodging a complaint. If the victim is financially dependent on the perpetrator of the abuse, then it may dissuade the victim from seeking out help from external sources. It could also be that law enforcement authorities and the criminal justice system aren’t encouraging complaints enough. It’s also a common occurrence where perpetrators of abuse use their political affiliations or contacts within law enforcement authorities to prevent justice from being served. A lack of awareness about how the law can help them may be a contributing factor as well, along with their inability to afford legal representation.

Victim-blaming is a rampant phenomenon that has to take almost as much blame for the abuse of women as violence itself. When abused, it’s common for the victim to feel shame, stemming from the powerlessness wrought by their situation and due to shaming from those around them. This may evolve into self-blame. Self-blame may prevent women from seeking help. All these and more combined means fewer women end up reporting acts of violence against them.

Sexual exploitation can do serious harm and is also a difficult crime to prevent or respond to. Unfortunately, there is no comprehensive data on online sexual exploitation of children in Sri Lanka. Lack of a scheme for data preservation, which is one of the biggest obstacles faced by the authorities when tackling cyber-crimes.

Continued in Part II – please click here to view

About Yeheliya Foundation

The Yeheliya Foundation is a registered Charitable Foundation under the Companies Act of 2007. Since its inception in 2018, Yeheliya has been relentlessly working to create a safe space and an equal platform for young girls and women from different walks of life. Hence, the primary focus of Yeheliya’s policy advocacy is on identifying and bridging legal and policy gaps within the Sri Lankan legal, economic, social and political systems, which are identified to be inherently discriminatory towards women.

About the Writers 

Chamathka Ratnayake is an Attorney-at-Law and Director of the Yeheliya Foundation which has been  striving to create a safe space and an equal platform for young girls and women from different walks of life, with its advocacy focused on identifying and bridging legal and policy gaps within the Sri Lankan legal, economic, social and political systems, identified to be inherently discriminatory towards women. 

Tarangee Mutucumarana is an Attorney at Law and a Barrister at Law of England and Wales. She holds a Bachelor of Laws and a Master of Laws from the University of London and has completed her studies at the University of Colombo in the field of Forensic Medicine and Science. While working as a Junior Defence Counsel in the Chambers of a President’s Counsel she volunteers with Civil Society Organizations in the fields of Human Rights and empowerment of women and youth. She is passionate about lobbying to reform laws that are inherently discriminatory towards women and girls, to create safe spaces and an equal platform to all women, and to this effect has worked with women in the grassroots in areas of menstrual hygiene and political representation and had the honour of meeting the Government leaders to discuss reforms to the law, in an effort to bring tangible change