Anonymity for rape victims: Law must strike delicate balance on holding internet intermediaries liable

Last week, the Delhi High Court directed various media websites in India to remove news disclosing the identity of the Kathua rape victim. In May, the high court had issued notices to Google, Facebook, Twitter and YouTube for revealing the identity of the eight-year-old Kathua rape victim. The legal case against the social media websites has been filed under Section 228A of the Indian Penal Code (IPC) which criminalises the disclosure of the identity of victims of sexual offences. The case, which is still pending, raises important issues such as the need for protecting the anonymity of sexual assault victims on social media and the kind of liability (if any) which should be affixed on internet intermediaries.

Laws protecting the anonymity of sexual assault victims in India

In India, it is a criminal offence to disclose the identity of victims of offences committed under Sections 376, 376A, 376B, 376C or 376D of the IPC (broadly, offences covering sexual assault). The relevant section is 228A of the IPC which prohibits publication of the names of sexual assault victims save in exceptional cases, including where the publication is authorised in writing by the victim or by the next of kin of the victim (where the victim is dead or minor or of unsound mind). Further, under Section 23 of the Protection of Children from Sexual Offences (POCSO) Act 2012, the media is prohibited from disclosing information which could lead to disclosure of the identity of a victim in case of offences committed under the Act

Similar laws exist in other countries such as the United Kingdom where victims of sexual assault are generally given lifetime anonymity under the Sexual Offences (Amendment) Act, 1992.

The UNICEF also has guidelines in place relating to media reporting on children. The guidelines emphasise changing the name and obscuring the visual identity of any child who is identified as the victim of sexual abuse and exploitation.

Representational image. Reuters

Representational image. Reuters

Despite legal provisions protecting the anonymity of sexual assault victims including children, there are instances of such laws being flouted in India.

In July 2013, The Indian Express drew flak for publishing the names of victims of child trafficking in Manipur. In December 2017, the principal of a school in Kolkata was summoned for contravening the POCSO Act by revealing the name of a nursery student who had allegedly been sexually abused by two male teachers. In March 2017, the Calcutta High Court in Bijoy@Giddu Das versus State of West Bengal (CRA 663 of 2016) issued guidelines for protecting the victim’s identity after a trial court judge revealed the name of the victim in his judgment while hearing a case under the POCSO Act. The Calcutta High Court noted, “The victim’s identity shall not be disclosed in the media, except with the express permission of the special court, in the interest of justice. Any person, including a police officer, disclosing the identity of the victim, shall be prosecuted under Section 23(4) of the Act (POCSO).” Most recently, in April 2018, the Delhi High Court directed 12 media houses to pay Rs 10 lakh each as compensation for disclosing the name of the Kathua rape victim. The Press Council of India had also separately initiated proceedings against the media houses, which were subsequently stayed by the Delhi High Court.

The arguments for protecting the anonymity of rape victims in India relate to the right to privacy and preventing sexual assault victims from being stigmatised by the society. Apart from protecting the victim’s rights, the policy against identification of sexual assault victims also draws on arguments about protecting the right of the accused to be presumed innocent and to avoid ‘trial by media’. Also, the fear of being named in public can prevent sexual assault victims from reporting the assault in the first place.

Interestingly, there are also arguments against withholding a victim’s name in sexual assault cases on grounds of free speech and truthful reporting. Another issue which arises is whether, in cases where the victim or their family chooses to publicly reveal the identity of the sexual assault victim, the media should be permitted to name the victim while reporting (when no ‘formal consent’ has been given to the media as envisaged in Section 228A of the IPC). For instance, in the aftermath of the Delhi gangrape in December 2012, the mother of the sexual assault victim publicly revealed the name of the victim, stating that she felt no shame in announcing her daughter’s name. There were also calls by the victim’s family to name the new anti-rape law in India in her memory.

Role of internet intermediaries in protecting a sexual assault victim’s identity

The present case against the social media websites raises an important question, namely, whether internet intermediaries should be held accountable for hosting or publishing content which reveals the identity of sexual assault victims in contravention of Section 228A of the IPC. Internet intermediaries can be differentiated from our traditional understanding of the press (news TV channels and newspapers) on the grounds that Google, Facebook, Twitter and YouTube are not ‘content creators’, that is, they host links or websites which facilitate internet users (members of the public) to share personal content. Therefore, it is difficult to impute ‘intention’ to a social media website such as Twitter where an internet user posts a tweet which unlawfully identifies a sexual assault victim. Twitter can claim that it did not have knowledge that such a tweet in violation of the law had been posted, and therefore, Twitter can seek to escape liability. In contrast, where a newspaper publishes a sexual assault victim’s name, the liability can be imposed on the writer of the article/editor of the newspaper and the media house in general.

Another problematic aspect of holding internet intermediaries liable for user-generated content hosted on their websites is that it may lead to a chilling effect on free speech or pre-censorship of user content. There may also be practical difficulties in conducting preventive filtering to remove content identifying sexual assault victims. This is because unlike screening for content containing obscene images or hate speech where keywords and image identification are used to identify objectionable content, it is difficult to develop algorithms for removing content naming sexual assault victims.

Therefore, a better approach might be to affix liability on internet intermediaries only where a website fails to remove content unlawfully naming a sexual assault victim when the website has specific knowledge or when notified that such content has been posted on its platform. This could be the case, for instance, where an internet user reports such content on a social media website but the website fails to remove such content promptly, or refuses to remove the unlawful content. This approach is in line with Section 79 of the Information Technology (IT) Act, 2008 which exempts liability of internet intermediaries where the intermediary’s function is limited to providing access to a platform to host content by users. This will ensure that laws are not over-harsh on social media websites. It also addresses concerns that social media (if not unchecked) can become a forum for flouting laws governing the anonymity of sexual assault victims.

Devika Agarwal is an LLM candidate at University of Cambridge

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Updated Date: Jun 09, 2018 20:11:21 IST

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