• Muskan Banga

Virtual Harassment

Updated: Mar 24

Abstract

Nearly two years have passed since the announcement of COVID-19, a global health crisis that is slowly making work from home a new normal. The unprecedented situation has resulted in a sudden change in ways of working, in which corporates and other institutions carry on through a remote workforce. As a result, a number of issues such as data privacy and cyber security arose, which were immediately addressed, while on the other hand, the issue of virtual sexual harassment inadequately dealt with due to lack of awareness and well-defined policies in that case. Covid-19 has seen women experiencing online sexual harassment while working from home, as harassers take trump card of online working platforms and social media during the pandemic. Despite the fact that many incidents are not being recorded, complaints of sexual harassment are increasing in the work from home scenario[1]. Thus, the article enlightens the need to extend the Protection of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Prevention) Act, 2013 ["POSH Act"] to digital workspaces, providing the same type of protection to victims as it physically exists. This article, while seeking to be informative, focuses on various aspects of sexual harassment in the working from the home scenario and critically analyzes the laws related to it. The purpose of this article is to put forward the obsolete reason for the constrained success of this problem.

Keywords: Sexual harassment, Cyber workplace, Work from home, POSH Act, Covid-19, Online harassment.


Introduction

Social distancing and lockdown was implemented to bring down the surge of cases of deadly virus. This corona virus has given our country a new trend of working from home earlier which was limited to technical jobs only. This phenomenon is increasing day by day and is now happening everywhere on the online platform. As more women are coming out for work and finding this new trend a convenient platform for themselves, crimes are also coming to the fore with a new face. The problem of sexual harassment is very common in the work from home scenario and many complaints of harassment are coming up. Work from home has moved the cases of sexual harassment home too. Sexual harassment of women has been recognized as a nightmarish experience affecting the right of life guaranteed under article 21. In the current epidemic, there is no doubt that the term 'workplace' has also come to mean 'virtual workplace'. Therefore, addressing the issue of virtual sexual harassment and its legal stance is the need of the hour. Apart from physical harassment, due to the lack of awareness about sexual harassment in the virtual world, most of the women are not coming forward to report the case. Due to the fear of job insecurity, as well as the notorious reputation of being a baseless complainant, women are restraining themselves from coming forward with the matter. Therefore, it is of the essence to know what would be perceived as sexual harassment in the virtual workplace. Sexual harassment complaints can be made on these grounds [2]-

· Sexually colored remarks

· Uninvited verbal or non-verbal conduct of a sexual character

· Showing pornography without her consent

· Making inappropriate, sexiest or double meaning jokes

· Voyeurism and cyber stalking

· Insisting to do video calls after office hours

· Not maintaining decorum on video conferencing

· Sending inappropriate emoticons and messages on any social media and commenting on personal level on anyone’s social media handles

· Taking screenshots or doing screen recording while video conferencing without their consent.

· Abusive behavior is likely to affect her health (both mental and physical) or safety.

· Threatening in return for any sexual favors or promising preferential treatment in employment

Therefore, it should be understood that sexual harassment can be perpetrated even while working online, which has the same potential to create an adverse work environment for women and should be addressed effectively. Therefore, internal policies should be reviewed and the redressal mechanism should be updated keeping in mind the current work from the domestic scenario.


COVID-19 and corporate sector

The COVID-19 pandemic has severely affected the financial performance of the corporate sector as protracted nationwide lockouts and restrictions have drastically impacted manufacturing, construction and industrial activities across the country. The COVID-19 pandemic shocked the whole world and put it into turmoil. This forced people to stay indoors and forced companies to work from home mode. Distance work became the new normal, and the house became an extended workplace. The numbers of organization are allowing their employees to work remotely for a long time to come. Thus, this is an important time for policy makers and organizations to review and update their internal policies so that it reflects changes in the work order, including an upsurge in remote work. This current situation provides unique insights into how well it is to work from home, and it may play an important role in future policies that re-shape the current structure of work hours, possibly allowing for greater flexibility. Investing in remote working will have far-reaching consequences on our way of working after a crisis. It is too early to say to what extent we will go back to the old way of working, but business leaders have started thinking in advance about the potential of these investments


Impact of COVID-19 on Sexual Harassment

Workplace sexual harassment is globally criticized as a form of gender discrimination and human rights violations and has been legally banned by more than 75 countries but it is still widespread. Neither legislation nor market incentives are able to erase it. Experts have claimed that incidents of sexual harassment at the workplace have increased dramatically since the lockdown triggered by the COVID-19 epidemic, and sexual predators have discovered new tools to bully and mistreat women. A large number of women reported being subject to new forms of online sexual harassment such as "zoom-bombing"[3]. It is necessary to note that since this way of working has now become a part of our everyday life, various issues have arisen regarding 'cyber workplace harassment'.

The National Commission for Women in India recently revealed that online sexual harassment cases have seen a five-fold increase since the outbreak of the COVID-19 pandemic.[4] Due to the unpredictable nature of the epidemic and advances in digital technology, it appears that remote working is here to stay in one form or another. In addition, many organizations are considering allowing their employees to work remotely for a long time to come.[5] A large body of research suggests that workplace sexual harassment is the result of power differentials.[6] This is not primarily a result of physical access. It is a mirror showing male power over women. Screen capture during video calls without permission and broadcasting them on social media, managers demanding female colleagues to attend immediate meetings in post office hours, phallic emoticons used, and offering to send photos are the glimpse of workplace sexual harassment malpractice.


Laws Punishing Cyber Stalking and Online Harassment

Although there are no specific laws and provisions related to sexual harassment in the virtual workspace, recourse can be made based on the laws outlined below:

  • The Information Technology Act, 2000-

Section 67 of the Information Technology Act, 2000 dealt with the punishment for the publishing and transmitting the obscene material in an electronic form. This section can be interpreted to include offensive acts performed in the cyber workplace. Therefore all the inappropriate jokes which have been shared on a video call to 'lighten the mood' and 'increase empathy' fall within the scope of this section.


Suhas Katti v. State of Tamil Nadu[7]

The case has acquired a trademark place in the history of the Indian legal system, in which a person is convicted on the basis of sending obscene messages by damaging the reputation and character of the woman and at the same time breaching her dignity. This case exposes the various unseen paths that courts can take to provide justice in the field of cybercrimes and therefore holds its own importance. The concepts highlighted in this case are the fulfillment of cyber-harassment under Section 67 of the IT Act, 2000, and to discredit and humiliate the modesty of a woman under Section 509 of the IPC.This case has prompted and encouraged various women to come forward and talk about the same problems they were going through because it was shameful for women to talk openly about the oppression they were going through. People were made aware that their rights can also be secured in the cyber world and people should have faith in the judiciary.

  • The Indian Penal Code, 1860-

The Indian Penal Code, 180, criminalizes acts of sexuality, stalking and sexual harassment against women covered under Section 356A, C and D.

§ Section 354 A talks about posting vulgar and obscene comments on social media can lead to imprisonment for one year and can also be asked to pay a fine. Those posting indecent material and sending messages or requesting sexual favors without a woman's consent can be imprisoned for up to three years under the same section.

§ Women against voyeurism are protected under section 354 C, if a man is found making photographs or videos of the women while engaging in private work, without her consent, he may be punished by law for one to three years.

§ If a man continues to attempt to chase a woman through the Internet, e-mail or any other type of electronic communication without a woman's consent, he may face up to three years in prison only if it was committed for the first time. If he has repeated then he may be sentenced to five years in prison the act. He may be liable to pay a fine, whether it is his first or second offense under section 354 D.

§ Section 499 penalizes the act of defamation. Defaming someone by publication of a visual representation of an indictment relating to a woman, with intent to harm her reputation, is punishable with imprisonment for a term which may extend to two years, or with fine, or both.

§ The act of threatening someone to harm her reputation and blackmailing a person on the Internet can be brought under the purview of Section 503 of Indian Penal Code 1860.

§ Section 507 of Indian Penal Code 1860 provides that the offence of criminal intimidation by an anonymous communication done by the person whose identity is not known to the victim is punishable under this provision.


CEDAW-

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)[8] which was authorized by India to ensure a safe working environment for women in India, it can be trusted whether it is 'virtual' or 'physical'.


Vishaka v. State of Rajasthan[9]

The Supreme Court of India held that there was an international obligation under the Convention to do so.


Does POSH cover harassment on online platforms?

In India, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Prevention) Act, 2013 ("POSH Act") is the primary law that seeks to ensure the protection of women against sexual harassment at the workplace. The POSH Act defines sexual harassment as any unwanted act or behavior (whether directly or by implication), namely, physical contact and advance, or a demand or request for a sexual favor, or sexually colored remarks, or showing pornography, or any unwanted physical, oral or non-verbal conduct of a sexual nature under section 2(n). Therefore, acts such as harassment and engaging in abusive and intimidating behavior should be considered within the purview of sexual harassment. The POSH Act was enacted for the purpose of providing protection to women from sexual harassment at the workplace and speedy redressal of sexual harassment complaints. Implied or explicit promise of preferential treatment or threat of detrimental treatment in her employment, interfering with her work or creating an intimidating or aggressive or hostile work environment for her or humiliating treatment comes under the definition prevention of sexual harassment under section 3 of the POSH Act. The definition of workplace is an inclusive and non-detailed definition and includes any place of residence or home visited by an employee during the course of employment under section 2(o) of the POSH Act.

Sanjeev Mishra vs. Bank of Baroda[10]

The court stated that the digital workplace should be seen as "one workplace" as a whole for workers employed in various branches / states. it has included the term online harassment in the definition of workplace.


Jaya Kodate vs. Rashtrasant Tukdoji Maharaj Nagpur University[11]

It was held that the definition of 'workplace' under the POSH Act is inclusive and has been deliberately broadened by Parliament to ensure that any area where women can be sexually harassed is not left neglected.


Ayesha Khatun vs. the State of West Bangal and Ors[12]

The Calcutta High court stated that ‘workplace’ cannot be given a finite meaning and instead it should be given a broader meaning so that guidelines can be applied where its application is needed to remove any obstruction of the nature outside the premises of the 'workplace' which prevents a working woman from going to her place of work, while analyzing the background of Vishakha Guidelines. In this case the court also emphasized the need to provide women with a suitable and conducive environment at their workplace where they can continue their service with respect and dignity.


Saurabh Kumar Mallick v. Comptroller & Auditor General of India[13]

The Delhi High court observed that, to give life to the provisions of this socially beneficial law, the Courts have re-applied the principle of notional extension to broaden the concept of "workplace" as "extended workplace". Therefore, for the purpose of this Act, the employee's house becomes a notional office. The definition is sufficient to cover any event which may occur at any place during employment, it is not entirely clear whether any work which takes place outside the physical premises of the establishment which is not in the course of employment be subject to disciplinary proceedings by the employer.

Through several judicial pronouncements it can be conclude that the courts of India have sought to give a liberal interpretation to the definition of workplace in protection women at their workplace


How to file a complaint?

A complaint can be lodged anywhere, as cybercrime has no jurisdiction. The Center for Advanced Research in Digital Forensics and Cyber ​​Security (ARDC) strives to play an active and vital role in sensitizing society about cyber-crimes against women. According to ARDC, you can file a complaint against the accused and can approach to these three places in any city stated below:


1. Cyber Cells

Cyber cells specifically set up to deal with cybercrime victims. Cyber cells come under the purview of the Crime Investigation Department. If there is difficulty to find cyber cell where you live, you can file an FIR at a local police station. If you are unable to register an FIR, you can contact the Commissioner of Police. It is mandatory to file an FIR in the police station.


2. The National Commission for Women

The victims of online harassment can deal with the police regarding the case through the help of services offered by this organization. The Commission has the power to set up an inquiry committee, which has the right to call the accused on the spot to conduct inquiries, collect evidence, interrogate witnesses and expedite the investigation.


3. Reporting on Social Media websites

If both of the above are difficult to do for any reason, then reporting on social media websites is also an option. Most of these websites have the option to report crime as they are obliged to take action within 36 hours of reporting to prevent the spread of objectionable content under the IT Rules 2011.


* It is always advisable to seek the help of legal experts or, as a last resort, contact local authorities and take legal action.


Required Evidences:

Steps taken by victim- It is worth noting that before taking legal action if you are a victim of any type of cybercrime, do not delete photos, emails or any other information sent by the offender as doing so makes it difficult to locate or trace evidence in a virtual world. Also consider that you should take screenshots or printouts of the evidence and report the incident on the platform or the forums, for example, social media websites, or blogs that any type of harassment or crime has occurred.


Steps taken by organization- National Commission for Women has instructed the Companies to frame the proper guidelines on how work from home should work in an Organization[14]. Companies should make proper rules and guidelines for work from home, including appropriate dress codes for online meetings and should set a fix time slots for video conferencing especially for women. There should be a proper council to address all these matters of sexual harassment. Organization should create awareness regarding what is offensive or indecent in the online world and should educate and support their women employees.


How to Prevent Sexual Harassment in online world?

Virtual sexual harassment can be difficult to detect because it happens online, not in the open. However, there are different ways to protect your women employees from it.

First, Show your organization's commitment and guidelines to a harassment-free workplace. The organization should frame a strong sexual harassment policy which will include online behavior of all the employees. Apply the policy without any exception. Also, encourage employees to give their opinions about how to make your workplace safe in the case of virtual sexual harassment.

Second, organization should encourage the senior management to establish an anti-harassment tone at the top of anything which means living the company's values, taking complaints seriously and supporting the changes arising from the online sexual harassment incident. Most importantly, managers should never retaliate against an employee who reports malpractices.

Third and last, the company should encourage employees to speak up about virtual sexual harassment in open without any fear by making the procedure of reporting easy. Provide multiple reporting avenues such as a dedicated phone number, email address and web form. Above all, take real action when you get the report. Ignoring reports or dragging your feet in an investigation tells employees that you prioritize your company's image over their safety.


Conclusion

Sexual harassment of women is not a new crime but has just shifted from offline to online. In India, we have laws to prevent such serious crimes, but the only problem is the ignorance of our generation. While a murder destroys the victim's physical structure, the mental harassment which has done sexually degrades and defiles the soul of a helpless woman

It is a legal right to provide safe workplaces to employees, and sexual harassment is a gross violation of that. Therefore, employers and organizations have a major responsibility to end sexual harassment in all forms within their workplace. The future is never certain and the issue of sexual harassment in the cyber workplace cannot be taken lightly as work from home can continue as the new normal even after the COVID-19 epidemic ends. To deal with virtual sexual harassment in the present and future, a member of the Internal Committee must be well versed with cyber and IT laws to manage and manage cases concerning virtual harassment. Also, the government should encourage companies to bring in a new code of conduct for work from home, as the practice here is eligible for maritime change rules. The POSH Act has been successful in providing women with a safe and secure environment in the physical as well as a virtual workplace but due to lack of awareness, the numbers of cases are rising. Education should be given regarding various types of sexual harassment and the modes to respond to such vile acts, to better assist the victims maneuver their way through the legal procedures, which would thus result in the perpetrators of this crime, facing appropriate legal repercussions.



[1] https://timesofindia.indiatimes.com/india/work-from-home-brings-virtual-sexual-harassment-home-too/articleshow/76543669.cms [2] http://www.ohrc.on.ca/en/policy-preventing-sexual-and-gender-based-harassment/2-identifying-sexual-harassment [3] https://www.lawaudience.com/wp-content/uploads/2021/07/Sexual-Harassment-Against-Women-During-Pandemic.pdf [4] https://www.thehindu.com/news/national/ncw-launches-domestic-violence-helpline/article31312219.ece [5] https://www.gartner.com/en/newsroom/press-releases/2020-07-14-gartner-survey-reveals-82-percent-of-company-leaders-plan-to-allow-employees-to-work-remotely-some-of-the-time [6] https://www.tandfonline.com/doi/abs/10.1207/s15324834basp1704_5 [7]C No. 4680 of 2004 [8] https://www.un.org/womenwatch/daw/cedaw/ [9] (1997) 6 SCC 241 [10] S.B. Civil Writ Petition No.150/2021 [11] 2014 SCC OnLine Bom 814 [12] W.P. NO. 905 OF 2011 [13] 2008 SCC OnLine Del 563 [14] https://www.thehindu.com/news/national/ncw-launches-domestic-violence-helpline/article31312219.ece

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