Confronting Cyber Homophobia – Lessons from the United Kingdom and a Plea for Legal Reform in India

by | Jan 4, 2024

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About Madhav Krishan Sareen

Madhav Krishan Sareen is a fourth-year law student at University School of Law and Legal Studies, GGSIPU. He is also pursuing an advanced diploma in criminal law and forensic science at NALSAR University, Hyderabad. His research interests include international human rights, criminology and constitutional law.

Priyanshu, a self-taught make-up artist and social media influencer from Ujjain, India, boasting an Instagram account with over 13,000 followers, was known for sharing content related to make-up, beauty, and skincare. In Diwali, the artist shared a reel showcasing a transition video in a red sari, which garnered a significant number of homophobic hate comments. This led the artist to tragically take their own life. This is not the first occurrence of suicide provoked by homophobia in India, and given the present circumstances, it’s unlikely to be the final one. The Journal of Public Health’s study analysing the suicide of LGBTQIA+ persons between January 2011 and January 2021 found that social stigma is the most common factor associated with LGBTQIA+ suicide in India, with psychosocial stressors reported in 54.5% of suicides. In spite of this, India does not have legislation against cyberbullying, specifically in relation to the LGBTQIA+ community. Despite the Supreme Court’s acknowledgment of their plight, there is a significant gap in implementing protective measures.


The Silence in Indian Law

India’s Information Technology Act 2000 contains an anti-trolling provision in Section 66A, targeting individuals posting ‘offensive content’ on the internet. However, in the 2015 case Shreya Singhal v Union of India, this provision came under scrutiny for allegedly infringing upon the right to freedom of speech guaranteed by the Constitution. The Supreme Court emphasised the supremacy of freedom of speech and thus annulled the provision due to concerns about it being potentially abused. However, a less problematic and more effective replacement provision has not yet been instituted, leaving victims without a remedy for addressing such issues. 


Despite Rajeev Chandrasekhar, the Minister of Electronics and Information Technology, assuring the introduction of a law to tackle trolling in December 2022, no such legislation has been enacted. The Indian Government should take a cue from the governments in the United Kingdom and Australia, where such anti-trolling bills have been introduced to tackle online harassment.


Law in the United Kingdom

In 1988, the United Kingdom implemented the Malicious Communication Act (MCA) to combat offensive online content. Subsequently, in 2003, the UK Parliament expanded the reach of the 1988 Act through the Communication Act. The MCA was initially aimed at controlling printed materials but has expanded to cover electronic communications. It can now be used to press charges for “racially motivated” or “religiously motivated” remarks on social networking sites. This led to the establishment of OFCOM (Office of Communication), which established guidelines for lawful online communication. Section 3 of the OFCOM Code extended this protection against online hate, offence, and threats.


Online trolls may therefore be charged under the Malicious Communication Act 1988 and the Communication Act 2003, specifically Sections 1 and 127, which criminalise online threats, hate speech, and indecent messages. In addition to the existing legal framework, the Criminal Offence (Misuse of Digital Technologies and Services) (Consolidation) Bill was introduced in 2016, though it is still pending for second reading before the House of Commons. This private members’ bill aims to strengthen both substantive and procedural laws related to online offences.


Most notably, in R v College of Policing, former police officer Harry Miller faced disciplinary proceedings within the police after posting tweets expressing ‘gender-critical’ transphobic views. Humberside Police categorised the tweets as a “non-crime hate incident” following a complaint, identifying Miller as a “suspect” and the complainant as a “victim,” suggesting a potential hate crime. Miller contested the police’s handling of the situation with a complaint to the Humberside Police Professional Standards Department, but it was dismissed. Subsequently, he lodged a petition for judicial review against the dismissal. The court determined that recording non-crime hate incidents related to speech did not constitute an infringement on freedom of expression.


Moving Forward

Drawing inspiration from international models, such as the United Kingdom’s Malicious Communication Act 1998 and Communication Act 2003, India would benefit from a legal framework specifically addressing online hate, threats, and offensive content. In the face of rising cyberbullying incidents, it is imperative that India enact comprehensive legislation, drawing on global experiences, to provide a robust legal recourse for victims and to foster a safer online environment.

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