Reining in the Trolls: Problems in existing laws and time to adopt stringent measures – By Aaditya Vijaykumar

When various social media platforms were developed the intent was for people to keep in touch. This intent made people around the world to en masse subscribe to such platforms such as Facebook, Twitter, Instagram etc. Over a period of time, the humour on these social media platforms disappeared and was immediately replaced with deeply hateful and aggressive messages and name calling, without, in the least, knowing the person. To make matters worse, these persons who post these patently hateful messages are proud to call themselves “trolls” and are self-proclaimed moral policemen. They feel that everyone’s opinion should conform with their standards failing which snap judgments are made, abuses are hurled by the dozen and aggressive messages are posted without demur. This deeply psychologically deviant behavior, especially on social media, cannot be normalized or brushed aside, as being the new normal. This delinquent behavior, to shoot from the shadows, has to stop and a mechanism ought to be brought about to do so. 

What is cyber bullying and trolling?

Internet trolling is a subset of cyber bullying or cyber harassment. Thus, it would be useful to understand what is cyber bullying. Cyber bullying is the use of the internet and other electronic forms of technology to post embarrassing photos, aggressive and patently abusive messages, emails, or to make threats. 

A ‘troll’ can be defined as someone who makes deliberately offensive or provocative online posts, usually with the intention of eliciting reactions from others. Internet trolling is a behavior wherein the troll intends to inflame, upset, or otherwise damage civil discourse. This is done through vile invective/diatribe, insults and other verbal havoc with a view to disrupt online or public communication.

Forms of Trolling:

Trolling can take several forms but are mostly aggressive, abusive, hurtful, humiliating rumours or comments or posts about an individual online or triggering religious, racial, ethnic or political hate online by posting hate comments or videos.

Troll Aims:

The aim of each troll is simple. Attention. An internet troll seeks attention or seeks to push a particular agenda. They essentially seek to shift attention from the author’s content or conversations and try and get as much mileage unto themselves, by posting inflammatory comments. The more attention they get, in the form of comments directed at them, the happier the troll is. 

Some illustrations:

Some notable illustrations and examples is the trolling/ cyberbullying of Ms. Monica Lewinski, the backlash that a celebrity faced after incorrectly answering a general knowledge question in a television show, the backlash some celebrities faced on their views on nepotism in the film industry and quite frankly the vile comments that every single person faces on social media, especially on Twitter, not just restricted to political issues. 

Deep psychological issues of the troller: 

Various studies have shown and found trolling was positively correlated with psychopathy, sadism and Machiavellianism. Infact, sadism proved to be the most important factor for predicting trolling behaviors. Studies have also shown that trollers, who resort to multiple and repeated abuses, also face issues relating to depression, low self esteem and anxiety, all of which stem from a lack of attention all their lives (1).  

Impact of trolling on the trolled: 

While these online activities may seem harmless to the perpetrator, they have far-reaching repercussions on the mind of the victim. This is because the nature of content published on online platforms or in their associated text messaging portals is denigrating, to state the least. 

This invariably leads to excruciating symptoms that negatively affect the victim’s mental health and can lead to bouts of depression, anxiety, suicidal tendencies, low self-esteem, anger and frustration.

Measures adopted internationally:

United Kingdom:

The United Kingdom has sought to essentially curb trolling by the use of various legislations (2). One of the important legislations, in this regard, is the Malicious Communications Act, which states that any person who sends a letter, electronic communication or article of any description to a person that conveys a message that is indecent or highly offensive, a threat or false information or causes distress or anxiety to the recipient or to any other person, then the sender is guilty of an offence. On the basis of this statute as also other statutes, multiple criminal reports and consequent convictions have been registered in the United Kingdom, albeit for a short term of imprisonment. 

Other countries:

Stringent legislations have also been adopted by Japan, United States and many European nations making cyber bullying as also trolling, where abusive posts a punishable offense by law.

Indian Law and the problems:

In order to address this issue, the Legislature showed considerable foresight while promulgating the Information Technology Act, 2000, though the form and the manner in which the provisions were couched left much to be desired. The Legislature thus added provisions essentially criminalizing acts of persons sending obscene messages, sexually explicit messages, messages that invade privacy or messages that are offensive in nature (3). These measures were adopted to prevent offences such as trolling, cyber stalking, cyber bullying, spamming etc. 

Unfortunately, Section 66A of the Information Technology Act, 2000, which was the offence relating to messages which were offensive in nature, was struck down as being unconstitutional being in derogation to the guarantees of freedom of speech and expression envisaged under Article 19(1) (a) of the Constitution of India (4). The relevant portion of the judgment is reproduced hereunder:

“98. We have already held that Section 66A creates an offence which is vague and overbroad, and, therefore, unconstitutional under Article 19(1)(a) and not saved by Article 19(2). We have also held that the wider range of circulation over the internet cannot restrict the content of the right under Article 19(1)(a) nor can it justify its denial.”

The Hon’ble Supreme Court, in the submission of the author, could have read down the provision, ensuring safeguards, rather than holding the entire provision to be unconstitutional. Be that as it may, as the law stands now, refuge cannot be sought under Section 66A of the Information Technology Act. The consequence of this judgment is that a free run is given to trolls to post grossly abusive and offensive material on the internet. Surely, the freedom of speech and expression cannot and does not permit a person to virtually spit on someone’s face or absolutely sully someone’s reputation and get away with it. This has only given ammunition to mischief mongers and trolling has unfortunately become a norm and not an aberration anymore.

If therefore these miscreants are to be brought to book, they would have to fall within the purview of Section 354A of the Indian Penal Code which provides for an offence in respect of sexual harassment, Section 354C of the Indian Penal Code which provides for the offence of voyeurism and/or Section 354 D of the Indian Penal Code  which provides for the offence of being the subject matter of or subjected to sexually explicit content. It is necessary to mention that these provisions under the Indian Penal Code safeguard the rights of women only, who are subjected to any of the above offences. 

However, if any of the above ingredients are absent i.e. if the message is not sexual/sexually explicit in nature or voyeuristic and the message from a troll is purely abusive or ridicules or humiliates or has the propensity to do so, the only recourse to law would be to, at the most, file a complaint/suit for defamation or criminal intimidation. This is also a dead end for the person who has been trolled. Police officials are already under tremendous pressure to investigate and conclude offences and therefore they are already reluctant when it comes to lodging a police complaint for more heinous offences. This, therefore, is not an efficacious remedy at all. 

That apart, assuming that one is a public figure or a person with a lot of followers on platforms such as Twitter or Instagram, (which does not by itself give anyone the right to abuse) one cannot possibly file a defamatory action or a police complaint against each and every troll posting down right derogatory remarks. Surely a simpler and more effective method has to be found so as to not be subject to ridicule, humiliation or abuse. Ignoring the abuse does not stave off a future assault on social media. Similarly, dealing with such abuse head on only antagonizes the troller. 

While the Intermediary guidelines only make the web platform publish a privacy policy and inform the users that they ought not to publish “grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever”, these privacy policies seldom deter a troll. Therefore, irrespective of the privacy policy, the troll publishes derogatory and offensive material, at his/her whim and fancy. Similarly, if action is to be taken, the person who has been trolled has to lodge a complaint with the platform. Once again, action is rarely taken by the platform and if at all it is taken, it is taken extremely belatedly, by which time the damage is already done. 

The Simple Solution:

Instead, all web platforms ought to be directed to compulsorily incorporate a specific icon/tool which allows the user/ person being trolled to block a particular troll or report a troll. Upon the troll being reported, not only should the comment be deleted with immediate effect, the troll should be pre-empted from publishing any further messages on the user’s platform or in response to the user’s comment, unless an express consent to do so is given by the person already trolled. Similarly, if multiple users have reported the troll, the media platform should automatically deactivate the account of the troll rather than allow him to cause and wreak havoc. 

Besides this, once multiple accounts are deactivated, each web platform, especially social media platforms, should be made to liaise with the cyber cell or the police station of local jurisdiction, within a stipulated period of time, to hand over a list of persons who have been reported by multiple persons who have been trolled. Accordingly, penal action ought to be taken against each of these trolls. Using the deterrence theory, one would possibly seek a sharp decline of such abusive language on the internet. Additionally, this data/ statistics so collected ought to be published on each website for users to understand the gravity of the issue. 

Since a void is created in the Information Technology Act, 2000, by way of the Supreme Court judgment, the Legislature ought to introduce a tempered down version of Section 66A of the Information Technology Act, 2000 by balancing the right to freedom of speech and expression and ensuring adequate safeguards. While I agree that it is difficult, if not impossible, to define trolling (as it is very subjective in nature), however, measures have to be taken by the Legislature to curb such delinquent tendencies, without hindering the freedom of speech and expression to stand the test of judicial review, if it comes to that. 

In short, someone needs to stop these vile comments and rein in the trolls.  

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Aaditya Vijaykumar is a lawyer practicing in the Delhi High Court. His practice areas include arbitration, litigation relating to contractual disputes, consumer disputes, gaming laws, anti-trust issues, litigation before the Debt Recovery Tribunal, NCLT, litigation for and on behalf of the government and PSUs, as well as litigation relating to property disputes and election laws.

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 (1) Differentiating cyber bullies and Internet trolls by personality characteristics and self-esteem by Kathryn C. Seigfried-Spellar, Purdue University, JDFSL V11N3;

(2) The Protection from Harassment Act, The Malicious Communications Act 1988, the Communications Act 2003, Obscene Publications Act 1959, Computer Misuse Act 1990;

(3) Please see Section 66A, Section 66E, Section 67, Section 67A, Section 67 B and Section 67 C of the Information and Technology Act, 2000

(4) Shreya Singhal v. Union of India, W.P. (C) 167/ 2012. This writ petition W.P. (C) 167/2012 was accompanied by writ petitions bearing no. 21/2013, 23/2013, 97/2013, 199/2013, 217/2013, 222/2013, 225/2013, 758/2014 and 196/2014, which were taken up together with W.P. (C) 167/2012 and disposed off by the Supreme Court vide order dated 24^th March, 2015.

Disclaimer: The views or opinions expressed are solely of the author.