“The Internet is becoming the town square for the global village of tomorrow.” – Bill Gates
In the world we live in today, the Internet and Information technology are of utmost importance and play a major part in almost every aspect of our lives. With the spread of the Covid-19 pandemic in 2019 and its continuing effects, the world became more reliant on technology and the internet to continue to work, learn and grow. The people began to count more on technology to continue living their lives as best as possible.
“Information technology and the Internet are rapidly transforming almost every aspect of our lives – some for better, some for worse.” – John Landgraf
With this reliance on information technology and the internet, came the two sides of development – the good and the bad. Change happened for the good as well as the bad. People were able to set up relief funds, organise for better medical supplies and see to it that work and education continued. Innovation with the help of information technology and the internet became key to survival. But with the goodness and the urge to do better, comes the opposite; the urge to be wicked and cause hindrance. There was an increase in cybercrime and hacking.
“The Internet is a worldwide platform for sharing information. It is a community of common interests. No country is immune to such global challenges as cybercrime, hacking, and invasion of privacy.” – Lu Wei
The significant threat that has been caused due to this swift shift to the cyber world is that of cyber-harassment and cyber bullying. The shift to the ‘work from home’ or ‘online’ work culture has left society vulnerable to sexual harassment and sexual abuse. According to certain statistics, a stark rise in the number of cybercrimes related to sexual harassment was seen in the year 2019 in comparison to the years of 2016 and 2017. The number of cybercrimes registered in 2019 were significantly higher than the number of cybercrimes registered in 2018. There were 2,266 cybercrimes related to sexual harassment or sexual exploitation registered in 2019. The existing laws and regulations are insufficient and outdated to cope with this new threat that has come up in the realm of cyberspace.
This topic of sexual harassment in the realm of cyberspace is of great importance and there is a need to discuss this thoroughly as our work culture has seen a drastic change and that in all likelihood, the world was pushed into this work culture before it was ready. Therefore, there is a need to understand and discuss this topic at hand in great detail with some sense of urgency as the issue is bound to be persistent and something that is not going away any time soon.
While dealing with the topic of sexual harassment in the realm of cyberspace or in the virtual world, the following questions arise:
1. Whether there is a major difference in the acts of sexual harassment committed in the physical world and the cyber or virtual world?
2. Whether the current law i.e. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is sufficient to protect people against sexual harassment at workplace in realm of cyber space?
To answer the first question regarding the differences in sexual harassment act committed in the physical or real world and those committed in the cyber or virtual world, there is a necessity to understand the concept of sexual harassment in general.
It should be noted that the term ‘sexual harassment’ is of a relatively recent origin. The term is said to have emerged in North America in the mid-1970s. Sexual harassment has a wide import. It is difficult to define it precisely as sexual harassment can range from jokes to coerced sexual relations. The term was adopted in the United Kingdom as well. The United States and the United Kingdom, both took different approaches to sexual harassment. In the United Kingdom, the sexual harassment actions were founded on claims of discrimination and largely confined to the laws relating to employment. On the other hand, in the United States, an effort was made to find sexual harassment beyond discrimination as well. Sexual harassment having various contours to the expression and a wide import is a concept that eludes proper definition. Catharine Mackinnon defines this elusive concept of sexual harassment as ‘unwanted imposition of sexual requirements in the context of relationship of unequal power.’ The European Commission recommendation on the protection of the dignity of man and woman at work (November 1991) states that – ‘conduct of sexual nature, or other conduct based on sex affecting the dignity of women and men at work, including conduct of superiors and colleagues is unacceptable if:
a. such conduct is unwanted, unreasonable and offensive to the recipient;
b. a person’s rejection of, or submission to, such conduct on the part of employers or workers (including superiors or colleagues) is used explicitly or implicitly as a basis for a decision which affects that person’s access to vocational training, access to employment, continued employment, promotion, salary or any other employment decisions; and/or
c. such conduct created an intimidating, hostile, or humiliating work environment for the recipient’
As can be seen, this definition deals with the sexual harassment at the workplace. It should be noted that ‘Harassment’ and ‘Sexual harassment have also been defined in the EU Directive 2002/73/EC in the following manner. ‘Harassment is said to occur where an unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment.’ Further, sexual harassment is defined as ‘where any form of unwanted verbal, nonverbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment.’ There exists a simplified definition of sexual harassment given by Kathleen Gallivan which defines the term as ‘any type of unwanted sexual or gender-oriented behaviour that has adverse job-related effects.’
From the above definitions, it is clear that generally speaking, sexual harassment has been defined in terms of what happens in a work environment. These definitions deal with harassment of a sexual nature that takes place in work environments and usually when there is an unequal distribution of power among the person facing sexual harassment and the person meting out such sexual harassment.
It should be noted that over the years, the Judiciaries of various countries have also actively tried to define and explain the basic requirements of an act to be considered as sexual harassment. In the United States, in the case of Paroline v. UNISYS Corp [879 F.2d 100 (4th Cir. 1989)], the requirements for establishing a harassment case were listed as: (i) that the conduct in question was unwelcome; (ii) that the harassment was based on sex; (iii) that the harassment was sufficiently pervasive or sever so as to create an abusive working environment; and (iv) that some basis existed for imputing the liability to employer. Basically, the harassment has to create an abusive working environment where it interferes with the ability of the person to perform their work or significantly affects their psychological well-being.
Now, let us have a look at the situation in India. In India, sexual harassment at the workplace was dealt with for the first time in the case of Vishaka v. State of Rajasthan [AIR 1997 SC 3011]. Before this, the term ‘sexual harassment’ had never settled into the Indian legal lexicon. The Supreme Court put forth guidelines and norms to be followed and stated that this was done in the exercise of the power available to it under Article 32 of the Constitution and further emphasised that these should be treated as law declared by the Court under Article 141 of the Constitution. The absence of appropriate legislation was also noted. In the Vishaka Case, the Supreme Court defined sexual harassment with an inclusive definition. Sexual harassment was defined to include ‘such unwelcome sexually determined behaviour whether directly or by implication as: (a) physical contact and advances; (b) a demand or request for sexual favours; (c)sexually coloured remarks; (d) showing pornography; (e) any other unwelcome physical or non-verbal conduct of sexual nature.
It can be gleamed for the above discussion that sexual harassment is a form of discrimination based on sex. Such a kind of discrimination is projected through unwelcome sexual advances, verbal or physical conduct with sexual overtones and the request for sexual favours.
A few examples of sexual harassment in different forms will help our understanding.
There is a term for violence or harassment that occurs in the digital realm. It is called Technology-Facilitated Gender Based Violence. This is a modern form of gender-based violence which utilises digital technologies to cause harms. As technologies increasingly become mainstays in everyday life, particularly over the last year due to the COVID-19 pandemic where people’s lives have moved online, the technology facilitated gender-based violence has also proliferated. According to Dr. Woodlock, ‘as people’s lives become increasingly digitally mediated, gender-based violence has likewise shifted to the digital realm.
For the purposes of further discussion into whether the laws in India are sufficient to combat sexual harassment in the digital realm, it is important to understand the various types of sexual harassment acts that can be committed online or digitally. The United Nations in 2018 release the Report of the Special Rapporteur on violence against women, its causes and consequences on online violence against women and girls from a human rights perspective. The report highlighted the various ways in which technologies are used to perpetrate violence. Focussing on the forms of harassment and sexual harassment, a few of the forms of such technology facilitated gender-based violence are mentioned and detailed below.
It should be noted that though these different forms may be unique in their own ways, the behaviours which lead to these forms of harassment usually overlap with each other. For example, someone may harass another person by creating a nude image of them and posting it on a fake profile along with their target’s contact information, incorporating image-based sexual abuse, the release of private information or doxing, impersonation and harassment.
Therefore, to answer the first question of whether there is a major difference in sexual harassment committed in the real or physical world as against that committed in the virtual or cyber world, the short answer is no. The only difference between sexual harassment acts committed in the real world and the virtual world is that, in the real world there exist instances of physical sexual harassment where the tactile senses are used and that in the virtual world that doesn’t happen. So, the only difference is that in the real world, acts of sexual harassment would include all the types of sexual harassments i.e., verbal, non-verbal and physical while in the virtual world physical harassment where tactile senses are required may not be possible Another important difference is that in the real world, it is easier to identify the perpetrator as such a person has a face where as in the virtual world it is difficult to do because the perpetrators are faceless due to the anonymity provided by the virtual world. However, it should also be noted that speaking in a practical sense, in the real world the help of media and information technology is used to facilitate acts of sexual harassment.
To answer the second question as to whether the current laws in place, in particular the POSH Act, 2013 is sufficient to combat the steadily rising cases of sexual harassment in the realm of cyberspace, it is first important to have an overview and understanding of the provisions of the Act and the history of sexual harassment laws in India. It is also necessary to note the issues that arise with the prevalent ‘work from home’ culture, such as – the definition of workplace, the meaning of sexual harassment and the various types and the working of the complaint mechanism.
Workplace harassment was recognised for the first time by the Supreme Court in the case of Vishaka v. State of Rajasthan. This was a landmark judgement in which the Supreme Court framed certain guidelines and norms. The Supreme Court used its power to frame laws under Article 141 of the Constitution to do so. These guidelines made it mandatory for every employer to provide a grievance redressal mechanism pertaining specifically to workplace sexual harassment. The term ‘sexual harassment’ was also defined. This case followed the incident that took place in Rajasthan. In 1992, Bhanwari Devi, a dalit woman made efforts to curb the then prevalent child marriage. In the course of her employment, she was first sexually harassed and was later gang raped. The Supreme Court recognised and acknowledged the legislative inadequacy. In later cases, the Vishaka case was reiterated.
It needs to be noted that in India, the progression and development of the law relating to sexual harassment began with the Judiciary and then the law was framed by the Legislature. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 more commonly known as the POSH Act was enacted 16 years after the landmark judgement in the Vishaka case. It is also of importance to note the purpose behind the enactment of the Act. This act was basically enacted with the objective of preventing and protecting women against sexual harassment at the workplace and for the effective redressal of complaints of sexual harassment. It is interesting to note that the definitions provided for in the Act are broad in nature. The definitions of the terms ‘aggrieved woman’, ‘employee’, ‘employer’, ‘sexual harassment’ and ‘workplace’ are of particular importance.
Section 2(a) defines the term aggrieved woman in the following manner:
“(a) aggrieved woman means –
(i) in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent;
(ii) in relation to a dwelling place or house, a woman of any age who is employed in such a dwelling place or house”
This is a broad definition and defines aggrieved woman in terms of the workplace and a dwelling place. Further, as can be seen, the definition also brings into its fold a woman not employed in a workplace. This means that a woman who is at a workplace but not employed there can also be the aggrieved party and has the right to take action against the person harassing her.
Section 2(f) defines the term ‘employee’ thus:
“(f) employee means a person employed at a workplace, for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name.”
The definition of employee is vast and tries to take within its fold any form and type of employment imaginable from an intern to the executives. This shows that the Act is primarily a social welfare legislation brought into place to combat the evil of sexual harassment faced by women at the workplace.
Section 2(g) defines the term ‘employer’ as:
“(g) employer means –
(i) in relation to any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government or a local authority, the head of that department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit or such other officer as the appropriate Government or the local authority, as the case may be, may by any order specify in this behalf;
(ii) in any workplace not covered under sub-clause (i), any person responsible for the management, supervision and control of the workplace.
(iii) in relation to workplace covered under sub-clauses (i) and (ii), the person discharging contractual obligations with respect to his or her employees;
(iv) in relation to a dwelling place or house, a person or a household who employs or benefits from the employment of domestic worker, irrespective of the number, time period or type of such worker employed, or the nature of the employment or activities performed by the domestic worker”
The Act gives a broad definition to the term employer as well.
The term workplace has been defined in section 2(o) as follows:
“(o) workplace includes –
(i) any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society;
(ii) any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service;
(iii) hospitals or nursing homes;
(iv) any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;
(v) any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey;
(vi) a dwelling place or a house”
The definition given by the Act to the term ‘workplace’ is broad and covers all types of workplaces that one can think of. It is a wide definition meant to be inclusive and not exhaustive in nature.
Another definition of importance is that of the term ‘respondent’. The term ‘respondent’ is defined in Section 2(m) as follows:
“respondent means a person against whom the aggrieved woman has made a complaint under section 9”
This definition is important because it states that the respondent is a person against whom the complaint is made. This means that it can be any person and not necessary an employee or the employer. It could be a client or a third party as well. This further means that a complaint can be filed by a woman against any person and that such person need not necessarily be an employee or the employer.
By the above definitions and on a basic perusal of the Act, it is clear that there was an underlying reason on giving the different important terms broad definitions. The reason may be that this Act is supposed to be a piece of welfare legislation to protect and empower women to take action against being sexually harassed at the workplace.
With the advent of technology and the current pandemic had paved the way for virtual workplaces which enable people to work from the comforts of their homes. The traditional definition of workplace falls short and leaves women being sexually harassed in a bind. There is a need to interpret the definitions of ‘sexual harassment’ and ‘workplace’ in a way which would resolve this issue.
This issue can be resolved in a simplistic way. The term ‘workplace’ which has a broad interpretation should be interpreted loosely and the notional extension theory can be applied. The theory of notional extension basically means where the term workplace does not mean just the workplace and it includes within its fold the travel to and from place of work to place of residence and any place visited arising out of or in the course of employment. The POSH Act has already introduced the concept of extended workplace by having a broad definition of workplace which was a step up from the Vishaka Guidelines. The Courts have foreseen the issue and also dealt with it. In the case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India [WP(C) No.8649/2007], the Delhi High Court made certain observations. Here, it should be noted that this case predates the Act and maybe is the reason why the definitions in the Act have been made wide and inclusive in nature. In this case, a senior woman officer had made a complaint of sexual harassment against the respondent. The respondent was facing a departmental inquiry and contended that he could not be accused of sexual harassment at the workplace as the alleged misconduct had taken place not at the workplace but at an official mess where the woman officer was residing. The Delhi High Court while stating that this was a misconceived notion observed that ‘the aim and objective of the formulating the Vishaka Guidelines was obvious in order to ensure that sexual harassment of working women is prevented and any person guilty of such an act is dealt with sternly. Keeping in view the objective behind the judgement, a narrow and pedantic approach cannot be taken in defining the term ‘workplace’ by confining the meaning to the commonly understood expression office.’ The Court further observed the trend of the use of computers and internet technology for conducting work by stating, “It is imperative to take into consideration the recent trend which has emerged with the advent of computer and internet technology and advancement of information technology. A person can interact or do business conference with another person while sitting in some other country by way of video-conferencing. It has also become a trend that the office is being run by CEOs from their residence. In a case like this, if such an officer indulges in an act of sexual harassment with an employee, say, his private secretary, it would not be open for him to say that he had not committed the act at workplace but at his residence and get away with the same.” Another case of importance is that of Jahid Ali v. Union of India [MANU/DE/7886/2017], the Delhi High Court answered the question of whether messages with sexual overtones or derogatory messages sent on messaging platforms by the employer or co-worker to the woman would be covered under the scope of sexual harassment at workplace even though it happened via online mode? The Delhi High Court stated that sending sexually coloured messages to the Superior Lady Office would be considered as Sexual Harassment at Workplace. These cases show that work is never restricted to the four walls of the office and it is now well accepted that a workplace is not only limited to the physical place of work but goes beyond the physical boundaries of the primary workplace or office building.
The Courts have also made an effort to expand the definition of sexual harassment as given in the Vishaka Guidelines. In the case of Apparel Export Promotion Council v. A.K. Chopra [(1999) 1 SCC 759], the Supreme Court upheld the dismissal of a superior officer who was found guilty of sexually harassing a subordinate female employee. The Supreme Court explained that, ‘sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication particularly when submission to or rejection of such conduct by the female employee was capable of being used for affecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile work environment for her.’ The Court further enlarged the definition of sexual harassment by ruling that physical contact was not essential for a female worker to charge a male colleague with sexual harassment. In the case of Medha Kotwal v. Union of India [(2013) 1 SCC 297], the Supreme Court observed that ‘the implementation of the Vishaka Guidelines has to be not only in form but also in substance and spirit so as to make available safe and secure environment for women at workplace in every aspect and thereby enabling working women to work with dignity, decency and due respect.’
In fact, it is interesting to note that in the definitions of the terms ‘workplace’ and ‘sexual harassment’ have the word ‘includes’. This means that the definitions are inclusive in nature and can be interpreted in a broad manner. In the case of Global Health Pvt. Ltd. v. Local Complaints Committee [2019 SCC OnLine MP 5453], the Madhya Pradesh High Court observed that the Act in question in essentially and predominantly a social welfare legislation. The Court further noted that ‘The provisions contained thereunder must receive contextual meaning and required to be interpreted broadly and liberally regard being had to the aims and objectives of the Act. The MP High Court referenced the case of Bharat Cooperative Bank (Mumbai) Ltd. v. Employees Union [(2007) 4 SCC 685] while explaining the meanings of the expressions ‘means’, ‘includes’ and ‘means and includes’. The Supreme Court in the Bharat Cooperative Bank case observed that “When in the definition clause given in any statute the word ‘means’ is used, what follows is intended to speak exhaustively. When the word ‘means’ is used in the definition it is a hard and fast definition and no meaning other than which is put in the definition can be assigned to the same. On the other hand, when the word ‘includes’ is used in the definition, the legislature does not intend to restrict the definition: it makes the definition enumerative but not exhaustive. That is to say, the term defined will retain its ordinary meaning but its scope would be extended to bring within it matters, which in its ordinary meaning may or may not comprise.” This means that the term ‘sexual harassment’ must not receive narrow and pedantic meaning and instead should take into account the sensitivities of the aggrieved woman as well.
Let me give a few scenarios:
As can be seen, the issues of defining what falls under the purview of workplace and what can or cannot be considered sexual harassment, the legislature has had foresight and made the definitions broad and inclusive in nature. The Courts have also actively interpreted these terms in a wide manner so as to uphold the purposes and objectives of the law.
Insight can be gained from the POSH policies that are made by the different companies as well. For example, the Policy of Prevention, Prohibition and Redressal of Sexual Harassment at the Workplace of the Taj Group of Hotels has a part that deals with third party harassment. This provision has been made in the policy keeping in mind that the specific industry of the Taj Hotels where employees are constantly in touch with third parties through their interactions with guests and clients. As per law, the Company and person in charge are to take necessary and reasonable steps to assist the affected person. This may also include support for filing a complaint with the local police. The Taj Hotels POSH Policy also includes misbehaviour or sexual harassment that can happen on social media websites.
Another aspect that needs to be addressed to answer the second question is the manner and method of the functioning of the complaint and redressal mechanism. The Government has introduced something known as Sexual Harassment electronic Box (SHe-Box) in an effort to provide for a single window access to every woman, irrespective of her work status, whether working in the organised or unorganised, private or public sector, to facilitate the registration of complaints related to sexual harassment. Any woman facing sexual harassment at the workplace can register their complaint through this portal. Such a complaint will then be sent to the concerned authority having jurisdiction to take action into the matter. As can be seen, the government has already taken the first steps into the issues of the functioning of the complaint and redressal mechanisms. The Ministry of Women and Child development published a handbook on sexual harassment of women at workplace for employers, institutions, organisations, internal complaints committees and local complaint committees. This handbook gives a detail account and understanding of the Act as well as instructions or guidelines along with scenarios to explain the different forms of sexual harassment and what should be done.
Now, to answer the second question, as to whether the current laws, that is the provisions of the POSH Act are sufficient to protect people against sexual harassment at workplace in the realm of cyberspace, I believe the answer is yes because the provisions exist and the Courts have actively supported the liberal interpretations of the terms – ‘workplace’ and ‘sexual harassment’. What is needed now is awareness and the will to implement these laws.
The author has contributed this write-up during her research assistantship at M/s. Black Robes Legal. The views, thoughts, and opinions, as are so expressed, belong solely to the author, and not to any other person in any manner whatsoever.