Kerala High Court calls for law against cyberbullying, says BNS does not address it

The Kerala High Court recently raised serious concerns over the lack of specific laws to combat cyberbullying and called for immediate steps to introduce a law that specifically tackled such online harassment [Fakrudeen KV v State of Kerala & anr]..Justice CS Sudha noted that even the new criminal law that came into effect last year, namely the Bharatiya Nyaya Sanhita, 2023 (BNS), did not properly address such misconduct. The judge further observed that in the present social media era, people are often under a misconception that their right to free speech and expression allows them to make abusive remarks or engage in derogatory conduct towards others, while evading accountability."This raises serious concerns, particularly in the light of the growing prevalence of cyberbullying, a phenomenon that remains inadequately addressed by current legal frameworks. It is of grave concern that, in this digital age, there is a lack of comprehensive and effective legislation to combat such misconduct, which, in my view, necessitates the urgent attention of the authorities concerned," the Court said. The Court also pointed out that such online bullying need not be solely defined by sexual overtones, but may manifest in various forms, many of which remain insufficiently addressed by existing legal standards.The Court noted that while amendments to criminal laws addressed sexual offences like stalking, violation of privacy, etc., there was no direct provision addressing online abuse, which did not involve sexual overtones."There remains a conspicuous absence of legal provisions that directly address the issue of cyberbullying or online harassment, particularly those incidents devoid of any sexual context. Further exacerbating this concern is the fact that, despite the enactment of the Bharatiya Nyaya Sanhita, 2023, in 2024, no legal provisions have been introduced to specifically address this form of online harassment. This gap in the legal framework, in my opinion, requires immediate rectification by the authorities concerned to ensure that cyberbullying, in all its forms, is adequately regulated," the Court remarked. .The Court made the observation while refusing to grant anticipatory bail to Fakrudeen KV, a YouTuber accused of uploading an edited video defaming a woman from a Scheduled Caste. .The woman accused Fakrudeen of uploading an abusive video targeting her on his YouTube channel, Visal Media, portraying her as a person involved in immoral activities, drug abuse, and marital infidelity.After a trial court rejected the YouTuber's anticipatory bail plea, he moved the High Court for relief. Before the High Court, Fakrudeen's counsel contended that the video did not explicitly mention the victim's caste and thus, did not attract offences under the SC/ST Act. Notably, Section 18 of the SC/ST Act says that anticipatory bail cannot be granted to those accused of offences under this Act. The prosecution countered that the accused was aware of the complainant's caste identity and intentionally sought to humiliate and defame her, thereby attracting charges under the Indian Penal Code, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act), along with provisions of the Information Technology Act, 2000 (IT Act). The senior public prosecutor argued that the edited video contained highly derogatory and defamatory statements aimed at tarnishing the victim's reputation.Moreover, the accused's actions clearly amounted to online harassment and warranted custodial interrogation, particularly to seize electronic devices used in editing and uploading the video, the State added..After reviewing the video, the Court found that it was offensive and abusive as it depicted the victim as a woman of questionable character.It expressed doubts over whether the video's content strictly fell under Sections 66E and 67A of the IT Act, which dealt with privacy violations and the depiction of sexually explicit material.However, the Court ruled that the video's humiliating content, which was widely viewed by over a lakh people, sufficiently established an offence under Section 3(1)(r) of the SC/ST Act, which penalised intentional insult or intimidation based on caste.It, therefore, rejected Fakrudeen's anticipatory bail plea. "The content of the video is no doubt an insult to the victim. The FIS of the victim also states that the video has been viewed by more than one lakh persons. Therefore an offence under Section 3(1)(r) of the Act is certainly made out from the materials on record. Hence, the trial court was right in finding that bar under Section 18 and 18A of the Act is attracted. I find no grounds for interference into the impugned order," the Court reasoned. .Fakrudeen was represented by advocates K Aboobacker Sidheeq, Muhammed Ibrahim Abdul Samad, and Subin K Sudheer.Senior Public Prosecutor Vipin Narayan appeared for the State.The victim was represented by advocate K Nandini..[Read Judgement]