Online publics, much like their offline counterparts, can be misogynistic and sexist. Effective feminist interventions into legal frameworks are necessary to reclaim these spaces. 

For some time now, the architecture of the digital has been brokering an uneasy normalization of misogynistic hate speech. Its latest manifestation was Twitter’s reminder to users on October 2 – within 24 hours of the US President Donald Trump contracting Covid-19 – that it would deplatform “tweets that wish or hope for death, serious bodily harm or fatal disease against anyone” [emphasis added]. In response, one user pointed out that Twitter’s swift reaction in this case stood in great contrast with “any [response] given to women and people of color when they report death and rape threats everyday on this website.” Such a reaction from social media platforms is hardly new; women, trans, and non-binary people have been pointing out these double standards since the advent of the digital.

There is also little doubt that social media platforms have failed in checking violence and abuse, especially directed at women and femininity. Graphic violence and rape threats are routine occurrences in the lives of women who use digital spaces. In October 2019, while launching a report on online hate speech at the General Assembly, David Kaye, the then UN Special Rapporteur on Freedom of Speech and Expression, cautioned against devaluing the term hate speech. He emphasized that the prevalence of online hate speech poses a danger to everyone, “first and foremost the marginalized individuals who are its targets”. Amnesty’s Troll Patrol India study describes social media as a “battlefield” for many women. Online sexism and an ever-present threat of being targeted and abused directly impacts women’s ability to claim equal participation in the digital paradigm.

Of course, online spaces are a continuum of our offline experiences, and online misogynistic speech is contiguous with the everyday sexism of a patriarchal society. Research tells us that women may be left with little option but to resocialize their own values or suitably self-govern their online presence to live within hyper-visible lakshman-rekhas (lines of propriety in women’s conduct that must not be crossed) of performative online modesty. Misogyny in digital spaces directly impacts women’s rights with consequences for their physical, emotional, mental, economic, reputational, and aspirational lives.

There is, correspondingly, an emerging crisis of masculinity, with men on the internet idealizing abuse-riddled, hateful poseurs demanding a gender conservatism in women’s online behavior. Others espouse post-feminist convictions that in an ‘equal society’ it is hypocritical for women to take offense at ‘sexually-colored or suggestive jokes’ about them. In the period immediately following the outbreak of Covid-19, IT for Change observed the crowding out of women’s lives and experiences from the online public sphere, with a decline in searches for the terms ‘women’ and ‘violence against women’ compared to the preceding months. In May this year, the Bois Locker Room episode, where a group run by and for young men on Instagram shared pictures and commentary objectifying girls in their networks, led to a huge media controversy in India. During these weeks, we noted a simultaneous surge – a ‘breakout’ – in searches for terms like ‘fake feminism’ and ‘toxic feminism’ in India. (Breakouts are indicated on Google Trends when searches for a term grow by more than 5000 percent). Digital spaces, evidently, harbor a deep sexism in which expressions of female desire and agency are recast into a new mode of femininity modeled on sexual entrepreneurialism at the service of a hetero-normative patriarchy.

As seamless extensions of violent masculinity, digital spaces proliferate subterranean male networks and ‘bro clubs’ that are always ready to strike. The normalization of homosocial, male-only publics in the form of ‘incel’ groups cannot be seen as deviant subcultures; research points to how male homosociality on platforms could naturalize and grow sexism and misogyny at scale, operating through closed networks that serve as male-only ‘support’ groups. Cyberspace has thus engendered a new masculine that terrorizes women if they dare to assert their public selves. This targeted hate against women impacts the inclusiveness of the online public sphere through the chilling effect it creates for women’s public participation.

The takeaway from the feminist outrage over the alacrity with which Twitter prepared to automatically remove any “death wishes” posted in the aftermath of Trump’s diagnosis, is perfectly summarized by activist Evan Greer of Fight for the Future: “entrusting Big Tech monopolies with deciding what speech is and isn’t acceptable will always end up protecting the powerful and silencing the marginalized.” This observation begs the question: what should be the way to regulate speech in digital spaces that is responsive to feminist concerns over the normalization of misogyny? What are the concerns that need to be addressed to construct a feminist framework for combating online hate against femininity?

Legal-institutional context

At 51 percent, South Asia has the biggest gender gap in mobile internet use, globally, led by Bangladesh (52 percent), and followed by India (50 percent), and Pakistan (49 percent). However, the mobile internet user base is expanding rapidly. In 2019, rural mobile users (277 million) outnumbered urban users (227 million) in India for the first time. Today, 70 percent of mobile internet users in rural India are in the 12-29 age group. More and more young people are going to be online in the next decade. As the digital gender gap is bridged in rural India, understanding the cultural substrate of the internet and how social interactions are built, is an important first step for transformative change – legal, social, and technological. This imperative is rendered even more urgent as misogynistic sentiments shared by trolls are increasingly becoming a phenomenon that is also reflected in Indian language platform cultures.

The communicative schemes – speech-image assemblages – of digital sociality that are rapidly entrenching themselves as legitimate codes of social exchange present a systemic and structural challenge. The present legal-institutional context does little to address this.

In 2019, IT for Change’s report on the experience of gender-based cyberviolence among young women who are ‘born digital’ scoped out the sociological and legal-policy landscape of such violence. The study pointed to gaps in the law on combating cyberviolence, such as the unfortunate dependence on archaic anti-obscenity provisions to combat offenses that are, in reality, a violation of privacy, autonomy, and dignity (such as cybervoyeurism or cyberstalking), and the striking down of Section 66A (on the punishment for offensive speech online) of the Information Technology Act. Section 66A, introduced in 2008, was struck down by the Indian Supreme Court in 2015 in an epochal judgment, Shreya Singhal v. Union of India, on grounds that the provision was expansively worded and liable to misuse. The provision punishing offensive speech in online communications was being used to clamp down against speech protected under the Indian Constitution (Article 19) and would have had a chilling effect on online speech in general. Five years later, the wisdom of the court in striking down – rather than reading down – Section 66A, seems suspect, as we watch the scourge of hate speech take over the world, facilitated by the network effects of social media. At the very least, it points to the need for a law that can address hate speech, with due regard for the threshold tests defined by the Rabat Plan of Action, i.e. (a) the social and political context which existed at the time the speech was made, (b) the speaker’s position and status in society, (c) the intent of the speaker, (d) the content and form of the speech, (e) the reach of the speech act including the size of its audience and mode of dissemination, and (f) the likelihood and imminence of harm.

Simultaneously, our research report from 2019, also pointed to the frustrations of law enforcement officers in gathering evidence of online harms from social media platforms, demonstrating that attitudes espoused by authorities and institutions towards young women’s experiences of online harm was flippant at worst and moralistic at best.

Patriarchy is institutionalized through the language and functioning of the law. This truism makes it necessary for us to open up criminal laws for a feminist reexamination. While piecemeal attempts to update such laws are made from time-to-time, the reformation of criminal laws in India hasn’t successfully moved away from its roots in problematic patriarchal cultures. To make matters worse, the Indian judiciary has continued its preoccupations with ‘honor’ traditions and worn out concerns over ‘obscenity’, ‘vulgarity’, ‘prurient interests’, and the like, while sidestepping concerns of privacy, consent, and women’s dignity .

A misplaced attempt to remedy this has been put in motion recently, with a committee for criminal laws reform set up by the Indian Government’s Ministry of Home Affairs. The committee was set up in December 2019, and despite its important mandate to recommend reforms in the criminal laws of India in a “principled, effective and efficient manner” which “prioritizes the constitutional values of justice, dignity, and the inherent worth of the individual”, it only started functioning in June, in the midst of a pandemic, limited to undertaking virtual consultations. To make matters worse, it is a five-member, all-male committee of academics and judges located in New Delhi’s National Law University, with no women, minorities, and other representatives from marginalized communities in India. The methodology adopted by the committee is also reproachable, presenting a questionnaire for comments about all substantive and procedural criminal law issues to be sent over a six-month period. The work of this committee could, instead, have been an opportunity to revisit criminal laws in light of feminist principles in a post-colonial, post-independence India. This could have also created a window for India’s criminal law to look beyond the sexual offense focus of crimes against women, and incorporate a progressive law against sexist hate speech.

Shaping the future

Over the last five years, various countries and jurisdictions around the world have introduced or proposed the introduction of a law against misogynistic speech.

While the Council of Europe recommends a broader approach, by eliminating discriminatory laws, tackling gaps in legislation, and monitoring their application to ensure appropriate and effective action against sexist hate speech, the Istanbul Convention (Articles 34 and 40), particularly requests parties to criminalize forms of violence that relate to sexist hate speech, notably stalking and sexual harassment.

Even in places with laws prohibiting hate on the grounds of gender, these laws may not be couched in ways to operate against sexist hate. Australia, for instance, has a federal anti-discrimination law that recognizes “gender” as a ground for “vilification”, but the few state/territory legislation that do cover the basic category of gender, or “gender identity”, upon closer reading, seem to adopt a narrower concern limited to transgender vilification rather than encompassing misogynistic speech.

Some jurisdictions are considering making misogyny a factor in arriving at the quantum of sentence in hate crimes. The UK is in the process of passing the Hate Crime (Misogyny) Bill to make motivation by misogyny an aggravating factor in criminal sentencing. Notably, UK’s Nottinghamshire Police has been recording misogyny as a hate crime since 2016, across offenses such as ‘upskirting’, voyeurism, indecent exposure, sexually explicit language, unwanted sexual advances, and online abuse.

Scotland’s government received feedback from women's rights organizations that the international experience of adding gender to a long list of groups protected by hate crime legislation has had little to no increase in prosecutions for such crimes. Thus, it has decided to defer incorporating sex as a ground in its proposed Hate Crime Bill that lists “protected characteristics” for aggravated sentencing. It will instead be setting up a working group on creating a specific, standalone offense of misogynistic harassment.

While India’s criminal laws do not recognize gender as a ground for hate speech, the 273rd Report of the Law Commission on Hate Speech, released in 2017, recommended inserting a new section in the Indian Penal Code, to prohibit the incitement of hatred on grounds including sex and gender identity.

In the digital dimension, laws curtailing hate speech must be carefully weighed against constitutional protections to free speech. Much like ‘cat-calling’, ‘wolf-whistling’, and ‘eve-teasing’ before it, gender-based ‘trolling’ is a seemingly innocuous word for a pervasive and extremely destructive phenomenon, something that is better categorized as sexist hate speech. Of course, we are so embedded within the normalized misogyny of our daily cultures, that to criminalize misogyny is to open the floodgates to potentially criminalizing a broad swathe of speech acts. We are all implicated. Yet, it is possible to tackle trolling with nuance and one could envision a gradual escalation of punishment for degrees of harm.

These open-ended, ongoing attempts demonstrate that there is no silver-bullet law for sexist hate speech. The institutionalization of patriarchy through the word of the law necessitates recognizing the law as a battlefield for feminist struggles. Sexism has deep roots, and it is imperative that we contend with the origins and reification of sexist hate across the techno-legal fictions of public, private, and digital spaces.

Articulating a feminist response

It is not possible to clearly demarcate the hate that is targeted at women between the public and the private, a hurdle compounded by adding digital spaces to the mix. Recognizing the personal to be political, it is important to investigate the continuities of hate speech against women as misogyny manifested in personal and intimate spaces, online and offline. Unpacking these concepts is a precursor to a feminist articulation of a law against misogyny, leaving us with many questions about what such a law would look like.

Should it address hate targeted at particular women at an individual level, or as a structural problem based on the enforcement of power and therefore dependent on the location of the target? Can we, in the Indian context, contemplate benchmarking misogynistic hate online as an illegal act through a feminist framework? Where do we draw the line between sexist hate speech from other forms of gender-based cyberviolence – cyberstalking, pornographic deepfakes, non-consensual circulation of intimate images? What sort of obligations should platforms have towards targets of sexist hate? What safeguards are necessary when developing such regulatory mechanisms? How should norms about sexist hate speech be enforced on social media platforms?

To develop a collaboratively constructed, feminist articulation of how misogynistic speech can be addressed, one must begin with an answer to these questions.

- Anita Gurumurthy is a founding member and executive director of IT for Change, where she leads research collaborations and projects in relation to the network society, with a focus on governance, democracy and gender justice.

- Bhavna Jha is a Senior Research Associate at IT for Change. She works on the intersection of gender, law, and digital justice. Her current research focus is online gender-based hate speech.

This article is based on research conducted as part of an ongoing project titled, ‘Recognise, Resist, Remedy’ supported by International Development Research Centre (IDRC) and the EdelGive Foundation.

https://botpopuli.net/articulating-a-feminist-response-to-online-hate-speech-first-steps