This article addresses the value of ‘Electronic Evidence’ in POSH Cases and the likely challenges faced by the IC in appreciating electronic evidence placed before them during the enquiry.
Seema and Karan worked together for three years before Karan asked her out over texts. There were several texts where he asked her out for coffee, drinks at a bar and to accompany him for long drives. Seema was not interested and politely declined his advances. Unhappy with the rejection, Karan posted insinuating content on Instagram about women leading men and breaking their hearts and tagged Seema. This was intended to disparage Seema amongst their colleagues at the workplace who were on their IG and the rumours began to circulate around the office. Seema filed a complaint with the Internal Committee (IC), along with screenshots of Karan’s text messages and social media posts as evidence against Karan’s acts of sexual harassment. She also filed screenshots of the call log to show that he had been repeatedly calling her.
In such cases how should the IC proceed to appraise the evidence?
Please note: Evidence does not form the criteria for accepting complaints by the IC and Indian legal precedence has established that the verbal evidence of a victim of abuse holds much value in determining the outcome of a case as elaborated by the Supreme Court in the case of Vijay@Chinee Vs State of MP (2010).
To fully consider the example of Seema and Karan, we’d first have to understand what sexual harassment in cyberspace would imply.
“Cyberspace” describes the virtual environment created by the Internet and interconnected computer networks. It encompasses the online world of websites, e-mail, social media and other digital communication platforms. This undisputedly includes the online workplace. Cyberspace harassment includes sexual harassment, bullying, stalking, impersonation, etc., taking place in the digital realm and is punishable under the Information Technology Act, 2000, read with the Indian Penal Code, 1860.
What is a “cyber harassment at the workplace” under the POSH Act? Going by the interpretation under the POSH Act, even though Karan’s alleged acts of posting insinuating content on social media, is not directly related to the course of work, it certainly causes interference with the work of Seema and results in the creation of an intimidating or offensive or hostile work environment for her under the provisions of(Sec 3 (2)(iv), POSH Act). The same must therefore be held as the relevant factor by the IC to conduct an enquiry.
- Electronic Evidence, as defined by the Indian Evidence Act 1872, refers to any information in electronic form that would be evidentiary in nature in a Court of Law (in this case, a proceeding before a Quasi-Judicial body).
- Such evidence would be subject to the strict evidentiary process under Sec 65B of the Indian Evidence Act to be admissible in a Court of Law. However, the POSH Act is subjected to the rigorous procedure under the Indian Evidence Act but the POSH Act explicitly calls upon the IC to follow the “principles of natural justice”.
What does ‘Electronic evidence’ in IC proceedings include?
- E-mails
- Text/Chat messages
- Pictures/videos/audio messages
- Call recordings
- Electronic documents
- CCTV footages
- Screenshots of social media interactions
- Deepfakes
- Any other information in electronic format.
Some of the likely difficulties that an IC could encounter would include the following:
- Electronic Evidence always brings with it the risk of being easily tampered, and the IC must establish the veracity of the evidence by conducting a thorough check as a precaution. The relaxed evidentiary standard poses a challenge when the authenticity of the evidence is questioned.
- Self-destructing messages get automatically deleted after a specific period or once read (Eg: WhatsApp, Snapchat, Telegram, etc.) and this poses a challenge to IC proceedings. In these instances, screenshots are the only source which can be relied upon if the aggrieved person has been alert enough to remember to take a screenshot. Evidence of this nature proves almost impossible to investigate or track.
- In cases where sexual harassment by an employee is allegedly carried out using fake credentials or fake accounts on social media, the IC is not empowered to seek information from social media platforms to trace the user. Currently, only law enforcement authorities are empowered to make such requests. Hence, the employer could consider hiring a reputed forensic investigator/agency (on signing a non-disclosure agreement with the employer) to trace digital footprints to add to the evidentiary value to the enquiry. Alternatively, the employer or the IC could support the complainant in approaching the Cyber Police (or the Local Police Station) or filing a complaint through the National Cyber Crime portal.
The IC must use the advantage given to it under the POSH Act to consider all electronic evidence presented before it and potential electronic evidence that would add weightage to the inquiry of the case. Undeniably, appreciating electronic evidence in POSH cases by the IC has encouraged countless aggrieved to seek appropriate redressal under the POSH Act.