In recent years social media has led to the viral spread of various games or challenges. Some such as the ALS Ice Bucket Challenge – where participants dumped a bucket of ice cold water over their heads – have been positive awareness raising activities for charity. Others such as #BlueWhale – where participants engaged in self harm and even suicide – have been dangerous.
The most recent craze,the #kikichallenge – where participants jump out of a moving car and dance to the Drake song “In My Feeling” – has led to deaths.
Guest blogger Dr.Debarati Halder explores the Indian legal response to these social media phenomena and the potential role of therapeutic jurisprudence…
By the beginning of 2017 when I started writing my thoughts on #BlueWhale and the expectations of concerned citizens that the legal system intervene to stop this life risking challenge, I could sense that this was just the beginning.
The new era of information communication technology, brings new challenges generated by the technology and the users of technology.
In my latest article The #BlueWhale Challenge to the Indian Judiciary: A Critical Analysis of the Response of the Indian Higher Judiciary to Risky Online Contents with Special Reference to the BlueWhale Suicide Game (2018), I have suggested that judges need to be more sensitive to the online ‘mind games’ and challenges that affect young people.
In the #BlueWhale case the administrators (‘admins’) of the groups or pages who were promoting the challenge were arrested. I have suggested that the social media platforms should also be liable for not monitoring the content on their platforms that were promoting the game. These challenges are called as ‘mind games’. They require the consent of participants but participants may feel coerced to ‘play’ till the end rather withdraw because of the fear of privacy infringement (as had happened in #BlueWhale) or they may be encouraged to want to win the challenge to get approval and admiration of friends (as may be seen in the #KIKI challenge).
These challenges are offered and accepted through internet communication technology and digital communication technology and users may know what could be the final destiny of such challenges. For example, those who accepted #BlueWhale challenge may have known that if they did not execute the challenge ‘jumping from high wall’, they might have to compromise with their private information and pictures. Similarly those playing the KIKI challenge may know that this challenge involves either ‘safe’ dancing with the moving car (after jumping out of it and again jumping in it) or fatal accidents if played ‘recklessly’. Nonetheless, those who are accepting the challenge and sharing the same through social media platforms like instagram or Facebook are also susceptible to heavy trolling (online bullying).
But unlike the #BlueWhale challenge, the courts dealing with the #KIKI challenge have been more sensible in their approach to the ‘the participants or ‘challengers’.
In the #BlueWhale cases, the civil society members and NGOs who brought legal proceedings and the courts and judges who took Suo Motu (own motion) cognizance of the cases of suicides caused due to Bluewhale challenge took action to raise awareness of the risks involved in such ‘games’. The courts also touched on the responsibilities of the social networking sites, but only in so far as making the social media sites aware of their responsibilities but not making them liable for paying damages for the losses that may have been caused due to their lack of content monitoring on their platforms.
With the #KIKI challenge, the courts shifted attention onto the challengers themselves by relying on the law of public nuisance. Three YouTubers were arrested for performing the #KIKI challenge dance in Vasai station, Maharashtra, by jumping from a moving train. The captured video was uploaded in the Youtube and it became viral.
Upon sentencing however the result for the offenders was not merely punitive. The local railway court ordered the three young people to clean the railway platform for three days and also ordered them to spread awareness to the commuters regarding potential dangerousness of such challenges.
Under S.268 of the Indian Penal Code a person “who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right…” is guilty of public nuisance.
The #KIKI challenge may fall under the broader understanding of public nuisance, not only because the act of jumping out of the moving car or vehicle may cause fatal accidents to the challenger him/herself, but it may also cause accident to others. It might also cause damage to the public or private properties if the performer/s or his vehicle causes damage to such property; other vehicles belonging to third persons may also be damaged or may cause damage to the properties due to the sudden act of jumping out by the challengers.
However, S.290 of the Indian Penal code prescribes a minimal punishment when such nuisance is not otherwise punishable. It says “Whoever commits a public nuisance in any case not otherwise punishable by this Code, shall be punished with fine which may extend to two hundred rupees.” Instead of a fine, the court handed down a community service sentence that was therapeutic in that it sought to improve the well-being of the offenders and others who might be tempted to try the challenge.
Not all online challenges are dangerous: the two greatest examples are #ricebucketchallenge by Manjulatha Kalanidhi, a Hyderabad based journalist, and #HumfitTohIndiaFit a fitness challenge thrown by Union Minister for Sports in India, Rajyavardhan Singh Rathod.
The #ricebucketchallenge was initiated as a response to the Ice bucket challenge which became viral in 2014. Ice bucket challengers had to pour ice water either on the other or on him/herself to show support towards ongoing research on motor neuron disease and generate donations. Kalanidhi initiated the #ricebucketchallenge to raise awareness about water scarcity and poverty. This indeed was inherently therapeutic in nature as this ‘challenge’ could actually feed hundreds of poor, poverty stricken children in India. The hash tag for #ricebucketchallenge is still active and Kalanidhi is actively spreading awareness regarding this issue.
#HumfitTohIndiaFit was initiated in 2018. Rathod wanted to emphasise on the need of good health for all and at any place including the work place. Rathod himself initiated this challenge through his Instagram account by sharing video of push-ups in the office floor. Several celebrities including cricketers, actors etc ‘accepted’ the challenge and started posting their short exercise videos. This indeed is a novel idea to distract the youth from substance abuse, mobile and internet addiction and using the internet for positive purposes.
The #Kiki challenge is yet another example of irrational offline impact of online content. If courts however can structure sentences to spread awareness in novel ways and this can be ‘spread’ as a challenge like that of #ricebucketchallenge or #HumfitTohIndiaFit, it may mitigate against the potential negative impacts of digital and information technology media.
*Dr.Debarati Halder is the Managing Director (Honorary) of Centre for cyber victim counselling (www.cybervictims.org) . She is serving as Professor-Legal studies in the Unitedworld School of Law, Gandhinagar, Gujarat. She is also the Global advisory member, International society for Therapeutic Jurisprudence. Her recent publications include her monographs Cyber Crimes against Women in India”,(2016) published by SAGE Publications India Private Limited,. ISBN: 9789385985775 and “Child Sexual abuse and protection laws in India”(2018) published by SAGE Publications India Private Limited,. ISBN: 9789352806843. She has also edited a book titled “Therapeutic Jurisprudence and Overcoming Violence against Women”(2017) (co-edited with Dr.K.Jaishankar) Hershey, PA, USA: IGI Global. ISBN: 978-1-60960-830-9 DOI: 10.4018/978-1-5225-2472-4 She may be contacted @firstname.lastname@example.org