EROTICS South Asia
exploratory research:Sex, rights and the internet

EROTICS South Asia exploratory research:Sex, rights and the internet

://EROTICS://EROTICS
Sex, rights and the internet
Sex, rights and the internet

EROTICS South Asia exploratory research:Sex, rights and the internet

Sexual Rights
in theSoutheast
SexualRightsAsia
in the Southeast Asia

EROTICS South Asia exploratory research:Sex, rights and the internet

Authors
Bishakha Datta, Smita Vanniyar, Jasmine Lovely George, Neha Mathews, Rachel Bali, Zahra AdamjeeIndu Nepal, Jyotsna Maskay, Shiwa Karmacharya, Shaun Kirven, P.M. Deshapriya, J.M. Mendis
Shermal Wijewardene, Subha Wijesiriwardena, hvale vale
Peer reviewers
Horacio F. Sívori, Shaun Kirven, Jyotsna Maskay, Shiwa Karmacharya, Sanchia Brown, Sepali Kottegoda
Gayatri Khandhadai, Shaun Kirven, Jennifer Radloff, Namita Aavriti, Sara Baker, hvale vale
Editor: Katerina Fialova
Copy editing and proofreading
Lynne Stuart
Lynn Welburn
Lori Nordstrom (APC)
Publication production
Cathy Chen and Lori Nordstrom (APC)
Graphic design
MONOCROMO
Cover design
Cathy Chen (APC)
EROTICS South Asia exploratory research: Sex, rights and the internet
Published by APC
2017
Creative Commons Licence
ISBN: 978-92-95102-93-4
APC-201712-WRP-R-EN-DIGITAL-283

This research is part of the Association for Progressive Communications (APC) project “Building EROTICS Networks in India, Nepal and Sri
Lanka”, funded by AmplifyChange, and is based on a strong alliance with our partners in the three countries: Point of View (India), LOOM
(Nepal) and Women and Media Collective (Sri Lanka).
Between November 2016 and July 2017, APC carried out multi-country research exploring the information and communications technology(ICT) legal, policy and socio-cultural landscape related to sexuality on the internet in Nepal and Sri Lanka, and how Indian law constructs“digital obscenity”. This publication is the result of the final reports from that research project.
To read more on this subject, please visit erotics.apc.org or www.genderIT.org
EROTICS (Exploratory Research on Sexuality and ICTs) is a global network of activists, academics and organisations working on sexuality issues
including LGBTIQ rights, sex work, sex education, sexual and reproductive health and rights (SRHR) and gender-based violence, in addition tointernet freedom advocates, policy experts and techies. The objective of the network is to promote inter-movement collaboration on sexual
rights and internet rights, highlight technology-related violations against sexual rights activists, and build their capacity in the design, usage
and governance of the internet.

Table of contents

Introduction
In plain sight: On sexuality and the internet in India,
Nepal and Sri Lanka ................................................................................................................... 5
hvale valeCountry research
India
Guavas and genitals: A research study.................................................................................... 16(Lead researcher: Bishakha Datta; Researchers: Smita Vanniyar,
Jasmine Lovely George, Neha Mathews, Rachel Bali, Zahra Adamjee)
Point of View (POV)
Nepal
The internet and sexual expression: Exploring the use of the internet
among gender equality and sexual rights advocates in Nepal.............................................. 50(Author: Indu Nepal, Research coordinator: Shubha Kayastha,
Research assistants: Gyanu Gurung, Shiwa Karmacharya)
Online violence against women: A continuum of offline discrimination ............................ 73(Authors: Jyotsna Maskay and Shiwa Karmacharya, Shaun Kirven)
LOOM
Sri Lanka
Virtually queer: Human rights of LGBTIQ Sri Lankans
in the online space ................................................................................................................... 81(Authors: P.M. Deshapriya and J.M. Mendis)
Lesbian women and their use of the online space .............................................................. 115(Authors: Shermal Wijewardene and Subha Wijesiriwardena)
Women and Media Collective (WMC)

In plain sight: On sexuality, rights and the internet
in India, Nepal and Sri Lanka
by hvale vale

EROTICS is an exploration of the internet and its
multi-layered relationship with sexuality, rights andsexual expression, and is a space/place of practices
and a network of people which started in 2008.
Its purpose was and is to look into the obscure,the unexpected and the obvious. The internet isa fast-paced world, known for accelerations but
also broken links, unfinished architectures, truly a
network of networks. Nine years could sound likea long-term research project, but actually it is only
enough to just land somewhere.
On the internet, features and products appear,
disappear, come and go unnoticed and are forgotten, but learning the machine is different. Learning
the machine is understanding how the machine weare all in and out of at the same time, learns about
us. And who are we? Because we are many, reallymany, yet still there are more in the immediate vicinity of the machine unable to input as they wish,
while fascinated by and signified within and by themachine itself.

A feminist framework at the intersectionof the internet with sexuality and rights
How to make sense of what we experience? How
to use evidence to transform? Which frameworks
to use? And why a feminist framework? The first,
most simple and direct answer would be: Why not?!
EROTICS work fits within the Feminist Principles of
the Internet, which want to “provide a framework
for women’s movements to articulate and explore
issues related to technology and to offer a genderand sexual rights lens on critical internet-related
rights.”1
In 2014 the Association for Progressive Communications Women’s Rights Programme (APC WRP)
brought together 52 women’s rights, sexual rights
and internet rights activists from six continents in
Malaysia to #imagineafeministinternet.2 Many atthis meeting were part of the first iteration of the
EROTICS global network that had led research on
sexuality in seven countries. The questions raisedat the meeting were: What does it take to createa feminist internet? Is a feminist internet possible?
How has the internet shifted the way we understandpower, politics, activism and agency?3 There was aneed felt to have a political compass around the internet, on how to use and share, to build upon while
contributing to movement building, proposing legislation, creating new narratives.
In 2015 a second convening4 expanded the Feminist Principles of the Internet after an intense yearof local conversations, suggestions, insights. The
EROTICS network participated again, bringing its
spirit, knowledge, evidence and practices. The conversation deepened and five clusters grouped 17
principles: access, movement, economy, expression
and agency, which in 2017 during the third Making
a Feminist Internet meeting became embodiment.
One of the elements of any political vision is theperspective, the space/place or the location from
where we look at and interrogate the world. Rosi
Braidotti, in her Nomadic Subjects, talks about “asustainable modern subjectivity as one in flux, never
opposed to a dominant hierarchy yet intrinsicallyother, always in the process of becoming, and perpetually engaged in dynamic power relations bothcreative and restrictive.”5 This becomes importantin today’s world dominated by those living in the
global North. What it underlines is that embodiment is not merely a theoretical or rhetorical device,
but an important element of lived experiences andour shared politics. Quoting bell hooks in Feminist
Theory: From Margin to Center:
Living as we did – on the edge – we developed
a particular way of seeing reality. We looked

3

Fascendini, F. (2014, 14 April). Panel on “Power, Politics andAgency” to #imagineafeministinternet. GenderIT.org. https://www.genderit.org/feminist-talk/panel-power-politics-andagency-imagineafeministinternet

1

www.feministinternet.net

42

Fascendini, F. (2014, 14 April). What does it take to create
feminist internet? GenderIT.org. https://www.genderit.org/
feminist-talk/what-does-it-take-create-feminist-internet

https://www.genderit.org/edition/three-key-issues-feministinternet-access-agency-and-movements

5

Braidotty, R. (1994). Nomadic Subjects. Columbia University
Press.

5

Introduction

EROTICS South Asia exploratory research

Figure 1. Gender at work framework what are we trying to change?

from both the outside in and the inside out. We
focused our attention on the center as well as
the margin. We understood both. This mode ofseeing reminded us of the existence of a whole
universe, a main body made up of both marginand center.6
It is a quote that resonates with understanding theinternet – where margins and centre are revolving
because of very complex and intrinsic relationships.
Research can be approached in different ways
and with different purposes. If the purpose is transformation, then it is important to set the ground. A
good way to visualise online social construction with“gender norms, stereotypes and inequality that exist
offline” is to use the Gender at Work framework,7illustrated in Figure 1.
The four-quadrant framework distinguishes twopolarities: (1) individual and systemic change, and (2)formal (visible) and informal (hidden) experience.8
Having said that, to generate changes all quadrants
need to be engaged. It is important to pay attention
to the left hand quadrant to understand:[…] the largely invisible and expensive-to-trackareas of individual attitudes and collective norms
and values that ultimately influence our choices,
our attitudes and our actions. There are two dimensions to monitoring and changing individual
6

https://en.wikipedia.org/wiki/Feminist_Theory:_From_Margin_
to_Center#CITEREFhooks2000

7

http://www.genderatwork.org/OurWork/OurApproach/
GWFramework.aspx

8Sandler, J. (2013). The online terrain for women’s rights.
In Finlay, A. (Ed.), Global Information Society Watch 2013:
Women’s rights, gender and ICTs. Association for Progressive
Communications. https://www.giswatch.org/en/reportintroduction/online-terrain-women-s-rights#_ftn1

6

Introduction

attitudes that perpetuate gender discriminationon the internet (the upper left-hand quadrant).
Firstly, there is the power of the internet to track
and change the attitudes of those who actively
promote or enable gender discrimination, bothonline and offline; secondly, there are the attitudes of women themselves, who can encounter both empowerment and disempowerment
within the power of the internet.9
Understanding and recognising the existence ofhidden normative experiences at individual andcollective level is necessary to understand how andwhat obstructs change, how transformation moves
from individual to collective awareness, then to
consciousness and eventually leads to change in behaviour and discourse. This is a way to acknowledge
the existence of visible, invisible and hidden powers.
But this is not enough, because the internet has its
own super-power and cannot be dismissed. Following Jac sm Kee’s classification there are five layers of
power relevant and specific to the internet:
Structural power: The internet is about connecting end-users. This tells us that access poses the issueof structural power. Who has the power to land thecables, the satellites, the drones? Who decides about
the last mile, the costs of the services? Who has no say
in tariffs, kinds of access, broadband and flat rate vsdata and Wi-Fi? It can enact very conservatively but
can be very innovative if we think of the power tocreate community-owned infrastructure that is outside the mainstream internet, that can stay off-grid orconnect to other similar collective-owned infrastructures shaped by very specific local needs.

9

Ibid.

EROTICS South Asia exploratory research

Discursive power: “Discourse is more material”10than ever and the internet gives us “the capacity tocreate our own truths. Our own knowledge. Have
unknown histories and practices be collectively
shaped and known. From indigenous communities
to queer communities.”11
If we think retrospectively it was very difficult tofind women in STEM (science, technology, engineering, mathematics), but nowadays there are timelines, stories, books, comics of women from all over
the world innovating and contributing to this field.
So that Ada Lovelace can be a Lego kit. The internet
enables the “ability to participate in influencing discourse, shaping culture, which is arguably one of themost important shifts in power. Because it’s about
what is invisible: our understanding, attitudes, beliefs, that then influences our practices.”12
Economic power: The power of generating economic models and revenue, from the first eBay tothe last start-up. Here also we need to look at whichkind of models are proposed. Capitalist, based on
generating high profit and controlling an entire
market like Amazon, or developing different economic models such as crypto-currency (bitcoins) withcollective mining, elimination of traditional intermediaries, or free/libre and open source software
where the technical solution, the code, is open, andcollective intelligence becomes the common pond
for a mutual exchange between the individual andthe community.
Embodied power: Internet and pleasure, internet as space/place to overcome limitations of mobility, accessibility from the simple creation of a mailing list, organising of communities with disability toremote-controlled sex-toys to erotic chats. Different
ways of experiencing pleasure that trouble the notion of pornography itself: feminist porn awards
that celebrate consent, good labour practices in theporn industry, etc.
Anonymity online makes the exercise of autonomy, agency and dignity more possible, allowing for people to explore, to seek community, topush the envelope of respectability and of social
norms. This is the story of many queer communities around the world. But a body on or in theinternet means data, and there are extensive
national ID projects and biometrics where individuals become what their data says about them.
What is the implication of these multiple data
sets, and what mechanisms are available or whatrights are there when errors are made? How does
all this impact the lives of people?

Networked power: The last and the most celebrated, the one everyone recognises as the superpower of the internet, the power of connecting andcreating networks. Quoting Jac sm Kee:
Most importantly, it connects us. Allows us frombecoming weird atomised individuals to find others who are interested in, care about, concerned
about the same things. Enables us to organise,
have conversations, plan for collective action,
take things to different spaces, make shifts acrossthe different layers of power, occupy different
spaces. Because the characteristic of the internet,
is essentially one that is networked. It is about
connections. And the freedom to make connections, towards the shift and change we collectively believe in, is an important one.13
To transform the internet, to generate the changes necessary to intersect sexuality, rights and theinternet, we use the Feminist Principles of theInternet (FPIs). Their function is to give to researchers, activists and users a compass or a reading key.
The five main clusters of access, expression, participation and building of movements, economy andembodiment14 help in orientating ourselves, but
the principles can be combined and referred toeach other. Consent read along with access to infrastructures is already providing an understandingof who is the subject and what is meaningful andrelevant access. Further in the introduction, someof the principles are named and linked to specificpoints made by the researcher, but the best way ofusing them is as spectacles or a magnifying glass
while reading the research, letting them resonate
in the experience of the reader, the personal andthe collective.

The research: India, Nepal, Sri Lanka
Because of the internet multiverse, each EROTICS
iteration surfaces and resurfaces questions, issues,
strategies, and they intersect with each other. Asa multiverse, the internet resonates, expands andcontracts around the lived experience of its inhabitants. So, what did this last exploration add to theprevious ones from India, Brazil, Lebanon, South
Africa and the US?
Since its inception in 2008, EROTICS research“aims to bridge the gap between policy and legislative measures that regulate content and practice on
the internet, and the actual lived practices, experiences and concerns of internet users in the exercise

10Kee, J. (2017). Five layers of power. Presentation at the
Stockholm Internet Forum 2017.

11

Ibid.

13

Ibid.

12

Ibid.

14

https://feministinternet.org

7

Introduction

EROTICS South Asia exploratory researchof their sexual rights. It aims to promote evidencebased policy making by engaging in on-the-groundresearch with a range of internet users – especiallythose most affected by internet regulation measures, including young women and people of diverse
sexualities – to inform and guide policy making fora more accountable process of decision-making.”15
But also to “demonstrate the key function of theinternet in the exercise of sexual citizenship and theadvancement of sexual rights, especially for persons
who are socially and politically excluded due to theirsexual identity, beliefs or practices.”16 This was done
through infographics like “Love in the time of Internet, a storytelling of love, sex, and exploration in thedigital era”17 and through research and studies. The
research in South Africa18 focuses on a popular transgender site which served as a place of encounter toshare struggles and solutions. The Lebanon report19
highlighted the registration of www.gaylebanon.
com, the risks of legal prosecution in the country, as
well as the beginning of an organised movement. The
Brazilian report20 focused on the “Mega No” online
campaign against a proposed law impacting the freeflow of information on sexuality and sexual healthonline and told the story of civil society engagement
and mass mobilisation of support through the internet. The India report21 gave an account of how young
women push the boundaries of cultural and social barriers that monitor their sexuality. Last but not least, theUS report22 reflected on library filtering and users, particularly young people among them.
EROTICS in its second iteration, first of all, included two new countries: Nepal and Sri Lanka, andthese form an important baseline from South Asia
that looks at internet-related challenges and opportunities experienced by women, LGBTIQ (lesbian,gay, bisexual, transgender, intersex, queer) and sexual rights advocates. Legal frameworks, regulation,
experiences and strategies to respond to challenges
as well as use of the “power” of the internet. Additionally, EROTICS includes a breakthrough study

from India on “digital obscenity”, or obscenity involving the use of a digital device.
The reports from Nepal and Sri Lanka bifurcate
into two. The main research from Nepal is titled“The internet and sexual expression: Exploring theuse of the internet among gender equality and sexual rights advocates in Nepal” and this is followed bya supplementary report addressing specifically “Online violence against women: A continuum of offline
discrimination”. The Sri Lanka report is in two parts:“Virtually queer: Human rights of LGBTIQ Sri Lankans in the online space” and “Lesbian women andtheir use of the online space”.
These reports were interested in understanding use and perception of the internet, to provide
an account of regulation and legal frameworks
that shape the “dos and don’ts” of the internet inboth countries and then look at users’ strategies. All
three country reports have a long list of essential
recommendation that interrogate and ask to reform
norms from penal and criminal codes and to create
or reform ICT legislations.
How do women’s rights, sexual rights and LGBTIQ advocates search for information, amplify
their own messages and respond to challenges andthreats they are confronted with from inside andoutside their communities? That is the overarchingquestion of all EROTICS explorations.
When looking at the use of the internet withina larger community, such as the one of women and
LGBTIQ persons, new questions emerge. Communities are not homogeneous, they can appear homogeneous only to distant, external eyes. The recognition that discrimination, exclusion, marginalisation
is not a one-colour blanket is not a surprise but, inresearch, assumptions need to be verified or addressed when challenged.
So apart from confirming the existence of what
Sara Hlupekile Longwe23 calls Patriarchal Belief,24
what do the reports confirm and/or establish?
The system of belief that serves to legitimise
male domination and gender discrimination. It relies on patriarchal interpretationsof biblical/religious texts, beliefs in male biological superiority (sexism) claiming that theunequal gender division of rights and duties
is either natural (biological), or God-given,or too difficult to change because they are
irretrievably embedded in culture.

15

Kee, J. (Ed.) (2011). EROTICS: Sex, rights and the internet.
An exploratory research study. Association for Progressive
Communications. https://www.apc.org/sites/default/files/
EROTICS_0.pdf

16

https://www.genderit.org/newsletter/sexuality-and-internet

17

http://erotics.apc.org/tags/infographic

18

http://www.genderit.org/sites/default/upload/erotics_
finalresearch_apcwnsp.pdf#southafrica

19

http://www.genderit.org/sites/default/upload/erotics_
finalresearch_apcwnsp.pdf#lebanon

20

http://www.genderit.org/sites/default/upload/erotics_
finalresearch_apcwnsp.pdf#brazil

23

21

http://www.genderit.org/sites/default/upload/erotics_
finalresearch_apcwnsp.pdf#india

https://en.wikipedia.org/wiki/Sara_Hlupekile_Longwe#cite_noteFOOTNOTEProfile_of_an_ICT_Champion-2

2422

http://www.genderit.org/sites/default/upload/erotics_
finalresearch_apcwnsp.pdf#usa

Hlupekile Longwe, S. (2002). Spectacles for Seeing Gender in
Project Evaluation. http://www.genderevaluation.net/gem/en/
understanding_gem/longwe.htm

8

Introduction

EROTICS South Asia exploratory research

Looking at the subjects that compose this vastcommunity of women’s rights, sexual rights and
LGBTIQ activists, the first consideration is about intersection: how within these communities people define
themselves through a constellation of other identities. These fluid and shifting constellations of identity
show how individuals are not a single point but
three-dimensional mosaics – and this is what the feminist legal scholar, critical race theorist, and civil rights
advocate Kimberlé Williams Crenshaw25 named asintersectionality.26 Intersectionality is an open call togive visibility and to question powers and privileges.
Intersectionality is also a feminist political practice ofrecognising or its obverse of denouncing, and transforming. If we do not understand this, the risk is that
we will have a new aesthetic of privileges that limits
itself to the description and retires when transformation asks for reconsideration of personal positions ofprivileges, or generates unease. It also means to givesignificance to what hides in plain sight.
To address intersectionality in the trinomialof sexuality, rights, in_on the internet is essential.
EROTICS uses an overall rights framework to unpack, organise or cluster these relations around theFPIs: access, expression, participation and buildingof movements, economy and embodiment.� And welook at both the relation of privileges and power
between the society at large and the community ofwomen’s rights, LGBTIQ and sexual rights advocates,
and the relation of privileges and power within themembers of this specific community.
If it is generally true that we are all equals but
some are more equal than others, it is also true thatwithin a community that faces discrimination there
are also various degrees of inequality. If we do not
accept the challenge to call out the existing privileges within communities too, we risk misinterpreting data and as consequence holding, halting thetransformation we would like to see happening as aresult of our politics. So, EROTICS research practice isto bring into plain sight all the visible, invisible andhidden intersections and dimensions from the crosspoint of sexuality.
Key recurrent themes surfaced by the research
are: access, namely access to infrastructure (connectivity) and access to information, creation of content as a way to share and promote narratives thatare sex-positive and promote freedom of expression.
Key themes the research discovers as absent from
ICT legislative frameworks are privacy and consent,
completely obscured by an exhausting preoccupation around indecency, morality and obscenity. What25

https://en.wikipedia.org/wiki/Kimberlé_Williams_Crenshaw

26

https://en.wikipedia.org/wiki/Intersectionality

9

Introductionis also found is a diffused self-censorship stimulatedby the general social hostility towards diversity, reinforced by existing discriminatory norms in penal andcriminal codes and confirmed by ICT legislation, andthis is along with peer and public surveillance that is
almost impossible to pin down.
An underlying concern but not completely
spelt out is the whole question of data. Bits of theselves transferred, stored, exposed, meshed up andmorphed. Bits that need to be controlled and secured at continuous risk of being lost, robbed. From
this arises the fear of many people of extortion andblackmail even when handing over devices for repair, while relying heavily and almost exclusively on
the cloud of private networks on social media andespecially hookup and dating sites. The research also
points out that people are at the mercy of unclear
legislations with lack of accountability both from institutional, local and global service providers. All the
research is about data, the joy, the trouble, the politics, the necessity of ensuring ownership, preventing
harm, asserting and respecting freedom, ensuring
privacy, safety.

Use and perception of the internet:
A story to be told many times
A good start is to look for what and how membersof the community use the internet and how they understand it. Looking at use is a perfect opening tounderstand power and technology and start appreciating the complexity: use, access, power, discourse
are interlinked to each other. These in turn promotebusiness, innovation and obviously technology andfurther innovation. It is a cycle, more like a sphere
where dimensions are not linear any more but 3D, in
a continuum that spirals and spirals, again and again
to the indefinite or the infinite.
There is no binary between internet and life –it is not onground, and then a vacuum, and at theend of it the virtual. There is a spectrum instead, andalong the spectrum there are users. The spectrum
too has to be understood as multidimensional because of the intersectionality, the identities assumed
or projected/mirrored on each other or against/vs.
each other. For this reason going back to use is necessary and important – it is to situate the self/selves
at a cross-point. And it is important also to call it across-point instead of a point of entry, because of
the many relationships that each specific point isembedded in. Some of those cross-points look very
material: cables, devices, data; some others are of adifferent fabric, the fabric of a society, a language, agender, more genders.
Access to the internet is far more complex thanconnectivity, or better to say we should never reduce
connectivity to a deployment of the last-mile cable

EROTICS South Asia exploratory research

or antenna. Connectivity, to bring meaningful access, calls immediately for an understanding of who
has the power to create, control and develop the infrastructure. Connecting via broadband, or througha phone, on pre-paid or post-paid data packages,
on public Wi-Fi tells us a lot about the power ofthe user, their embedded privileges or none. The
research tells us women, LGBTIQ and sexual rights
advocates are on the internet. They do use it andwith intention: an intention of justice but also an
intention of love, curiosity, pleasure. They are readyto invest to ensure their access but they do not haveequal power to ensure that it is stable, high quality,
fast and safe.
Individuals online also provide personal data,
identity data that give them the rights to own, register, pay online. Transactions of this nature makeeach and everyone very visible and confined by legal
and social norms. Trans women and trans men do
not have the same ease or possibility to have theirown personal access to the internet because theirgiven names and genders do not respond to their
lived experience and so they are confronted bothby legal contractual norms and social stigma. They
often have to rely on friends, relatives, or find ways
around, which implies precariousness and a form ofdependency based on unequal powers. Women andgirls face similar challenges because of their genderand the fear around their sexuality that entitle parents, husbands, family and relatives at large to question their rights to have they own devices. This puts
them in a precarious situation of being constantly
monitored by family, the most effective surveillancemode, and this in turn often leads to self-censorship.
Regardless of these barriers and the relative privileges of gay men, LBT advocates and women fromless privileged classes/castes access the internet anduse it intensively for personal and social purposes.

Privileges: We are all unequal but someare more unequal than others
The relationship between access and gender matters.
A male will more easily access education and in manycases, will get access by default. He is less likely toface judgement about having or using devices or theinternet. Some heterosexual women from dominantcastes as in the case of Nepal have access to certain
privileges, because the societal system of power generates a sense of belonging. But here also is a very
grey line that can be trespassed at any given moment.
As long as as the woman exercises her voice
within the gender binary and heteronormativity,
she does not threaten to transform the world anddismantle patriarchy, but focuses on diminishinginequality. As long as she is using a narrative of
empowerment more than one of challenging the10

Introduction

inequality of powers, the society will leave her inpeace, and the exclusion of non-heterosexual andnon-dominant castes will remind hidden to her.
It is important to understand that both gay men
and heterosexual women live in a sort of limbo, a discrimination on stand-by, ready to rise and take themby storm as soon as they walk out, break the silenceor expose their non-conformity. That is why intersectionality matters and it is important to recognise that
discrimination, everyday sexism, homophobia and all
the practices from belittling to intimidation to violence are part of the continuum of online_ongroundlife of women and LGBTIQ advocates. But there aregrievances related to the increased amount of nonconforming variables that constitute the 3D mosaic of
their individual identities.

Lines of tension
To be online is part of what people do. It is considered essential, and women’s rights activists see in the online spacea public arena for their quest for justice. There is no doubt
it is also a dangerous space with its specific risks, but not intrinsically different from the known dangers of patriarchal
society. The pace is certainly different, but is not something
absolutely new, similar to moving from a remote place to abusy hyperconnected one.
The research highlights and shows lines of tension. What emerges from the research is that expression around sexuality accelerates reactions. Talking,living, expressing one’s sexuality except the one ofheterosexual men is constantly under screening,27 sothat the curiosity, the pleasure has to continuously
account for strategies and choices. Nothing is forbidden but everything, potentially, has a price, a label,a backlash. Lines of tension, polarisations, different
perspectives that translate into holding back, silence,
not antagonising, and not using the online space toadvocate for sexual expression as an integral part of
the freedom of expression. All of it and the many
nuances and explanations participants provide comeup in many places in the EROTICS research.
It is not an easy finding to elaborate but it is anecessary one. There is a separation, a gap, a rupture
between self-identified feminist and women’s rights
advocates. From one side there is a difficulty of understanding the wholeness of the internet within
the world, as an intrinsic component of human interaction, and on the other side there is the difficulty of recognising the same legitimacy and wholenessof initiatives articulated online in contrast with therelevance reserved for those onground.
The rupture is also here multi-layered, once more
and once again intersectional: there are women’s
27

Shephard, N. (2016). Big data and sexual surveillance.
Association for Progressive Communications. https://www.apc.
org/sites/default/files/BigDataSexualSurveillance_0.pdf

EROTICS South Asia exploratory researchrights established professionals often recognised as
leaders of formal institutions. And there are individual activists, often referred to as online activists as if
deprived of a touchable body, or free radicals.28 The
latter have been described by Jac sm Kee as:[…] new and emerging actors who are part offeminist organising, but remain outside of themore familiar format of organisations. Some ofthem are content creators, some are social media activists, some are part of interest-driven collectives, some are feminist techies, and some arewhat I like to call “free radicals” – nodes thatconnect between formal organising and informal networks who act as key bridge builders
and interlocutors of different actors and different spaces.29
Some of them are what the internet recognises andcelebrates as influencers, some are just emerging
and becoming visible because of a trending hashtag.
There are also advocates belonging to dominantcastes or classes and advocates from lower class, minority groups. And gender-conforming individuals
versus gender-non-conforming individuals. Other
factors that play a role include age, education, numbers of foreign languages spoken, and so on.
Those privileges and concomitant power are allvery real, material and hide in plain sight, but the divergence named is about legitimacy and supremacy
of onground vs online. What else are our bodies online than material data of the same selves effectively
and destructively linkable to our shared/owned devices, homes, footsteps, ways of walking, faces?
So the internet has debunked some privileges.
Technology, with its own bias, expensive and precarious, still gives to the individual the opportunity
to express oneself for pleasure or politics in visibleto-others spaces. I refrain from labelling them as
fully public since often the spaces/places whereinteraction happens are walled gardens owned byprivate corporations. What is important is that thetransaction to access those spaces/places has alreadyhappened and is not tangled with legitimacy or permission to have a say, or receive a voice from the established professionals in the women’s rights movement. Sexual expression online becomes the dividerof the women’s/feminist movement. What truly
happens is that diversity of voices, tones, pace andstyles occupy the same space in a by-default twoway horizontal communication and the onground/online antagonism tells us of many constraints but
28

Kee, J. (2017, 10 November). Making a feminist internet:
Movement building in a digital age. GenderIT.org. https://www.genderit.org/editorial/editorial-making-feminist-internetmovement-building-digital-age

29

Ibid.

11

Introduction

also of privileges, powers, accountability, strategies
and eventually transformation.
Both the established professionals and the explorers are fluid characters embedded in the same
patriarchal infrastructure, and their particular privileges as well as their struggles are held in the powerof the dominant patriarchal infrastructure. The kindof space/place where these “clashes of silences, lackof sorority, judgmental and preaching practices”
happen is a space that is fed by accelerated conversations and dualistic antagonism. The internet oflikes and follows has only one binary: the against/
for of viral escalation that brings profits to its owner.
We must add that among women’s rights advocates there are big, unresolved differences on how
to approach sexuality in a patriarchal world. It is notdifficult to see how the existing divergence of theseassumed politics, going from sex-positive to antipornography, are exacerbated and exploited by the
specific technological architecture/design of social
media. Backlashes are hosted, welcomed, promoted
and exacerbated by those platforms built on clickrevenue business models that prefer simplification
over complexity, virality and velocity over deepening and slower pace. Still, because of the internet,
different narratives and conflating discourses arebrought alive in the visible space and augmented,
amplified and able to reach out potentially to any
other self-identified women’s rights, LGBTIQ andsexual rights advocates.
The right to sexuality in_on the internet is a wayof expressing the self and represents at the sametime exploration, affirmation, resistance and transformation. We all need to understand it and standby it. Support should not be denied and should be
the political practice of any advocate. And this iswhen a feminist perspective of intersectionality, solidarity and transformation helps to orient us in thenoise generated by the overwhelming horizontally
participatory conversations enhanced and amplified
on_in the internet.
For a dialogue the space/place of the internet
needs to be integrated, enriched and not limitedor concentrated on social media. Deep conversations require far more flexible spaces/places to accommodate the different pace of the participants inthe conversation. They need respectful and ethicallybuilt spaces/places to host dissent and provide thenecessary privacy, avoiding the performance andper-formative modality privileged by social media.
The internet is a terrain of freedom and this is unequivocally shown throughout the research. It is aspace/place of learning in the privacy of personalsearching, moving through languages, resources
and peer-to-peer conversation. The internet is aspace/place of playfulness, of detachment from thegiven to move toward the chosen. This is established

EROTICS South Asia exploratory research

once more by all the concern around fake Facebook
profiles and the question posed by respondents andresearchers: which handle/profile is fake and which
is true? And for whom does the authentication (thefamously known real name policy of Facebook)work? Is it a business trick to get better quotations
for shareholders because only real customers canbring real profit? And is not this also very vague andmore and more irrelevant for a world that is detaching printed moneys from digital and financial transactions in favour of cryptocurrency from Bitcoin toMonero, from Yota to Ethereum?

Living dangerous ordinary lives
One thing that is clear is that online avenues of freedom are constantly under threat. Sexuality on_in
the internet counts on armies of vigilantes set to thetask of ensuring family honour, religious tradition
or nationalism. Patriarchy with its arsenal of control
over female and women’s bodies, stigmatisation andpersecution of homosexuality, obstinacy to sanitise,standardise, simplified male/female in a binary representation is the norm, counter-discourse the brilliant,inspiring and searched exception.
That is why it is important to understand gendered and sexualised experiences of lesbian womenin Sri Lanka to see how the awareness of surveillance
permeates their online participation and embodiment.
What emerges, within the acknowledging of the many
constraints, is refreshing as it shows fluidity, ability tochange, transform and confront. There is acknowledgement that Facebook, the most popular and populated space online, is not amicus i.e. impartial, but is aspace/place of surveillance. Of the surveillance of thesystem, of the family and of the public,30 and an awareness of the self, of seeing and being seen, understanding reputation risks, and the prudent pushbacks andsteps to acquire autonomy and personal voices. It is allabout hacking, from exploiting the privacy setting inany possible way to ensure unwanted family members
are blocked from seeing, to create a hierarchy of seeing and not seeing, to confine to specific posts/views,
to open it up totally. There is discontent, and tirednessof having this mindset of looking for the backlash,for what can happen, what can be said, who can beharmed. There is care but also unbearable pressurethat pushes to ask for “delinking” of content production and recognitions online. There is the expectationof fun with a solidarity approach towards the sharingof self-taught tactics, tips and ways to be safer within
the Facebook machine. All is embodiment, including
the prudence. It is a vindication of agency, a way ofreclaiming a different narrative instead of the defeatof self-censorship.
30

Shepard, N. (2016). Op. cit.

12

Introduction

The same willingness and urgency to understand isbehind the choice of looking more closely at the issue ofviolence against women and lesbian, bisexual and trans(LBT) persons in Nepal. Both components of the Nepal
and Sri Lanka research should be looked at/understoodas the first result of both research studies while still inprogress. Deepening, additional exploring comes fromrecognising and acknowledging the existence of blindspots. When working under a timeline, the decisions
around asking one more question or not, convening one
more focus group or not, running a survey one moretime or not, are important decisions. They are politicaldecisions and EROTICS South Asia has valued additional
explorations as crucial. Research reports very rarely tell
the story of the researching team, the learning fromthe questions asked, the back and forth from assumption to implementation. Reading the reports would be
important to think of this, to understand the relevanceof blind-spots and how much work is necessary to put
them into plain light. So why is it so important to pause
and look into an absence and why is it necessary to tell
the story now and not in the near future?
All reports, from Nepal, Sri Lanka and India, tell
us about the many lines of tension that formalised
afterwards in threats, censorship and surveillance
practices of different weight, from different actors.
These exist everywhere, we knew it and the research
was not looking for a sensational discovery but more
for an understanding of their formation, dissemination, efficiency and effectiveness. It is true that
norms to be cogent, to work need to be perceived as
actual by community members themselves. But it isalso true that when norms are part of formal regulation and legal frameworks, then to remove them
there is a need for new tides to rise, relegating suchlaws and norms to archives and history.
Social networks remain the difficult sea women’s
and sexual rights activists have to navigate, with thetools they are able to get, even though harassmentand outing are a common experience for the majority of respondents. From awkwardness and discomfort, to harassment and violence, there is a very
tiny line. Articulating one’s own sexuality or taking
a position around sexuality is entering a perilous sea
where attack and revenge can be enacted at any moment. And this is a gendered, sexualised and raced
experience as shown by 88% of Nepal respondents.

Decency, morality, obscenity or thealienation of your own persona for thegreater good
Looking at the world from the perspective of sexuality is a game changer. Sexuality is attached topleasure or sexual orientation, but even now carries
discomfort and stigma, and is used with caution. I
say mainstream as a place of power, not necessarily

EROTICS South Asia exploratory research

as a place of majority. In the world the majority
struggle to have their voices heard. It is the privileged minority that scream and cover everyone else’s
voices.
Sexuality, because of sex at its root, is regarded
as a subject “to be handled with care”, a slippery
floor, an unstable sort of element that can explodeand create trouble at any time. Just to set a common
ground, let’s have a look at two basic, generally used
if not accepted, definitions of sexuality, the first one
comes from the western Merriam-Webster dictionary:Definition of sexuality: the quality or stateof being sexual:a : the condition of having sex
b : sexual activityc : expression of sexual receptivity or interest especially when excessive.31
And the second one, the Wikipedia entry (which,when exploring the internet, is probably one of themost searched, consulted):
Human sexuality is the quality of being sexual,or the way people experience and express themselves as sexual beings. This involves biological,
erotic, physical, emotional, social, or spiritual
feelings and behaviors. Because it is a broad
term, which has varied over time, it lacks a precise definition.32
The second definition is somehow open ended,
while the first is a quick a, b, c with c giving a tasteof the fear existing around this term. Sexuality as
excess, as indecency, lack of taste, immorality, obscenity, perhaps even blasphemy. All very subjective
terms, that can be understood and experienced
with infinite nuances. But it also must be locatedhistorically and contextually within the geopolitics
of power, control and subjugation, which includes
the hegemony of cultural white western European
colonialism that was then reinvigorated as US imperialism, but also the hegemony exercised locally by
the dominant elite, ethnicity, religion, race or casteon its own population.

31

https://www.merriam-webster.com/dictionary/sexuality

32

https://en.wikipedia.org/wiki/Human_sexuality

13

Introduction

On the origins of obscenity
and classification
For all these reasons it is important to reflect on theorigins of obscenity and all the definitions and classification that surround the word and how it acts
upon sexuality. One of the findings of Guavas andGenitals is that unclear, stereotypical and biased
definitions and classifications are used by National
Crime Records Bureau (NCRB) data to classify cybercrimes. In their study, Point of View researchers noticed how cybercrimes were classified into a system
of “motives”. In 2014, for the first time in the NCRB’s
history, a new category of suspect was introduced:
the sexual freak. That very same year, the NCRB classified 163 individuals as sexual freaks.
Similarly, in Sri Lanka, obscenity, profanity andpublic performance laws such as the Obscene Publications Act are used to control, censor and criminalise “carnal intercourse against the order of nature” and “acts of gross indecency”. Classification
on public websites could help de-stigmatise andoffer verified information on sexuality and sexual
orientation, but these remain generic, not intended
to help people, offering “limited perspectives of the
public health framework, which has cemented layersof stigma and discrimination, especially through theclose association of LGBTIQ Sri Lankans with HIV andother sexually transmitted infections.”
The spectrum of meanings highlights whensome of these meanings and associations originate
from a specific view of the world and the related
bias. Until then, their domain remains incredibly
vast and so we see how decency, morality and theirlinkage to obscenity and public interest travel fromcolonial time, permute to present time, and there,
through cables and wires, onground realities moveonline in an indissoluble continuum. Decency, morality and obscenity are not just floating, they areattached to a very specific representation of bodies,
usually female. Sexual expression again and again
is at the centre, but what we discover is that it has
become a simulacrum, that answers to a very specificpolitical project of silencing dissent.

Holding ground while building
momentum for policy changes
Women’s rights, LGBTIQ and sexual rights activists
are on the internet because it belongs to them. Theinternet is one of the spaces/places of their personal
lives as well as the site of their campaigns, activities.
They are constantly searching, learning, connecting and networking while producing, sharing andadvocating. And all this in a continuum of personaland collective strategies, that are shared, re-shared,
remixed, mashed up and shared again in a peer-topeer transmission, sometimes a viral one. Even as

EROTICS South Asia exploratory researchonground or embodied strategies are necessary, vital and brilliant, they are not enough. The systemperpetuates discriminatory law, originated in a colonial time and then re-appropriated by dominantelites, and these laws have their foundation in veryvague and subjective terms such as obscenity, morality, prurience. This vagueness is also transferred
into the new legislation around the internet, giving
higher and unrestricted powers. Strategies focusing
on amplification of voices and creation of alternative narrative are not enough. This is a moment thatasks for engaging with the formal, the institution,and using the evidence to create new policy which
will reform bad laws and inform new ones.
In Sri Lanka, any citizen can be subject to surveillance:
Under section 67(2), the attorney general (AG)or any police officer of/above the rank of superintendent may also require telecommunications authorities to deliver “documents” […]this requirement may be unilaterally bypassed if
an investigator believes, for instance, that “theinvestigation needs to be conducted urgently”
or that “there is a need to maintain confidentiality” without any obligation for the telecom or
the ISP to inform the subject of this action andwithout any liability.
LGBTIQ people, especially trangender people, arein an even weaker position due to the still existing
provision of the Penal Code where a person can bearrested by any police officer if suspected of “cheatby personation” or “act of gross indecency”. Their
personal data and logs are easily and secretly accessible at any moment by any police officer. This shifts
the focus from obscenity and profanity and instead

14

Introductionof focusing the entire institutional response on public morality, look at privacy and most of all consent
and harm and create laws that criminalise the unauthorised disclosure and/or publication of content
shared between private individuals.
What is needed is to create systems of accountability where each node of the internet infrastructure can respond and oppose, and not be put in aposition of forcibly being made to comply with any
requests of providing information on their “customers”. Note that these “requests” are coming fromthe same body that issues their licenses, or simply local police officers that only have to state urgency for
their request to be considered essential under law.
Policy work is delicate, sophisticated and long.
That is why it is important for users to move frombeing “customers” of services to be netizens, citizens of the internet, and address the functioning
and interconnection of the overall infrastructure inits continuum of cable, servers, regulations and content. Policy is the necessary scale-up of resistance, it
is what will ensure that the right of any minorities
be equal before the law and that the exception
can be constitutive of the norm. Exploration is likecharting an uncharted territory to give visibility to
the communities which inhabit it and their customs.
Once the lines are drawn, it is important to establish
the best possible rule of law for all communities intheir diversities.
The wild west of the internet that all EROTICS
research depicts is reinforced by the enforcementof the most restrictive interpretation of colonialist
patriarchal legislation on sexuality. Because of thiswe cannot rest on the practices and strategies of resistance, but need to engage with the institutions.

EROTICS South Asia exploratory researchINDIAa research study

Guavas and genitals

Lead researcher:
Bishakha Datta
Researchers:
Smita Vanniyar, Jasmine Lovely George,
Neha Mathews, Rachel Bali, Zahra Adamjee

Introduction
A hullabaloo in the guava orchard1
It all started with a link. Not with a frayed, yellowing
newsclip, as it used to in analogue times, but an online link to this report: “‘Orgy’ video on WhatsApp
lands four in the soup”.2
The report briefly described an event that had
taken place in November 2014 in Pune, a thriving
city four hours from Mumbai. Four young men, all17 years old, all just starting college or finishingschool or some such, had landed up in a public garden one afternoon for some fun and games. And,apparently, for some guavas. As one of them later
told the police:
Three of us had gone there to eat guavas. But
when we reached there we started playing witheach others’ genitals. We then stopped under atamarind tree, where two of us had oral
and anal sex while the third shot it on his phone.
This was repeated on all three. After two hours,
we returned home.3
Let’s leave the juicy segue from guavas to tamarind
aside for now. When one of the four shared this story
1

Desai, K. (1998). Hullabaloo in the Guava Orchard. New York:
Atlantic Monthly Press.

2

Ansari, M. (2014, 26 November). ‘Orgy’ video on WhatsApp
lands four in the soup. Pune Mirror. www.punemirror.indiatimes.
com/pune/civic//articleshow/45276484.cms

3

Ibid.

16 I n d ia

with a friend, he wasn’t believed. Easy to imagine
why; it sounds unbelievable when stated like this.
So the young man provided proof – or evidence – inthe form most common to the digital age: a video
clip filmed on a cellphone. His friend uploaded theclip on the Worldly Affairs WhatsApp group, from
where it “spread like wildfire.”

Until someone who saw it called the cops
The four young men were arrested for circulating
content that was obscene. They were charged withcirculating obscene material under Section 292 of
the Indian Penal Code.4
This unusual case threw up a number of questions. Some related to the incident in the park. Was
this really what had happened? Or had something
gotten lost in translation? Some related to sexuality. Was this play? Were they gay? Did it matter?
Some related to the sex being filmed. Was the sex
staged for filming? Or was filming part of the erotic
charge? Some related to digital cultures of sharing.
Did the four men know the video was going to beshared by others? Was consent assumed, bypassed,
or irrelevant? And some related to the fluidities ofspaces as an act meant for somewhat private consumption became increasingly public with eachchanging hand. Was this a public performance, aprivate act, or something in between? What did thismean, if anything?5

4

How come the boys weren’t arrested under the infamous
Section 377 of the Indian Penal Code which deems “carnal
intercourse against the order of nature” an “unnatural offence”
and has been used to punish same-sex behaviour?

5

In a private communication with GenderIT.org(https://www.genderit.org) editor Namita Malhotra, she saysthat there is also the implicit understanding that being watched,
being filmed is erotic in itself, linked very much to the danger
of its leaking but knowing outside the moment that it shouldn’t
be without your consent. This is often the ignored aspect of thepsychic involvement in sex that is about imagining being watched.

EROTICS South Asia exploratory researchComplementing these questions was another setof concerns: around law, its framing and its application. How come the four were arrested at all? They
had only shared the video with a friend. If someone
else had shared the video, how were they legally culpable? The video may have been sexually explicit.
But did that necessarily make it obscene? It was hardto understand the primary harm in this case. Who,
if anyone, had actually been harmed? If anything,
it seemed like the four young men were victims ofthis video going viral – but they were they seen as
perpetrators. Shouldn’t they have been protectedfrom a privacy violation instead of being booked forcirculating obscene material?
All said and done, how can you end up as a criminal
when all you’ve done is share a video with a friend?
So many questions. So few answers.

Methodology•

We delve into this larger question through a seriesof sub-questions:•

Why and how are sexual words and images,
including those that are deemed obscene, produced and circulated?

•

How, when and why did some sexual words andimages emerge as “obscene”? What are the historical roots of obscenity?

•

How does Indian law define, view and address
obscenity in digital and physical realms? What
are the contemporary meanings and practices
associated with obscenity?

•

How do laws on obscenity in the digital andphysical realms relate to each other? Are they
similarly or differently defined and applied?

•

What are the implications and consequences, intended and unintended, of these legal framings
and applications?

•

How do these legal framings, understandings
and applications strengthen or diminish women’s rights, sexual rights and digital rights?

That troubled word, obscenity
Obscenity. What a troubled word. What a preoccupation down the ages. It’s not fully clear if the rootsof “obscenity” lie in 16th century Latin or in ancient
Greece. By and large, the Latin word obscenum,
meaning offensive, boding ill, or inauspicious, anditself a combination of ob (in front of) and caenum(filth), is considered the rightful parent of “obscene”.6
However, it’s possible that the concept has deeper roots in the ancient Greek dramatic convention of
keeping sex and violence “ob skena” – or off-stage.7
Ob skena referred to that which was either sexual or
violent. But down the ages obscenity – as a concept– has increasingly come to be associated with words
or images that are sexual.
Our interest in obscenity – or more specifically,
digital obscenity – stems from the anomalies in thecase described above. We understand digital obscenity as that which involves the use of a digital device,
such as a computer or a mobile phone. As such,“digital obscenity” is a sub-set of “obscenity in thedigital age”, which also takes place in physical settings without the presence of digital devices. (Yes,this still happens.)
Against this backdrop, Guavas and genitals explores this domain of “digital obscenity”, or obscenity
involving the use of a digital device. Through thestudy, we explore one overriding question:

6

www.etymonline.com/index.php?term=obscene

7

www.biblioklept.org/tag/ob-skena

17 I n d ia

How does Indian law construct digital obscenity?

In India, digital obscenity is regulated by Section
67 of the Information Technology Act, which holds
that: “whoever publishes or transmits or causes tobe published or transmitted in the electronic form,
any material which is lascivious or appeals to theprurient interest or ... tends to deprave and corrupt
persons ... shall be punished …”8 This provision is at
the centre of our study.
Mixed methods and triangulation
Guavas and genitals starts by locating sexual words
and images within two streams of theory and practice: that of sexual expression and that of digital
photography. We then dive deep into the roots ofSection 67, which regulates obscenity in digital domains. When, where and why did this section comeinto being? What were its origins? What is its social
lineage, its legal pedigree? We go backward in time,to the 1800s when the first anti-obscenity provision
was introduced into the Indian Penal Code9 during

8

Ministry of Law and Justice (Legislative Department). (2009). The
Information Technology (Amendment) Act, 2008. www.meity.
gov.in/writereaddata/files/itact2000/it_amendment_act2008.pdf

9

Law Commission of India. (1860). The Indian Penal Code, 1860.
www.ncw.nic.in/acts/THEINDIANPENALCODE1860.pdf

EROTICS South Asia exploratory research

colonial rule: Section 292. We spend some time analysing Section 292 – which regulates obscenity inspaces other than the digital.
From here, we move to studying Section 67 via
a mixed methodology built on triangulation. In thesocial sciences, triangulation refers to the applicationand combination of several research methods in the
study of the same phenomenon.10 We use multiple
data sources to map out Section 67 and analyse it
from different vantage points. More specifically, we
use the following complementary quantitative andqualitative methods to dig into this legal provision:

Quantitative•

NCRB data: A 14-year review of publicly available National Crime Records Bureau (NCRB)11 dataon Section 67. Data is gathered and analysedfrom 2002, the first year when this data is available until 2015, the last year for which this data
is currently available.

•

Indian Kanoon: A review of legal documents filedin 99 cases under Section 67 in the year 2014.
These documents have been accessed from thepublicly available legal database at the site indiankanoon.org.12•

Interviews: Interviews with key informants, including lawyers, policemen, and the Cyber Crime
Investigation Cell, Mumbai.14

As researchers, we bring a triangle of interests, expertise and perspectives to our analysis: those related
to the domains of gender, sexuality, and technology.
As sex-positive feminists, we believe that sexual expression is as political and as vital as any other formof expression. And that protecting freedom of all expression, including the sexual, online is every bit asimportant as preserving it offline. Given our interests,
we explore not just the legal implications of Section
67, but its implications for gender, sexuality, technology, society and rights – in the 21st century.
In writing Guavas and genitals, we intentionally slant it towards storification, while maintaining
a rigorous grip on research protocols and methods.
We believe this will attract more readers and makethe study more relatable to broader audiences –both online and offline.

Chapter 1 Sexting the cherry
Image, technology, expression•

Literature review: A literature review of thehistorical and legal roots of Section 67 of theInformation Technology Act and of Section 292,
its counterpart in the Indian Penal Code. Sinceboth these sections are based on language thatis almost identical, what holds for one, holds forthe other – up to a point.

•

News reports of cases: An analysis of media reportsof 99 cases filed under Section 67 in the years 2015,2016 and 2017. These cases were obtained via customised searches using the site news.google.com.13

How do we locate this hullabaloo in the guava orchard? Should we think of this as sexual expression,
no different from a kiss or a cuddle, except for thevideo? Absolutely. Words and images – both moving
and still – have always been tools for personal expressions of sexuality. Think of the painstakingly crafted
Victorian love letter. Or of folded chits, surreptitiously
passed between lovers in the making. Of handwritten
entries in locked diaries and awkwardly-posed studio
photos of couples. Of tattoos in secret places which
can’t be easily removed when a relationship has died.
Love. Sex. Desire. Pleasure. Sexual expression
has always been tied to technology, be it the pen,
the camera or the cellphone. Some of the mostcommonly exchanged intimate images in the presmartphone era in India were those related tomarriage – specially arranged marriages. Think of
the classic studio portrait of a young woman whoseparents will send her image to the “boy’s family” tocreate a match. You can almost see the technology
behind her at work. The studio. The zoom lens. The
lights. The formality of it all. And the social mores,
the invisible parental hand guiding her to it.15

10

www.qualres.org/HomeTria-3692.html

14

www.cybercellmumbai.gov.in

11

www.ncrb.gov.in

15

12

www.indiankanoon.org

13

news.google.com

Kaul Padte, R. (2016, 11 May). Why I Share My Favourite
Porn with Other Women. Buzzfeed. www.buzzfeed.com/
richakaulpadte/why-i-share-porn-with-other-women?utm_
term=.vs8meKPVo#.sk1qz3MKd

These quantitative methods have certain limitations. While NCRB data claims to be comprehensive,
this does not mean it is rigorously gathered, compiled or analysed. The Indian Kanoon data isself-selected and does not claim to be comprehensive. These limitations are further discussed in therelevant chapters.

Qualitative

18 I n d ia

EROTICS South Asia exploratory researchIf the possibility of exchanging a nude selfie
with one’s lover didn’t exist in analogue days, it’slargely because the technology to do so didn’t
exist. Think of the dubious prospect of trundling
down to the neighbourhood camera shop to getyour nude image developed and printed by another. Not an option. As much as nude selfies – orsexts – are tied to “technologies of the self”,16
they’re also tied to technologies of the digital. To
cellphones that enable one to image and share
one’s body in relative privacy. Without going
through an intermediary.
What the Pune boys sent to their friends was a
sext. A sexual selfie – or a nudie – as it’s sometimes
been called.17 In formal terms, the nudie is almost theexact opposite of the arranged marriage portrait. It’s
home-made, by the subject themselves, often without the paraphernalia of professional photography.
Sometimes it’s badly shot but that hardly matters. Its
bare-boned beauty and raw imperfection marks the
emergence of the “sexual subject” in image-making
in a manner that is worlds removed from the posed
perfection of the “marital subject”. Both these images are almost on opposite ends of the arc of sexual
expression – not just in terms of form and content,
but also in terms of the agencies and subjectivities
that lurk below their surfaces.
New media scholar Amy Adele Hasinoff refers
to sexting as a technology-enabled form of sexual
expression in the digital age.18 “Sexting is a practiceof personal sexual media production,” she writes inher book Sexting Panic. “Consider sexting as the latest version of love letters, diary entries, suggestive
Polaroid photos, camcorder recordings and phonesex. Consider that sexting is at once a sex act and aspeech act.”19 In Hasinoff’s book, sexting is not inherently deviant or pathological. But there are serious
problems when personal sexual images are rooted
in coercion, violate privacy, transgress consent or areused to harass. Writes Hasinoff: “Sexting is neither
inherently liberating nor is it necessarily coercive.
The act of sharing an explicit photo of oneself canbe done under extreme duress or with as much free
will as any other choice.”20

16

Foucault, M. (1988). Technologies of the Self: A Seminar withMichel Foucault. Massachusetts: University of Massachusetts
Press.

17

www.urbandictionary.com/define.php?term=nudys

18

Hasinoff, A. (2015). Sexting Panic: Rethinking Criminalization,
Privacy, and Consent. Chicago: University of Illinois Press.

19

Ibid.

20

Ibid.

19 I n d ia

Except it isn’t always seen like that, of course.
The prospect of young people exchanging intimate
images – particularly nude ones – typically produces
shock, horror and moral outrage, especially among
parents, police and policymakers. Sexting is often
seen as an irresponsible teenage practice and madeexceptional,21 placed in a category by itself, somewhat like pornography, which is also rarely seen as
legitimate media production.
In some parts of the world, sexting is seen as acrime. In the United States, where the age of consent is16, but child porn laws apply to those below 18 years.22
This means that two 17-year-olds can legally have sex
with one another, but not legally make or share a digital image of themselves having sex. Not even with eachother, let alone others – that would qualify as childporn. US law does not use consent as a yardstick forestablishing harm – or criminality – when it comes toteenagers: both consensual and non-consensual sexting
among teens is criminalised. This has led to situationsof extreme legal absurdity. In one teen sexting case, abewildered judge asked the prosecutor: “It seems likethe child here is the victim, the perpetrator and the accomplice. Does that make any sense?”23
In June 2017, the US House of Representatives further criminalised sexting. The house passed a law thatwould put sexting teens in jail for 15 years – including
teenagers who consensually send sexy photos to theirfriends or to each other. Teen sexting is neither considered private communication nor legitimate sexual
expression and legally protected. It’s criminalised.
Imagine that. Fifteen years of jail for exchanging an image of yourself having sex with the personwith whom you had sex – consensually.

I photograph, therefore I am.
I am a camera. These are the words novelist Christopher Isherwood presciently wrote in the 1930s. “I
am a camera with its shutter open, quite passive, recording, not thinking. Recording the man shaving at
the window opposite and the woman in the kimono washing her hair.”24 When he wrote this, there
was no internet. No cell phones. No social media.
21

Ibid.

22

Alseth, B. (2010). Sexting and the Law - Press Send to Turn
Teenagers into Registered Sex Offenders. American Civil
Liberties Union of Washington. www.aclu-wa.org/blog/sextingand-law-press-send-turn-teenagers-registered-sex-offenders

23

Miller et al. v. Skumanick. 62. Temporary Restraining OrderHearing. (M.D. Pa. 2009). www.aclupa.org/download_file/view_
inline/587/230/

24

Isherwood, C. (1939). Goodbye to Berlin. London: The Hogarth
Press. www.youblisher.com/p/827019-GOODBYE-TO-BERLIN

EROTICS South Asia exploratory researchPhotography was all about recording today for tomorrow, creating visual memories to be privately
savoured at a later date. As Isherwood went on towrite, “Some day, all this will have to be developed,
carefully printed, fixed.”
Photography remained more or less the same until Isherwood died in the 1980s. Film. Develop. Print.
The only technology to challenge this was the Polaroid, which immediately, instantaneously spewed out
what it shot, earning it the moniker of the “instantcamera”. In the 1960s and 1970s Polaroid ruled the“instant photo” market. Its users included legendary
pop artist Andy Warhol, who has been called the first
Instagrammer25 for obsessively shooting more than
20,000 Polaroid images of himself and his friends.26
If there is any phenomenon that depicts thechanging relationship between technology, expression and life, perhaps it is photography. Writes art
historian Geoffrey Batchen: “The shift in the photograph’s status from a static documentary record ofa past moment to a ubiquitous mode of immediate
communication allows us to perform versions of ourselves for a vast new public.”27
Images are no longer always about “fulfilling amummification desire to embalm the past.”28 Images are about the here and now, shared the moment
they’re shot as part of the digital eco-system of “rapid delivery, ubiquitous availability and the instantgratification of desires.”29
This unending flow of images is now such an
everyday means of communication that it is being
likened to oral speech. Communications researcher
Mikko Villi likens the “streams of short-lived, transitory, ephemeral, ‘throwaway’ images”30 to words
25

Duell, M. (2015, 20 August). The very first ‘Instagram account’:Andy Warhol’s ‘visual diary’ of Polaroid photos of celebrities
including Jack Nicholson and Dolly Parton set to be illustrated
in new book. MailOnline. www.dailymail.co.uk/news/
article-3204240/The-Instagram-account-Andy-Warhol-s-visualdiary-Polaroid-photos-celebrities-including-Jack-Nicolhson-DollyParton-set-illustrated-new-book.html

26

Despite its technological innovation, Polaroid failed. It filed forbankruptcy in the early 2000s just as digital photography wascoming into its own.

27

Batchen, G. (2014). Foreword. In J. Larsen & M. Sandbye (Eds.),
Digital Snaps: The New Face of Photography. London: I. B. Tauris& Co. Ltd.

28

Larsen, J., & Sandbye, M. (2014). Introduction. In J. Larsen & M.
Sandbye (Eds.), Digital Snaps: The New Face of Photography.
London: I. B. Tauris & Co. Ltd.

29

Larsen, J. (2014). The (Im)mobile Life of Digital Photographs: The
Case of Tourist Photography. In J. Larsen & M. Sandbye (Eds.), Digital
Snaps: The New Face of Photography. London: I. B. Tauris & Co. Ltd.

30

Villi, M. (2014). Distance as the New Punctum. In J. Larsen & M.
Sandbye (Eds.), Digital Snaps: The New Face of Photography.
London: I. B. Tauris & Co. Ltd.

20 I n d ia

during a phone call. Larsen notes that image exchanges, like spoken words, are not meant to bearchived. Writes Lister: “[When] the rapid and continuous exchange of online photography becomes
like a kind of speech, then this speech would becomposed of little exclamations, oohs and ahs, nods,
chuckles, pointings in several directions, silent mutterings to the self.”31
If we’re talking through images as much aswords, it’s largely because of the ubiquity of thecellphone. When the cellphone is always at hand,life is lived through images and vice versa, eerily
evoking Baudrillard’s “simulacra” 32and Debord’s“spectacle”.33 “Today many people regard thecamera as a part of their daily lives, almost an extension of their bodies,” write media professors Jonas
Larsen and Mette Sandbye.34 Visual culture theorist
Martin Lister talks of the “living of life” collapsing
into the “making of photographs”. “Photographs
matter not as much as finite products but because
they provide the occasion for taking photographs:
for walking, for wandering, for being alert to opportunities, for ‘being in the moment’.”35

In other words, I photograph, therefore I am.
Nothing exemplifies this more than the selfie. The
selfie – which became the Word of The Year in 201336– is many things, all in the same moment. A way toreveal oneself to oneself – and to others. A digitalconstruction of identity. A way to harness fame. And
a way to produce sociability. Aka, friendship.

Performing friendship through photography
In 2004, months after the United States invaded Iraq,
essayist Susan Sontag wrote an impassioned article
on how the Iraq war was being imaged. Photographing war used to be the province of photo-journalists,
she wrote in Regarding The Torture of Others.
But now soldiers are themselves photographers.

31

Larsen, J. (2014). The (Im)mobile Life of Digital Photographs: The
Case of Tourist Photography. Op. Cit.

32

Baudrillard, J. (1994). Simulcra and Simulations. Ann Arbor:
University of Michigan Press.

33

Debord, G. (1994). The Society of the Spectacle. New York: Zone
Books.

34

Larsen, J., & Sandbye, M. (2014). Op. cit.

35

Lister, M. (2014). Overlooking, Rarely Looking and Not Looking.
In J. Larsen & M. Sandbye (Eds.), Digital Snaps: The New Face of
Photography. London: I. B. Tauris & Co. Ltd.

36

Oxford Dictionaries. (2013, 18 November). The Oxford
Dictionaries Word of the Year 2013 is ‘selfie’. Oxford
Dictionaries. www.blog.oxforddictionaries.com/2013/11/word-ofthe-year-2013-winner/

EROTICS South Asia exploratory research

“Soldiers now pose, thumbs up, before the atrocities
they commit, and send off the pictures to their buddies,” writes Sontag. And elsewhere: “The pictures
were meant to be circulated and seen by many people; it was all fun.”37
What the soldiers are performing through theseimage exchanges is friendship – or “friendship photography” as media theorist Joanne Garde Hanses
refers to it.38 We once talked on the telephone – we
now talk through our images. We mark friendships
by sharing and commenting on images. And we
update our friendships as we update our image
streams. “After a year a smartphone is outdated,
you have to get a new one,” writes Alain Bieber,curator of the photographic show Ego Update. “Itis the same with the way you portray yourself, youhave to be constantly renewing yourself.”39
But what exactly is “friendship photography”?
Based on her research with teenagers in England,
Garde Hansen writes about it thus:
This new audience of lay or friendship photography demands the ordinary ... The teenagers’
photographs that were shown to me during the
focus groups for my research (taken of domestic
spheres, out and about, during daily routines orof one-off adventures) were aesthetic, spontaneous, dull, enviable, repetitive, creative, uninhibited,
crowded, contrived and familiar in their non-eventness. They called my attention and called attention
to ordinary lives turned into events in the moment ofviewing ... Friendship photography, then, ... seeks tomake an emotional connection in the present, establish a social tie, perform intimacy and joint memory
as simultaneously offline and online.40
Building friendship via photography is also atightrope walk – between sharing too much andrevealing too little, self-disclosure and vulnerability, what to keep private and what to make public.
Garde-Hansen believes that friendship photography has collapsed the private/public barrier. “[It]has an integrated sense of sharing built in, whichmoves it very quickly from personal to public,” shewrites. “The concept that ‘we are all friends online’,alongside the proliferation of the domestic sphere
into online spaces and the technologisation of thehome in real space, serves to reinforce the notionthat what is private is also (by rights) public.”41
Other digital researchers argue that teens go to
great lengths to manage their privacy among networked publics. “Every teenager wants privacy,” writes
Danah Boyd in It’s Complicated, her seminal study ofteens and social media. “Teens’ desire for privacy does
not undermine their eagerness to participate in public.
There’s a big difference between being in public andbeing public.” While research shows that sexual privacy
remains at the top of most privacy lists, Boyd suggeststhat paradoxically, social media or “the networked
publics they inhabit allow [teens] a measure of privacy
and autonomy that is not possible at home where parents and siblings are often listening in.”42
Perhaps the question is not so much whether
digital technologies are reconfiguring the private
and the public, but how they are doing so. And
what are the consequences of this reconfiguration?
Anybody can reach into the stream of images andgrab fragments of the lives of self and others, writes
researcher Louise Wolthers.43 The maker has little
control left. Personal photographs are becoming
more public and transitory, less private and durable,says information scholar Nancy Van House. “Whereas
printed images and negatives are under the controlof the owner, digital photographs have slipped thebounds of materiality and may have a life of theirown outside the control of their makers.”44
Which may explain why there was a scandal
when American soldiers’ personal images from the
Iraq war landed up on social media.
All of which may somewhat explain why there
was a scandal when four young men in Pune shotand shared their sex play with their friends – andwith a whole bunch of others.

41

Ibid.

37

Sontag, S. (2004, 23 May). Regarding the Torture of Others.
The New York Times Magazine. www.nytimes.com/2004/05/23/
magazine/regarding-the-torture-of-others.html

42Boyd, D. (2014). It’s Complicated: The Social Lives of Networked
Teens. New Haven: Yale University Press. www.danah.org/books/
ItsComplicated.pdf

38

Garde-Hansen, J. (2014). Friendship Photography: Memory,
Mobility and Social Networking. In J. Larsen & M. Sandbye (Eds.),
Digital Snaps: The New Face of Photography. London: I. B. Tauris& Co. Ltd.

43

Wolthers, L. (2014). Virtual Selves: Art and Digital
Autobiography. In J. Larsen & M. Sandbye (Eds.), Digital Snaps:
The New Face of Photography. London: I. B. Tauris & Co. Ltd.

39

Meier, A. (2015, November). “I Document, Therefore I Am”.
Goethe Institut. www.goethe.de/en/kul/med/20640599.html

44

40

Garde-Hansen, J. (2014). Op. cit.

Van House, N. (2011). Personal photography, digitaltechnologies and the uses of the visual. Visual Studies, 26(2),125-134. www.tandfonline.com/doi/full/10.1080/1472586X.2011.
571888?scroll=top&needAccess=true

21 I n d ia

EROTICS South Asia exploratory researchChapter 2 A short history of obscenity
From sin to crime
What harm has the sex act, so natural, so necessary,and so lawful, done to humanity, that we dare notspeak of it without shame, and exclude it from serious
and orderly conversation? We boldly utter the words“kill”, “rob”, “betray”; and the other we only dareutter under our breath.45
Philosopher Michel de Montaigne, France,
16th century

The legal roots of obscenity in India are found amidst
the social, political and technological changes of the
18th and 19th centuries. In 1727, for the first time,
obscenity, previously defined as a “sin” – or a private
immoral act for the spiritual courts to rule on –emerged in England as a “crime”, or a public offence.
An English common law court ruled that printer Edmund Curll’s translated publication of Venus in the
Cloister46 was guilty of “obscene libel”.47 “What madeCurll’s action criminal in the view of the judges was acontingent technological circumstance: the publication was a printed work, and as such it was capableof widespread public distribution.”48
And just like that, as mass print and commercial presses gave wider access to books and ideas,
new anxieties surfaced – and a new offence wasborn. Obscenity.
Early obscenity laws were used to control explicit sexual writing that satirised and criticised
the church, the state, and the monarchy.49 In otherwords, early obscenity laws were used to control

obscenity, defamation and blasphemy – or sexualand (conventionally) political speech.50 In 1868, aProtestant publisher was prosecuted for circulatinga pamphlet51 showing how Catholic priests extracted erotic confessions from female penitents.52
Ironically, he was charged with obscenity while trying to expose the “obscenity” of priestly practice.53
The judge in the landmark Regina v Hicklin caseruled thus:
I think the test of obscenity is this: whether thetendency of the matter charged as obscenity is
to deprave and corrupt those whose minds areopen to such immoral influence, and into whose
hands a publication of this sort may fall.54
And just like that, a new test of obscenity emerged, notjust in Britain, but in its colonies. The Hicklin test,
named after the magistrate who had ordered thepamphlets to be seized. Who could have then imagined that this test would decide what was obscene in
India for two more centuries?55

Clean up the muck
It would not be an exaggeration to say that obscenity
is the national vice of the Bengalis.56

By the mid 1800s, regulating obscenity had broadened from a limited national project to an imperial
preoccupation, as part of England’s bigger project of“purifying empire”.57 The Obscene Publications Act
had just been passed after a stiff battle in the British
Parliament. During the debate, the bill’s proponents
50

Sexual speech is also political, hence the use of the term
“conventionally political”.

51

Scott, H. (1867). The Confessional Unmasked: Shewing the
Depravity of the Romanish Priesthood, the Iniquity of theConfessional and the Questions Put to Females in Confession.
London: The Protestant Electoral Union. https://catalog.
hathitrust.org/Record/001935730

52

Malhotra, N. (2010). Op. cit.

53

Mazzarella, W. (2013). Censorium: Cinema and the Open Edgeof Mass Publicity. Durham: Duke University Press.

No one was libelled in the modern sense of the word. However,the crime was defined as one of disturbing the King’s peace
through an obscene publication which harmed public morality.
Pettit, A. (2001). Rex V. Curll: Pornography and Punishment
in Court and on the Page. Studies in the Literary Imagination,34(1). https://www.questia.com/library/journal/1G1-76997975/
rex-v-curll-pornography-and-punishment-in-court

54

Mazzarella, W. (2011). The Obscenity of Censorship: Re-thinking
a Middle Class Technology. In A. Baviskar & R. Ray (Eds.), Eliteand Everyman: The cultural politics of the Indian middle classes.
London: Routledge. www.academia.edu/612164/The_Obscenity_
of_Censorship_Re-thinking_a_Middle_Class_Technology

55

Bhatia, G. (2016). Offend, Shock, Or Disturb: Free Speech Under
the Indian Constitution. India: Oxford University Press.

48

Saunders, D., & Williamson, D. (1993). On Pornography:
Literature, Sexuality and Obscenity Law. London: Palgrave
Macmillan.

56

Ramnarine, T. (2001). Creating Their Own Space: The
Development of an Indian Caribbean Musical Tradition.
Kingston: University of West Indies Press.

49

Malhotra, N. (2010). Pornography and the Law. Bangalore:
Centre for Internet Studies. cis-india.org/raw/histories-of-theinternet/blogs/law-pornography

57

Heath, D. (2010). Obscenity and the Politics of Moral
Regulation in Britain, India and Australia. Cambridge:
Cambridge University Press.

45

Montaigne, M. (1580). Upon Some Verses of Virgil. Bordeaux:Simon Millanges, Jean Richer.
www.gutenberg.org/files/3595/3595.txt

46

In Venus In The Cloister aka The Nun In Her Smock, two young
nuns Angelica and Agnes – enjoy sexual relations with one
another and, peripherally, with men. “What the state punished
was not the representation of sex, but the representationof sex – lesbian sex in particular- – that was not punishedintratextually. The result is the incorporation of pornography
into a conservative and, to risk cliche, hegemonic penal
apparatus.”47

22 I n d ia

EROTICS South Asia exploratory researchinvoked the 1857 revolt in India to bolster theircause. Writes Heath:
It strengthened the resolve of Evangelical interventionists to purify the home society to make itworthy of its imperial mission. It also immensely
hardened the general public mood against “sentimentality” in matters of social control, including
the sexual.58
In Australia, the discourse of “imperial hygiene” castobscenity as a form of contagion, and censorship assanitation.59 Dirty. Clean. In British India, it resulted
in the Contagious Diseases Act of 1864, which aimed
to keep British soldiers clean of sexually-transmitted
diseases by locking up “infected” prostitutes.60 Dirty.
Clean. Josephine Butler, a prominent feminist who protested against this act, did so not because prostitutes
were being randomly detained, but because other “innocent” women were being inspected. The Association
for Moral and Social Hygiene in India, that she founded,
was active in anti-obscenity campaigns.61 Dirty. Clean.
It was the age of Queen Victoria, a time whenan “assertive prudishness had became a part of theparaphernalia of respectability,”62 writes scholar
Sumanta Banerjee. Victorian morality laid an emphasis on constraining the body – don’t place yourelbows on the table, walk without swinging yourhips, don’t chew loudly, don’t snort or pant. Where
sex was concerned, “there was the same stress on
closing up and limiting the body’s confines.”
A somewhat different attitude to the bodyprevailed then in India, where the body – and its
satisfaction in everything from food to sex – was astaple of folk and popular culture. Bengali poems
frankly and erotically described the various stages
58

Ibid.

59

The Contagious Diseases Act was passed in England in 1864
allowed police officers to arrest women suspected of being
prostitutes in certain ports and army towns. The women werethen subjected to compulsory checks for venereal disease. If
a woman was declared to be infected, she would be confinedin what was known as a lock hospital until she recovered or
her sentence finished. The original act only applied to a few
selected naval ports and army towns, but by 1869 the acts had
been extended to cover 18 “subjected districts”.
www.en.wikipedia.org/wiki/Contagious_Diseases_Acts

60

The Contagious Diseases Act. (2009). The Victorian Web.
www.victorianweb.org/gender/contagious.html

61

Heath, D. (2010). Op. cit.

62

Banerjee, S. (1987). Bogey of the Bawdy-Changing Concept of
Obscenity in 19th Century Bengali Culture. Economic & Political
Weekly, 22(29). www.epw.in/journal/1987/29/special-articles/
bogey-bawdy-changing-concept-obscenity-19th-century-bengaliculture

23 I n d ia

of lovemaking. Popular songs mocked the humanbody to the point of the grotesque, marking “itsdegeneration and decrepitude.”63 Hindu gods weresometimes represented as human beings, occasionally even depicted with their genitals on display.64
The concept of “obscenity” was irrelevant in thiscultural milieu. It emerged as Christian missionaries,
English educationists and administrators mingled with
Brahminism, social reform and bhadralok, or the respectable gentry. These groups “perceived the socialworld as frighteningly lacking in normative regulationand moral authority,” writes Banerjee. Ergo, obscenity.

It was, literally, a new concept.
So much so, that it emerged on the streets in songand verse:“There’s a new frenzy in town, my brother Neverbefore have we heard this word, obscenity.”65

The first obscenity laws in India appeared around thistime, spanning all cultural forms – from performance
to print – that were then in existence. There were antiobscenity provisions in the Indian Penal Code,66 the Post
Office Act,67 the Sea Customs Act68, and the Dramatic
Performances Act.69 Between them, they prohibited
every possible mode by which sexual ideas could betransmitted: distribution, circulation, sale, public exhibition, hire, conveyance, importation, exportation,
advertise, even possession with a view to sell.
Almost everything, except personal consumption. You could only legally read an “obscene” bookthrough a miracle. Or if you wrote it. Since you
couldn’t legally borrow, buy,70 hire or steal it.
Section 292 of the Indian Penal Code – underwhich four young guava-eating men would be

63

Ibid.

64

Among other examples, Banerjee writes about a 19th century
Kalighat pat, showing a pot-bellied Shiva, forgetful of his
slipping tiger-skin loincloth, quite uninhibitedly showing his
genitals.

65

Shahorey ek nutun hujuk uthechhey re bhai Ashleelta shabdo
mora agey suna nai

66

Law Commission of India. (1860). The Indian Penal Code, 1860.
www.ncw.nic.in/acts/THEINDIANPENALCODE1860.pdf

67

Department of Posts, India. (1898). The Indian Post
Office Act, 1898. www.indiapost.gov.in/VAS/DOP_RTI/
TheIndianPostOfficeAct1898.pdf

68Department of Revenue, India. (1878). Sea Customs
Act, 1878. www.indiapost.gov.in/VAS/DOP_RTI/
TheIndianPostOfficeAct1898.pdf

69

Government of India. (1876). Dramatic Performances Act.
www.wipo.int/edocs/lexdocs/laws/en/pk/pk046en.pdf

70

Although purchase was not deemed illegal, sale was, making it
all but impossible to legally purchase.

EROTICS South Asia exploratory researchcharged with obscenity 150 years later – was born inthis colonial era of frenzied lawmaking.71

of female passionlessness, framing an oppositional womanhood against colonial designationsof derelict sexuality ... The taboos on her behaviour were aimed to enclose and discipline female
bodies, to ensure a new social and moral hierarchy of power, and to integrate chastity withmiddle-class identity.76

Eroticism for the masses
If you discuss 84 postures, 72 kisses, 128 types ofembraces ... what young man would notread your book with deep engrossment?72		

			

Anonymous, June 1925

Anxieties around sexual literature intensified in
the early 20th century, as offset printing presses
flooded the market with everything from “penny
dreadfuls”73 to erotic sex manuals, “surreptitiously
disturbing the dominance of ‘clean’ literature”.74
While these erotic publications fed into female andmale sexual fantasies and desires, sanitised literary norms were becoming markers of culture andcivilisation. Erotic poetry was deemed a threat to civilisation and sensual Hindu temple sculptures werelabelled “impure”. While sex for reproduction wasconsidered healthy and legitimate, sex for pleasure
was branded unhealthy and obscene. Writes historian Charu Gupta:
In the discourse of the nation, non-reproductive
and hedonistic sexual behaviour came under
extraordinary negative pressures, resulting in anear exclusion of all non-reproduction-oriented
sexualities ... Wherever sexual descriptions celebrated desire or eroticism for its own sake, they
became unacceptable or obscene.75
The representation of women also took a turn in thismorally-purifying scheme of things. Women in highHindi literature were no longer represented as erotic,
sexually-active nayikas or heroines. They now became
chaste, virtuous Hindu wives and mothers. Writes Gupta:
The dominant image of women as sexual beings
was reversed and transformed into an ideology
71

It was one of the sections listed under the category of Offences
affecting the Public Health, Safety, Convenience, Decency and
Morals in the newly-formulated Indian Penal Code of 1860.

72

Gupta, C. (2000). ‘Dirty’ Hindi Literature: Contests About
Obscenity in Late Colonial North India. South Asia Research,
20(2). https://www.researchgate.net/profile/Charu_Gupta13/
publication/249748785_%27Dirty%27_Hindi_Literature_
Contests_About_Obscenity_in_Late_Colonial_North_India/
links/557f905b08ae26eada8f5ad3/Dirty-Hindi-LiteratureContests-About-Obscenity-in-Late-Colonial-North-India.
pdf?origin=publication_detailMisgivings about “dirty literature” soon mutatedinto a full-scale war on smut. Mahatma Gandhi
decried the “filth” in literature. “To excite lasciviousness is the only business of poets,” lamented
a fellow poet.77 Books, pamphlets, postcards andpictures were confiscated.78 Publications on birthcontrol were banned, books on homosexuality
became taboo, and shops were warned against
stocking the Kama Sutra.79 Railway bookstalls were
not allowed to keep “objectionable” material.
Bookstores were searched, publications comingfrom Europe were seized, and booksellers, presses
and publishers were prosecuted under new antiobscenity laws.
All because of one overriding anxiety: technology was enabling the masses, including the“lower classes” to access sexually-explicit materials. Writes Gupta:
Their market was not limited to the literati ... but
extended to an increasing class of functionallyliterate people, including clerks, shopkeepers,
traders and students ... These authors tested theboundaries of decency and were thought incompatible with the new ideals of nationhood andcivilisation ... The trouble with eroticism for themasses was its subversion of the usual rules oforder and propriety.80
Amidst all this, the first international conference
against obscenity was held in 1925 and Section 292
was amended to exempt religious books. It was under this amended section that two reputed Indian
novelists were charged with obscenity in the 1940s.
One was the Urdu writer, Saadat Hasan Manto. During one trial, when a witness claimed he had used
the “obscene” word “bosom”, Manto jumped up
76

Ibid.

77

Gupt, M. (1937). Bharat Bharati. Jhansi. 14th edition.

78

In ‘Dirty’ Hindi Literature: Contests About Obscenity in
Late Colonial North India, Gupta describes how printed sex
manuals tried to camouflage themselves by saying they werehighlighting the “scientific” facts of sexual life, and were not“obscene”.

73

Flanders, J. (2014, 15 May). Penny dreadfuls. Discovering
Literature: Romantics and Victorians. https://www.bl.uk/
romantics-and-victorians/articles/penny-dreadfuls

74

Gupta, C. (2000). Op. cit.

79

www.archive.org/details/kamasutraofvatsy00vatsuoft

75

Ibid.

80

Gupta, C. (2000). Op. cit.

24 I n d ia

EROTICS South Asia exploratory researchand asked: “What else did you expect me to call awoman’s breasts – peanuts?”81
The other was Ismat Chugtai, whose short story
Lihaaf (The Quilt)82 explored an erotic relationshipbetween two women below a quilt. Both of themwon their cases after long, highly-publicised trials, but that is not the only thing of note. As legal
scholar Ratna Kapur writes of Chugtai’s case, “As isthe effect of most obscenity trials, it left the stain ofimmorality and stigma on both the sexual speech, aswell as the sexual conduct, that was impeached.”83
Tentatively establishing that the legal ride from“sexual speech” to “obscenity” is a short one.

Chapter 3 Bodies of evidence I“What is this obscenity you have brought?”

Fast forward to the 21st century. In 2004, two school
students in Delhi, a boy and a girl, filmed themselves
having sex. Like the Pune guava-eaters, the boy was
17, the girl was 16. They’d filmed themselves for theirown pleasure, but the boy shared the MMS clip withhis friend in an early manifestation of the internet
phrase, “Pics or it didn’t happen”. When a tabloid
found this being sold online as “DPS girls having fun”,
the law creaked into motion. An engineering student
was arrested for uploading the “obscene” clip, as was
the head of the company that ran the site.84
They were arrested under a relatively new provision: Section 67 of the Information Technology Act.
A provision that carried a colonial mindset into thedigital age by using the same legal language.
The IT Act, as it is popularly called, had rolled
in just five years after the internet was publicly
launched in India – on Independence Day, 15 August 1995.85 Those were the days of TCP/IP, slow
speeds, unstable dial-ups, and internet evangelists. In his declaration of independence, John
81

82

83

Bhatia, G. (2015, 18 February). Vulgarity vs obscenity. Livemint.
www.livemint.com/Politics/HUdmFlzTs3F2xJhuLuBPSK/Vulgarityvs-obscenity.html
Chughtai, I. (1941). Lihaaf. Adab-i-Latif. https://archive.org/
stream/LihaafTheQuiltIsmatChughtai/Lihaaf%20[The%20
Quilt]%20-%20Ismat%20Chughtai_djvu.txt
Kapur, R. (2000). Law and the Sexual Subaltern: A
Comparative Perspective. Cleveland State Law Review. 48(1).
engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=142
4&context=clevstlrev

84

DPS MMS Scandal.
www./en.wikipedia.org/wiki/DPS_MMS_Scandal

85

Ghosh, S., & Mishra, A. (2015, 30 June). The birth of theInternet in India. Livemint. www.livemint.com/Industry/R3kgewhIhKscbiELV1sHZM/The-birth-of-the-Internet-in-India.html

25 I n d ia

Perry Barlow urged “Governments of the World,
you weary giants of flesh and steel” to stay clear of“CyberSpace, the new home of Mind.” Wrote Barlow: “On behalf of the future, I ask you of the past
to leave us alone. You are not welcome among us.
You have no sovereignty where we gather.”86
It was that utopian moment when promise andpossibility outweighed porn and peril. Or did it?
“Within months of the immense popularity
came a headache,” wrote two technology journalists. “Pornography.” At 2:00 a.m. one night, thetelecom minister called the ISP head. “He asked ina very unhappy tone ‘Yeh kya ashleelta laye ho?’
(What is this obscenity you have brought), referring to the pornography that came with access.”
A women’s rights group protested outside thetelecom operator’s office. “They wanted people
to show them the internet so they could burn it
down.”87
Technology. Access. Obscenity. The more thingschange, the more they remain the same.

What the numbers say
The year 2004 is a watershed year in India’s internet
history. It was the year that Section 67 was first mentioned in mainstream Indian media. It was also theyear that the term “intermediary liability”88 enteredpublic consciousness – as the cops booked the headof the site on which the DPS-MMS clip had been
uploaded.89 2004 was also one of the first years inwhich obscenity showed up as the highest-reported
digital offence.
Or so it appeared from the data provided by the
National Crime Records Bureau.90 The NCRB, as it
is popularly referred to, is the government agency
responsible for collecting and analysing crime datafrom the Indian Penal Code – and from the Information Technology Act of 2000. The NCRB acts as anaggregator of sorts, compiling country-wide data of
cognisable offences based on reports from different
86

Barlow, J. (1996, 8 February). A Declaration of the Independenceof Cyberspace. www.eff.org/cyberspace-independence

87

Ghosh, S., & Mishra, A. (2015, 30 June). Op. cit.

88

Chawla, K. (2014, 7 October). Intermediary Liability – An
Explanation. Tech Law Forum @ NALSAR. www.techlawforum.
wordpress.com/2014/10/07/intermediary-liability-an-explanation/

89

The use of Section 67 and the term “intermediary liability” were
triggered by the same case: the “DPS girls having fun” clip which
was sold for Rs 125 on E-bay’s India site, baazee.com. Kallender,
P. (2004, 20 December). Ebay ‘outraged’ at CEO arrest in India.
Macworld. www.macworld.com/article/1041519/ebay.html

90

The NCRB was set up in 1986 and initially classified crimes basedon the Indian Penal Code. It started classifying crimes from theInformation Technology Act in 2002.

EROTICS South Asia exploratory research

Figure 1. Cases filed under Section 66 and Section 67

No. of Cases Registered

5000

1000
500

100
50

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

Years
Section 67

Section 66

The quantum of obscenity-related cases has increased exponentially – 36 times – over 14 years, while its percentage share has dropped.

states. These are published in the compendium,
Crimes in India, which serves as a national repositoryof crimes in India.91
We went through NCRB data for the Information
Technology Act from 2002 to 201592, the first and lastyears for which this data is currently available. This iswhat we found.

Section 67 is the second-most used sectionin the Information Technology Act
From 2002 to 2015, Section 66 was the most usedsection in the IT Act; Section 67 was the second-mostused section. This can be divided into two phases:•

2002-2007 – Section 67 is most-used section eachyear barring one year•

2008-2015 – Section 67 is the second-most-usedsection each year.

those filed under Section 66 grew from 138 to a
whopping 6,567.93
For the full period from 2002 to 2015, Section 66 grew at a compound annual growth rate
(CAGR) of 53% in terms of cases filed, while Section 67 grew at 28% – roughly half that of Section
66 (see Figure 1). Since no data is available forthe use of Section 292, it is not possible to compare the growth of “offline” obscenity during thesame period.
The number of cases filed under Section 67 rose
sharply from 33 in 2002 to 1,203 in 2013, then dropped
to 749 in 2015. During this time, the total number ofcases filed under the IT Act also increased sharply from70 in 2002 to 8,045 in 2015. The greatest rise was recorded from 2009, the year when the Android phonecame to India,94 exponentially increasing the number
93

As per the NCRB, the bureau follows the “Principal Offence
Rule” for counting of crime. “Hence among many offences
registered in a single case, only most heinous crime has been
considered as counting unit, thereby representing one case.”(Compendium 2014). Thus it is not clear if these cases are also
registered under sections of the Indian Penal Code.

94

Radhakrishnan, A. (2009, 23 June). First Android Phone in India
launched today. The Economic Times. www.economictimes.
indiatimes.com/tech/hardware/first-android-phone-in-indialaunched-today/articleshow/4689118.cms

From 2008 to 2015, the number of cases filed under Section 67 grew steadily from 105 to 749, while
91

National Crime Records Bureau. Crimes in India.
www.ncrb.nic.in/StatPublications/CII/ciimainpage.htm

92

NCRB Crimes in India Reports
www.ncrb.nic.in/StatPublications/CII/PrevPublications.htm

26 I n d ia

EROTICS South Asia exploratory research

Figure 2. Cases under Section 67 vs. total number of cases under IT Act
10000

No. of cases

7500

5000

2500

‘
0
2002

2004

2006

2008

2010

2012

2014

Years
Section 67

Total no. of cases under IT Act

Young adults comprise the biggest category of arrests for obscenity-related offences.

Figure 3. Age distribution of persons arrested under Section 67

No. of persons arrested

500
400
300

200
100
0

2002

2004

2006

2008

2010

2012

2014

Years

27 I n d ia

Below 18 years

18-30 years

45-60 years

Above 60 years

30-45 years

EROTICS South Asia exploratory research

of internet users. This was also the year when the 2008
amendments to the IT Act came into effect.95
Even though the absolute number of cases filed
under Section 67 has increased each year, its percentage share of cases has declined – from 47% of
all cases filed under the IT Act in 2002 to 10% in2015 (see Figure 2). This drop in percentage shareoccurs in four distinct phases.
Share of cases filed under Section 67 as percentage of cases filed under IT Act:•

2002-2007 – more than 45% (barring 2003)•

2008-2010 – 30-40%•

2011-2013 – 20-30%•

2014-2015 – 10%.

It is not clear why this happened.
In terms of age, 18- to 30-year-olds constitutethe biggest category of those arrested under Section
67 from 2002 to 2015 – both in absolute and relative
terms. The number of 18- to 30-year-olds arrested
increased from eight in 2002 to 352 in 2015. The 30to 45-year age group made up the second-highest
category of arrests (see Figure 3).
In percentage terms, 18- to 30-year-olds comprise more than half the arrests under Section 67
each year from 2004. In six of these years, they constitute 60% to 70% of those arrested under thissection; in three of these years, they constitute 70%
to 80% of those arrested under this section. This isconsistent with internet use; 18- to 30-year-olds arewithin the age group with the highest internet use
in India.96
In some years, the number of arrests made outstrips the number of cases registered for obscenity,
raising the possibility of multiple offenders.

In other words, data is political.
Lawyers, criminologists and researchers are starting toquestion NCRB data. In August 2017, a noted feminist
lawyer argued that this data was being misread toroll back a law against domestic violence.97 NCRB data
has also been challenged for under-reporting farmer
suicides, rapes, and crimes in India’s largest state.98 In
2016, a criminology professor noted that some states
under-report “juvenile” crimes due to political pressure – this results in other states being projected as
juvenile crime hubs. “It is time the NCRB took onus
for the data it publishes and strived for authenticity
instead of ‘statistical consistency’,” Asha Mukundanwrote. “Until then, handle NCRB data with care.”99
Where cybercrime is concerned, other data tells
a different tale. In 2015, the NCRB reported a totalof 11,592 cybercrime cases – that same year the Indian Computer Emergency Response Team (CERT-IN)
tracked 49,455 cyber-security incidents and a minister told parliament that 27,205 websites had been
hacked.100 That’s 76,660 cases of just two cybercrimes
against NCRB’s tally of 11,660 IT Act cases. A police
officer informally told us that there is massive underreporting of cybercrimes in India. According to him,
many constables aren’t familiar enough with the IT
Act to book crimes under this act – so cybercrimes
are often not registered. And even when they are
registered, it is often not under the IT Act.101

97

Jaising, I. (2017, 2 August). Victim in the dock. The Indian
Express. www.indianexpress.com/article/opinion/columns/victimin-the-dock-law-of-cruelty-against-women-supreme-courtjudgment-rajesh-sharma-and-ors-v-state-of-up-and-anr-4777931

98

Tiwary, D. (2016, 16 September). NCRB data: The odd case ofcrime in Uttar Pradesh, IPC rate very low, overall very high.
The Indian Express. www.indianexpress.com/article/explained/
ncrb-data-uttar-pradesh-crime-rate-up-police-3033360; Saha, D.
(2015, 21 July). No one believes NCRB’s farmer suicide data, noteven NCRB. Hindustan Times. www.hindustantimes.com/india/
no-one-believes-ncrb-s-farmer-suicide-data-not-even-ncrb/storyyOEgCC8nNZkZ10KwE7TQOI.html; Himabindu, B. L., Arora, R.,& Prashanth, N. S. (2014). Whose problem is it anyway? Crimes
against women in India. Global Health Action, 7(1).
www.ncbi.nlm.nih.gov/pmc/articles/PMC4107300

99

Mukundan, A. (2016, 9 September). NCRB data: handle withcare. The Hindu. www.thehindu.com/opinion/op-ed/NCRB-datahandle-with-care/article14628673.ece

Data and its discontents
One question repeatedly cropped up during ourresearch: Is NCRB data reliable? Is it accurate? Is it
comprehensive? This question is even more compelling since numbers are often used by policymakers
and politicians as rationale for laws and policies.

95

96

Press Trust of India. (2009, 27 October). Amended IT
Act to prevent cyber crimes comes into effect. The Hindu.
www.thehindu.com/news/national/Amended-IT-Act-to-preventcyber-crime-comes-into-effect/article16888817.ece
The Hindu. (2013, 24 August). India is now world’s third largest
Internet user after U.S., China. The Hindu. www.thehindu.com/
sci-tech/technology/internet/india-is-now-worlds-third-largestinternet-user-after-us-china/article5053115.ece

28 I n d ia

100 Press Trust of India. (2017, 9 February). CERT-In reports 50,362
cybersecurity-related incidents in India during 2016. BGR.
www.bgr.in/news/cert-in-reports-50362-cybersecurity-relatedincidents-in-india-during-2016
101 In India, a crime can be registered in one of three legal baskets:
the Indian Penal Code, special and local laws which vary fromstate to state, or the Information Technology Act. Naidu, J.
(2017, 7 August). Cybercrime on the rise in Mumbai, but experts
still not geared up. Hindustan Times. www.hindustantimes.com/
mumbai-news/cybercrime-on-the-rise-in-mumbai-but-expertsstill-not-geared-up/story-cyPSifOcyCq3cdhdthNNNJ.html

EROTICS South Asia exploratory researchWhile classifying crimes, the NCRB typically classifies each case under “the offence that is more heinous
or attracts greater punishment”.102 This means interpreting crime data, bringing in an element ofsubjectivity to the analysis. In this study, we have mitigated some of the risk of using NCRB data by analysing
multiple qualitative and quantitative sources of data.
After trawling through NCRB data, anotherquestion looms large. How has Section 67 been usedsince its inception? Writes technology lawyer N.S.
Nappinai, “Early day offences under Section 67 of
the IT Act were of jilted lovers or refused proposals
resulting in posting of obscene content online or of
the personal and contact details of women online,
on solicitation websites or banners, which resulted
in the women being harassed by callers making vulgar or obscene comments.”103
That was then. There were no provisions toaddress privacy violations. So when a woman’s address was posted on a sex site online, Section 67
was pressed into action. In the absence of a specificprovision, privacy-related offences were booked as
obscenity offences.
In 2008, a new section was introduced into the IT
Act: Section 66E. This regulates the capture, publication or transmission of “the image of a private areaof any person without his or her consent, under circumstances violating the privacy of that person.”104
Granted. The wording of Section 66E is not great.
The emphasis on “private area” seems to leave out
the face, which features in many digital offences, including morphing. Even so, it recognises the right ofan individual to their privacy and agency in deciding
how their images are taken or used. When education
minister Smriti Irani found herself being surreptitiously filmed in the changing room of a clothing
store, Section 66E was infamously invoked.105

The irony is that it’s rarely used otherwise.
Section 67 continues to rule in cases where there’s atoss-up between privacy and obscenity. And it’s increasingly being used in other kinds of cases. Since
2015, Section 67 has been used against comedians like All India Bakchod,106 porn stars like Sunny
Leone,107 and quasi-religious figures like Messengers of God. It’s been mobilised to block trolls, curb
“hate speech”, block escort services, clamp down on
morphed images, “vulgar” pictures, revenge porn,rape videos, and what not. We explore this in moredetail later in this study.
In short, Section 67 has become a catch-all category, almost like a garbage dump for offences, someof which have little connection with “obscenity”.

Chapter 4 Lascivious and prurient
To treat a natural instinct, such as sex, as obscene
is obviously outdated. The fundamental basis ofobscenity is, therefore, unattainable.
Indira Jaising, Lawyer and former
Additional Solicitor-General, India

Lascivious. Prurient. Deprave. Corrupt. These are thefour words on which obscenity has rested in India
since 1969.108 Section 292 of the Indian Penal Codedefines obscenity as that “which is lascivious or appeals to the prurient interest or if its effect is such as
to tend to deprave and corrupt person...” The samewording is used in its electronic avatar, Section 67 of
the Information Technology Act.
Offences under both Section 292 and Section 67
are cognisable109 and bailable. While the use of Section 292 results in a jail term up to two years anda fine up to Rs 2000 the first time around, the useof Section 67 results in a jail term up to three years

102 Tiwary, D. (2016, 16 September). Op. cit.
103 One of the earliest such cases, which was probably also thefastest to be investigated, tried and convicted, was that ofState of Tamil Nadu v. Suhas Katti. In this case a Mumbai-based
boy created a fake email identity, and using this, uploaded thecontact details of a former colleague, who had relocated to
Chennai, under a solicitation banner. The victim came to knowof the post after receiving multiple calls of solicitation.”
104 Aarora, N. (2009, 28 October). IT Amendment Act, 2008 notified
w.e.f. 27/10/2009. A Platform to discuss & analyse cyber law,cyber crime, cyber forensics & cyber warfare. www.neerajaarora.
com/it-amendment-act-2008-notified-w-e-f-27102009
105 India Today. (2015, 11 April). CCTV camera in FabIndia trial
room: Goa Police crack case. India Today.
indiatoday.intoday.in/story/fabindia-trial-room-case-cctvcamera-goa-police/1/429689.html

29 I n d ia

106 Firstpost. (2015, 13 February). AIB roast: Police register FIR
against actors, complainant’s lawyer says show was ‘prescripted’. Firstpost. www.firstpost.com/living/aib-roast-policeregister-fir-against-actors-complainants-lawyer-says-show-waspre-scripted-2096563.html
107 India Today. (2015, 28 May). Obscenity charge: Sunny Leone
deposes before Mumbai police. India Today.
indiatoday.intoday.in/story/sunny-leone-fir-obscenity-chargeporn-star-internet-content-mumbai-police/1/440803.html
108 Ranjit Udeshi v. Maharashtra (1965). Two bookstall owners wereconvicted for possessing the “unexpurgated” edition of DH
Lawrence’s novel, Lady Chatterley’s Lover.
109 Nappinai, N.S. (2015, 14 July). A Gross Misuse of the IT Act by
Mumbai Police. The Wire. www.thewire.in/6390/mumbai-policesgross-misuse-of-the-it-act/

EROTICS South Asia exploratory researchand a fine up to Rs 5 lakhs first time around.110 A
subsequent conviction ups the maximum jail term tofive years in both sections. But while the fine goesup to Rs 5000 under Section 292, it goes up to Rs
10 lakhs in Sec 67.111 While exceptions for scientific,
literary, artistic or religious purposes are allowed under Section 292, they’re not allowed under Section
67.112All these seem to indicate that online obscenity is viewed as a more serious crime than its offline
counterpart. As writer and researcher Richa Kaul
Padte notes, “The seriousness with which the crimeof obscenity is viewed is heightened by the change
in medium.”113
While Section 292’s siblings (Sections 293, 294 and295) prohibit different forms of obscenity, Section 67
has child provisions. Section 67A prohibits the publication or transmission of sexually explicit material,
while Section 67B prohibits the depiction of children insexually explicit acts in an electronic form. Both these
sections deal with pornography, which the Supreme
Court considers an “aggravated form of obscenity”.114
Laws such as the Indecent Representation of Women(Prohibition) Act and the Sexual Harassment at Workplace Act also address offences similar to obscenity.

Two new words enter the law
Since India’s independence in 1947, practically every
representational form has been charged with obscenity. Scientific journals. Newspaper articles. Shortstories. Novels. Playing cards. Films. Advertisements.
Magazines. Photographs. Blue films. Miss World
beauty pageants. Cable channels. Letters. Paintings.
Poems. Lady Chatterley’s Lover. Satyam Shivam Sundaram. Prajapati.
Section 292 has been challenged for being an unconstitutional, impermissible and vague restriction on
constitutionally-protected freedom of speech and ex-

110 Hindsight being 20:20 and all that, it’s interesting to conjecture
why the fines weren’t higher and the jail terms shorter in
Section 292, since “obscenity” is quite different from many
crimes that base their reformative impulses on imprisonment.
Given that the harm itself is so amorphous, should obscenity
even be a crime? Or a civil offence at best?
111 www.lawzonline.com/bareacts/indian-penal-code/section292indian-penal-code.htm
112 The Law Commission of India. (1860). Op. cit.
113 Kaul Padte, R. (2013). Keeping women safe? Gender, online
harassment and Indian law. Internet Democracy Project. https://www.internetdemocracy.in/reports/keeping-women-safegender-online-harassment-and-indian-law
114 Nappinai, N. S. (2017). Technology Laws Decoded. India:
LexisNexis.

30 I n d ia

pression.115 In a landmark 1960s case, a bookseller was
charged with possessing an “unexpurgated” versionof D.H. Lawrence’s Lady Chatterley’s Lover. His lawyers argued that Section 292 was unconstitutional.
That the novel, taken as a whole, is not obscene. And
that the “immature teenager” can’t be the standard
used to decide whether material is obscene or not.116
The Supreme Court disagreed. Finding thebookseller guilty, the Court noted that “obscenity” without a social purpose is not constitutionallyprotected under Article 19. And that where art and“obscenity” are mixed, art must significantly overshadow obscenity. Poor D.H. Lawrence. The
judgement went on to say that “treatment of sex ina manner offensive to public decency and, judged by
our national standards, considered likely to pander
to lascivious, prurient or sexually-precocious minds,must determine the result...”117
And just like that, 150 years after the Hicklin test
had already defined obscenity as that which could deprave or corrupt, two new words were added to themix. Lascivious. And prurient. Both equally subjective.

Vagueness redux
Lascivious. Prurient. Deprave. Corrupt. All four are
equally vague.118 Material that appears liplickingly
lascivious to one may be pure boredom to another,since humans aren’t necessarily sexual clones. Material that may “deprave” one reader or viewer may
have zero effect on another. Yet, this one-size-fits-all
law assumes a commonality of response, centred on
the mythical notion of the “reasonable man”. Reasonable. Note how yet another subjective term enters
the law to clarify this abundance of subjectivity.
The test of the reasonable man is a doubleedged sword, handling over complete control to thejudge, who can easily substitute his or her opinion
for that of the “reasonable man”. Writes legal researcher Lawrence Liang: “Did the venerable Justice

115 Bhatia, G. (2015). If You Mock Gandhi, Other ‘HistoricallyRespectable Personalities’, Get Ready to Go to Jail. The Wire.
www.thewire.in/1725/no-more-free-speech-on-historicallyrespectable-personalities
116 Narrain, S. (2009, 20 June). Obscenity under the law: A review
of significant cases. InfoChange. www.infochangeindia.
org/component/content/article/309-media/broadcast-lawsand-regulations/7811-obscenity-under-the-law-a-review-ofsignificant-cases
117 Chandrakant Kalyandas Kakodar v. The State of Maharashtra
and Ors. (1969). Supreme Court of India judgement 1970 AIR
1390. www.indiankanoon.org/doc/25099
118 Sahu, M. (2012, 18 November). Cyber Obscenity. Be Legal,
Be Intelligent. www.newindialaw.blogspot.in/2012/11/vbehaviorurldefaultvmlo.html

EROTICS South Asia exploratory research

get turned on when he read Lady Chatterley’s Lover? Trivial as it may sound, the question has serious
implications ... If he did not get turned on when heread the book, then clearly the book did not containany material which could be termed offensive. However, if he did get turned on, then he had ceased
being a “reasonable man” whose mind was freefrom corruption, and was therefore no longer in aposition to judge the book.”
This subjectivity, perhaps, is one reason why
many lawyers, legal commentators and scholars consider these anti-obscenity provisions to be “seriously
defective”.119 “The present provision is so vague thatit becomes difficult to apply it” argued a judge in
2000. “The predominant characteristic of the definition is its vagueness,” notes Indira Jaising, former
Additional Solicitor-General, India. “For no one has
yet been able to define what it is that has a ‘tendency to deprave and corrupt’.”120. A similar subjectivity
is found in other jurisdictions, including the UnitedStates, where a judge famously defined pornography121 thus: “I know it when I see it”.122
Closer to home, police officials or constables
who book offences are unable to comprehend what“lascivious” or “prurient” even mean. At the Mumbai Cyber-Cell, a member of the police force knewof Section 67, but had no clue how to pronounceor understand these strange colonial words, which
do not translate easily into Indian languages. The
continued usage of this colonial terminology makes
little sense in independent India.

Imagined and actual harms
Unlike in many other crimes, in obscenity, the harmhas, as yet, not been clearly defined. What is theharm caused by the “obscene”? And who does it
harm? The individual? Society? Who? Is it meant toprotect one from oneself – or others from oneself? Is
it a private or a public harm?
Legal scholar Andrew Koppelmann argues
that obscenity law aims to prevent “moral harm”.
“Obscenity law aims at preventing the formation
119 Sharma, V., & Woolridge, F. (1973). The Law Relating to Obscene
Publications in India. The International and Comparative Law
Quarterly, 22(4). www.jstor.org/stable/757659
120 Mazzarella, W. (2015). A Different Kind of Flesh: Public
Obscenity, Globalisation and the Mumbai Dance Bar Ban.
South Asia: Journal of South Asia. 38 (3). www.scribd.com/
document/278653664/Mazzarella-Different-Flesh
121 Pornography is often regulated through anti-obscenity statutes.
122 Nawi, D. (2001, 8 April). SOAPBOX; ‘I Know It When I See It’.
The New York Times. www.nytimes.com/2001/04/08/nyregion/
soapbox-i-know-it-when-i-see-it.html

31 I n d iaof certain thoughts – typically, erotic ones – in theminds of willing viewers,”123 writes Koppelman.124
Just as certain books or movies promote moral character and are good for us, some are bad and harm
us. Koppelman recognises that reader responses
differ and that “what is bad for one reader is notnecessarily bad for another.” And that even if moral
harm does exist, the law can’t identify such harm.
“Discerning the moral context of texts is too complex a task for the law to undertake.”
But do books and videos truly cause such
“moral” harms – or are the vast majority of these
imagined?125 “Harms” related to obscenity are often
abstract (not concrete), centred on an amorphouspublic (not specific individuals) and anticipated (inthe near future), rather than having occurred in thenear past. These harms have not yet come to be.
What harm can a book that has just been publishedand hardly read cause? And even if millions read it,
how many of them will read it in a way that can beconsidered depraving, corrupting – or harmful? Is it
really dangerous to hold certain thoughts, as Koppelmann argues?
In the absence of a specific harm, it is hard toknow what the law regulates: the “obscene”? Or
the sexual itself? “The legal regulation of sexual
speech is based on a conservative sexual moralitythat views sex as a bad and corrupting influencethat ought to be contained,” writes law professor
Ratna Kapur:126
The test, which has been consistently followedin the case law ever since [1964], reveals theassumptions which inform the law of obscenity – that is, any representation of sex andsexuality is bad; sexually-explicit representations are immoral; and sex and sexuality are
not a normal part of our humanity, but an
123 Koppelman, A. (2005). Does Obscenity Cause Moral Harm?
Columbia Law Review. 105(05-02). https://papers.ssrn.com/sol3/
papers.cfm?abstract_id=665705
124 Koppelman lists the following characteristics that might bethought to make literature morally harmful: the reductionof human beings to objects, the tendency of sexual arousal
to destroy people’s discernment and judgement, damage
to children’s moral development, offensiveness, the alleged
worthlessness of sexual fantasy, the association of sex withviolence. But he concludes that none of them provides a legal
standard that enables the courts to recognise moral harm.
125 Ghosh, S. (2011). The secret life of film censorship. Infochange
Agenda, 22. www.infochangeindia.org/downloads/agenda_22.pdf
126 “Carnal” comes from Old French carnal meaning “physical,
human, mortal,” and directly from Medieval Latin carnalis,
meaning “natural, of the same blood”. From the early 15th
century, it meant “sensual”, and from the mid-15th century,“worldly, sin”. www.etymonline.com/index.php?term=carnal

EROTICS South Asia exploratory researchevil, corrupting, poisonous influence fromwhich “decent people” must be protected.
These assumptions run through the case law,and ensure that virtually any sexually explicit
representation is found by the courts to be
obscene ... In fact, sexual explicitness often becomes a proxy for obscenity.127
Because of its inherent subjectivity, the law on obscenity in India has evolved case by case. In 1986,
a Bengali author was acquitted as the judge ruledthat his novel was “vulgar”, but not obscene.128
What’s the difference? According to the judge,“vulgarity arouses a feeling of disgust and revulsion and also boredom but does not have theeffect of depraving, debasing and corrupting themorals of any reader of the novel.” Note the added number of subjective words in his judgement:
vulgarity, disgust, revulsion, boredom, debasing.
Note also how a High Court judge found this text
obscene, while a Supreme Court judge found it
merely vulgar.129 As noted by Kaul Padte, laws likethese create “a large breadth of interpretative
space as per the personal values, views and perspectives of individuals.”130
In 2007, in an eerie throwback to the colonial
past, obscenity law was invoked for political purposes. The case in question was artist M.F. Husain’s
painting of a nude woman, titled Bharat Mata, orMother India.131 Husain was acquitted, with thejudge ruling that nudity does not equal obscenity. But in the ensuing furore, it was claimed thatwhat was at stake was not just any old nude body– but the nude body of the nation-state, MotherIndia. And that the depiction by this Muslim artist
would hurt the sentiments of “Hindus and patriotic Indians”.132 It was 1868’s Regina v. Hicklin all
127 Kapur, R. (2008). The profanity of prudery: The moral face ofobscenity law in India. Women: A Cultural Review. 8(3).
dx.doi.org/10.1080/09574049708578318
128 Samaresh Bose and anr. v. Amal Mitra and anr. (1972). Calcutta
High Court judgement. Crl. A. No. 106 of 1969.
www.sclt.in/content/samaresh-bose-and-anr-vs-amal-mitra-andanr?qt-cases=1#qt-cases
129 Jaising, I. (1986). Obscenity: The Use and Abuse of the Law.
In B. Bose (Ed.), Gender and Censorship. New Delhi: Women
Unlimited.
130 Kaul Padte, R. (2013). Op.cit.
131 Handique, M. (2006, 23 August). Who named controversial
painting ‘Bharatmata’? Not MF Husain. The Indian Express.
www.archive.indianexpress.com/news/who-named-controversialpainting--bharatmata---not-mf-husain/11208/
132 In 1996, the film Bandit Queen was cleared of obscenity; thejudge ruled that it’s legal for a film on a “social evil” to show
the “social evil”, in this case nudity during rape.

32 I n d ia

over again, albeit in a slightly different form, with
Hindus and Muslims replacing the Protestants andCatholics of yore.
The archaic Hicklin test was finally dumped in2014 when the Supreme Court, for the first time,
applied another obscenity test – the contemporarycommunity standards test.133 It wasn’t a giant leap
forward, but it was still a step away from antiquity.
As lawyer Gautam Bhatia wrote after the judgement, “There is a long way to go before India’s
obscenity laws are truly speech-protective, but perhaps we have at last stopped moving backwards.”134

Chapter 5 Bodies of evidence II
Almost 5,000 cases have been filed under Section 67
in the last 15 years. It’s not clear how many of them
have been “disposed of”, to use legal parlance. The
Indian legal system is notoriously sluggish, withmore than 22 million cases pending in the district
courts, 4.5 million waiting to be heard in the highcourts, and 60,000 in the Supreme Court.135 The 2004
case against Avnish Bajaj, CEO of the site that hosted
the “DPS-MMS sex scandal” clip, was only resolved
eight years later – in 2012.136 Many of the 5,000 cases filed under Section 67 are still making their way
through the legal system.
Unfortunately, this also means that few judgements related to Section 67 are available for research(or for anything else). Given the paucity of accessible
or available material, we made a pit stop at Indian
Kanoon,137 a website that hosts judgements and bailapplications. We looked at judgements and bail applications filed in 99 cases under Section 67 in theyears 2013 and 2014 consistently using the following
search configuration:•

Keyword: Section 67•

Auto-complete to: Information Technology Act•

Filter by: Document type – “only judgements”.

133 Indian Constitutional Law and Philosophy. (2014, 7 February).
Obscenity: The Supreme Court discards the Hicklin Test. https://indconlawphil.wordpress.com/2014/02/07/obscenity-thesupreme-court-discards-the-hicklin-test
134 Ibid.
135 Ganz, K. (2012, 7 June). Supreme Court’s Battle Against
Backlog in Cases. LiveMint. www.livemint.com/Politics/
ziffwni3N64eFBcaWZobtL/Supreme-Court8217s-battle-againstbacklog-in-cases.html
136 Press Trust of India. (2012, 27 April). SC quashes case against
Ebay chief in MMS scam. The Times of India. timesofindia.
indiatimes.com/nri/other-news/SC-quashes-case-against-Ebaychief-in-MMS-scam/articleshow/12900396.cms
137 www.indiankanoon.org

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Table 1. Number of orders analysedin Indiankanoon.org
Year
2013
2014
Total cases (relevantsample)Number of orders
52
139
99

The number of documents we analysed on the site isillustrated in Table 1.
The cases we analysed were filed in the states
illustrated in Table 2.
We recognise that this is a self-selected sample
that is not comprehensive. Even so, we were able
to discern certain patterns from these cases – whichwere then cross-verified via a review of cases covered in Indian print media. From the Indian Kanoon
database, we found that:

Table 2. Number of cases analysed per state
Name of state
Punjab and Haryana (north)
Uttarakhand (north)Kerala (south)
Gujarat (west)
Bihar (east)
Madhya Pradesh (central)
Karnataka (south)
Uttar Pradesh (north)
Total

Number of
cases
38
20
4
14
9
6
6
2
99

Section 67 is rarely used on its own. In 98 out of
99 cases we analysed, this section was used in combination with 52 other provisions of the Indian Penal
Code or the IT Act (see Figure 4).

Figure 4. IPC sections used in cases filed under Section 67.

33 I n d ia

EROTICS South Asia exploratory research

Table 3. Indian Penal Code sections used in combination with Section 67
IPC section

Offence

376
292
114
506
504
370
34

Rape
Obscenity
Abetment
Criminal intimidation
Breach of peace
Slavery
Common intention

Number of times usedin sample of 99
16
14
13
13
13
10
10

Section 67 was used most with the sections illustrated in Table 3.
Since we were analysing bail applications from theIndian Kanoon database, the cases filed were not described in detail. However, by reading the combinationof legal sections used in each case, we could extrapolate what had happened in many of these cases.

under Section 66E of the IT Act, which explicitly
punishes the filming or distribution of “images ofprivate parts without his or her consent”? Why were
they filed as “obscenity” offences, when the primary
harm is clearly multiple violations of consent – in therape itself (which the law addresses), in its filming,and then its distribution?

Data tells its own story

Obscenity

Rape
In 16 cases where Section 67 was used with a section
punishing rape (Section 376) the patterns were selfevident. For example, in a case in the northern stateof Haryana, these two sections were used with provisions related to kidnapping and wrongful restraint.
The document mentioned that this was a gang rape.
We read these to indicate that the victim was kidnapped, held somewhere, gang raped, and filmed
while being raped – hence attracting Section 67.
Section 506 – criminal intimidation – was usedalongside Section 67 in four cases, possibly indicating the use of threats or blackmail related to these“rape videos”. The use of POCSO – Protection ofChildren from Sexual Offences Act – in one case indicated that the victim was a minor. Provisions related
to extortion, slavery, cheating via impersonation,and obscene songs were used in a few cases, providing further leads. One case was filed under Section
376D, which relates to rape in hospitals.
Although all these cases related to “rape videos”
only one case was filed under Section 66E of the IT
Act, which criminalises transmission of images ofprivate parts without consent. Then too it was filed
under both Sections 66E and 67, legally marking it asa consent violation and an obscenity offence. In fourother cases, Section 66 was used, but the sub-section
was not specified.
The question this raises for us is this: Why werethe majority of these “rape video” cases not filed

34 I n d ia

In the 14 cases where Section 67 was combined with
its offline counterpart, Section 292, there were noclear patterns. However, two cases are of interest.
Both emerge from the western state of Gujarat, andinvolve the use of numerous sections, along with thedigital and physical anti-obscenity sections. These include: sections of the Immoral Traffic Prevention Act,
abetment, counterfeiting of Indian coins, defiling aplace of worship, and in one case, sedition, which isa very serious offence. While the Indian Kanoon data
indicated the involvement of sex workers, money,
and a place of worship, it did not provide any further leads into what might be considered obscene.
We verified these media reports, which revealed a“sex scandal”. A Hindu priest – sadhu – was being
secretly filmed and blackmailed for bringing sex
workers into the religious institution – or ashram.
Numerous charges, including obscenity, were filed
against those who videoed and blackmailed him(see Figure 5).138
Abetment, criminal intimidation
and breach of peace
These three sections – Sections 116, 504 and 506 –
were each used 13 times, along with other sections.
While the charge of abetment indicates that morethan one person was involved in these cases, it is notclear why the other two sections were used.
138 www.youtube.com/watch?v=9mo64b86okg

EROTICS South Asia exploratory research

Figure 5. IPC sections used with Section 67 in the case of the Hindu priest “sex scandal”

Slavery
In 10 cases, Section 370 – which prohibits buying or
disposing of a person as a slave – was used. In someof these cases, the section against kidnapping is also
used, offering further cues on what may have takenplace. In one case, POCSO is used, indicating thatthe victim was below 18 years of age, or below theage of consent. In two of these cases, the provision
against rape was also used.
Obscenity: A women’s provision?
Almost half the 99 cases that we analysed from theIndian Kanoon database relate to women. This isevident from the use of other “gendered” provisions and acts along with Section 67. These include
Section 354 (outraging the modesty of a woman),
Section 498A which prohibits dowry, Section 376
which prohibits rape, the Women’s Atrocities Prohibition Act, the Immoral Traffic Prevention Act, theIndecent Representation of Women Act.
All this seems to indicate that Section 67 is turning
into a women’s provision – a section that is increasingly
being used to deal with offences related to women.
But does the increasing use of Section 67 as a“women’s provision” actually empower women?

35 I n d ia

Does it increase women’s agency – and enable
women to assert and access their rights? We would
argue that it does the exact opposite: while it aims
to “protect” women, it actually folds women into
patriarchy’s legal gaze. And treats them as objects tobe controlled, not as subjects in control of their own
sexual destinies. Almost like children in need of aparent. As cultural theorist Brinda Bose writes in the
introduction to Gender and Censorship:[T]he ambiguities inherent to a government desire to “safeguard generally accepted standardsof morality and decency” are in reality totallysubservient to its desire to safeguard the “wellrecognised interests of the State”, however
they may be defined. In both these contexts,
however, at points where sexuality and/or sexual representation are an issue, the object ofcontrol is the woman ... It is the woman who
represents both the threat of transgression inIndian society, and the need for its control, andher body is the single signifier that sums up the
problematic.139

139 Bose, B. (2006). Gender and Censorship. New Delhi: Women
Unlimited.

EROTICS South Asia exploratory research

CHAPTER 6 Perverts and sexual freaks
In looking at NCRB data, we also noticed two broader
trends that have an impact on the way cybercrime –including Section 67 – is characterised, understoodand addressed.

Cybercrimes are classified into a system
of “motives”
Each year, NCRB creates a public record of cybercrimes through statistical data. As has been earlier
described, these include the number of cases filed
under each provision of the IT Act, arrests madeunder each section, including their age break-up.140
The cases are further sub-divided by “motives”
and “suspects”. Until 2013, NCRB classified cases into
the following seven motives:
1) Revenge/settling scores2) Greed/money3) Extortion4) Cause disrepute5) Prank/satisfaction of gaining control
6) Eve teasing/harassment
7) Others.
In 2014, the number of “motives”, according to
NCRB, doubled and was overhauled as follows:
1) Emotional motives like anger, revenge
2) Fraud/illegal gain
3) Insult to modesty of women4) Sexual exploitation
5) Political motives
6) Inciting hate crimes against community
7) Inciting hate crimes against country8) Disrupt public services9) Sale/ purchase of illegal drugs/items10) For developing own business/interest11) For spreading piracy12) Serious psychiatric illness viz perversion
13) Steal information for espionage
14) Motives of blackmailing.
This system of classification itself raises a number ofquestions. One, it is not clear why motives need tobe identified or classified at all, specially since NCRB
includes motives only for cybercrimes booked under the IT Act – not for crimes booked under the
Indian Penal Code. Why is cybercrime being treateddifferentially or being exceptionalised? Since there
can be numerous overlapping motives for a criminal act, why have only these particular motives been
140 NCRB collates this data from 36 states and union territories and
53 mega-cities.

36 I n d ia

foregrounded? This system of classification seems
almost as subjective as Section 67 itself.
Strangely enough, half the crimes remain unclassified under “other motives”. For example, in 2013, 4,175
of 5,693 cybercrime cases were filed under “Other” –that’s 73% of the total cases filed under the Act. Evenin 2014, when the classification system was expanded
to 14 motives, “Other” motives still remained at 4,822
of 9, 622 cases. This represents 50% of the motives andthe single biggest category. What is the point of a classification system in which the vast majority of motives
are classified as Other?
As is often the case, a single case may represent
mixed motives, another factor that the classification
ignores. Leaving that aside, the categorisation itself
seems subjective and biased. For example, can one
take seriously a category called “serious psychiatricillness viz perversion”? While this categorisation may
seem laughable, it is actually dangerous, revealing
enormous stereotypes and biases in the State’s understanding of both mental health (“psychiatric illness”)
and sexuality (“perversion”).
It is not clear how a random categorisation of
motives – in this manner – contributes to understanding or reducing cybercrimes. “Each standard
and each category valorizes some point of viewand silences another,” write informatician Geoffrey
Bowker and sociologist Susan Leigh Star in Sorting
Things Out, their seminal work on how information
is classified. “This is not inherently a bad thing – indeed it is inescapable. But it is an ethical choice, andas such it is dangerous – not bad, but dangerous.”

In 2014, a new category of cyber “suspect”
was introduced into NCRB data:
the sexual freak
In 2014, several changes were introduced into the
NCRB’s collection and classification of “cybercrimes”, as
the bureau refers to them. IT Act Sections were further
sub-classified and data collected for each sub-section.
As part of this, cases related to Section 67 were further
sub-classified into sub-sections: Sections 67A, B and C.
New motives for cybercrimes were introduced.
For the first time in the NCRB’s history, a new category of suspect was introduced: the sexual freak.
That very same year, the NCRB classified 163 individuals as sexual freaks.
The sexual freak emerged in a table that “profiled” those arrested for or accused of cybercrimes.
But is “profiling” of an accused a legitimate goal to
begin with? Profiling has itself been critiqued for being suspect and subjective.

EROTICS South Asia exploratory research

Table 18.8 Profile of persons arrested in connection with Cyber Crime during 2015
Foreign national
S.
No.

Indian national

Indian Employed/
ForeignBusiness
Sexual Cracker/ Cyber
Others national disgruntled
national
competitor
freak Hacker terrorist
employee(Total)(Total)State/UT(1)(2)
states1 Andhra Pradesh
2 Arunachal Pradesh
3 Assam
4 Bihar
5 Chhattisgarh
6 Goa
7 Gujarat
8 Haryana
9 Himachal Pradesh
10 Jammu & Kashmir

(3)

(4)

(5)

0
0
0
0
1
0
1
2
0
0

0
0
0
0
0
0
0
0
0
0

(6)
0
0
0
0
1
0
0
0
0
0

(7)
0
0
0
0
0
0
0
0
0
0

(8)
0
0
0
0
0
0
1
2
0
0

(9)

(10)

522
4
457
1567
98
5
271
203
38
12

9
0
6
35
0
1
1
13
0
0

9
0
24
1278
1
0
41
16
4
0

Table 18.8 (Concluded)
Indian National
S.
No.

State/UT(1)(2)

states1 Andhra Pradesh
2 Arunachal Pradesh
3 AssamProfessional
Neighbours
Persons with
Total
SexualCyber
computer Political Religious
friends &Student psychological
Others persons
freak
terrorist geek/hacker person person
relatives
disorderarrested/cracker
(11)

(12)

(13)

(14)

(15)

(16)

(17)

(18)

(19)

(20)

99

9

156

0

0

65

0

3

172

0

0

0

0

0

0

0

0

4

4

173

78

48

0

9

17

0

0

102

457

522

4 Bihar

95

1

42

0

0

50

0

0

66

1567

5 Chhattisgarh
6 Goa

13

9

3

5

0

0

0

0

67

99

3

0

0

0

0

0

0

0

1

5

7 Gujarat
8 Haryana

49

21

12

3

0

18

0

1

125

272

10

5

26

1

1

7

1

3

120

205

9 Himachal Pradesh
10 Jammu & Kashmir

2
2

0
0

1
0

0
0

0
0

0
0

0
0

1
0

30
10

38
12

Screenshots of tables with profiles of persons
arrested, NCRB Crimes in India 2015141
Cybercrime suspects are first categorised either as“foreign nationals” or as “Indian nationals”. Foreigners are further subdivided into: the following
categories – sexual freak, cracker/hacker, cyber terrorist, other. Indians are further subdivided into
141 National Crime Records Bureau, Government of India. ncrb.nic.
in/StatPublications/CII/CII2015/FILES/Statistics-2015_rev1_1.pdf

37 I n d ia

many more categories: employee/ disgruntled employee, business competitor, neighbours/friends
and relatives, sexual freak, student, persons withpsychological disorder, cyber terrorist, professional
computer geek/hacker/cracker, political person, religious person, other.
This whole system of categorisation reveals underlying biases and stereotypes around discourses ofnationalism, sexuality, and yes, technology. Why separate foreigners and Indians, and then assign random

EROTICS South Asia exploratory research

categories to each? What can one make of the casualuse of terms like cyber “terrorist” – or the inclusionof “students, neighbours and friends” in a criminal
category? Are categories of “political persons” and“religious persons” meaningful? Once again, thefutility – and short-sightedness of this mode of classification is revealed in the data itself, where thecategory “Others” ranks highest, with 4,157 of 5,752
suspects. That’s 72%. What is the use of a system ofclassification that categorises only a small percentageof that which it seeks to categorise?
In the preface to The Order of Things: An Archaeology of the Human Sciences, social theorist
Michel Foucault demonstrates the arbitrary natureof classification itself. He quotes a fictional taxonomy created by Argentinian writer Jorge Luis Borges:
This passage [in Borges] quotes a “certain Chinese
encyclopedia” in which it is written that “animals
are divided into: (a) belonging to the Emperor, (b)embalmed, (c) tame, (d) sucking pigs, (e) sirens, (f)fabulous, (g) stray dogs, (h) included in the present classification, (i.) frenzied, (j) innumerable, (k)drawn with a very fine camelhair brush, (l) et cetera, (m) having just broken the water pitcher, (n)that from a long way off look like flies.”142
While this classification of animals seems almost as
ludicrous as the “sexual freak”, Foucault uses it todeconstruct taxonomy – or systems of classification.
He goes on to make the point that systems of classification are not objective, but function as cultural
codes of interpretation.
In Prejudices and Antipathies, his seminal critique of the United States Library of Congress’
catalogue headings, radical librarian Sanford Berman noted the biases of that classification system.
Writes Berman, in a magnificent indictment:
The headings that deal with people and cultures– in short, with humanity ... can only “satisfy”
parochial, jingoistic Europeans and North Americans, white-hued, at least nominally Christian(and preferably Protestant) in faith, comfortably
situated in the middle and higher-income brackets, largely domiciled in suburbia, fundamentally
loyal to the Established Order, and heavily imbued with the transcendent, incomparable gloryof Western civilization.143
142 Foucault, M. (2002). The Order of Things: An Archaeology of the
Human Sciences. Hove: Psychology Press.
143 Berman, S. (1993). Prejudices and Antipathies: A tract on the
LC Subject Heads Concerning People Jefferson: McFarland &Company.

38 I n d ia

He goes on to add that the catalogue headings
reflect “a host of untenable – indeed, obsolete andarrogant – assumptions with respect to young people and women. And exudes something less thansympathy or even fairness towards organised labour
and the sexual unorthodox or avant-garde.” Onesuch example he cites is the prime category “Sexual
perversion” under which “Lesbianism” and “Homosexuality” were placed. “The referent smears andblemishes ...,” writes Berman. The habits of gay andlesbian men and women may be different “but nottherefore more dangerous, disagreeable, or censurable, than those of the heterosexual majority.”144
Something similar is going on with the National
Crime Records Bureau’s classification of cybercrime.
If nothing else, it shows the unease that digitaltechnologies produce in the annals of law and order. Legal researcher Lawrence Liang once wrotethat “the law is governed by a deep suspicion of theimage.” Seems like the suspicion extends to the internet as well.

Chapter 7 Bodies of evidence III
2015 was a bumper year for Section 67. A state inIndia secured its first-ever IT Act conviction – under
this section. A case was filed against India’s most
famous porn actress – under this section. A comedy
crew was booked for sending up famous Bollywood
stars. And a few individuals were charged with making fun of politicians – all under this section.
2015 was also the year that Section 66A of the
IT Act was struck down for being unconstitutional.
The Supreme Court ruled that its wording – “objectionable” content – was impermissibly vague, in theprocess dealing a body blow to online censorship.
Section 66A, which had been used, among otherthings, to arrest two teenagers for sharing and liking a Facebook post, could no longer be used forsuch things.
This affected Section 67 in ways that had notbeen foreseen.

What media reports say
After wading through NCRB and Indian Kanoon
data, we took a deeper dive into Section 67. We
analysed Indian print media reports of 99 cases filed
under Section 67 in three years.
Years: 2015, 2016, 2017
Cases: 30 cases from 2015, 35 cases from 2016, 34
cases from 2017 up until 31 May.
144 Ibid.

EROTICS South Asia exploratory research

Table 4. Type of speech involved in cases reported by media
1
2
3
4
5
6
7

Type of speech
Circulation of vulgar, lewd, obscene words or images
Circulation of non-consensual intimate images
Child pornography images
Religious or political speech
Porn or online sex sites
Words related to sex,including sexually explicit words
Other, including sexist comments
Total

We located these media reports through customised searches on news.google.com, consistently
using the following keyword:
Keyword: “Section 67 information technology act”
We used the exact same phrase on each search,filtered the search query for “specific dates” and for“relevance” – thus we were able to create replicablesearches and get the same results on news.google.
com each time with little or no variation. On average, we went up to page 8 of the search results,
after which there were no entries pertinent to thesearch query.145
We filed each case into one of seven categories.
What we found in this self-selected sample is illustrated in Table 4.146
We identified the following patterns from these99 cases:•

Crimes of consent are routinely booked as obscenity offences under Sec 67.

•

Some consent violations that have not been legally recognised are treated as obscenity offences.

•

Section 67 is being used to criminalise
political speech.

•

Section 67 is being used to address online
harassment.

•

Section 67 and Section 67A are usedinterchangeably.

•

Section 67 is being used in cases where there isno obscenity.

Each of these is discussed below.
145 Each article was logged into an Excel sheet with the following
details: date, headline, URL, publication, location, sections used.
146 All these cases were booked under Section 67 or its sub-sections
67A, 67B. For example, child pornography cases are usually
booked under Section 67B, the specific provision related tochildren. As reported in the previous chapter, none of these
sections were used on their own – they were typically used withother sections of the Indian Penal Code.

39 I n d ia

2015
5
9
2
7
3
3
1
30

2016
9
10
0
8
2
2
4
35

2017
10
9
1
9
1
3
1
34

Total
24
28
3
24
6
8
5
99

Crimes of consent are routinely booked as
obscenity offences under Section 67
As has been discussed earlier, the 2008 amendments
to the IT Act brought in a new provision, Section 66E.
“What is most striking about this law is that the requirement of consent is clearly stated,” writes Kaul
Padte. “An image exposing certain parts of a person’s
body ‘without his or her consent’ is punishable. In thisrespect, Section 66E is a progressive clause that places
consent at the heart of criminalizing an act.”147
A man uploading nude images of his estranged
wife148. A constable publishing a sex video of himself
with a woman. A rejected lover posting photos of
his ex-girlfriend on social media. These are some of
the images in question. We found numerous cases
which had been booked under Section 67. In someinstances, Section 66E149 was used along with Section
67, which at least acknowledges that consent has
been violated.” But these are few and far between.
Most of these images fall into one of three categories:•

Filmed with consent, distributed without consent•

Filmed and distributed without consent•

Rape videos

Instead of referring to them as private images, media
reports typically describe these images as “obscene”
or “indecent” images, which only strengthens a morality-laden legal discourse.
147 Kaul Padte, R. (2013). Op.cit.
148 The Tribune. (2016, 30 January). Man booked for uploading
nude image of wife. The Tribune. www.tribuneindia.com/
news/amritsar/man-booked-for-uploading-nude-image-ofwife/189606.html
149 Section 66(E): “Punishment for violation of privacy: – Whoever,intentionally or knowingly captures, publishes or transmits
the image of a private area of any person without his or her
consent, under circumstances violating the privacy of that
person, shall be punished with imprisonment which may extend
to three years or with fine not exceeding two lakh rupees, orwith both.”

EROTICS South Asia exploratory researchFilmed with consent, distributed without consent
In a case in Navi Mumbai, Maharashtra, a man posted
intimate videos of his ex-girlfriend on a WhatsApp
group of 100 people after she broke off theirrelationship.150 The videos may have been shot consensually when they were both in a relationship. The
main crime here is the violation of consent in sharing
the video and not the making of the video itself. The
man was booked under Sections 67 and 67(A), which
implies that the main crime here is the making of thevideo. Usage of 67(A) is even more harmful since thesection criminalises transmission or publication of“sexually explicit” materials. If it is consensual, there
is no real harm in exchange or publication of sexually explicit images, videos etc. Using Section 67A isa highly problematic way to address cases involving
consensual production but non-consensual distribution of intimate images and videos.
Filmed and distributed without consent
In an unusual case151, a video of childbirth capturedby three doctors was uploaded on WhatsApp. It thenwent viral and was picked up and transmitted by a
TV channel. Here, the three doctors were charged
under Section 67 – even though152 the main crime isthe shooting and sharing of the video without theconsent of the woman. If the absence of consent is
one issue, the presence of obscenity is another. Can
the definition of obscenity be expanded to include
childbirth, of all things? Or is the presence of a vagina in the video that which made it obscene?
Another infamous example of this is the case of
the kiss-and-run youth in 2017, who kissed random
women and girls on video for a prank YouTube
video before bolting.153 He then claimed that the
women were his friends and had consented. If thatis untrue, the main crime here is the violation of

150 Bhuyan, P. (2015, 25 April). Navi Mumbai: Man uploads
obscene video of ex-girlfriend, arrested. Hindustan Times.
www.hindustantimes.com/mumbai/navi-mumbai-manuploads-obscene-video-of-ex-girlfriend-arrested/storyqWyWbCs2MvIoR0BvhofHtL.html
151 Though this case is outside our research’s scope year-wise, we
mention it here due to the bizarre usage of Section 67 anddiscrepancies in the people arrested as well as the reasons fortheir arrest.
152 Basheer, K. (2014, 24 September). WhatsApp-ing of childbirthlands gynaecologists in trouble. BusinessLine.
www.thehindubusinessline.com/info-tech/whatsapping-ofchildbirth-lands-gynaecologists-in-trouble/article6441414.ece
153 New Indian Express. (2017, 14 January). Kiss-n-run youth caught
but the girls were his friends or actors. The New Indian Express.
www.newindianexpress.com/cities/delhi/2017/jan/13/kiss-n-runyouth-caught-but-the-girls-were-his-friends-or-actors-1559271.html

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consent of the women involved, both in being
kissed and having the video be put up online. Either which way, there is nothing “obscene” about
an on-screen kiss.
Rape videos
In 2016, four teenagers raped a 25 year old man,filmed the rape and then circulated it on social media.154 The perpetrators were charged under Section
67. In doing so, the case does not acknowledge thefact that the survivor’s consent was violated on multiple levels. A lot of the cases involving rape videos
similar to this one are filed under Section 67. In repeatedly doing this, the message conveyed is thatthe multiple violations of consent is not the crime
but the fact that it was “obscene” is the main issue.
Rape videos represent consent being violated
thrice over: the rape itself, the filming, and the distribution; a few recent judgements have separated
and punished each consent violation. But just as inrape itself, where consent remains a contested issue,
leading to a low conviction rate, consent is sometimes contested in rape videos too. In one 2016 casein Muzaffarnagar, a 32-year-old woman filed a complaint after enduring rape and blackmail for years.
While the cops arrested the main accused, who werevisible in the video, an inspector general told the
media that “the case did not stand even in the firststage of investigation” – to the police the videos appeared consensual.
“Can we determine a woman’s consent from a
video clip, viewed out of context and shared without
permission?” asks journalist Nishita Jha. “If the woman’s behaviour does not correspond to each viewer’s
private imagination of what a rape scene should look
like, the act on screen is deemed consensual, regardless of what a woman herself says. This is an overrulingof her agency, not unlike rape itself.”Many rape videos are used as threats to blackmail those who have been raped into silence, further
denying them their right to legal redress. But evenin cases where intimate images have been filmedwith consent, these images are used to threaten or
blackmail women into having sex. When consent isobtained through threats, blackmail and coercion,
can it even be called consent? Or should it, more accurately, be labelled coerced sex – or rape?

154 Indian Express. (2016, 21 October). Ahmedabad: Four teenagers
sodomise 25-yr-old man; film the act and circulate on social
media. The Indian Express. indianexpress.com/article/india/indianews-india/ahmedabad-four-teenagers-sodomise-25-yr-old-manfilm-the-act-and-circulate-on-social-media-3094592

EROTICS South Asia exploratory research

Using Section 67 or 67(A) to book cases in any ofthese categories overrides consent and strips individuals of their agency. It also propagates the idea thatobscenity is the primary harm – or the crime which
has to be addressed first.

Some consent violations that have notbeen legally recognised are treated as
obscenity offences
Trawling through media reports, we found two
kinds of images that represent legally “invisible”
violations of consent.
•

Images morphed without consent•

Sexual images received without consent.

While affected individuals experience these as violationsof consent, these have yet to receive legal recognition.
Morphed images
In Kerala, a woman tried to file a case against those
who had posted morphed images of her – with someone else’s private parts – on Facebook. The police
initially refused to file the case claiming that there
wasn’t sufficient evidence.155 This is a clear exampleof how law enforcement authorities dismiss cases involving violations of consent. In some cases, imagesof politicians have also been morphed and circulated.
In 2017, a congress leader was arrested for circulating
a morphed video of singer and politician Satwinder
Kaur Bitti on social media and WhatsApp.156 An image of right-wing Hindu politician Mohan Bhagwat
was morphed, combining his image with the torso ofa woman clad in brown pants, and circulated on social
media.157 In 2016, a morphed image of Prime Minister Narendra Modi was circulated on a WhatsApp
group.158 In all these cases, the cases were filed under
155 News Minute. (2016, 1 August). Police didn’t take complaint
seriously: Kerala woman whose morphed nude image posted on
FB. The News Minute. www.thenewsminute.com/article/policedidnt-take-complaint-seriously-kerala-woman-whose-morphednude-image-posted-fb-47462
156 Hindustan Times. (2017, 6 May). Cong leader held for circulating
morphed porn video of party colleague-singer Satwinder Bitti.
Hindustan Times. www.hindustantimes.com/punjab/cong-leaderarrested-for-circulating-morphed-video-of-politician-satwinderbitti/story-iBOCBwPPvrdwws2mvMm2rJ.html
157 Ghatwai, M. (2016, 18 March). Two jailed in MP for morphed
RSS leader Mohan Bhagwat image. The Indian Express.
indianexpress.com/article/india/india-news-india/rss-chif-cybercrime-2-jailed-in-mp-for-morphed-mohan-bhagwat-image/158 News Minute. (2016, 28 November). Karnataka man arrested
for posting obscene photo of PM Modi on Facebook. The News
Minute. www.thenewsminute.com/article/karnataka-manarrested-posting-obscene-photo-pm-modi-facebook-53533

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Section 67. When these images may have been in poor
taste, they are not necessarily obscene. The main crime
here is the non-consensual usage of their images.
From the number of morphing cases filed under Section 67, it is clear that there is a need for aprovision to deal with this issue. Morphing images
requires the use of existing images – which is notalways done with the consent of the individual inthem. With the increasing number of easily usable
Photoshop software and apps, it is imperative that
we have the means and laws to deal with crimes involving misuse and morphing of images and videos.
These cases are currently filed under Section
67 because there is no other place to file them.
Broadening the consent provision – Section 66E – torecognise and cover this consent violation and misuse of a person’s image is one possible option.
Sexual images received without consent
If smartphones have made it incredibly easy to share images with those who want to view them, it has made it
equally easy to send images to those who may not want
to see them. Unsolicited dick pics, sexual images, porn.
“Years ago, the penis-photo-we-did-not-ask-for was ahorrifying anomaly,” says artist Whitney Bell. “Today,
the dick pic is everywhere, a sinister reminder of sexual
harassment’s gross ubiquity online. This behaviour is socommonplace we have all just accepted it as the norm.”
Bell is the woman behind “I Didn’t Ask For This,” an exhibition of over 150 real, unsolicited dick pics received
by the artist and other women she knows.159
We found several cases of unsolicited sexual images being sent out. Seen another way, these arecases of individuals who receive unsolicited sexual
images – without their consent. For example, thefirst person to be convicted under the IT Act in Maharashtra had emailed sexual images to a woman
he’d met on Orkut, a defunct social networking
site.160 President Pranab Mukherjee’s daughter wassent sexual messages over Facebook. BJP leader
Shaina NC was sent “obscene” messages by a political party worker in an attempt to harass her.161 Two
159 Brooks, K. (2017, 9 June). How 150 Unsolicited Dick Pics
Are Bringing Women Artists Together. Huffington Post.
www.huffingtonpost.in/entry/dick-pics-art-whitney-bell_
us_59399965e4b0c5a35c9d654c
160 MidDay. (2015, 4 July). First person in Maharashtra convictedunder IT Act. MidDay. www.mid-day.com/articles/first-person-inmaharashtra-convicted-under-it-act/16342199
161 Naidu, J. (2017, 6 March). UP man detained for sending obscene
texts to BJP’s Shaina NC. Hindustan Times. www.hindustantimes.
com/mumbai-news/up-man-detained-for-sending-obscene-textsto-bjp-s-shaina-nc/story-G3tZqEpQOXHYmjt0RcUIVM.html

EROTICS South Asia exploratory researchmen were arrested for posting obscene images andmessages on to a WhatsApp group of Ola and Uber
drivers, which could be easily accessed by the others’
family and kids.162
All these are currently filed under Section 67 in
the absence of any other provision. Is it possible tobroaden Section 66E to acknowledge and cover such
violations of consent? In a context where the receipt
of non-consensual images is as common as their production and distribution, the law needs to recognisethat unsolicited sexual images violate the consent of
the receiver.

Section 67 is being used to criminalise
political speech
From 2015 to 2017, Section 67 was used for censoring tweets, posts and content which spoke out
against politicians. More often than not, this content was not obscene. A trader fighting for investor
rights was arrested for “hurting the religious sentiments of the Islamic community.” The head of aMuslim political party was arrested for “waging war
against India” and “promoting enmity between different groups”. A 17-year-old boy was charged with“sparking communal tension” via a social app. A
Muslim journalist was booked for saying that Hindu
sadhus were trafficking children. Another journalist, known for writing about the police in a conflictzone, was charged with “circulating obscene material” on WhatsApp.163
In a particularly egregious example, a WhatsApp
group administrator was arrested when a memberof the group posted content critical of India’s prime
minister, Narendra Modi. How can admins, who act
as intermediaries, be held responsible for every post
on a group? Equally bizarrely, a man was charged
with obscenity for posting an image of Maharashtra
chief minister Devendra Fadnavis lolling on his yachtwith his family – all fully clothed.164 A political comment was all that it was – it certainly couldn’t becalled lascivious, prurient or obscene by any stretchof the imagination.
162 Times of India. (2017, 26 February). Two cabbies held for posting
obscene content on WhatsApp. The Times of India. timesofindia.
indiatimes.com/city/hyderabad/two-cabbies-held-for-postingobscene-content-on-whatsapp/articleshow/57352944.cms
163 Kumar, R. (2016, 22 March). Journalist arrested in Chhattisgarhfor posting comments on WhatsApp. Scroll.in.
scroll.in/article/805521/journalist-missing-in-chhattisgarh-afterbastar-police-pick-him-up
164 DNA. (2015, 10 July). Man booked under IT Act for defamatory
tweet against Maha CM Devendra Fadnavis. DNA.
www.dnaindia.com/india/report-man-booked-under-it-act-fordefamatory-tweet-against-maha-cm-devendra-fadnavis-2103315

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In 2017, after the Uttar Pradesh elections which
made Yogi Adityanath the chief minister of thestate, there were a lot of posts and tweets from
unhappy citizens who criticised the openly pro-Hindutva xenophobic misogynistic politician. Section
67 has been repeatedly used to target those who
spoke up about this publicly. This includes activist
Prabha Belavangala165 and poet Srijato Bhattacharya166 among others. Ironically, Srijato too167 used thesame provision to counter online harassment fromthe supporters of Yogi Adityanath, the politician
who he had criticised.168
Our analysis of media reports on the usage ofSection 67 across 2015, 2016 and 2017 shows that itis being used increasingly to silence dissent against
politicians and those in power, and as a censorshipmechanism against artists, filmmakers, journalists etc. In other words, Section 67 is increasingly
becoming a tool of the political elite. This raises a
related issue: Is Section 67 being used a substitutefor Section 66A, which was read down in 2015?169
Is “obscene speech” now being used as a proxy for“objectionable speech”? As technology lawyer NS
Nappinai has asked: Is 67 the new 66A?170

Section 67 is also used for censoring
artistic content
In 2015, the online comedy group All India Bakchod
was charged under Section 67 along with other provisions for a knockout roast (a comedy event where acelebrity is mocked) following an uproar.171 In 2016,
165 PTI. (2017, 21 March). Bengaluru Woman Booked For Posting‘Objectionable Content’ About Yogi Adityanath On Facebook.
Huffington Post. www.huffingtonpost.in/2017/03/21/
bengaluru-woman-booked-for-posting-objectionable-contentabout_a_21904458/
166 DNA. (2017, 23 March). Poem against Adityanath: Non-bailable
warrant against Bengali poet Srijato for ‘hurting religious
sentiments’. DNA. www.dnaindia.com/india/report-poemagainst-adityanath-non-bailable-warrant-against-bengali-poetsrijato-for-hurting-religious-sentiments-2365518
167 Ibid.
168 IANS. (2017, 26 March). Facebook has removed my poem
‘Abhishaap’: Poet Srijato Bandyopadhyay. Financial Express.
www.financialexpress.com/india-news/facebook-has-removedmy-poem-abhishaap-poet-srijato-bandyopadhyay/602576
169 Sriram, J. (2015, 24 March). SC strikes down ‘draconian’ Section
66A. The Hindu. www.thehindu.com/news/national/SC-strikesdown-%E2%80%98draconian%E2%80%99-Section-66A/
article10740659.ece
170 Nappinai, N.S. (2015, 14 July). Op. cit.
171 Firstpost. (2015, 13 February). AIB roast: Police register FIR
against actors, complainant’s lawyer says show was ‘prescripted’. Firstpost. www.firstpost.com/living/aib-roast-policeregister-fir-against-actors-complainants-lawyer-says-show-waspre-scripted-2096563.html

EROTICS South Asia exploratory researchTanmay Bhat, a member of the All India Bakchod coreteam, made a Snapchat video poking fun at Sachin
Tendulkar and Lata Mangeshkar.172 This was followed
by a huge uproar with demands to arrest him andcharge him under section 67 of the IT Act, again for“obscene” content. The roast and Snapchat video
may have been tasteless, but were they obscene?

Section 67 is being used to address
online harassment
In 2015, Swati Chaturvedi, a Delhi-based journalist,
faced harassment from a Twitter handle @LutyensInsider, which unleashed a malicious and sexist social
media campaign against her.173 Here, the case was
filed under Section 67. When this may address thesexually-explicit comments which were tweeted
about/at her, it does not acknowledge that there areother kinds of harassment, and clubs every thing under one provision. In 2017, poet Srijato used Section
67 to file charges against his online harassers who targeted him for his poem, Abhishaap, on UP CM Yogi
Adityanath.174 Many women have filed cases under
Section 67 against those who harassed them over thephone via SMS, WhatsApp messages or phone calls.
Again, is this an appropriate use of a section meant toprohibit that which is lascivious or prurient?

Section 67 and Section 67A are usedinterchangeably
While Section 67 regulates “obscene” expression,
Section 67A is reserved for “sexually-explicit” expression. This section is sometimes used against pornsites, since pornography is viewed as an aggravatedform of obscenity. Obscenity, unlike the “sexually explicit”, at least has some degree of vaguely agreed
upon criminality. But what is the harm in that which is“sexually explicit”? This remains an unresolved issue.
In a strange case of a man who sent out a tweet
with the image of Maharashtra Chief Minister Devendra Fadnavis and his family on a yacht during
vacation, was charged under section 67 A – which

regulates sexually-explicit content.175 Since the family
were fully clothed, there was nothing sexually explicitin this image.

Section 67 is being used in cases where
there is no obscenity
Across all three years, there were several cases filed
under Section 67, where the only reason for the usage of this section appeared to be the vague usageof technology of some kind in relation to the crime,
though not for committing the crime itself. In 2015,a couple famously known for their Kiss of Love protest image were arrested as a part of a sex racket.176
When they could be charged for a number of crimes,
it was not clear why Section 67 as one of the laws forbooking them. The only usage of technology in theoverall crime was to provide the contact information on a classifieds site called Locanto. This does notcome under Section 67. In a few other cases, Section
67 was used to book websites selling adult sex toys.
In one case, involving a “sex racket” in Jammu andKashmir, the only reason for the usage of Section
67 appears to be the fact that a Facebook page wasused by clients to contact the escort service.177 Since
escort services in the online space seem to exist in
the same grey area as sex work in the offline space,
usage of Section 67 is clearly wrong here. Unlessthe images used were non-consensually obtained orused, there is no reason to use any provision of theInformation Technology Act here.
In one case, a couple in an extra-marital affair
killed two people and assaulted the woman’s husband.178 There is a mention of videos and intimate
messages of the perpetrators, but neither of these
are related to the murders or assault. The very presence of the videos and messages seems to havewarranted the usage of Section 67 in charging them.
There were some cases where fake profiles weremade in an attempt to harass and/or defame thesurvivor, like in the case where an imposter used industrialist Sanjeev Goenka’s Twitter account to send

175 DNA. (2015, 10 July). Op. cit.
172 DNA. (2016, 30 May). Former IPS officer YP Singh demands‘custodial interrogation’ of Tanmay Bhat for Snapchat video.
DNA. www.dnaindia.com/entertainment/report-former-ipsoffier-yp-singh-demands-custodial-interrogation-of-tanmaybhat-for-snapchat-video-2218138
173 Singh, S. (2015, 12 June). Swati Chaturvedi Twitter trolling: A
much-needed test for laws. Hindustan Times.
www.hindustantimes.com/india/swati-chaturveditwitter-trolling-a-much-needed-test-for-laws/storyw9IglBH2Iz8ztB3UAdB6KJ.html
174 IANS. (2017, 26 March). Op. cit.

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176 Deccan Herald. (2015, 19 November). Kiss of Love couple
held for sex racket. Deccan Herald. www.deccanherald.com/
content/512719/kiss-love-couple-held-sex.html
177 Indian Express. (2016, 25 September). Sex racket busted in
Jammu, social networks used for flesh trade. The Indian Express.
indianexpress.com/article/india/india-news-india/sex-racketjammu-social-networks-prostitution-busted-3049786/
178 Deccan Chronicle. (2016, 19 April). Death for techie, lifer forlover in Attingal twin murder. Deccan Chronicle.
www.deccanchronicle.com/nation/in-other-news/190416/deathfor-techie-lifer-for-lover-in-attingal-twin-murder.html

EROTICS South Asia exploratory research

out “objectionable content”.179 Here, Section 66C of
the Information Technology Act, which deals withidentity theft, or 66D, which looks at cheating bypersonation by using computers, could have beenused to file the charges. Why use Section 67 instead,when the bigger crime is theft of identity and impersonation? Similarly, in some cases involving minors,
Section 67 was used in place of Section 67B, which is
specifically for dealing with transmission and publication of obscene materials involving minors. In one
case, a man tricked some girls into sending him theirphotos, including nude images, promising them acareer in modelling.180 Since these images were forpotential modelling opportunities, they are more
likely to have been posed, and not obscene. Here,the main crime is deception and not obscenity. Yet,the case was filed under Section 67.

Conclusion
Our analysis of 99 cases filed under Section 67 in2015, 2016 and 2017 shows that this section is being used in three ways: as intended, questionably,or inappropriately. The section is being used as intended in a limited number of cases where there
are elements of obscenity, as per the law’s vague
definition. In 2015, a housewife filed a case against
actor and porn star Sunny Leone under Section 67
arguing that her pictures and videos on the internet
spread “obscenity in the society”.181 While this may
be within the law’s intent, it seems like Section 67 is
not just being used for censorship but also as a tool
for moral policing.
More often than not, the section is being used
questionably – or inappropriately. Why is a section
meant to control lascivious or prurient material
being used to stifle political speech? Why is a section meant to control “obscenity”, no matter how
vaguely defined, being used as a tool of censorship?
Why is Section 67 – and its offline counterpart – being used when the primary harm lies elsewhere?
The four guava-eating young men in Pune werebooked for circulating obscene images – rather
than being seen as victims of its rapid circulation,
179 Times of India. (2017, 14 May). Imposter tweets as Sanjeev
Goenka. The Times of India.
timesofindia.indiatimes.com/city/kolkata/imposter-tweets-assanjeev-goenka/articleshow/58665248.cms
180 Navhind Times. (2016, 24 September). Man held for hoodwinking
unsuspecting girls. The Navhind Times. www.navhindtimes.in/
man-held-for-hoodwinking-unsuspecting-girls/
181 India Today. (2015, 28 May). Obscenity charge: Sunny Leone
deposes before Mumbai police. India Today.
indiatoday.intoday.in/story/sunny-leone-fir-obscenity-chargeporn-star-internet-content-mumbai-police/1/440803.html

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without their consent. As minors, their consent
was dismissed,182 even though a policeman told
the media that “the acts were done by mutual accord”. Without any pressure. Mutual accord means
consent. Why is the law quick to mark offences of“obscenity” but slow to recognise violations of consent? Writes Brinda Bose:[A] woman’s right not to be exploited, degradedand demeaned by the sexual use of her body iscounteracted by her right to consensually expose
her body in whatever way she deems fit, as also
by her – and everyone else’s right to freedom ofspeech, expression and representation that is
guaranteed by democratic constitutions all over
the world.183
The low value that is placed on consent was in evidence during our visit to the Mumbai Cyber-Cell tointerview a police official. Although he was wellversed with Section 67, he had never heard of Section 66E – the section that deals with consent. “I readabout it but can’t remember it now,” he told us.
Consent is a critical aspect of expression, and its
illegitimate child, sexual expression. “But neither 67
nor 67A allow for the provision that consensual or
voluntary publishing of such material is acceptable,”argues Kaul Padte. “Until consent is on the table,
women aren’t being dealt a fair legal hand.”

Chapter 8 The faultlines of sexual
expression
Censorship. Legitimacy. Privacy. Consent. Culpability. These are just some of the challenges that sexual
expression faces in the digital age, both online andoffline. It’s 2017, folks. But in India, same-sex relationships are criminalised, right-wing forces malignHindu-Muslim romances as “love jihad” and families
still don’t accept inter-caste marriages. So much forexpressing one’s sexuality.
Freedom of expression
In the surreal landscape that is India today, freedomof expression is under threat as never before. Words
and images are being detained as dangerous thoughtbearing objects every other day. In the last two years,
the Censor Board, as it’s informally called, tried to ban
a film for being too “lady-oriented” and asked filmmakers to remove the following words from their films:
182 The age of consent in India was revised upward to 18 in 2013.
183 Bose, B. (2006). Op. cit.

EROTICS South Asia exploratory researchCow. Gujarat. Hindu India. Communists. PM, short for
Prime Minister. Homosexual. Lesbian. Balls. Vagina, Assholes. Oh, and of course, “intercourse”.
India may be a signatory to the International
Covenant on Civil and Political Rights (ICCPR), whichguarantees freedom of expression and opinion184
under Article 19, with certain restrictions. While
Article 19 of the Indian constitution also guarantees freedom of expression, is the criminal justicesystem over-reading the restrictions for “decency
or morality” to stifle legitimate sexual expression?
Via outdated obscenity laws? Do anti-obscenity lawseven make any sense?
So many questions. Few answers.
All said and done, obscenity law is nothing but
a form of legal moralism. A few people decide whatvalues should inform individual lives and what’s bestfor us – and limit freedom of expression in doing so.
Is this even justifiable? “The prevention of ‘dirt for
dirt’s sake’ is not a legitimate objective to justify theviolation of one of the most fundamental freedoms,”
writes D. Dyzenhaus. Writes Jaising, “The conceptof Christianity is a 19th century Christian concept according to which anything to do with sex is dirty andobscene. To treat a natural instinct, such as sex, as obscene, is obviously outdated. The fundamental basisof obscenity is, therefore, unsustainable.”
Is a world without anti-obscenity laws a worldin which sexuality can be more freely expressed?
Not necessarily.
Legitimacy
Part of the problem with legitimising sexual expression is an underlying discomfort with sex andsexuality. In June 2017, an Indian judge publicly
lauded the peacock for being “celibate” and reproducing through an exchange of tears, not sex.185 He
may have meant the mythical peacock of religious
lore, but what he upheld in the process was thevalue of abstinence. No sex. Not even sex for reproduction, let alone sex for pleasure. That may havebeen one judge, one instance. Even so, laws and rulings around obscenity have often conflated sexual

184 Article 19 1. Everyone shall have the right to hold opinions
without interference.2. Everyone shall have the right to freedomof expression; this right shall include freedom to seek, receive
and impart information and ideas of all kinds, regardless offrontiers, either orally, in writing or in print, in the form of art,or through any other media of his choice.
185 Surendran, V. (2017, 31 May). Rajasthan High Court judge sayspeacocks don’t have sex: How do you think peacocks reproduce?
India Today. indiatoday.intoday.in/story/peacocks-mate-cownational-animal-rajasthan-judge-sharma/1/967453.html

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expression with obscenity, more so, when it comes
to women’s bodies.
As feminist lawyer Flavia Agnes has asked in thecontext of the Indecent Representation of Women
Act: Is indecency being constructed as obscenity +prudish morality? Writes Agnes:
The puritanical notion of women as asexual
beings did not in any way help to liberate or
empower women. Taken to its logical end, it
leads to women’s segregation, curtails women’s
movement and manner of dressing, reinforces
the concept of women’s chastity and purity andcompartmentalises women further as “good”
and “bad”. It subscribes to and strengthens t h epatriarchal, reactionary and fundamentalist notions regarding women and their sexuality.186
In the same essay, Agnes demonstrates how theequation of indecency with nudity and sex has allowed “all other portrayals of women to pass off as‘decent’.” As long as women are clad in saris, servile
and stereotypically portrayed, it’s decent.
These false assumptions around women’s sexuality result in laws that construct women as passive
victims of sexual expression, not as its proponents
or active agents. As Kaul Padte writes in a review ofwomen’s laws:
There is a disproportionate emphasis throughout the Indian legal structure placed on the
representation of women, women’s bodies andtheir sexuality. The creation, publication or circulation of such imagery is believed by many tocontribute to the exploitation of women. In thismanner, the protection of a woman is seen assynonymous with the protection of her image.
But who are these laws really protecting? Is the
culprit female sexuality? If so, who is the victim –public morality?187
Like law, media too manifests a moral discomfort
with sexuality. The media reports we analysed regularly referred to images as “obscene”, “indecent”,“lewd”, or “vulgar” – rather than as merely sexual.
In other words, the media had judged these images
to be obscene even before these cases had been
tried. Media reports similarly referred to cases ofsexual expression as “scandals”, specially when they
were consensual. What was it that the media found
186 Agnes, F. (2006). Indecent Representation of Women. In B. Bose
(Ed.), Gender and Censorship. New Delhi: Women Unlimited.
187 Kaul Padte, R. (2013). Op. cit.

EROTICS South Asia exploratory researchscandalous? Not that two teenagers were expelledfrom school for having consensual sex. Not that they
became public images of disgrace, the girl more sothan the boy. For the Indian media, the scandal was
the phenomenon of two 17-year-olds consensually
having sex. And filming themselves having sex. Because of this media terminology, this is what still
remains enshrined in public memory as the DPSMMS “scandal”.
The real scandal, of course, is that the age ofconsent has gone up from 16 to 18 years in India at
a time when young people all over the world arehaving sex, falling in love, or exploring body possibilities earlier and earlier. The real scandal is that
if you consensually circulate sexy pics on your cellphone, you’re seen as a criminal – and booked underarchaic obscenity provisions.
The real scandal is that we have a colonial handme-down of an obscenity law created centuries back– when digital technologies were about as feasible aslife on Mars. And that law, from two centuries backwhen photos, films and videos didn’t even exist, isbeing used today to regulate speech in the digitaldomain. Sex, expression and technology – life itself– may have evolved in the intervening centuries, but
law clearly hasn’t. If this isn’t scandalous, what is?
Consent
When lawmakers do not see sexual expression itself
as legitimate, the result is laws that do not distinguish between consensual and non-consensual
expressions of sexuality. Between these two lies thefaultline of consent. Asks Kaul Padte:
Where laws are meant to protect women, whatemphasis do they place on consent? ... A focus
on consent considers the wishes of an individual
as having precedence over externally imposedinterpretations ... Without a provision for consent, can a woman who publishes a “sexually
explicit”, “obscene” or “indecent” photographof herself be booked under a series of acts originally designed with the intention to protect her?
If so, what is being protected under these laws
– women, or an idea of womanhood?188
There is no doubt that the notion of consent itself
has become more complicated in the digital age,with its plethora of materials. As digital denizens,
we navigate its faultline every moment – when we
decide whether or not to send a sexy selfie, when we
188 Kaul Padte, R. (2013). Op. cit.

46 I n d ia

forward someone else’s private image or information, when a dick pic pops up in our messaging app.
Without any consciousness, cognisance or consideration of consent.
Consent is not just complex online; it’s a conundrum because there are images of consent thatseem non-consensual. And vice versa. There’s the“rape video” which has turned into digital porn for
those who consume it. No consent there. There’s
BDSM – or kink – in which violent sex is typically
performed with consent, but which is accused of fuelling rape culture. And then there’s “rape porn” orenacted rapes in porn. Although “rape porn” looks
non-consensual, it isn’t. It is the consensual enactment of a non-consensual act. It’s acting, like a rape
scene in a Hollywood film. As queer porn performer
Jiz Lee puts it, “Regardless of whether or not the
final product depicts a narrative of consensual sex,
consent is integral to a commercial pornographyshoot, where the sexual activity is a performanceof labour.”189
Other buried questions of consent have yet tosurface. A 2015 #ShameTheRapists campaign circulated images of rapists online from the rape videos(without sharing images of the rapes or the victims).
But from the purview of consent, is this kosher? Is itokay to circulate images of rapists online – or does
their consent also count? We don’t know. We workon gender, sexuality and technology and different
parts of us feel differently about this. The women’s
rights part says: Sure. Why not? Specially if it canhelp identify and bring the perpetrators to justice?
The sexual rights part worries that such actions encourage vigilante justice and strengthens hysteria
around “sex offenders”. This is more worrisome
given talk of “sexual freaks” and of a national registry – or an online database – of sex offenders being
created in India.190 And the digital rights part feels
the internet is a different kind of animal. Printing
an image of a “sex offender” in a newspaper is one
thing. Publishing this in a space marked for its viralnature is quite another. How should we think about
consent in such situations?
So many questions. Few answers.
189 Lee, J. (2015). Click “I agree”: Consent and feminism incommercial pornography. In A. Finlay (Ed.), Global Information
Society Watch 2015. Johannesburg: APC and Hivos.
www.giswatch.org/sites/default/files/gw2015-full-report.pdf
190 Between these modes lies the faultline of consent. As digitaldenizens, we navigate these faultlines every moment – not justwhen we decide whether or not to send a sexy selfie, but also
when we thoughtlessly forward someone else’s private image
or information. Without any consciousness, cognisance orconsideration of consent.

EROTICS South Asia exploratory researchCulpability
If recognising the lack of consent is one major barrier to justice, determining culpability is another. In
most cases, the cops trace the person who uploaded
the video – the original sender. But there’s a larger
question here: Who should be held culpable whensuch images circulate – or slip? Can we rely on theconcept of the “original sender” in digital spaces?
Does the concept of the original sender truly holdwhen something is continually in circulation? Or
must culpability also be shared, like the material
that was circulated? How is culpability to be determined in a situation where person after person who
watches a crime being committed does nothing tobring this to the law’s notice?
In 2016, a social worker in Uttar Pradesh’s Muzaffarnagar committed suicide after her rape video
continued to circulate in the village. The night before she killed herself, she told her husband about
the rape and “expressed her great distress at thevideo that was circulating.” What is it that constitutes justice for the victim in such cases? Is justiceserved when the perpetrators of the physical rape
are convicted? Or does justice also mean removing
the videos in circulation, often on multi-national
corporate platforms that pose complex jurisdictional issues?
So many questions. Few answers.
Does the law even understand – or consider – consent, culpability or sexual expression? It appears not,as the abysmal rate of convictions on rape cases has
consistently shown way before digital technologies
came into being. It’s one thing for individuals to ignore
consent or dismiss culpability. It’s quite another for thelaw to do so. When the law ignores the faultlines of
expression, it takes away many things. Agency, autonomy, dignity, privacy and subjectivity. Our ability to be
who we are. Our imaginations and realisations of ourselves and bodies. Our freedom to express love, desire,sex or pleasure – fearlessly. Our ability to be safe fromviolence – on our physical or digital selves. Our rightto express all aspects of ourselves, including the sexual.
It’s 2017, folks. But we’re stuck in an epic timewarp around sexual expression. It’s time to broaden
our understanding of free expression, including sexual expression. It’s time we accepted that words andimages have always been tools of sexual expression– and that consensual sexual expression is as valid aform of expression as any other. It’s time we stopped
binarising free expression, by treating political andreligious expression as legitimate aspects of freedomof expression, and sexual expression as its illegitimate

47 I n d ia

sibling. It’s time we started drawing the faultlines
of sexual expression – between the consensual andthe non-consensual, between actual and imagined
harms, between bodily violations and bodily integrity. Because no one should have to end up behindbars for sharing a sexy video of themselves with theirfriends. Or because they segued from guavas to genitals in a park one sunny afternoon.

Recommendations
After exploring the concept of “digital obscenity” and its expression and use in Section 67 of theInformation Technology Act through multiple methodologies, we would like to make the following
recommendations. These recommendations are designed to ensure that this section upholds the rights
of women, facilitates sexual expression, and is consistent with internet rights.
1. Sexual expression is often viewed as an illegitimate
form of expression – or not accepted as legitimate
expression. All stakeholders need to understandthe vital role that sexual expression plays in the
lives of individuals, and view this as a legitimate(albeit stigmatised) aspect of expression.
2. In the digital age, friendship is performed throughstreams of words and images on platforms using digital devices. These contemporary formsof friendship need to be accepted as legitimate
forms of social behaviour, instead of being treated as lesser or inherently irresponsible activities.
3. An antiquated concept of obscenity resting on colonial or archaic moralities – lascivious, prurient,deprave, corrupt – has no place in contemporarysociety. Obscenity, as a concept, needs to be reframed in the context of today’s realities andtechnologies.
4. Section 292 of the Indian Penal Code and Section
67 of the Information Technology Act, which are
based on archaic, colonial concepts, need to beread down or revised dramatically to reflect contemporary standards, concerns and experiences.
5. Laws related to obscenity and related offencesmust be based on consent. Adult consensual sexual expression cannot be treated as an offence;laws must safeguard individuals against nonconsensual expression or violations of consent.
Consent provisions must be built into existinglaws to prevent consensual sexual expression
from being criminalised.

EROTICS South Asia exploratory research6. Using consent as a legal standard necessitates using Section 66E of the Information Technology
Act in cases where images of private parts havebeen published or transmitted – without consent.
Using consent as a legal standard means that
violations of consent cannot be booked only as
obscenity offences.
7. Several consent violations have yet to receive legal recognition. These include morphed images
and non-consensual receipt of sexual images,
both of which are common in the digital age. We
recommend that Section 66E of the Information
Technology Act be expanded to include otherconsent violations, including these.
8. In 2013, the age of consent in India was increased
from 16 to 18 in India. Does this make sense in thedigital age, where teenagers are exposed earlier
to new ideas, agencies, and the complexities ofmaking their own decisions? The age of consent
needs to be reconsidered in this light.
9. Given the current age of consent, young people between 16 and18 years need to be legallytreated with due consideration when they are

48 I n d ia

consensually expressing their sexual selves,
through activities on and offline, including sexting. Only non-consensual or coercive expressions
in this realm need to be treated as violations.
10. The National Crime Records Bureau currently
aggregates data on cybercrimes in India. We
recommend that this data be recorded using objective parameters, and that subjective categories
and classifications related to motives, and profiles
be dropped entirely.
11. The police, investigating authorities and judges atdifferent levels must be rigorously trained in theconcepts of “obscenity” and “consent” underlying Sections 67 and Section 66E, so that they areable to routinely file consent violations under Section 66E, where they belong.
12. Finally, Section 67 has currently become a dumping ground for all sorts of offences that haveabsolutely nothing to do with obscenity. These
include political speech, criticism, dissent and soforth. This must be stopped. This is not just misuseof the law, but a complete perversion of the law
and a miscarriage of justice.

EROTICS South Asia exploratory research

NEPALthe internet and sexual expression

Exploring the use of the internet among genderequality and sexual rights advocates in Nepal

Author:Indu Nepal
Research Coordinator:
Shubha Kayastha
Research Assistants:
Gyanu Gurung
Shiwa Karmacharya
Copy editor:
Shaun Kirven

Acknowledgements
I would like to thank the participants of the survey,
focus groups and key informant interviews who
generously provided their time for this research.
Special thanks are also due to the organisations thatfacilitated the focus groups. All identities have been
kept anonymous to protect their privacy.
Thank you to the research team members who
assisted at various stages of the project: Katerina
Fialova of Association for Progressive Communications provided crucial feedback on the researchplan; Shubha Kayastha was the research coordinatorat LOOM; Gyanu Gurung and Shiwa Karmacharya
were research assistants; Sradda Pradhan Thapa conducted the quantitative analysis of the survey andShubha Kayastha assisted with research for the literature review. Gita Thapa, Sambida Rajbhandari,
Sarita Bhusal and the staff at LOOM provided feedback in the initial stage.
I owe gratitude to the reviewers, Horacio Sivori
and Jennifer Radloff, who provided invaluable feedback helping to polish up the report. Thank you also
to Daniel Coyle, Drew Penland, Jyotsna Maskay and
Shaun Kirven for their generous feedback on theoriginal draft, and to Soyesh Lakhey for reviewing
the research tools at the beginning of the project.

50 NepalExecutive summary
This report is based on exploratory research conducted
to examine everyday use of the internet among gender equality and sexual rights advocates in Nepal. The
three main areas of inquiry were: the use and perception of the internet, the understanding and exercise
of sexual rights and sexual expression on the internet,
and risks and strategies for safety on the internet.
The study finds that the internet is an importantpart of the personal and professional lives of genderand sexual rights advocates. The internet is understood as a public space where actions and behaviour
are subject to policing, regulation and censorshipin the same way as occurs in physical offline spaces. Drawing on the work of Ahearn on agency andlove, Liechty on expectations of women in the faceof modernity and Tamang on the expression of female sexuality, the paper shows that the internet isa space entrenched in heteronormative biases andvalues. These values play out in ways that prevent
meaningful access and participation for marginalised groups with non-heteronormative sexuality andnon-dominant ethnicities.
The use of the internet is indispensably linked
to organisational communication, social networking
and consumption of content. There is no notablevariance on the amount and purpose of use against
education level, age and ethnicity.
There was a variance among participants withvarious sexual orientations in exploration of intimacy online. Self-identified gay men use the internet
extensively for dating and sexual encounters andhave adapted strategies such as the creation of fakeprofiles to protect their identities. Young heterosexual women explore intimacy and interaction withmembers of the opposite sex as well but are subject to monitoring and surveillance from friends andfamily who fear impropriety.
The study finds that the perception of the internet, its role in society and its safety is varied among

EROTICS South Asia exploratory research

the participants. While the usefulness of the internet in modern life is not contested, participants hadpolarised opinions on its safety and potential foranonymity. These views could be affected by those
who have faced negative experiences online andthose who regard the internet in its potential as agender-neutral space.
Violence on the internet is an overwhelming
theme with 88% of respondents reporting that they
have witnessed someone being subjected to violenceon the internet and 52% of respondents saying they
have experienced such violence personally. Gender,class, sexual orientation and caste underpin theseexperiences, with a disproportionately high numberof people reporting online violence identifying as
same-sex sexuality, transgender and Dalit women.
These findings show that class, caste and sexual inequalities of the offline world are replicated online.
The experience or witness of violence causes
users to withdraw from participation or to censor
themselves online. Users who experienced violence
themselves noted psychological impacts including
mental distress, anxiety and feelings of guilt.
Most participants have never taken a digital
security course, and lack the technical capacity andawareness of threats on the internet to protect
themselves. The lack of technical knowledge andlanguage to politicise internet rights as humanrights also limits the ability of gender equality andsexual rights advocates to create strategies for navigating online threats. There is an attempt by law
enforcement to counter online gender-based violence but applicable laws are vague and conflicting
and are prone to misapplication resulting in the banof legitimate and free expression based on normative prejudice and bias.

Introduction
In 2008, the Association for Progressive Communications (APC) started the EROTICS1 (Exploratory
Research on Sexuality and the Internet) project to
explore the use of the internet from a perspectiveof sexuality and sexual rights. The EROTICS network– consisting of researchers, academics, writers andactivists in the field of sexuality, sexual rights andthe internet – conducted the first round of exploratory research in India, Brazil, South Africa, Lebanon
and the United States. The project was guided by
two beliefs: a) sexual content is the basis for inter1

https://www.apc.org/en/project/erotics-exploratory-researchproject-sexuality-and-internet

51 Nepal

net regulation in many countries, founded on realand perceived harm, and b) the resulting regulation
directly impacts the ability of individuals to exercise
their sexual rights.
APC is currently working with partners in Nepal,
Sri Lanka and India to explore the use of the internet and its impact on sexual and reproductive healthrights.2 LOOM Nepal is the partner of the EROTICS
network in Nepal, and conducted this research withthe aim of examining whether existing policies andprogrammes allow for a free and safe environment
to exercise sexual rights on the internet. This research sought to answer the following questions:•

What are the ways in which gender equality andsexual rights advocates use the internet in Nepal?

•

What is the nature of online regulation in Nepal
and how does this impact the freedom of sexual
expression and assertion of sexual rights?

•

What are the threats to the freedom of sexual
expression and assertion of sexual rights on theinternet and how do gender equality and sexual rights advocates navigate and respond tothese threats?

This study is guided by the belief that the internet
can play a role in the fulfilment of sexual rights
through the free flow of information, democratisation of participation and its role in challenging
dominant values to allow for a variety of expression
and practices. The ability to freely access information is the first step to understanding and exercisingsexual rights and expression. Meaningful access andparticipation in online spaces allow individuals to
exercise their right to self-determination and bodily
integrity. Whether it is through accessing information on sexual health, the exploration of pleasurethrough erotic content, or the opportunity to choose
partners through dating apps, the internet plays animportant role in contemporary sexual lives.
Sexuality permeates the discussion of internet regulation in important ways through content
regulation and the policing of online expression
and behaviour. A range of laws in Nepal regulates
sexual content deemed “offensive or contrary tomorality”.3 Public offence laws are used to police
activities online and offline. The assumption of heteronormativity in policies and programmes further
2

https://www.apc.org/en/project/building-erotics-networks-indianepal-and-sri-lanka

3

Freedom Forum. (2016). Freedom of Expression on the Internet
in Nepal. Kathmandu: Freedom Forum.

EROTICS South Asia exploratory researchregulates sexual content and expression, especiallylimiting the rights of those who are also marginalised in offline spaces.
This study aims to provide evidence of everyday use of the internet among gender equality andsexual rights advocates so that future policies canaddress actual needs and concerns. It also aims toprovide guidance in identifying opportunities forengagement and advocacy of sexual rights using
the internet. To a limited extent, it helps to examine
actual risks, rather than perceived harm, for genderequality and sexual rights activists on the internet,
so that appropriate action can be taken to support
them in exercising their rights.

hope that this study will contribute to the discussion
on what meaningful participation means. The study
also looks at external circumstances such as societal
values, production of knowledge and legislative environments that can affect meaningful participation.

Sexuality and the internet
What is the role of the internet in the fulfilment ofsexual rights? Jac sm Kee writes:
The internet, because of its unique characteristics, has provided a critical space for the
proliferation of multiple discourses that can act
to challenge and rupture normative ideals of
sexual hierarchies. It has become an importantavenue to interrogate existing standards of sexual legitimacy, and to raise broader questions
around justice, equality and non-discrimination.
Due to its relatively low barriers to access anddissemination (as compared to, for example,
traditional mainstream media), the internet enables perspectives and voices from the margins toinfuse and trouble dominant discourses that anchor normative sexual hierarchies.8

Background
According to the Nepal Telecom Authority, the regulatory body for internet service providers (ISPs) andtelecoms in Nepal, there is 51.68% internet and data
penetration in Nepal with over 13 million subscribers4 as of September 2016. While this is not a trueindication of access for 51% of the population, nordoes it take into account the urban-rural, mountainous-plain region user concentration and genderdisaggregation, the figure – up from 43.17% in thesame month in 2015 – demonstrates a brisk increase.
Similarly, users on popular platforms have registeredfirm growth. Facebook currently boasts 6.2 million
users from Nepal, up from 880,000 in 2011.5 E-commerce has grown with new platforms like Sastodeal.
com and Kyamu.com coming into operation in thelast five years. The government has increased its
presence on the internet, and introduced e-services
such as passport application and vital registration.
Pandey and Raj argue that the focus on thenumber of subscriptions overlooks the quality of access and participation on the internet.6 The majority
of internet access in Nepal is through data on mobile
phones, and household internet access is paltry with
only 8.9% penetration.7 There is a marked differencein the quality and cost of access between data packages on mobile phones and internet through cableand broadband. The numbers thus presented areuseful in showing a trend in consumption and weTechnology plays a significant role in modern lifeand culture including the area of contemporary
sexual experience. Studies show curiosity and interest among young people around dating, sex
and sexuality regardless of the sociocultural andreligious beliefs of their respective societies. In theabsence of “formal” spaces to access information
on sex and sexuality, mass media and the internet
are commonly reported sources of information on
sexual and reproductive health.9 When and if available, “formal” spaces such as health centres often
cater to married women, leaving the needs of otherdemographics unfulfilled. For the lesbian, gay, bisexual, trans, intersex and queer (LGBTIQ) population
the internet has become an increasingly significant
space to explore sexuality.10 A 2014 survey of Nepal’s
LGBTIQ groups found that access to mobile phones
and the internet was higher among this group compared with others.11
8

Kee, J. (ed.). (2011). EROTICS: Sex, rights and the internet.
Johannesburg: APC. https://www.apc.org/en/pubs/eroticsresearch

4This figure is much higher than the internet penetration rate of
17.6% cited by World Bank.

9

UNFPA. (2016). Sexual and reproductive health of unmarried
young people in Asia and the Pacific.

5

Joshi, R. (2011, 14 March). Facebook users in Nepal. Internet
Marketing.

10

6

Pandey, S., & Raj, Y. (2016). Free Float Internet Policies of Nepal.
Studies of Nepali History and Society, 21(1), 1-60.

Wolf, J. M. (2012). Technosexuality: Technology, Sexuality,
and Convergence. urface.syr.edu/cgi/viewcontent.
cgi?article=1088&context=com_etd

11

7

Ibid.

UNDP & Williams Institute. (2014). Surveying Nepal’s Gender andSexual Minorities: An Inclusive Approach. Bangkok: UNDP.

52 Nepal

EROTICS South Asia exploratory research

The ability to freely access information is a primary step to understanding and exercising sexual
rights and expression. Meaningful access to andparticipation in online spaces allows individuals
to exercise their “right to self-determination andbodily integrity”.12 Sexual rights are “inextricably
connected to the economic, social and politicalrights of a person; when one is violated, the others
are affected.”13 For example, restrictions on sexual
content online can prevent individuals from seeking
information on sexuality-related issues. Disapprovalof certain online behaviour, such as chatting or dating, may prevent them from seeking help if they
face abuse or violence. Regulation of online behaviour may limit the ability of a person to exercise
their sexual rights fully, such as dating to pursue loving relationships.

Content regulation
The regulation of content, to determine obscene
and harmful content, is one of the approaches
employed to suppress content on sexuality on theinternet. In Nepal, the Public Offence Act is used
to limit a wide range of behaviour that the rulinggroup,14 made up of the majority of the bureaucracy and administration, deems unacceptable. In
addition, most legal instruments pertaining to
freedom of expression have a “public decency andmorality” clause. Freedom Forum, an organisation
working on the freedom of expression in Nepal,
notes, “Obscenity is one of the major excuses tocriminalise freedom of expression in general andonline in particular in Nepal.”15
The International Covenant on Civil and Political Rights (ICCPR) is the key document that provides
guiding principles for freedom of expression andopinion. Articles 17 and 19 of the Constitution of Nepal ensure freedom of opinion and expression andthe right to communication as fundamental rights
of all citizens. Provisions qualifying both of theabove articles say that the state may impose restrictions on “any act, which may be contrary to public
morality and decency”. This restriction is “vague innature, beyond what is permitted in the ICCPR andopen to arbitrary interpretations.”16
The Electronic Transactions Act (ETA) criminalises
publication and display of “any material in the electronic media including computer, internet … which
may be contrary to the public morality or decent
behaviour”.17 This act also criminalises certain formsof expression. The National Broadcasting Regulation bans materials that may jeopardise “decency,
morality of the general public”.18 The Press and Publication Act prohibits the publication of any material
that hurts “the decency, morals and social honour ofthe people”.19 The Online Media Directive released
in 2016 and withdrawn for revision after opposition
also had a clause banning publication and broadcastof materials “against public protocol or morality”.
Similarly, license agreements between ISPs andthe National Telecom Authority contain a provisionthat asks them to remove “any obscene content
that is termed as obscene by the prevailing law of
the land, any act which may be contrary to decent
public behaviour or morality”.20 As a result, over 100
websites, primarily containing pornography, remainbanned in Nepal.21 Instead of working through judicial authority to issue takedown orders that areclear, unambiguous and follow due process, thegovernment instead appoints private companies toact as arbitrary referees of content safety, directly
impacting the rights of the users.22
The effect of such legislation and policies is to censor and police a wide range of activities and voices thatpertain directly to sexual rights and the freedom of
expression. The history of censorship and offline andonline moral policing in Nepal shows an attempt toban or regulate a wide range of behaviours pertaining
to expression and sexuality. In 2013, over 300 young
men with long hair and earrings were arrested under
the Public Offence Act, and some had their hair forcibly sheared.23 Police have also arrested young men andwomen in school uniform for going to the cinema.24
16

Acharya, U., & Sigdel, S. (2016). Press Freedom in Constitution of
Nepal 2015. Kathmandu: Center for Media Research Nepal.

17

Article 47 (1), The Electronic Transactions Act 2063. (2008).

18

Article 9 (c), The National Broadcasting Regulation, 2051. (1995).

12

Kee, J. (2011). Op. cit.

19

Article 16 (e), Press and Publication Act 2048. (1991).

13

Forum for Women, Law and Development. (2007). Women and
Sexuality in Nepal.

20

Freedom Forum. (2016). Op. cit.

21

Freedom Forum. (2016). Op. cit.

22

For baseline safeguards and best practices on intermediaryliability, see the Manila Principles of Intermediary Liability.

23

Nepal News.(2013, 8 April). Supreme Court orders police to stop
crackdown on men with long hair. Nepalnews.com.

24

Setopati. (2016, 4 February). Bhaktapur Police to arrest students
bunking classes. Setopati.

14

15

The ruling group of Nepal able to impose their values throughlegislation and bureaucracy has historically been the caste hill
Hindu elite i.e. Brahmin and Chhetris as noted by Lawoti andHangen. Lawoti, M., & Hangen, S. (eds.) (2013). Nationalism andethnic conflict: Identities and mobilization after 1990.
Oxford: Routledge.
Freedom Forum. (2016). Op. cit.

53 Nepal

EROTICS South Asia exploratory researchUnmarried couples staying in hotels are arrested on aregular basis.25

Heteronormativity and online policing
The moralising and policing of expression can beunderstood through historical anxiety around sexuality, particularly female sexuality, in the belief that
“if women’s sexuality is not tightly constrained thenchaos and social anarchy will result.”26 Women are
disciplined to follow regimens of patriarchy that
control, monitor and impose surveillance on theirsexuality and their bodies throughout their lives.
Liechty has argued that modernity “is an external condition”27 and the freedom it provides is atonce seen as “fundamental understanding of self
as modern, but also a source of fear.”28 The fear of
the potential of modern technology to disrupt isseen as bikriti – “a state of deterioration that canconnote disease, degeneracy, deformation andmalformation”.29 Media reports of sexual harassment, trafficking and online predators further
compound this fear.
Tamang writes that honour, ijjat, is consideredas the most critical aspect of the South Asian cultural and value system.30 In Nepali society, the ijjatof the family and men in particular depends on how
the women of the family exhibit qualities of moral,
sexual and social propriety31 including “dressing andacting in a modest fashion”, and marrying a person
chosen by family at an “appropriate” age.32 In thedigital age, it can extend to the content and photos women post online, who they may “friend” andwith whom they may “chat”. Technology is blamed
as a reason for a myriad of actions that are seen as
harming family propriety or ijjat such as love mar25

Nepal Monitor. (2015, 25 February). Republica: Chitwan hoteliers
shut shop over arrest of married couples. https://nepalmonitor.
org/reports/view/5118

26

Forum for Women, Law and Development. (2007). Op. cit.

27

Liechty, M. (2001). Women and Pornography in Kathmandu:
Negotiating the “Modern Woman” in a New Consumer Society.
In S. Munshi (ed.), Images of the ‘Modern Woman’ in Asia:
Global Media/Local Meanings, 34-54. London: Curzon Press.

28

Liechty, M. (2010). Out Here in Kathmandu: Modernity on the
Global Periphery. Kathmandu: Martin Chautari Press.

29

Greene, S. (2015). Gender and Sexuality in Nepal: The
Experiences of Sexual and Gender Minorities in a Rapidly
Changing Social Climate. SIT Digital Collections.

30

Tamang, S. (2003). Patriarchy and the Production of Homo-erotic
Behaviour in Nepal. Studies in Nepali History and Society, 8(2),225-258.

31

Rankin, K. N. (2010). Cultures of Economies: Gender and sociospatial change in Nepal. Gender, Place and Culture: A Journal of
Feminist Geography. 10 (2), 111-129.

32

Greene, S. (2015). Op. cit.

54 Nepalriage.33 In problematising the medium rather than
the intent, love and the exploration of intimacy areviewed as paradoxes, in the sense that they give
people agency over everything except love itself, as
Ahearn writes.34 Therefore, love and by extension
exploration of intimacy and sexuality, is seen as being uncontrollable.
In this context, what parents and wider society
have sought control over is access to technology andcontent, which may facilitate the process of unsanctioned courtship and intimacy. The heteronormativevalue system is also reflected in laws and policies
that regulate freedom of expression and bodily
autonomy. Recent examples include discriminatory
citizenship laws and a right to inheritance based on
marital status.35
In a reflection of worldwide trends,36 sexual rights
programmes in Nepal are implemented from a vantage point of reproductive health vis-à-vis married
women, family planning and gender violence.37 While
framing rights to reproductive health within a bodily
autonomy and wellness agenda, the opportunity toaddress critical issues of sexuality and sexual freedom,
gender expression, self-esteem and relationships
has been missed. Policies and programmes related
to sexual and reproductive health and rights fail toaccount for the needs of people from diverse communities such as queer groups, women living withHIV and AIDS, women with disabilities, women who
use drugs, unmarried/ single women, adolescent boys
and girls to name a few. Existing programmes focus
33

Parents often blame mobile phones and mass media for therise in child marriages. See for example, Save the Children,
Plan International & World Vision International (2012). Child
Marriage in Nepal: Research Report.

34

Ahearn, L. M. (2004). Invitations to Love: Literacy, Love Letters
and Social Change in Nepal. Ann Arbor: University of Michigan
Press.

35

The Constitution of Nepal discriminates against women by
preventing them from passing on citizenship to their children,
affecting single women with children, women married to
non-Nepali nationals and those in same-sex partnershipdisproportionately. Property inheritance laws also regulate
women’s sexuality by denying married woman the right ofinheritance on parental property, and women also fall muchfurther behind in line of succession. Same-sex couples do nothave the spousal rights enjoyed by heterosexual couples. Devoidof legal protections, same-sex couples are unable to legally raisea family and ensure that their children have citizenship. They
risk being forced to give up their rights to property when they
split up or their partner passes away.

36

Varma, A., & Das, K. (2015). Bridging the Divide: Thematic Paper
Series on Linking Gender,Poverty Eradication, Food Sovereignty
and Security, and Sexual and Reproductive Health and Rights.
Kuala Lumpur: Asian-Pacific Resource and Research Centre for
Women (ARROW).

37

Interview, September 2016.

EROTICS South Asia exploratory research

on the medical and treatment dimension of sexuality
and focus on the above groups as transmitters of diseases that threaten the wider population. A review
of studies on the sexual and reproductive health ofunmarried adolescents found that their needs wereignored, as sexual rights are linked only with marriage and reproduction. The review also shows that
unmarried women seeking abortion services experienced stigma and negative responses.38
Beyond regulations, spaces where women and
LGBTIQ groups participate are controlled in otherways. Harassment, abuse, manipulation, exclusion,and discrimination that occur offline also exist
online.39 Those whose voices are suppressed andsilenced offline are also targeted online. Women (including activists) who are vocal about their opinions
and views, have received death and rape threats.40
There is no specific regulatory provision in Nepal
to deal with online gender-based violence. Existinglaws pertaining to gender-based violence such as
the Domestic Violence Act, the Workplace Harassment Act and the Human Trafficking Act deal withspecific categories of violence against women.41 The
law enforcement agencies often invoke rules under
ETA42 to deal with a wide range of crimes including
gender-based violence on the internet. However,
the act’s vagueness and incompatibility with other freedom of expression laws makes it prone tomisapplication.
Surveillance is another tool deployed to monitor actions and behaviour online. Regulators andservice providers can track online behaviour both atuser and provider end through requirements such as
know-your-customer laws. Often introduced under
the guise of public safety and security, these tools canbe used to monitor individuals, organisations andtheir activities, especially in the absence of privacy
laws in Nepal. Although the constitution has guaranteed privacy, there is no specific law regulating
the collection and sharing of personal informationby the government or private organisations.

38

UNFPA. (2016). Op. cit.

39

Asian-Pacific Resource & Research Centre for Women. (2016).
Sexuality, Sexual and Reproductive Health and Rights, and theInternet. Arrow for Change, 22 (1).

40

Ibid.

41

The Asia Foundation. (2010). Nepal: Preliminary Mapping ofGender Based Violence. Kathmandu: The Asia Foundation.

42

In The Government of Nepal v. Bikash Thapa, the defendant was
charged under ETDSA for harassing a female colleague withsexually explicit images through email over a sustained periodof time. The defendant was acquitted, as the court was unable
to establish the charge due to insufficient evidence.

55 NepalResearch methodology
This is exploratory research, conducted with the aimof providing preliminary evidence concerning theuse of the internet among sexual and gender rights
advocates in Nepal. This group was selected as a sample because they are at the forefront of sexual rights
activism in Nepal and their experience, comprehension and perception is relevant to understanding theevolution of policies and programmes in this area.
The bias in sampling resulted from our limitations
but is intentional in that it allows us to speculate theproductive potential of what if the sample included
respondents from other social groups among thewider population. With proximity to urban bureaucratic centres, access to technology, skills and tools
to politicise their experience, the sample is unique inthat the opportunities and risks they face are bothmarkers of their privilege and vulnerabilities.
The research used both quantitative and qualitative methods for data collection. Quantitative
surveys allowed for a wider assessment of trends,
while qualitative data provided rich narratives toinform findings. The data collection was conducted
between July and November 2016 in Nepal’s capital, Kathmandu. The research design and tools are
adapted from APC’s research framework “End violence: Women’s rights and safety online” publishedin 2013.43
The data for the study was gathered using thefollowing tools:•

A mapping of regulations and laws regarding
the internet and sexual and reproductive healthand rights (SRHR) in Nepal, review of articles andliterature to examine emerging discourses andcurrent trends in the implementation of laws.

•

A self-administered quantitative survey of 99
gender equality and sexual rights advocates in
Kathmandu to understand their use of and experiences on the internet. While 105 people
participated in the survey, six responses were discarded as incomplete.
The questionnaire was available online in English on the survey platform LimeSurvey and in
paper forms in Nepali. Of the respondents, 95
completed the paper forms and the responses
were entered into the online platform by the
research team. The respondents for the sample

43

Athar, R., & Women’s Legal and Human Rights Bureau Inc.
(2013). End violence: Women’s rights and safety online.
Johannesburg: APC. https://www.genderit.org/sites/default/
upload/flow_end_vaw_research_design_final.pdf

EROTICS South Asia exploratory researchwere selected based on their affiliation with anorganisation that works on gender equality andsexual rights. Individual activists without affiliation were also invited to participate. An effort
was made to include individuals affiliated withorganisations working with LGBTIQ groups.
Participation in the survey was voluntary, and respondents were assured of their confidentiality.
The results were analysed using STATA.
•

In-depth interviews with 25 internet rights andgender equality and sexual rights advocates in
Kathmandu to understand their advocacy priorities, strategies for furthering their agendas
on the internet and the legal and policy landscape on internet and SRHR. The research teamat LOOM Nepal selected the interviewees andthe lead researcher conducted the interviews.
Interviews took place at their place of work or
at a public space chosen together by both researcher and the interviewee. Interviews often
lasted about an hour and were free flowing witha set of guiding but not restrictive questions. An
effort was made to include advocates working
on a diversity of issues including LGBTIQ, single
women (widows),44 workers in the entertainment sector and people with disabilities.

•

Two focus groups were conducted with volunteers and staff members of organisations
working with LGBTIQ groups and entertainment
sector workers to gain an in-depth understanding of how they use the internet in their workand personal lives. Focus groups were hosted
by the organisation working to support and advocate for the rights of these two groups. The
number of participants in each focus group was
between eight and 10. Discussions lasted forabout an hour and discussions were guided bya set of pre-selected questions but allowed forfree-flowing discussions.

The participants in survey and key informant interviews overlapped. There was an exception among
key informant interviews who were selected for theirtechnological or legal expertise and did not work in
the area of sexual rights and gender equality.
The focus group discussions were conductedbecause early data collection processes showedthat the two groups whose perspective would be
crucial to inform our findings might not be able to44

Because of the stigma attached with the word “widow”,
advocates working in support for the women prefer to use“single women” to denote their marital status.

56 Nepalcomplete self-administered surveys. The two groups
were selected because they are active on the internet and initial key informant interviews showedthat they have specific language, connections andapproaches to use of and experience on the internetthat the methodologies employed up to that point
would have been unable to capture.

Limitations of the study
While the respondents work in some aspect ofgender equality and sexual rights, generalising theoutcome for the entire sector of sexual rights is notpossible as they come from a variety of backgrounds
and areas of work.
Due to resource and time limitations, theresearch focused on the Kathmandu valley. The concentration and quality of internet service and the
respondents’ ability to afford it means that that theresults cannot be generalised among the same category of people based outside Kathmandu.
The research team went through the survey
with respondents when requested. Due to thenature of self-administered surveys and the somewhat technical aspect of the questions, the results
need to be reviewed with this in mind. For future
research we recommend an in-person approach as
much as possible to prevent false reporting intentionally or otherwise.
A female researcher conducted the focus group
discussion with the gay men in the research sample.
While we do not believe that this changed the responses, it is possible that a trusted male researcher
may have elicited richer responses.

Terminology
GenderWhen referring to gender rights and gender equality, this research questions the norm of gender binary
prevalent in Nepal’s women’s rights movement.
Rooted in queer feminist philosophy, gender in thisresearch refers to “socially produced structures,
meanings and relations that depend on, deepen andtransform, but are not fully explained by, or reducible to, biological sex differences.”45 Gender rights do
not refer to women’s rights only; the term refers tosocially constructed gender identity going beyond
biological identity.

45

Cited in Tamang, S. (2000). Legalizing state patriarchy in Nepal.
Studies in Nepali History and Society, 5(1), 127–156.

EROTICS South Asia exploratory researchSexual rights
As used by the Forum for Women, Law and Development: “Sexual rights are human rights that include
the right to sexual pleasure without fear of infection, diseases, unwanted pregnancy; the right tosexual expressions and to make sexual decisions;right to sexual and reproductive health care and information and education; right to bodily integrity;
right to enter into, maintain or discontinue marital
relationships; right to privacy as to sexuality and reproductive choices, health care services.”46
Sexuality
The most-accepted definition of sexuality, as definedby World Health Organisation (WHO), is “a central
aspect of being human throughout life” that encompasses “sex, gender identities and roles, sexual
orientation, eroticism, pleasure, intimacy and reproduction.” Sexuality is influenced by the interactionof biological, psychological, social, economic, political, cultural, ethical, legal, historical, religious andspiritual factors.47
Sexual minority, queer, LGBTIQThe Constitution of Nepal has recognised equal rights
and protection for sexual minorities but does not define
the group of people it refers to under this category. The
term is widely used to refer to lesbian, gay, bisexual,
transgender, queer and intersex (LGBTIQ) people.
In this research report, we use the term LGBTIQ
to refer to non-heteronormative sexualities andgender identities. While we recognise that this term
may not capture the full spectrum of sexual andgender fluidity, we use this term as it is used andunderstood locally to refer to non-heteronormative
sexualities and gender identities.
While not used extensively in this report, we
would like to insert a note on the use of the term
queer. Examining the intersection of gender, capitalism, hetero-normativity and identity, queer theory
questions gender binary and hierarchy of gender. In
Nepal, the use of term queer as an encompassing
category for non-heteronormative sexualities andgender identities (instead of LGBTIQ) raises complex
questions. Those who self-identify as queer may
not necessarily adhere to queer politics, which isprimarily to reject gender binary and hierarchy. For
example, a gay man who self-identifies as queer may
46

Forum for Women Law and Development. (2007). Op. cit.

47

WHO. (2002.), Defining sexual health: Report on a technicalconsultation of sexual health. World Health Organisation.
Geneva.

57 Nepalbe patriarchal in his beliefs and this could manifest
in the way he treats women. In this report, we use
the term queer to refer to the political theory.
This research uses the terms lesbian, gay, bisexual and transgender when the individuals or groups
mentioned self-identified in those categories.

Findings and discussion
The following discussion of the findings relates tothree main areas of enquiry: a) overview of online activity and perception, b) intimacy and agency on theinternet, and c) online risks and strategies for safety.
Overview of online activity
The respondents could be broadly categorised into
two groups: a) established professionals with seniorleadership positions in mainstream women’s rights
organisations; b) young people with an extensive
online presence. This research also identifies a subset within the second category for further analysis,
which are young gay men.
The majority (76%) of survey respondents were
below 34 years old, with a postgraduate degree andwere employed. They also had easy access to the internet with personal devices (most more than one)and had been using the internet for 10 years or more.
Most of the respondents identified as heterosexualand female. Half of the sample comprised of Brahmin-Chhetri and about a quarter were Newar. Boththese groups “have been privileged in terms of access to state power, authority and benefits” – Newars
because they are “indigenous to the Kathmandu Valley”, the seat of power, and Brahmin-Chhetri because
they belong to the high-caste Hindu community historically in power in state structures.48
Participants in the focus groups were below 30
years of age. While they all worked and lived in Kathmandu, most of them had recently moved to the cityor still considered their primary domicile outside thevalley. Their education level was lower than the survey participants and/or key informants, with only a
few having undergraduate degrees. Employment andincome generation was a major issue for this group.
They accessed the internet on their mobile phones onlyor occasionally through a public computer in cyber cafes. Among gay men, the cost of accessing the internet
was an issue but they considered internet access a fundamental need and spent a significant amount every
month purchasing data for their phones.
48

Tamang, S. (2009). The politics of conflict and difference or thedifference of conflict in politics: the women’s movement in
Nepal. Feminist Review, 91(1) 61-80.

EROTICS South Asia exploratory researchoften vulnerable. Such vulnerable people are often exploited by other people.50

The established professionals
We use the term “established professionals” to describe individuals in leadership positions affiliatedwith mainstream women’s rights groups who canbe “considered collectively as an influential, indeed
primary, force in shaping the discourse and agendaaround women in Nepal.”49 While this group represented a small percentage in our sample, their voices
are prominent because they have direct access to bureaucracy, have consultative roles in policy making
and receive regular funding from donors. Most of
the respondents in this group were above 35 yearsof age, with an exception of one. Respondents in thisgroup belonged to Brahmin-Chhetri and Newar ethnicity, with an exception of one who belonged to theJanjati (indigenous) category.
For this group, the internet is an essential tool
for work, and used for organisational communications, donor relations management, report writing
and day-to-day record keeping. They are connectedon Facebook and other messaging apps which theyuse for personal reasons such as keeping in touchwith friends and family. If they are on Facebook
and connect with a colleague, it will be for unofficial reasons, such as sharing photos. Social media isalso used to organise events, but not to share official
communication about the organisation.
This group has a critical approach to the use of
the internet evaluating the usefulness and harm on
the internet. They frame the internet as a “force
for good” if used properly but also see it as a danger as women can be “lured” into violent andabusive situations. Examples of such danger include
reports of women being trafficked after being
contacted through social media, and women being in abusive relationships after meeting partners
online. Other potential dangers include the creation of “fake identities” and “abusive behaviour”
targeted at women. The reasons for believing thatwomen were targeted differed, with some pointing to women’s inability to properly exercise theiragency and others noting the lack of “awareness”
and “education”:•

49

Illiteracy and lack of awareness are reasons for
not using something properly. People without[the] right information or who are illiterate are
We use Pudasaini’s term “mainstream women’s rights groups”
referring to those who can be “considered collectively as an
influential, indeed primary, force in shaping the discourse
and agenda around women in Nepal.” Cited in Sharma, M.,& Tamang, S. (Eds.) (2016).The Difficult Transition: The Nepal
Papers. New Delhi: Zubaan Books.

58 Nepal•The experience online depends on how we use
it. We could watch porn or talk with strangers
and be involved in negative things.51•

There is this notion that only bad girls use Facebook or stay online late at night.52

Regulation of the internet is seen as a key strategy
to prevent online abuse. They use the term “cybercrime law” frequently to refer to a clause in the ETA
that criminalises certain online activities. They arealso more likely to approach law enforcement for
redress when online violence has occurred, although
without an expectation of a solution owing to a lackof trust in law enforcement agencies to deal withgender-based violence effectively.
With the possibility for tracking online behaviourand surveillance, this group is not overtly concerned
about privacy. Only two participants noted that theirorganisation had a policy for data security and confidentiality. With a history of surveillance of NGOs
and human rights activists in Nepal,53 this is rather
disconcerting and could be explained by a low expectation of privacy in society in general or in the
belief that they have nothing to hide.
Young explorers
A category of respondents is the younger group
who we call “young explorers” for experimenting
with technology as well as testing the boundaries ofexisting norms on sexuality. Born in the 80s and 90s,
this group is comfortable with technology but may
not be categorised as digital natives54 as the adoption of the internet in Nepal only began in mid-90s.55
There was a marked class and caste difference
between two groups in the younger group. Youngprofessionals with college degrees, some of themfrom abroad, belong to Brahmin-Chhetri and Newar caste, speak English fluently and experiment

50

Interview with executive director of an organisation, October
2016.

51

Interview with senior manager of an organisation, September
2016.

52

Interview with executive director of an organisation, July 2016.

53

Bohara, R. (2016, 26 November). Surveillance State. Nepali
Times.

54

Digital native is a term used to describe the demographic thatwas born in and grew up with digital technology.

55

Darbha, S., & Rao N. S. (2016). The Concept of Digital Natives &Digital Immigrants in Context of India. International Journal ofManagerial Studies and Research 4 (4),1-5.

EROTICS South Asia exploratory researchconfidently with new technology. This group is also
more likely to create content to counter patriarchal
narratives both online and offline.
The second group belongs to the working class,a majority of whom were Janajati, and moved tothe city for education or jobs. They speak little orno English, have high school or lower education
and are without full-time stable jobs. They follow
trends and popularity while choosing a platform on
the internet and are most active on social media andmessaging apps.
Both groups use the internet for entertainmentand staying in touch with friends and family. The
former use it to be in touch with friends and family inwestern countries, while the latter use it to remain intouch with friends and family who have migrated to
the Gulf or South East Asia for jobs.
Both groups look for community online forlike-minded people and develop friendships thatare sometimes exclusively online. They have a goodunderstanding of dangers on the internet, and are
vigilant of threats and harassment online. They
quickly develop their own mechanisms for safety
online, whether through control of certain behaviour online (not posting on certain platforms) or bysupporting each other within their own social circles
and choosing only safe spaces to participate in. Their
perception of the internet is different from that of
the “established professionals” in that they speak of
their own online experiences, rather than the experiences of others.
They are sceptical of content regulation as amethod for safety and demonstrate a nuanced understanding of technology and control mechanisms.
They, however, did see a role of law enforcement incertain circumstances such as violence online. When it
comes to sexual rights and sexuality, very few womenin this group publicly engage in issues such as creating content for fear of being seen as “not serious”
or “inviting harassment”. An activist spoke of her inability to seek help while facing online harassment:
I don’t even like talking about the harassment I
faced online because I would not want my parents to know that their daughter was harassed.56
They explore intimacy in private spaces such as chatting and dating apps. However, they are also aware ofbeing chastised for talking to strangers or membersof the opposite sex, and were therefore less likely toreport it to law enforcement or seek support fromtheir social circle while facing a negative experience
56

Interview with an activist, September 2016.

59 Nepalsuch as being blackmailed or harassed. A focus group
participant said:
My sister was talking to this guy on Facebook
chat. After a while she wanted to stop but hedidn’t. He started sending her messages saying hewould photoshop her pictures on nude photos. It
was a year before she told the family because she
couldn’t take it anymore.57
This group is more likely to raise privacy as a concern
and is aware that family and friends monitor their online activities. They have little expectation of privacy
and see monitoring as a part of being online. A focus
group participant discussed how family and friends
track her posts:
My brother looks at my Facebook photos and will
ask me not to post a certain photo of myself as
it could invite unwanted attention. Some of myfriends also do the same.58
They are used to the physical invasion of privacy
that stems from traditional practices of surveillanceof women, as well as spatial considerations stemming from lack of resources. It was not uncommon
for young women in the second group to share theirphones with other members of the family. This group
was not aware of surveillance and data gathering by
platforms themselves.
Fakebookers
The subset of the second group with a significantly
different approach to technology and internet are
gay men. The men interviewed for this research interact online with men who identify as gay, as wellas those who seek sex with men who do not identify
as gay. This research presents findings from the perspective of self-identified gay men.
Apart from social networking and content consumption, gay men also participate in online dating
and chatting extensively. Facebook and dating apps
such as Grindr and Planet Romeo are popular. For
intimate connections, most of them create anduse profiles with false information, a method also
known as creating “fake profiles”. The prevalenceof fake profiles in interactions among men seeking
sex with men is so high that Facebook is known inthis group “Fakebook”.
The first point of entry for online intimacy is
Facebook, and then they move on to dating apps.

57

Focus group discussion, October 2016.

58

Focus group discussion, October 2016.

EROTICS South Asia exploratory research

The choice of Facebook as a first point of entry
indicates that they want to use this platform to establish comfort in their sexual identity through a
fluid communication approach before moving on toplatforms that are exclusively used for hook ups andsexual encounters.
These users have full or part-time jobs andspend a large chunk of their income on data packages. One participant used up to NPR 6,000 (USD60) per month.59 They speak little or no English. The
respondents in our sample belonged to heterogenous caste groups but they identified themselves
as lower middle class and a majority had migrated
to the capital. They referred to the difference between “paisawala” (rich) men who seek sexual
relationships with other men and themselves saying“paisawala” men were tied by their family prestige
and values to explore their sexuality freely.60 In thisway, interactions on the internet are inherently entrenched in dialogues and modes of relationshiparound class as well.
They view a lack of social acceptance of theirsexuality as the biggest challenge and the driverfor creating fake profiles. Even though they adopt
this strategy, they remain at risk of being exposedby people they interact with on these platforms.
They have heard of reports of others’ sexual orientation or HIV status being outed without theirconsent on online public groups, and pictures being stolen for blackmailing. These stories do notnecessarily cause them to modify their behaviour
online as it is seen as a crucial, if not only, platform
for intimacy and support, and calculated the risk
as being worth any negative outcomes. They areaware of physical monitoring and surveillance on
their devices and use methods such as password
protection and disguising of apps on their mobile
phones to prevent intrusion.

The perception of the internet
For all respondents, the internet is an integral partof their life, and represents a reality that they could
no longer do without. While the quality of the internet connection affected their use, most wereconnected online for 40 hours a week or more. Focus
group participants, and key informant interviewees
spoke of how their lives have been altered becauseof the internet:

59

According to the UN, per capita income in Nepal as of 2014 was
USD 692.

60

Focus group discussion, September 2016.

60 Nepal•If there is no internet for an hour, our work
comes to a standstill.61•

If there was no internet, it would have been reallyhard to get in touch with other gay guys. I suppose
we would have to go back to the analog era. Oneof our dai62 said that before the internet you needed extra special gaydar63 to identify other gay guys
in a crowd. We would all have to go to physicalcruising sites like [the] public toilet in Ratna Park.64•

Social media has made communication easier forthe disabled. Before they could not read newspapers. Now they hear it through assisted phones.
FM radio has also played a big role in this. They
can hear it on their mobile phones. It is private.
No one knows what they are listening to.65•

Everyone uses Facebook even if they are illiterate. They are able to create an account, upload
pictures and even read online articles and news.66

These responses demonstrate varying levels of dependency and ways in which the internet has been apart of their life. There are two main ways in which
the internet is used: firstly for personal activities
such as consumption of content, news and entertainment, and secondly for social activities, connectingwith colleagues, friends and families and for seeking
intimacy or sexual encounters.67
Increased interpersonal connectivity is a major
effect of the increase in access to mobile phones andthe internet. This connectivity not only reinforces
existing social ties, but also expands social networks
through shared interests. In a professional setting,the internet reinforces connectivity and communication with donors, colleagues, allies and beneficiaries.
Voice over internet protocol (VoIP) calling platforms,
such as Skype, are important tools for staying intouch with donors in other countries. Social media isused to update followers of organisational activities.
Organisational emails work both as a record and reinforce personal communication.
61

Interview with executive director of an organisation, July 2016.

62

Dai means older brother in Nepali and is used colloquially toaddress someone who is older.

63

Gaydar is a slang used to refer to a person’s ability to accurately
assess someone’s sexual orientation.

64

Focus group discussion, October 2016.

65

Interview with an expert, October 2016.

66

Interview with an executive director of an organisation, July
2016.

67

Zhao, S. (2006). Do Internet Users Have More Social Ties? A
Call for Differentiated Analyses of Internet Use. Journal ofComputer-Mediated Communication 11, 844–862.

EROTICS South Asia exploratory researchFocus group discussions showed that mobile
phones and the internet are important tools forreinstating ties within existing social networks thathave been disrupted through migration or othersocial reasons such as marriage. Communication
between those who have migrated and those who
remain behind becomes an important channel of
information. As Nepal is a remittance economy, connecting with friends and family who have migrated
for work abroad is an important reason for using
the internet. This migrant group in turn supports
the increase in access by returning home with electronic devices. The communication and connectivity
facilitate mobility of people allowing “creation andassertion of new forms of individualism that challenge traditional norms and values.”68
The mobility, interconnectivity and financial
independence allow them to challenge traditional
norms, and in regards to sexual rights, enable themto delay marriage or explore sexual desires andpleasures.69 A young gay man explained how he hadfound a supportive network online that assisted in
his move to the capital:
I grew up outside Kathmandu. I had a feminine
personality and I felt like a girl. I used to hatemyself. I didn’t know why I felt different. I met afriend on Facebook who was like me and I cameto Kathmandu. They helped me by giving me aplace to stay and later I found this LGBT support
organisation.70
When establishing contact outside their existingsocial network, the authenticity of the interaction
varies according to user group and situations. The“established professionals” are more likely to view
the authenticity of interaction online with caution
and spoke about the need for personal restraint. The“explorers” are more likely to assess authenticity ona case-by-case basis and establish trust over time.
This may be a reflection of the fact that “establishedprofessionals” started using the internet later in life
and are likely to view the online world as less real oras a performance, while the “explorers” are more
comfortable with technology and view interactions
online as an extension of the offline world. There
was an exception among some “young explorers”,

68

Coyle, D., & Boyce, P. (2015, February). Same-sex sexualities,
gender variance, economy and livelihood in Nepal: Exclusions,subjectivity and development. Brighton: Institute ofDevelopment Studies.

69

Ibid.

70

Focus group discussion, September 2016.

61 Nepalsome of whom mentioned a fatigue of online social
networking sites and opted to log out of such platforms for a number of reasons including the feelingthat the space made them perform certain roles andwas too narcissistic.
The perception of the internet shaped the way
in which individuals sought to form online identities, create communities and engage in interactions
by shaping the frequency, quality and instances of
online engagement. Most respondents agree thatthe internet has given them more freedom and hashelped them find like-minded people. However,
women in particular, have polarised views when
asked if the internet was a safe space to express
themselves. This division may be a result of the perception of some respondents who view the internet
as a potential gender-neutral space and others who
have faced the negative reality of their experiences.
The majority agreed that women were more likely
to face harassment online. This perception pushed
women in particular to censor themselves online
and limit their participation but they viewed this asa conscious strategy made for peace of mind, notbecause of an act of silencing.

Networking and activism
In this section we look at the ways in which gender equality and sexual rights advocates and allies
are using the internet specifically and technology
in general to counter patriarchal narratives, to organise for change, to discuss and share ideas, andpursue acts of sexual dissidence.
Feminist activism
During the Occupy movements that took placeworldwide, feminist activists in Nepal led a campaign called Occupy Baluwatar, staging a protest in
front of the prime minister’s residence in Baluwatar,
Kathmandu.71 The campaign was launched in reaction to a report of a returnee migrant worker being
robbed and raped at Kathmandu’s international
airport. The case became representative of violenceagainst women at the hand of the state and wasused an example in a lobby for action against impunity. The Occupy Baluwatar campaign has beencalled the first “social media campaign” and utiliseda host of platforms on the internet.72
Other campaigns have followed suit. Citizenship
In Mother’s Name (#citizenshipinmothersname) was
71

Koyu, P., & Pokharel, A. (2014, December). Occupy Baluwatar: A
reflection. Studies in Nepali History and Society, 19(2), 347–372.

72

Ibid.

EROTICS South Asia exploratory researchorganised by a loose network of activists in the lead
up to the promulgation of the new constitution in
Nepal, urging the Constituent Assembly to ensurethat women are able to pass citizenship on to theirchildren. Online activism took place alongside a series of events and protests organised in Kathmandu.
The Constitution did not address this demand, andthe hashtag gets reactivated when events and programmes are organised.
Younger activists have also found new andcreative ways of reclaiming both online and offline
spaces. Chaukath is a feminist organisation thatorganises events in public spaces as a way of reclaiming these spaces. Their email list is also a safe space
where young feminists participate in discussions andorganise campaigns.73 Maker Keti inspires women toparticipate in the maker movement and particularly
seeks to demystify technology and challenge thegendered perspective of technology.74 Girls in Technology and Women in Stem support young women
to code and create new technology. Boju and Bajai
is a podcast that deals with a range of issues in theeveryday lives of women such as sexual harassment
at work and the portrayal of women in media.75
Mahilakhabar.com is a news portal that covers thewomen’s rights beat exclusively.76
Networking is a big part of activism and technology has helped a diverse range of women tofind like-minded people and maintain connections
with them. An organisation that supports widowed
women in rural areas found that when the social
mobilisers were given a phone, women reached out
to them more and had a connection even if they had
never met. A senior manager of a women’s rights
organisation spoke of the way in which mobile technology had impacted their work and findings:

their problems. As a result of this intervention
we found out about the violence they face within their families.77
A smaller group also created content through blogging, writing online as well as using the internet asa tool of campaign and activism. There was some
introspection about the utility of social media inparticular in campaign and activism. There is also a
division made by use of language and the connotation of privilege it represents.
Facebook is mainly used for events, and organising events. Using social media for an intellectual
discussion – there is doubt how much intellectualthat debate is going to be. But any debate is better than no debate. On Twitter, it is upper level
intelligentsia who have fixed views.78
Urban younger groups use mainly English in their interactions on social media, know each other outsideof social media and meet regularly for talks, protests
and campaigns.79 They are privileged in the Nepali
context where they can exercise their right to mobility and express their opinion openly, although they
are limited in number.
When it comes to sex and sexuality, however,activism in Nepal has been limited. Kee notes thatsuch limitations could arise from a range of issues
including “fragmented civil society, gender bias andassumption of heteronormativity, technical language
in both sexuality and the internet that required levelof familiarity and politicisation.”80 Our respondents
pointed to heteronormative assumption and genderbias when asked if they wrote about, discussed or
created content relating to female sex and sexuality.
An activist said:
I would never feel comfortable discussing sexuality online. Because I have my parents, mygrandmother and my family on Facebook so
I would not discuss sexuality on social media. I
don’t even like talking about the harassment
online because I would not want my parents toknow that their daughter was harassed. I’m pretty sure that a lot of powerful men would feel
comfortable around me. I have been followed byministers and famous social figures online. The
fact that I have been followed is probably because I exhibit the figure of a role model. I have

We initiated a campaign in 2009 in which we distributed cell phones to our social mobilisers. We
distributed 7 to 80 phones in the villages. Before,
when we had to call single women in villages we
had to call her relatives and family members toreach her, which could restrict her from speaking
truth about her condition. We acknowledged
this situation and distributed phones to them.
It was easier for social mobilisers to reach those
women in the villages and they became familiar
with each other and started opening up about73

https://chaukathnetwork.wordpress.com

77

Interview with acting director of an organisation, August 2016.

74

https://www.facebook.com/MakerKT

78

Interview with an expert, 5 October 2016.

75

https://soundcloud.com/bojubajai

79

Pudasaini, S. (2016). Op. cit.

76

mahilakhabar.com

80

Kee, J. (2011). Op. cit.

62 Nepal

EROTICS South Asia exploratory researcheven had people telling me that they wish they
had a daughter like me.81
Although women use online tools and participate
in online spaces, they weigh risks of using this tools
in discussions around sexuality. Women have theburden of proving they are not sexually immoral
and a marker of a woman with “ijjat” is not talking
about sexuality.
LGBTIQ networking
The Constitution of Nepal enshrines protection forsexual minorities, the first country to do so in Asia.
Article 18 of the constitution states that gender andsexual minorities will not be discriminated againstby the state and the judiciary in the application oflaws. Article 42 lists gender and sexual minorities
among the groups that have a right to participate instate mechanisms and public services to promote inclusion. Article 12 states that citizens will be allowed
to choose their preferred gender identity (male, female or other) on their citizenship document.
These gains in the LGBTIQ rights movement weremade because of activism “ignited” by one of the key
figures in the movement, Sunil Babu Pant, who established the Blue Diamond Society (BDS) in 2003.82 Pant
went on to become a Constituent Assembly memberthat ensured rights of LGBTIQ people in the constitution. Over 56 organisations and collectives havesprung up since the BDS was set up.83
The movement gained momentum at the sametime internet access started becoming accessible to
the wider population allowing individuals to explore their identities and desires. “The gay scene
exploded with the internet,”84 writes Seira Tamang,as it allowed people to explore their sexuality, express themselves, socialise and network in privacy. A
gay man in his late twenties spoke about his experience on the internet:
I started exploring my sexuality through the internet from the age of 15. Back then, Nepalnews chatroom was very popular among gay men. Gay men
like me would enter the chat room with conspicuous
nicknames like Boys2men, Man4Man, King4Prince,

etc. This allowed gay men to message each other inprivate. I met about 9 to 10 guys through this chatroom and also had my first genuine sexual experience with a man.85
Men seeking sex with men, whether identifying
as gay or not, were networking on the internet andfinding each other before “social networks” became
popular in Nepal. Chat rooms in websites like Nepalnews.com and Sajha.com were popular as well asYahoo and MSN. The trend for socialisation online
has changed with the popularity of the medium.
Chat rooms gave way to Facebook and online dating
apps such as Manjam, Planet Romeo and Gay Romeo
towards the end of last decade. Trends in dating
apps have also changed with Grindr and Scruff gaining popularity in the recent years.
LGBTIQ people have also found support and help
through networks cultivated online. Facebook pages
like “Gay Nepal” promise to provide support to individuals “struggling with their sexual identity”.86 “Gay
Nepal” provides uplifting stories on queer communities around the world. “Gay Confessions Nepal”87 isa Facebook page where users post anonymous stories and thoughts. Localised Facebook communities
such as “Gay & Bi from Pokhara Nepal”88 and “Gayfrom Morang, Nepal” provide spaces to seek intimacy in their local areas. On these pages news such as
Ricky Martin’s engagement and a YouTube video of ayoung man coming out have gone “viral”:
Queer groups are doing advocacy anonymously.
When Ricky Martin came out as gay, it was a hugething but no one dared to share it in their real Facebook accounts but they shared it in fake groups.
About 7 to 8 months earlier, there was a huge sensation about a Nepali guy who came out on YouTube but
nobody shared it. They shared it their fake accounts.89
For the LGBTIQ population, the internet is an
intricate part of their lives and a medium that allows them to exercise their identity and express
themselves. This expression although done in private, for individual purpose, plays a role in public
activism of the queer agenda by increasing the visibility of the community.
For individuals seeking support or looking to explore their sexuality, these pages provide a point ofentry into the queer world on Facebook. Our gay
male respondents said that relationships developed

81

Interview with an activist, August 2016.

82

Knight, K. (2014, 1 March). The Spark: How Sunil Babu Pant
ignited a queer movement in Nepal. The Caravan.
www.caravanmagazine.in/reportage/spark

85

Interview with a researcher, November 2016.

83

UNDP & USAID. (2014). Being LBGT in Asia: Nepal
Country Report. https://www.usaid.gov/sites/default/files/
documents/1861/Being_LGBT_in_Asia_Nepal_Country_
Report.pdf

86https://www.facebook.com/search/groups/?q=gay%20nepal

87

https://www.facebook.com/gayconfessionnepal

88

https://www.facebook.com/groups/1452773761630163/?ref=br_rs

Tamang, S. (2003). Op. Cit.

89

Interview with a researcher and activist, November 2016.

84

63 Nepal

EROTICS South Asia exploratory researchonline were a crucial part of their support systems,
and also went from online to real-life friendships.
LGBTIQ people are finding intimacy, supportand exploring their individual sexuality on the internet, while activism and networking in an organisedmanner is most visible offline. Pride parades, beauty
pageants for transwomen are events that gain coverage in mainstream media. Our respondents said
that only a certain group of, often transgender, LGBTIQ people are publicly visible. Even though the
LGBTIQ movement has legally secured recognitionin the Constitution, the difference in visibility offlineand online and use of anonymity to find each otherpoints to a lack of acceptance in the society and afear among the group to openly come out.

Intimacy and agency
This section will examine the intersection of body politics and the internet and spaces for furthering sexual
rights agenda through the internet. We examine theways in which societal views on sexuality affect discussions both offline and online. We assert that such
perceptions feed directly into regulations and examine how advocates react to challenges to this space.

Sexual expression and the internet
The presentation of women and bodies on theinternet explicitly started through the websites Cybersansar and CyberNepal that were targeted at a
specific audience to provide a form of visual pleasure
towards women’s bodies. The websites, launched in
1997, gave aspiring models the opportunity to seek
modelling contracts. The websites used images ofwomen to increase income through GoogleAds, andthis trend spread to district-specific websites thatsuch as DharanGirls and PokharaGirls.
There was no specific response to such representation from the established women’s rights
movement or sexual rights advocates but the uneasy
relationship between patriarchy, women’s freedom
and their bodies was laid stark when an actress committed suicide when her nude photo was publishedin a newspaper in 2002. Mishra wrote that the incident “represents the moral confusion of many up
and coming urban Nepali women – their desire for
freedom but unwillingness to stand up and fight for
their rights, their enthusiasm to participate in consumerist culture but lack of knowledge and courage
to redefine their body and sexuality.”90
90

Mishra, P. (2002, 12 December). Patriarchy, female freedom
Shrisha Karki. Nepali Times. www.nepalitimes.com/news.
php?id=4364 - .WDZsj4Wp3V0

64 Nepal

The uneasy relationship between establishedwomen’s rights advocates and women’s sexuality
can in part be explained by the “dominant patriarchal culture” espoused by the representatives ofthis group who themselves belong to the rulingclass. This is exemplified in the way in which the
SRHR agenda has been pushed forward as a matter of reproductive health for married women.91
The reluctance to mainstream sexual health rightsof unmarried or widowed women, freedom to pursue intimacy outside marriage, or right to choose
sex work as labour rights can be viewed through thestandards of acceptability that has been codified into
laws and policies by the ruling class. The women’s
rights movement, led by middle-class urban women,
has put protection at the centre of its agenda while
simultaneously representing the heteronormativevalues of the urban middle-class.92 On the one hand,
it seeks to protect women who are considered vulnerable and in fact, they might be seen as unable
to exercise any agency because of their vulnerability. On the other hand, it seeks to moralise actionsof women and their exercise of agency through thelens of “acceptable femininity”.93•

The “established professionals” in our research
spoke openly of women’s rights and bodily autonomy, but at the same time set standards for
women who they see as capable of exercising
their rights. Lack of education and awarenesswas used as a measure of how well a woman
could exercise her rights and agency. Individuals in senior leadership positions in establishedwomen’s rights organisations frequently expressed these views:•

Rather than seeing it as the product of patriarchy, we should also examine how much freedom
we can exercise? Yes, we have our rights. If I
have a boyfriend and I live in together with him
it should not be a topic of concern for media or

91

In a reflection of worldwide trends, sexual rights programmes
in Nepal are implemented from a vantage point of reproductive
health vis-a-vis married women, family planning and genderviolence. By framing rights to reproductive health within abodily autonomy and wellness agenda, other critical issues
including a discussion of sexuality and sexual freedom, gender
expression, self esteem and relationships are missing from thisconversation. Policies and programmes related to sexual andreproductive health and rights fail to account for the needsof people from diverse communities like: sexual and genderminorities, women living with HIV and AIDS, women withdisabilities, women who use drugs, unmarried/ single women,adolescent boys and girls to name a few.

92

Tamang, S. (2009). Op. cit.

93

Liechty, M. (2010). Op. cit.

EROTICS South Asia exploratory researchsociety. But, what would it be if I date five men
at one time? Despite being open to the issueof sexual rights, I don’t think having five or six
sexual partners is a good thing. I think it’s likeharassing her body.94••

Based on the social values, sexual or reproductive rights are ensured for only married womensuch as marital rape, sexual assault, abortion law.
There exactly isn’t any specific law for unwed
mothers. It is an area that needs to be worked
on. We, as women’s rights activist, should also
think about our society. We definitely needrights but it is also important to know the population who can use their rights and among them
how many of them will properly use their rights
or misuse them like Facebook.95
If someone is earning a living through advertisements or by being portrayed as sex objects inmedia with their own will then it’s their right.
There are Marxists feminists who view thatwomen are portrayed as sex objects in media.
They even created complications to conduct Miss
Nepal for two/three years. But girls who participate on those pageants themselves are happy
and participate on their own will. It’s very important that they themselves should be self-aware
about how they are being used and harassed.96

These comments show various standards set for
women while exploring their sexuality. It is also important to note that the examples used to define
these standards refer to physical spaces rather than
online. The respondents equate the internet withphysical spaces and the standard set on women seek
to control their access and approach to using thispublic space.
In the last few years, a diverse group of women
have started challenging traditional notions linking
sexuality to marriage, and are engaged in strategies
to express thoughts and ideas around their bodies.
Madalenas theatre group stages Vagina Monologues, even while receiving abuse on social media.
Young bloggers write about their bodies and sexualities. Tinder Games is a column in a weekly magazine
Movers and Shakers written by a young woman experimenting on Tinder and this in itself was done asa backlash against the stigma around sexuality.

Much of the feminist conversation in Nepal revolves around equal rights but there is almost
no talk about women’s sexuality, particularity
in regard to a woman’s pleasure. Thus far, “progressive sexuality” ‘is confined to matters of
reproductive health, and women and sex is still
mostly centred around giving into the “needs”
of a man – wives must fulfill their “duties” in the
bedroom. Men are known to be sexual beings,
but any woman associated with the same areshamed, reprimanded, and heavily looked down
upon. These double standard – leniency for themen and severe repercussions for women – havepersisted for far, far, far, too long.97
Except for these pockets of dissent, the frameworkof sexuality is limited to reproduction and bodily
wellbeing rather than a comprehensive approachthat includes sexual freedom, intimacy and accessto sexual information, among other issues. Women’s
sexuality, in particular, is still a stigma even in private online spaces and moralising of this space ishigh. The internet is blamed for trafficking, childmarriage,98 and overwhelmingly people said it needed to be regulated. Even among advocates working
on these issues they spoke about hesitations in
openly promoting sexual expression and sexuality:•

An organisation that provides legal support totransgender sex workers said they couldn’t openly
advocate for rights of sex workers for fear of being
as seen as encouraging people to be sex workers.99•

An organisation that provides support to sexual minorities says they could not advocate for
freedom of sexual expression or openly discuss
issues of sexuality for fear of not being accepted by the society. “In order to be accepted weneed to follow the values of the society,” a representative said.100•

An individual online activist said she would
not include sexual rights and sexuality in her
online work because she wouldn’t want her
parents to see her discuss such matters openly
and so that her political views would be accepted by her audience.101

97

Savitri, S. (2016, 22 July). A Girl on Girl Thing. Movers andShakers Magazine.

98

Human Rights Watch. (2016). Our Time to Sing and Play: Child
Marriage in Nepal. New York: Human Rights Watch.
Interview with the deputy director of an organisation,
September 2016.

94

Interview with the director of an organisation, September 2016.

95

Interview with the senior manager of an organisation, October
2016.

99

96

Interview with the executive direction of an organisation,
September 2016.

100 Interview with the director of an organisation, September 2016.

65 Nepal

101 Interview with an activist, September 2016.

EROTICS South Asia exploratory research

These statements are strategies adopted for organisational goals balanced with what they canaccomplish with an idealist agenda. At the sametime, it is telling that the organisations and activists working on sexual rights and gender equality
point to heteronormative standards of wider society
as limitations to their work. After all, they are bestplaced to challenge the norms that prevent themfrom achieving their ideals.
The repercussions of the heteronormative values are harder on individuals who face further
marginalisation because of their sexual orientation, marital status and disabilities. In the same
way widows face barriers while “accessing care for
their sexual and reproductive health: fear of being suspected of having a sexual relationship” they
face similar barriers while accessing the internet.102“Single women (referring to widows) don’t want toopen accounts on Facebook because others thinkthat they will meet guys in Facebook if they open
an account. To avoid further stigma, they don’t
want to start using it.”103
Societal attitudes determine attitudes towards
sexuality and access to sexual health facilities in spiteof technological innovations. In 2012, the Supreme
Court issued a directive to the government to ensure
every hospital provides special birthing beds and sign
language facilities for speech impaired in order to increase accessibility to health services for women withdisabilities. This did not however improve services forthis group, which were rooted in discriminatory social
attitudes. “Disabled women who aspire to be mothers
were treated really badly by health professionals andtheir family. Their ability to be a mother was questioned. It wasn’t their physical ability to be a mother,
their nurturing capabilities were questioned.”104

Online intimacy
The internet has changed the exploration of sexuality, practice of courtship and even marriage in thesame way that literacy changed courtship practices
in the past.105 The ease of use and increase in access,the internet has facilitated romantic connections
complimenting, and sometimes overriding, the need
102 Haviland, M. J., et al. (2014). Barriers to sexual and reproductive
health care among widows in Nepal. International Journal of
Gynecology and Obstetrics, 125(2). https://www.ncbi.nlm.nih.
gov/pubmed/24559862
103 Interview with the acting director of an organisation, September
2016.

for physical meetings and courtships. This presents
a new worry for parents concerned with the novelty and unknown world of technology, it has similar“ramifications on the conception of agency” as literacy did and needs to be examined from perspectiveof agency and personhood.106
Among our sample, we recognised trends
among young heterosexual women and gay men
that help us glean some aspects of intimacy using
the internet. Quantitative surveys showed that majority of women were not dating online, however,focus group discussion and key informant interviews
show that the internet plays a role in the exploration of intimacy and practice of courtship. For future
research, we recommend an in-person approach inorder to explore this fully.

Gay menGay men, in particular, almost exclusively findrelationships, casual encounters and hook-up opportunities through the internet. For someone
new to the online gay community, the interactions
start with a search for a queer group. You then request to be friends with the members of the group.
Sometimes, you may also cruise accounts and add
someone that you think may be gay.
I always knew I was different than normal malefriends. I initially started watching porn in cybercafés. I got curious and searched in Google
for gay porn and more curiosity led me to get
in touch with foreign guys. I got connected into
Yahoo Messenger where they referred me touse Facebook. I got into this circle from internet
only. I have created accounts in other several
apps, which are used in other parts of world too
by searching in Google.107
Unlike on dating platforms, such as Planet Romeo
where acquaintances are matched by the platform
based on the profile information, users themselves
vet and build trust through prolonged conversations
to match their interests.
When I had a fake account, I used to talk to 14 or
15 guys a day. The conversation starts normallywith a hello and it develops with other normal
talks about study, work, etc. Not all conversation
concludes to a solid friendship. Only 1 out of 50
or 60 conversation stands out as a friend. During
the three years I spend on “Fakebook” I made104 Interview with an expert, October 2016.

106 Ibid.

105 Ahearn, L. M. (2004). Op. cit.

107 Focus group discussion, September 2016.

66 Nepal

EROTICS South Asia exploratory research

two or three people whom I am a still friends
with. That is out of talking to over 400 guys. I
probably met 20 guys in real life, some for hookups and others just for a chat.108
After gaining experience in online communication
through Facebook, they may move to the dating apps
targeted to men who are seeking to meet other men
such as Grindr or Planet Romeo. A number of factors
propel this move including comfort in their sexuality,
willingness and readiness to move directly to dating
or sex, and confidence in using technology and familiarity with the language used in online dating.
The popular apps now are mainly Planet Romeo,
Grinder, We Chat, Viber, and WhatsApp. Most of
my friends use Imo where you can live stream andsee each other’s face. Some even use WhatsApp
contacting them by using the number obtained
from fake accounts. I prefer Planet Romeo andGrindr. However, as a beginner everyone starts
getting in touch from Facebook, and that’s how
they learn about other apps available.109
A couple of respondents reported having found longterm partners through these platforms. For most
respondents, seeking successful romantic relationships
was not part of the goal of online dating. The majority have not come out to their family and some were
married to the opposite sex upon their family’s wishes.
The fluidity of the sexual relationships does notmean a contradiction for the respondents, and theysee online dating as a platform to have fun, seek
sexual encounters and pleasures.

Heterosexual women
Survey respondents showed that a very small percentage of women were dating online. However,focus group and key informant respondents said
that they were exploring intimacy that may notalways end in romantic encounter whether online
or offline. Among the respondents, only one who
used Tinder talked of an online conversation resulting into an offline meeting. Others said they hadn’t
pursued it themselves but had heard of others who
had met through Facebook or random phone calls
and had married as a result.110
Being “sexy” or posting “ramro photo” (nice photos) is also an important aspect of young women’s

online identity. The reason for this is to get more
“likes” on the photo. “Sometimes you have to phonea friend and ask them to like your photo or friends
get mad when you don’t like their photo,” said a
respondent.111 While the respondents said they themselves didn’t do this, they said their friends put sexyphotos to attract others, as they explore new online
relationships as they receive and accept “friend requests” from unknown people.
Women said they didn’t go looking for theseconversations but if someone struck up a conversation they were open to chatting with them. These
that said they pursued these chats also said they
stopped talking to them after it turned sour. One
respondent said someone had requested a nudephoto of her, and she tried to reason with him butwhen he wouldn’t let go she blocked him. Another
respondent said someone she has been conversing
with through Facebook Messenger wanted to meether, and she decided she didn’t want to take it beyond online chats.
Young women were open to the idea of meetingsomeone online and that meeting turning into a committed or real relationship offline. But this happens if
they get more information about the person online.
Based on news reports about online relationshipsthat turned out to be bad, friends and family monitor their profiles online and ask young women to
remove certain images that may be seen as violating
propriety. The online spaces where women participate and upload content are policed in similar ways
as the appearance of women in physical spaces arecontrolled. In a recent report, Human Rights Watch
asked interviewees for their views on the causesof the increased number of love marriages among
young adults. They blamed modern technology –including mobile phones and Facebook – saying it
encouraged romantic relationships between young
people that would not have happened previously.112
The different reactions to the pursuit of intimacy between women and gay men also shows anacceptance for exploration and discussion for malesexuality, while women’s sexuality is viewed even
within the movement cautiously as a “danger” tothemselves and the society at large. While a searchon Facebook resulted in dozens of groups for gay
men in Nepal or of Nepali origin, there was only one
result for women seeking women.113 While our research did not capture this, it is possible that women

108 Interview with a researcher and activist, November 2016.
109 Focus group discussion, September 2016.

111 Focus group discussion, September 2016.

110 A person randomly dials a number and a relationship is forged
between the two callers.

112 Human Rights Watch. (2016). Op. cit.

67 Nepal

113 Facebook search conducted in October 2016.

EROTICS South Asia exploratory researchare not using the internet to seek intimacy but do itin person within the realm on face-to-face relationships instead of venues that provide anonymity, andrisks of unwanted exposure.
Tamang has written about the gendering of sex
and the domination of patriarchy in Nepal arguing,“Women are regulated through the tool of sexual
reputation, “ijjat” with the negative labelling of anactive, desiring female sexuality and positive labelling of active male sexuality”.114 Gay men have theability to go out, meet in public spaces like bars, explore their sexuality and seek intimacy even if they
are not out to their parents. In the same way they
are able to explore their sexuality on the internet
without the same level of surveillance as women. As
Tamang notes “the privileging of men over women,
and the privileging of the masculine over the feminine, is a dominant feature, if not cornerstone, ofhegemonic patriarchy in Nepal in homoerotic as wellas heterosexual relations.”115
Online harm and safe spaces
In this section we examine the risks and negative
experiences faced by our respondents while using
online spaces. A note on methodology is relevant
here. While designing the questionnaire for thequantitative survey, we used the framework of online violence and categories of devised by APC.116
Based on our previous experience and desk reviews,
we distilled a short list of types of online violence wefelt was relevant in Nepal’s context. In the design ofthe questionnaire, however, we did not frame theseterms as “online violence” or ask respondents if they
had experienced “online violence”. Rather, we asked
if they had witnessed or experienced any of the listed
incidents. By asking them to report a particular kindof incident rather than broad category termed “violence” we aimed to prevent any leading answers aswell as varying interpretation of online violence.
The options available for survey participants
were: infringement of privacy, surveillance andmonitoring, harassment, damage to reputation or
credibility, direct threats of violence and targeted
attacks against a community.
Violence on the internet
While technology may seem like a neutral space madeup of machine parts, wires and software, Cockburn
114 Tamang, S. (2003). Op. cit.
115 Ibid.
116 Athar, R., & Women’s Legal and Human Rights Bureau Inc.
(2013). Op. cit.

68 Nepalcontests that it has been historically and socially constructed as a masculine sphere embodying patriarchal
values.117 This gendering happens through the celebration of men’s contribution to technology andsidelining women’s achievements, and through reinforcing gender stereotypes such as it was in the caseof the telephone operators. For an examination of the
public discourse that happens online, Enloe’s inquiry
into the “public” and “private” nature gendered relation is also relevant. Online spaces where public
discourse take place are often an extension of chiya
pasals (tea shops) where men’s dominance can be
obvious and unquestioned, as evidenced by a female
activist’s experience of trolling on the internet:
We started to realise it late that a lot of people
who were getting trolled online were all women. The majority of this country’s men hold thepolitical opinion that we do. But none of thosemen were trolled. We started to notice this threeor four months after we had started to debate.
We thought why it is only the women who are
the point of discussion and why is it always thewomen who are trolled?118
Among our survey sample, an overwhelming majority (88%) said they had witnessed an incident ofviolence against another person online. Gender, classand ethnicity underpin these experiences. A smaller
proportion of men said they had witnessed incidents
of online violence, while a majority of women, alltransgender and all Dalit respondents said they had
witnessed an incident of violence against someone
on the internet.
More than half (52%) said they had experienced at least one incident of online violence
themselves. All transgender respondents reported
having been subjected to violence online compared
to 50% of women and 40% of men. And 84% of
those identifying as gay, lesbian, bisexual or othernon-heterosexual orientation reported having been
subjected to online violence. More Dalit reported
experienced violence compared to Janjati and Brahmin reiterating social inequalities.
These findings indicate that the internet, andsocial media, where a majority of social interactions
happen, is a contested space for those who do not
represent dominant values.119 In Nepal’s current po117 Cited in Grint, K., & Gill, C. (Eds.). (1995). The Gender-Technology
Relation: Contemporary Theory and Research. London: Taylor
and Francis.
118 Interview with an activist, 9 September 2016.
119 Lawoti, M., & Hangen, S. (2013). Op. cit.

EROTICS South Asia exploratory researchlitical context characterised by a vigorous debate
around identity politics, online participation byindividuals from non-dominant groups can be challenging in two ways. There are persistent attacks
against women who are asserting their identities
and fighting for equality and women who represent
the “established” group, have hesitated to extend
solidarity, if not participating in subjugation themselves. On the other hand, individual women frommarginalised ethnic groups who may vocally oppose
identity politics are subjected to attacks from members of their own community.
The most common types of incidents reported
were harassment, infringement of privacy, anddamage to reputation and credibility. Harassment
is characterised by abusive comments and shamingof women for expressing views that are not normative. Infringement of privacy by sharing sexualised
content without consent, and manipulating private
data or threats to do so, was another tactic. Efforts to damage reputation by spreading rumoursor threats to damage reputation by manipulating
private data were cited as one of the top concerns
among our respondents.
I know a girl who was harassed on social media
with a photoshopped image of her having asexual relationship with a man. The image had
her face but someone else’s body. The person
who was harassing her through messages andposting pictures in her profile was someone she
knew before and wanted to take out his ire andfrustrations on her. In the other case, the girl was
harassed by an unknown guy with messages andtagging her in obscene images.120
Our respondents reported that there was a higher
risk of harassment, abuse, and risk of manipulationfrom people they knew or had some contact with
before, rather than from strangers. Several queer
respondents said that it is not uncommon to see
ex-partners venting about their partners in public
groups. Some have their sexual orientation or medical history outed publicly. Several women reported
receiving sexualised images and content without
consent from people they had spoken to before.
The physical, psychological and emotional impact of online violence is severe. Many respondents
reported to feeling mental effects such as depression and a feeling of shame and guilt. The effectultimately pushed women to censor themselves or
120 Interview with the executive director of an organisation, July
2016.

69 Nepal

limit their participation online. This also affects the
motivation of others to participate and contributeto conversations. An activist who had faced sustained attacks and harassment on the internet spokeof how it affected her life and choices as a result:
There was a campaign to attack and shame me.
I had to call my friends and ask them to reportpages, which were spreading malicious information about me. It was humiliating. I started losing
weight. I broke out in hives all over my body. I
was depressed for a while. That experience mademe take a step back on social media. Now I don’t
debate or engage. I only post pictures of sunsets
and flowers. It also made me rethink my career asa writer and change my career track.121
Our survey shows that there are not systemic targeted attacks against the SRHR community, suchas efforts to hack accounts and servers of organisations with the purpose of shutting them down.
That is not to say hacks have not happened. Occupy
Baluwatar and Mahilakhabar.com both reported
multiple efforts to hack their sites but were unable
to track down those responsible or assign motivations. Respondents noted that the nature of attacks
is targeted at individuals because they cross thelimit of prescribed behaviour for particular groupof women. Women’s bodies have been the sites ofarbitration of acceptability, as women who engage
in discourse of body politics are targeted, and theshaming of women also happens using their bodies.
There is a woman who is active on Twitter, whoruns a travel agency and is married. She writes
very openly about things related to sexuality. So a lot of people say nasty things to her
in the comments. And there is this guy who isbusinessman and also has more than 46,000
followers on Twitter. He posts nude picturesof others every now and then, but still no one
trolls him. His hashtag is #uthauyuwa (innuendo for a hard-on). This shows that if a boy
does this its normal and when a girl does it it’s
taken in a negative way. When talking about
the woman, we perceive that she has a husband, she has a family and because she comesfrom a decent family background, she should
not do these things. It’s a perception dominatedby patriarchy.122
121 Interview with an activist, September 2016.
122 Interview with a media researcher, October 2016.

EROTICS South Asia exploratory research

Strategies for safety
Even though respondents spoke at length aboutrisks online, they did not automatically label theinternet as a dangerous place. Instead they foundstrategies to be safe online such as blocking people, or rejecting friend requests after a brush withharassment. Our respondents said witnessing or experiencing violence did not lead them to completely
sign out from the internet, rather they evaluatedand selected platforms and communities they wanted to engage with carefully.
Mainly, we prefer using fake accounts for getting in touch in our community. We also use
privacy settings to limit exposure of our friend
list and activities. We also prefer apps lock in our
mobile phones to maintain security and to keep
our messages, galleries, apps safe from being
seen by others.123
One of the ways they are creating safe spaces online is nurturing a community of like-minded people
through creation of Facebook groups, group chatson Twitter and apps. A young feminist group, for example, collaborates online and develops a strategy
privately before engaging in public areas. Some had
decided to move conversations exclusively online inorder to maintain meaningful engagement with asmall group of like-minded people, after assessingthat public spaces were too polarised.
The challenge here then is how to counter normative narratives if the safe spaces are just inward
looking like an echo chamber. There have been someindividual efforts to push back. A young trans activist has started a page that exposes sexual harassers.124
When a vocal young woman was attacked, individuals
who opposed her views also came together to report
the page to Facebook that eventually removed it.
Respondents across the entire survey sample
referred to regulation and law enforcement as a
strategy to remain safe and combat online violence.
Although it was a minority, individuals have gone tothe police to report online violence. The expectation
for a solution was low which is based on general perception of police in Nepal. Groups who had frequentcontact with the police were outwardly hostile andsaid they would not go to the police for fear of being subjected to further harassment.
Organisations that monitor GBV did not specifically monitor online violence as a category, although

they had received some requests for help and referrals. Organisations working on GBV did not fullycomprehend the ways to assist, and looked to law enforcement for help. A senior women’s rights defenderspoke of her experience with law enforcement:
A guy used to send me messages on Facebook
even when I didn’t reply anything. Once, he sentme a nude photo and called me at 2 p.m. The
next day I went to the Cybercrime branch in Teku
to complain about him and also gave that phototo the police. After that, police sent a warning
message to that person but said they couldn’t domuch because he was in Korea. I sent a message tohim myself warning him to never underestimate
women like myself. I could have blocked him andforgotten about it but I wanted to go to the police
so I could send a message to people like him.125
Respondents were aware that regulations governing
IT were lacking, but did not have the specific understanding of why the existing laws were insufficient.
While asking for new regulations, they also were
fully versed in the contradictory nature of some ofthe demands. For example, “established” groups
saw users with fake identities or anonymous profiles
as one of the “evils” that needed to be banned without considering that anonymity could be a tool usedby minorities for activism and to exercise their rights
in a suppressive environment. Their understandingof harm was also heteronormative, viewing womenfrom a perspective of victimhood.
For example, a majority of the respondents were
not aware that over 100 porn sites are currently
banned in Nepal. The arbitrary and randomnessof the policy and practice that led to such content
blocking was not a concern for them.
All respondents, however, showed a sparseknowledge or and concern for surveillance and monitoring conducted by government, hackers, platforms
themselves. Even with media reports of NGOs being
under surveillance from police and other government
agencies, they did not raise this as a concern.126 Respondents also did not raise privacy concerns that
could result from data gathering, tracking and sharing done by devices and platforms like Facebook.
They were aware of the physical invasion of privacy
that stems from traditional practices of surveillanceof women and minorities, and raised infringementof privacy as a major concern. As 82% of survey

123 Focus group discussion, October 2016.

125 Interview with a senior manager of an organisation, October
2016.

124

126 Bohara, R. (2016, November). Op. cit.

70 Nepal

EROTICS South Asia exploratory researchrespondents had never received any digital security
training they demonstrated a lack of technical knowledge and language for politicisation of these issues.

Conclusion
Our research shows that the internet is an indispensable tool for gender and sexual rights activists. They
have higher than average access to the internet andthe ability to use it for a variety of personal and professional activities. The access to the internet andtechnology has given them a platform from which toexercise their freedom of speech and expression. At
the same time, their participation is conditioned by
the same values and modes of behaviour of the offline world. That the interactions and power dynamics
online mirror those encountered offline is not uniqueto Nepal. What is notable is the pace at which theinternet has facilitated and shaped consumption ofcontent, dialogues and the formation of relationships.
The rapid uptake of the internet for knowledge
consumption and social connectivity has bred efforts
to moderate the dialogue, performance and community formation in the same ways as it is in the physicalworld. Lietchy’s assessment that women’s appearancein public spaces must adhere to certain “acceptablevalues” can be used to evaluate the conditions inwhich women’s access to this public space is moderated while Tamang’s analysis of hegemonic patriarchy’slabelling of sexuality can explain the approaches tothe regulation of sexual expression online.
The research found no notable variance on theamount and purpose of use against education level,
age and ethnicity. It noted that the use of the internet
to explore their sexuality is of particular prevalence
among gay men. Women use the internet to seek intimacy to a lesser extent possibly a consequence ofthe sustained surveillance of their activities.
The discourse around sexuality and sexual expression online can be characterised as nascent andis also framed by the traditional approach to SRHR
agenda in Nepal that has focused on a reproductive health perspective. There are sparks of efforts
to challenge traditional norms around sexual rights
through the creation of content and efforts to increase participation of women and LGBTIQ persons
online. The research noted hesitation among sexual
rights and gender equality activists to push for online
dialogue and knowledge production from this perspective due to the negative labelling of sexuality.
Violence on the internet is an acute issue notedby respondents across the board. Over 80% of respondents had witnessed violence against someone

71 Nepalelse on the internet while more than half reported
experiencing it themselves. The patterns of violence– harassment, infringement of privacy and threats
being the most reported types of incidents – show
an attempt to silence their voices and curtail their
participation online. Surveillance of online activities
has a similar effect and is a common tool used toregulate women’s activities in particular.
Ethnic minorities and LGBTIQ people are disproportionately targeted for violence online, a findingthat reflects the inequalities of the offline world.
Targeted violence is often a tool used to silence others and in this regard shows an attempt to suppress
dissidence, whether social, political or sexual.
Laws and policies mirror heteronormative values
espoused by those in leadership roles in government, law enforcement and even in the sexual
rights movement. Vaguely worded, ambiguous andinconsistent legal provisions are used arbitrarily topolice a wide range of behaviours. A lack of understanding of internet politics poses a challenge forsexual rights gender equality activists to approachthese issues from a rights-based perspective. A limited awareness of technological aspects has in somecases led to oversimplification of the dynamics of
the internet and led to protectionist strategies that
actually sap individual agency.

Recommendations
Based on our research and conclusion, these aresome recommendations for the promotion of sexual
rights and freedom of expression online:
For the government of Nepal•

Ensure that constitutional provisions abide by
the core principles of the ICCPR on the right tofreedom of opinion and expression and follow
the legitimate restrictions provisions of the UN
Human Rights Council. Only discriminatory activity and expression should be restricted.

•

The Electronic Transactions Act criminalises certain forms of expression and is inconsistent withfreedom of expression legislation. The ETA is notsynonymous with a cyberlaw. The government
must create a separate cyberlaw and internet
governance policies that regulate online violencewith specific attention to women and girls froma rights perspective and not a protectionist lens.

•

Involve more civil society, women’s rights activists and sexual rights activists in formulatinginternet governance policies.

EROTICS South Asia exploratory research•

Public offence laws are used to police activities
online and offline and further regulate sexual
content and expression. The government needs
to revise the public offence laws, articulate theirlimitations and be precise on what they entail
without compromising human rights.

For activists:•

Upgrade knowledge and skills on digital securityof individuals and community.

•

Form alliances and create an open space foractivists to engage and discuss emerging issues
around the internet, freedom of expression online, violence and sexual rights.

•

Conduct advocacy on matters of internet governance from a feminist perspective and engage
directly with internet rights activists. Promote
cross-movement collaboration among women’s
rights, LGBTIQ rights and internet rights activists.

For the police•

Adopt a gender-sensitive response system for
dealing with incidents of cyberviolence.

For the Nepal Telecom Authority and internet
service providers (ISPs)•

Respect the rights and privacy of internet users
and follow the mandate of the resolution of the
UNHRC on human rights and business.

For researchers:•

Conduct further research related to online violence against women and young girls and theirroles in internet governance.

72 Nepal

EROTICS South Asia exploratory research

Online violence against women:
A continuum of offline discrimination

Authors:
Jyotsna Maskay and Shiwa Karmacharya,
Shaun Kirven
This study examines understandings of online violence against women and girls as a continuum ofoffline discrimination.
The common forms of violations and the mapping of harm (violence against women) related totechnology were adopted from End Violence: Women’s rights and safety online, written by Rima Athar
and the Women’s Legal and Human Rights Bureau,
Inc. and commissioned by the Association for Progressive Communications in 2013.
The results of this research are expected toprompt discussions on online violence as a continuum of offline discrimination and violence, andinform activists about emerging trends in the changing political context of Nepal.
This small-scale study was conducted to complement the recent larger research on the usage of theinternet and sexual freedom in Nepal. Building on this,national-level research will be carried out in 2018.
The objectives of the research are:•To understand if the internet is a gendered space
where the freedom of expression of sexual rights
activists is compromised.

•

To shed light on online violence against womenand girls as a continuum of offline discrimination and violence.

nine were LGBTI rights activists and 10 were women’s
rights activists. Two interviews with key informants were
followed by a survey with three young women activists
in the form of a questionnaire. Secondary data included
articles, reports, journals, blogs and research papers.

Introduction
The Constitution of Nepal (2015) guarantees limited
rights to Nepali women. Its antiquated, patriarchal stanceon women’s citizenship, and its discriminatory provisions
stem from a lack of reluctance to effect cultural and socialchange in favour of women in the country.
Globally, patriarchal nation-building ideologies
subject women and young girls to levels of discrimination and inequality that compromise theirfreedom. Violence against women and girls sees noboundaries; it permeates across race, culture, gender,
disability and geography, amongst others, harming
and destroying individuals, families and society.
In 2016, WOREC, a women’s rights organisation,
documented 1,775 cases of violence against women ofwhich 1,300 admitted having suffered from some formof domestic violence; 75% of these women were physically abused by their husbands while 35% were sexually
abused by either their partners or persons they knew.1
The growing reach of the internet, the rapid
spread of mobile communications and the wide
diffusion of social media have presented new opportunities and enabled various efforts to address
violence against women and girls.2 On the flip side,1

Dulal, P. (2016, 26 November). Women suffered more violence
at home than outside last year: Worec report. The Kathmandu
Post. www.kathmandupost.ekantipur.com/printedition/
news/2016-11-26/women-suffered-more-violence-at-home-thanoutside-last-year-worec-report.html

2

UN Broadband Commission for digital development working
group on broadband and gender. (2015, October). Cyberviolence against women and girls, A worldwide wake-up
call. UN BroadBand Commission for Digital Development andWorking Group on Broadband and Gender, version 2, 1.
www.broadbandcommission.org/Documents/reports/bb-wggender-discussionpaper2015-executive-summary.pdf

Methodology
The research follows a deductive approach withqualitative research design.
Primary data was collected through three focus
group discussions with 26 women’s rights, lesbian, bisexual, trans women, trans men and young womenactivists. Of these, seven were young women activists,

73 Nepal

EROTICS South Asia exploratory researchit also regulates women’s freedom of expression byshrinking democratic spaces, and diminishing theagency of women.
Today, technology-related violence against women is a distinct phenomenon because of the medium,
mode and place of its commission. The characteristics
of information, communication and technology (ICT)are that it is borderless in nature, has a fluidity ofdigital personhood, absence of physicality, and offers
anonymity and intractability. This has changed not
only the manner by which violence against women isbeing committed and perpetrated, but also its effects
and consequences.3

The internet and freedom of expressionin Nepal
The internet is a pivotal “public domain” within
the information and communications technology(ICT) sphere that has penetrated our “personal”
lives. It has carved layers of digital spaces that connect friendship, activism, love and relationships,
recreation and commerce, among others. Recognised as a basic human right by the United Nations
Human Rights Council in June 2016, a resolution affirmed that the same rights that are offline mustalso be protected online, in particular freedom of
expression online, security, accountability for human rights violations, access and the expansionof internet services for those not for whom it isunavailable.
Three years after the invention of the World
Wide Web by British scientist Tim Berners Lee in
1989, Nepal received its first email in 1992.4 Although Nepal had its first exposure to computerand computer systems as early as 1971,5 it was only
in 1995 that the internet first penetrated its society
when Mercantile Communications became the firstinternet service provider (ISP) in the country.6
In recent years the internet has become a powerful tool for self-expression. However, despite theexistence of international and national instruments

which safeguard fundamental freedoms, the stateand other mechanisms have increasingly curtailed
our freedom of expression.
The political change and opening of democratic
spaces in 1990 was a benchmark in the history of
freedom of expression in Nepal. For the first time
the state recognised freedom of expression as a fundamental right of all citizens.7 The ratification of theInternational Covenant on Civil and Political Rights(ICCPR) in 1991 and the Universal Declaration of
Human Rights (UDHR) by the government of Nepal
further ensured the right to freedom of expression
in the country.8 Following the people’s movement of2006 and the vibrant role of the media in encompassing people’s voices across the country, the Interim
Constitution of Nepal (2007) guaranteed every citizen’s right to freedom of expression and opinion
through Article 12(3).9 These legal instruments talkabout freedom of expression; however, they do notaddress it explicitly in relation to the internet.10 This
right was reasserted by the Constitution of Nepal
in 2015 which has attempted to extend freedom of
expression to include the scope of the internet by
explicitly mentioning the phrase “online”.11
Freedom of expression, despite being a fundamental right, becomes a fallacy when it is violatedby actions of the state and other parties. Online
it is controlled and regulated legally, by means ofrestrictions on online content, online violence andsurveillance among others. Article 17, section 2a(1)of the Constitution of Nepal, 2015 poses reasonable
restrictions on freedom of expression online under
the name of defamation of character or an act which
may be contrary to public decency and morality.12
The code of conduct of the 2017 local election
issued by the government had specific clauses which
put restrictions on citizens’ freedom of expression.

7

www.nepaldemocracy.org/documents/national_laws/
constitution1990.htm - 3

8

Kandel, N. D. (2017). Standard Review of Freedom of Expression
and Censorship in Nepal. International Journal of Culture andHistory, 3(1). www.ijch.net/vol3/078-SD0021.pdf

3Athar, R., & Women’s Legal and Human Rights Bureau, Inc.
(2013). End Violence: Women’s rights and safety online.
Johannesburg: APC. www.genderit.org/onlinevaw/docs/FLOWEnd VAW research design_FINAL.pdf

9Article 19, et al. (2008). An Agenda for Change; The Right to
Freedom of Expression in Nepal. London: Article 19, Freedom
Forum and Federation of Nepali Journalists., 19. www.article19.
org/data/files/pdfs/publications/nepal-agenda-for-change.pdf

4LOOM. (2017). Guff Gaff Report on Gender and Internet. LOOM.

105Shrestha, P. (Ed). (2006). Cyber Cafes of Nepal; Passage to Cyber
Crime? Lalitpur: SAP International and Bellanet Asia, 1.
www.sapi.org.np/uploads/publications/2008021314214615.pdf

Dahal,T., & Ghimire, N. P. (2016). Freedom of expression oninternet in Nepal. Kathmandu: Freedom Forum. www.ifex.
org/nepal/2016/08/05/nepal_freedom_expression_internet_
freedomforum.pdf

6

Kathmandu Today. (2015, 20 February). Internet access reaches
to one-third population in Nepal. Kathmandu Today.
www.ktm2day.com/2015/02/20/internet-access-reaches-to-onethird-population-in-nepal

11

Ibid.

12

Ministry of Law, Justice and Parliamentary Affairs. (2015). The
Constitution of Nepal. Nepal Gazette. www.extwprlegs1.fao.
org/docs/pdf/nep155698.pdf

74 Nepal

EROTICS South Asia exploratory research

For instance, the code of conduct restricted users ofsocial media and mobile phones not only from posting any kind of news, status or comments against
or in support of any election candidate or politicalparty but they were also not allowed to disseminate
any such contents through Viber or SMS. Those who
did not adhere to the code of conduct were to be
charged a fine of up to 1 lakh rupees.13
Recently the Nepal Telecommunication Authority (NTA) was ordered to block over 100 websites in
Nepal.14 On March 2017, a young LGBTI activist who
is vocal about LGBTI issues online and offline wasblocked from commenting, liking and posting anything on Facebook after being reported by a groupof other users. She was repeatedly harassed withabusive photos and messages for being “too expressive” online.

Gender and access
In 2013 the government of Nepal commemorated
international girls in ICT for the first time, aiming toencourage and build the ICT skills of young girls andwomen. There are no binding clauses to validate theefforts, as the ICT policy from 2000 is not explicit about
gender, equality and women, but several attempts
have been made to encourage and empower participation of and roles for women of all ages in ICT.
According to Nepal Telecom Authority statistics, almost 70% of the Nepali population has access to mobile
phones with 3G, GPRS and CDMA facilities,15 while 40%of the population is connected to the internet.16 The
internet is accessed primarily using mobile phones. However, gender-disaggregated data on the internet andmobile phone use in Nepal is not available.
Occupational representation and the participation of women in decision making positions in the
ICT and media sector are essential for ensuring therights of women on the internet, especially to control the online gender based discrimination andviolence. Technology has always been considered
as men’s forte and thus, only 5% to 10% of theworkforce in IT in Nepal is represented by women.17
13

www.recentnepal.com/news/26960/फेसबुकट्वीटरभाइबर-चलाउ.html

14Dahal,T., & Ghimire, N. P. (2016). Op. cit., 35

15

www.nta.gov.np

16

Kathmandu Post. (2015, 19 June). 40pc of Nepalis connected toInternet. The Kathmandu Post. www.kathmandupost.ekantipur.
com/printedition/news/2015-06-18/40pc-of-nepalis-connected-tointernet.html

17Perry, S. (2017, 27 April). Women in ICT: Future looks brightfor Nepalese women in ICT field. APNIC. www.blog.apnic.
net/2017/04/27/women-ict-future-looks-bright-nepalese-womenict-field/.

75 Nepal

According to a report, Nepal Telecom Corporation(NTC) had only 12% women employees in 2013 withvery few women in decision making positions.18

Online violence against women and girls
Based on our interviews and focus group discussions
with women and sexual rights activists, online formsof violence against women and girls stem from thereluctance to accept their agency, and the fear of
dishonour to the family and society attached to themobility and sexuality of a woman.
From 2014 to 2015 the Metro Police Crime Division in Kathmandu registered 309 cases of online
offences of which 12 offenders were booked undercyber crime and public offence. Similarly, 830 cases
were registered in 2015 to 2016 of which 17 offenders
were booked followed by 657 cases of “dishonour”
in 2016 to 2017 amongst which nine offenders werebooked respectively.19 The systemic cases filed ranged
from cases of dishonour, extortion through email
and SMS, use of fake social accounts, abusive SMSs,
website hacking, anti-social websites and copyright
infringement. The division has developed a monitoring system that monitors triannual cybercrimes but
lacks a gender disaggregated data system.

Findings
Online violence must be perceived as a continuumof violence against women, and understand thedemarcation between freedom of expression andcyber harassment.
Respondent

The internet is a strategic medium topromote human rights and exercise theright to information, and the freedomof expression
Activists access the internet for information on
global politics, national news, e-commerce, entertainment, networking, research, online courses,
data collection and communication. Informationthat is not easily available offline is accessed online. The most used applications are Facebook,
Twitter, Viber, Skype, WhatsApp and Emo. On an
18

Finlay, A. (Ed.) (2013). Global Information Society Watch 2013:
Women’s rights, gender and ICTs. Johannesburg: APC & Hivos,
172. https://www.apc.org/en/pubs/global-information-societywatch-2013-womens-right

19

Dhungana, S. (2017, 3 May). Public awareness against cybercrimes increasing in Nepal. My Republica. www.myrepublica.
com/news/19376

EROTICS South Asia exploratory research

individual level, the internet is used for networking, contacting friends and families and marketingand on an organisational level, research, knowledge and advocacy are the core reasons foraccessing the internet.
Participants stressed that having an online presence allowed them to remain anonymous and private.
It gave them a sense of power, and freedom to scroll
for information on sexual rights that they would
not try to locate offline. But, some added that theinternet is also a gendered space in terms of accessto technology, control of online content and ownership of ISPs, among others. The coping mechanisms
included creating a private group, and selecting viewers and readers as per preference. At times, they alsofeel like minor celebrities on applications like Facebook where their happiness was determined by the
number of likes and dislikes received.
Lesbian, bisexual and trans (LBT) women activists
access the internet to date and find partners. Viber,
Google, EMO, WhatsApp, Grinder and YouTube
are the most used programmes. They spent around
1,500 to 5,000 rupees per month on their data.

Online advocacy and activism
Freedom of expression online comes with a tag.
Respondent

The respondents stated that 70% of the information
shared is for activism and advocacy. Opinions, thoughts,
and free speech are expressed by sharing posts andwriting online stories and blogs. Sometimes discussions
are prompts to question stereotypes on sex, genderand politics. They stated that Information opens opportunities to update themselves with ideas and creativity
to further fuel their advocacy and activism.
However, online freedom of expression comeswith a tag. Young women activists expressed that
their personal opinions receive a backlash being
seen as “too vocal” or big activism, whilst sharing
and updating information composed by others receives zero responses. Others also use this pretext asa way to harass young women activists for their inability to find a partner or to sexually harass them.
A young LBT blogger was frequently harassed with
disturbing pictures and messages for being “toovocal” online. Another LBT activist faces a similar
situation every now and then when she regularly
updates events and information regarding LGBTI issues on her organisation’s social media pages.
The coping mechanisms included creating a private group, and selecting viewers and readers as
per preference.

76 NepalOn an organisational level, online advocacy is done
through sharing a common agenda; advocacy eventsare created, and more viewers’ attention attracted.
Few LBT rights activists used the internet for advocacy
for the rights of women and LGBTI people, while others refused to post and were scared of being harassed.
A respondent shared that online advocacy has
ripple effects; for example last year an online news
story fabricated stories of women’s rights activists,slandering their work and reputations. In response,
numbers of women’s organisations came together,and hosted press conferences followed by incidentsof activism both online and offline. As a result, thefirst draft of the Press Council’s Code of Conduct
regarding women’s news dissemination for bothprinted and online news came out on 15 December
2016. Another participant shared an online campaignthat she had launched with a hashtag #kathmanduwithmadhesh20 to prompt debates among people ofKathmandu who remained nonchalant about the
movement for identity in Madhesh.21
Similarly, online expression that challenges stereotypes on class, caste, gender, ethnicity, is often
ignored by the mainstream media. In such situations,authentic and factual information posted online assists to clear up misunderstandings and prejudices.
The big media houses did not cover the factual information on an incident of indiscriminate killingin the Saptari district during the election campaignof the Communist Party of Nepal – Unified Marxist
Leninist (CPN-UML). Newsfeeds blamed the peopleof Saptari instead of the political party which also
played a role in fuelling tensions.

Exploring sexual rights online
Sexual rights is our fundamental human right. Online
access allows us to understand about sex, sexuality,
orgasm and pleasure.
Respondent

Young women activists were aware of the dating site
Tinder, and at least four have used it. Some stressedthat they have watched porn out of curiosity to better understand sex. The interest remains the samebut now the visuals are analysed to understand thepolitics of race, identity and sexuality. Another respondent shared that viewing porn was labelledbad, and there were numerous rumours that users
are monitored by Nepal Telecommunication. It was20

www.facebook.com/kathmanduwithmadhes/

21

Hulaki News. (2017, 17 June). Identity Struggle of Madhesh.
Hulaki News. www.hulakinews.com/identity-struggle-ofmadhesh

EROTICS South Asia exploratory research

complemented with another rumour that if users arefound watching porn then their mobiles will become
defunct, and their computers will cease to work. Most
young users refrained from watching porn because ofa fear of being monitored and reprimanded.
It is not possible to locate information on sex andsexuality offline and bookshops hardly sell them, andasking a shopkeeper is next to impossible.
Respondent

Reading erotic stories through websites such as
literotica.com was another way to understand sex,
sensuality, orgasm, love among others as such resources are not available online, and no one talks
about these things.
Family and societal presence on social media
impedes young women’s freedom of expression on
sexual rights and reproductive rights. While posts
on similar issues are shared and updated, they filter
contents on topics of sex and pornography as they
do not want to be harassed by questions on maintaining family honour. A respondent shared herexperience about a durex condom advertisement inIndia; she loved the promotion called “do the rex”
and shared it on her Facebook personal wall. Within few days, she received a call from her uncle in
the United States questioning her choice of newsfeed, and how she should “think” about her family,
relatives and friends. Now she does not post unlessher posts are “user friendly” and “acceptable”.
Young women activists reiterated that there isno point in expressing views which will be attacked
and misunderstood. The coping strategy would beto adjust the viewers and customise the posts for relevant people. Most invest much time on posts about
contentious issues considered taboo in society. They
also create private messages amongst friends to talkabout such things rather than posting.
For LGBTI rights advocates the internet has become an important platform for exploring theirsexuality. One of the respondents stated that she
didn’t know about her sexuality in the beginning andthat she used to visit gay porn sites to find pleasure
as she thought she was gay. It was only later that she
discovered that she is a transgender, when she read
information about LGBTI issues via the internet.

Online violence and consequences
Online violence is another form of violence against
women.
Respondent

Online violence is another form of violence against
women; offline violence against women is often

77 Nepal

ignored and outside the periphery of the justicemechanisms, and online violence follows a similar
trend. The cyber crime unit is not gender sensitive,
and the police on duty are more interested in finding out about contents not relevant to registration.
Their perceptions and attitudes usually place theblame and burden on the traits of the person reporting the violence rather than the perpetrators.
The process is disturbing, and the disempowering environment encourages those complaining towithdraw. At least one organisation received legal
counselling on such incidences. Facebook also has reporting mechanisms and policies on its pages. Some
respondents shared that they remove controversialcomments from the threads, as it is not possible torespond to everyone. It is essential that evidence istracked, screenshots taken and comments printed
and stored.
Respondents added that our phones and laptops
are interconnected to the internet, and the information we access gets linked and shared on social
media without us realising it, as if machines havetaken over our lives. The shared realities are a culmination of personal and professional experiences.
Most said that random people sent friend
requests, and approval is given after checking mutual friends, and verifying visits of profiles. Mutual
friends tend to harass at times and someone sharedan incident of how a mutual friend had expressed
his love, and requested sexual intercourse.
Another respondent shared her rendezvous
with online crime and a nexus of gangs that tricked
people by informing them that a parcel had beendelivered in their name, and when notified about
the arrival, they were made to pay to access it.
Meanwhile, there was no parcel and instead victims
ended up paying for nothing.
The creation of a fake profile with identify
theft in an account added another dimension toonline forms of violence. At least three activists
had experienced a fake account created in theirnames. The fake account blocked the users when
they reported it, so instead they alerted theirfriends. Another respondent told of the experienceof her friend in whose name a fake account was
created, using her photo (cropped) in a bikini. The
incident was reported at a police unit where someone guided her on how to block the user instead offiling a complaint.
In addition, a respondent shared a positive response of the cybercrime police who expedited thejustice process. Someone had cropped a picture ofher friend, and pasted it onto someone’s naked

EROTICS South Asia exploratory researchbody. Her phone number was also uploaded. The
culprit was caught and imprisoned. But the trauma
left her friend scarred and she did not access Facebook for a year. Likewise, single mothers face cyberbullying and harassment; receiving friend requests
and invitations for sexual acts. Many individuals areunable to respond to incidences alone, and referthem to organisations.
One of the respondents stated “although women in general face these problems, it is the lesbians
and transgender women who have to face more ofthese challenges”. A mere upload of a video of a
LBT woman dancing could result in comments suchas “Chakka”, “Hijra” (a trans person) and so on. Almost all the focus group participants had received
messages from random people sending them sex
videos, pictures of their genital organs and vulgar text messages. Taking screenshots and postingthem on their wall, threatening the perpetrator
for using those screenshots to report a case, deactivating the account or removing oneself from theinternet for a while and ignoring the harassment
have been used as coping mechanisms to deal withsuch situations.
Blackmailing is another form of online violencefound against LBT women. A lesbian couple in Hetauda was blackmailed for releasing their intimate
video by a guy who had stolen the video camera
from their shop. Others complained that their personal pictures were used as bait by previous partners
to have sex.
LBT women are approached by men to engage
in sexual favours once they reveal their identity.
One of the respondents stated: “People send us
friend request thinking that we are women but
later when they find out that we are transwomen, we are abused and harassed. As soon as wereveal our sexual identity, they directly send us
sex proposals.”
Many respondents are not comfortable sharing
their real gender and sexual identity on their social
media pages. They fear that as soon as they change
their gender option to “transwoman, others” category they will get harassing messages from men
sending them vulgar pictures and sex videos.
Online violence has offline mental impact.
Respondent

The gravity of violence, and culture of tolerance
and normalisation of violence makes it difficult toopen up about it. We cannot share it with our family members and friends. Online violence is not evenrecognised as violence against women.

78 Nepal

When we resort to uploading our anger in astatus update, it is usually received with mixed reactions. It is frustrating and agonising but where
do we vent? The question here is: what is a safe
space? Safe spaces allow freedom of expression but
what about when they are loaded with judgments
and prejudices? Young women activists who workon sexuality are labelled as shameless, vulgar andsluts. When we choose or take an initiative to chatwith someone or random people at any time we
become whores for them, getting comments like
“Who chats so late at night?” or “Do you want tohave sex?” It affects us and questions our choices
and decisions and makes us wonder if we need tolower our freedom bar (Is there a degree?). We
are unable to have productive days, the incidences
linger, and we lose our confidence leading to emotional breakdowns. Are women seen merely asentertainers for men?
The respondents shared that they are unable todistinguish between the intention of the behaviour
to interact and harassment, and tend to normalise
it leaving them ashamed and with low self-esteem.
Perpetrators can be anyone in the family, relatives,close friends and it becomes difficult to face them
online and offline.
A respondent went to the cyber crime unit toreport an incident with her friend. She found theunit to be disturbing in terms of lack of confidential
space, and the professionalism of the police. The officer who registered the report was not attentive,
and the other officers around him were curious withquestions that were not their concern.
Harassment of women online is at risk of becoming an established norm in our digital society. What
starts off as a harmless intellectual debate soon
develops into a string of personal attacks eventually becoming obnoxious.22 Historically women have
faced reprisals, slander, stigmatisation, excessive useof force and defamation for expressing thoughts
and beliefs that someone did not approve of or refused to permit. Online violence is an extension ofoffline patriarchal and misogynistic discrimination.
Harassment, abuse and bullying occur in cyber spacebecause society does not approve of our freedom toexpress our opinions except in this instance the perpetrator is “invisible”, unchecked and fluid. The impact
is the same, threats of physical violence, psycho-social
harassment, often leading to self-censorship.
22

Shrestha, A. (2016, 14 July). Settling scores: Online harassment.
The Himalayan Times. www.thehimalayantimes.com/opinion/settling-scores-online-harassment

EROTICS South Asia exploratory research

Recommendations•

Inform yourself and others about digital security,and understand the boundaries between freedomof expression and harassment.

Avoid posting personal stories of family andfriends without their consent, and maintainconfidentiality.

•

Engage with a women’s organisation to prompt
discussions on online violence as violence anddiscuss it at a policy level.

•

Mental health is ignored within the realm of violence and must be recognised and addressed.

•

Collect and store incidences of online violence foradvocacy. Screenshot comments and evidence orhide and delete inappropriate comments. Createa small support group to vent, and seek advice.

79 Nepal

EROTICS South Asia exploratory researchSRI LANKA

part 1

Virtually queer: Human rights of LGBTIQ
Sri Lankans in the online space

Lead researchers:
P. M. Deshapriya and J. M. Mendis

Section 1: Introduction
The internet is hailed as a “vital communications
medium”1 that allows people to “seek, receive
and impart information and ideas of all kinds.”2 Its
most remarkable contribution has been to makepublic discourse far more inclusive than ever before. The internet allows flows of information atmuch lower costs, over much longer distances, andwith much less delay than any other communications medium in history, allowing more people toenjoy the benefits of communication, access to
information, self-expression and social networking. Moreover, the internet has “multiplied andamplified the capacity of the most diverse groups
to get information, engage in exchanges, politically mobilise and overcome the passive mode ofreception that characterised the past logic of public sphere dynamics.”3
Indeed, the UN Special Rapporteur on theFreedom of Expression has reiterated that “theframework of international human rights law, inparticular the provisions relating to the right tofreedom of expression, continues to remain relevant
and applicable to the internet. Indeed, by explicitly
providing that everyone has the right to freedom of
expression through any media of choice, regardlessof frontiers, Articles 19 of the Universal Declarationof Human Rights and the International Covenant
1

La Rue, F. (2011). Report of the Special Rapporteur on
the promotion and protection of the right to freedom of
opinion and expression. www.ohchr.org/Documents/Issues/
Opinion/A.66.290.pdf

2

Ibid.

3

Corrêa, S. et al. (2011). Internet regulation and sexual politics
in Brazil. In J. Kee (Ed.), EROTICS: Sex, Rights and the Internet.
Johannesburg: APC, 27. www.apc.org/en/pubs/erotics-research81

Sri Lanka

on Civil and Political Rights were drafted with theforesight to include and accommodate future technological developments through which individuals
may exercise this right.”4
Evidently the internet plays a vital role in improving the lives of all people. Yet, to lesbian, gay,bisexual, transgender, intersex and queer (LGBTIQ)
Sri Lankans, the internet is especially important. For
them, it facilitates friendships and relationships thatare otherwise systematically obstructed in the offline world. In stark contrast to this offline world,
the internet also provides these people with unprecedented opportunities to express themselves
and build their identities, both individually andcollectively. As a source of information, the internet disrupts and undermines the wilful exclusionof LGBTIQ Sri Lankans from public discourse. LGBTIQ people online are also able to access a global
body of queer art, while other representations of
non-heterosexual and non-cisgender people in themainstream media in Sri Lanka continue to be flatand harmfully stereotypical. At the same time, many
who are engaged in a “movement” for LGBTIQ rights
in Sri Lanka bemoan the individualism engenderedby the internet, and the adverse impacts this exerts
on community organising and community mobilising. Indeed, although it is widely said of the internet
that, “The virtual and the ‘real’ cannot be separated[…] as discrete spheres of social activity,”5 and that,“online and offline interactions and experiences areseamless,”6 the findings of the present study on how
the internet is significant in the lives of LGBTIQ SriLankans throw those claims into some doubt.
The first part of the study is presented in threesubstantive sections. Background provides a collated
overview of the socio-political environment in which
4

La Rue, F. (2011). Op. cit., 14.

5Corrêa, S. et al. (2011). Op. cit., 23.

6

Ibid.

EROTICS South Asia exploratory researchLGBTIQ Sri Lankans live. The second section, Sexuality and the Online Space in Sri Lanka, discusses thesubstantive findings of the survey questionnaire, focus-group discussion and individual interviews. The
third, Law and Policy, deals with issues in the legal
framework that contribute to and compound the issues discussed in the preceding section.
The second part of the study is a dedicated analysis looking at how lesbian women engage with theonline space. As one-on-one interviews and a focus
group discussion showed, lesbian women’s online
engagements demanded to be treated as specifically gendered and sexualised experiences, while beingclassed, race based and so on. Their approach to theonline space was traced through with the awarenessthat they had to negotiate being hailed by a patriarchal and heterosexist social system.
The outline of the research objectives, methodology and key limitations follows:

Objectives•

To explore how the online space and services are
utilised by LGBTIQ Sri Lankans to enjoy their human rights.

•

To explore the limitations and restrictions faced
by LGBTIQ Sri Lankans in their use and enjoyment of the online space in furtherance of their
human rights.

•

To identify key policy reforms that could ameliorate the conditions of use and enjoyment of theonline space by LGBTIQ Sri Lankans.

Methodology
The study used a mix of research methodologies,
both quantitative and qualitative, which included:•

A desk review of internet policies, relevant legislative and license of internet service providers(ISPs) in order to understand the existing attitude
to access, and a review of the legal framework
relating to LGBTIQ people in Sri Lanka.

•

Semi-structured interviews with a cross-cutting
range of 10 stakeholders including the government sector (Law enforcement, National Child
Protection Authority, Sri Lanka Computer Emergency Readiness Term), the private sector (ISPs),
civil society, for example LGBTIQ organisations,groups and individuals and human rights activists.

•

A focus group discussion with the members of
the LGBTIQ community and LGBTIQ organisations in Sri Lanka. Venasa trans network, DAST82

Sri Lanka

group, Heart to Heart and Youth Voice Count
were among the organisations at the discussion.
Apart from those groups, members representing
academia, advertising, modelling and LGBTIQ
activists also took part in the discussion. Of 14
participants there were four trans people, six
gay men, two lesbians and two bisexual men.
•

An online survey of 85 responses to better understand how LGBTIQ people use and access theinternet and what knowledge they have about
online safety. The survey was designed in consultation with community members and LGBTIQ
organisations. A total of 32 female, 46 male,three trans and two gender non identifying
people responded to the survey. Respondents
were reached through LGBTIQ organisations
and groups. The survey was conducted online tomaintain the anonymity of the participants.

•

The research was conducted by two (one maleand one female) researchers. Both researchers
have a positive rapport with the LGBTIQ community in Sri Lanka and are recognised as advocates
for the decriminalisation of homosexuality andupholding the human rights of sexual minority
groups. Both researchers were present at all theinterviews except for one semi-structured interview in which the respondent requested to beinterviewed by the female researcher.

Social media platforms and non virtual forums
held in Colombo – i.e. a cyber exploitation policy
briefing by the United Nations and Sri Lanka, an
online action group by the Child Protection authority – were also studied to gather information. The
findings of the desk review were cross-checked during the focus group discussion and semi-structured
interviews and were used to formulate the survey.
Different sources of data were woven together forthe purpose of this report therefore the different
methodologies do not stand alone in the report but
as a combination of all.

Constraints and limitations•

Information on government surveillance wasunavailable due to legal restrictions and there
was no meeting with government representatives responsible for digital infrastructure andimplementation. Requesting an interview on
LGBTIQ concerns was not appreciated andwas mostly neglected by the government
representatives.

EROTICS South Asia exploratory research•

Due to the uneven representation in the survey,
cross-community comparisons were not feasible.
Reaching out to the trans community proved difficult, possibly due to their lack of access to theinternet. Some of the difficulties in reaching therelevant demographic arose from the perceived
criminality of homosexuality in Sri Lanka, which
has driven most non-heterosexual and noncisgender Sri Lankans into lives of secrecy andsilence, insulated from the outer world.

•

Despite efforts made, the research team was unfortunately unable to interview Equal Ground– one of the leading LGBTIQ groups in Sri Lanka.
This created a gap in the report especially interms of cyber violence incidents that this organisation records.

•

The research team was unable to incorporate
the discussion and events which took place inJanuary 2017 on decriminalising homosexuality
due to time constraints.

Figure 1. Demographics

The survey was dominated bymen, at 59.5% while 34.5% were
women. Only 3 trans persons
participated in the survey.

45-54
6.0 %

More than half of the respondents are
between the ages of 25 and 34.

Below 18
1.2 %

35-44
14.3 %

18-24
27.4 %

25-34
51.2 %

Responding to the question on sexual
orientation, most of the respondents (59.5%)
stated that they are only attracted to membersof the same sex; 28.6% stated that they arebisexual while 9.5% of the respondents said thatthe sex of a person is not relevant. Two transrespondents stated that they are heterosexual.

83

Sri Lanka

Most respondents had higher education qualifications,with 47.8% with a bachelor’s degree and 15.5%
having a master’s degree. Only 11.9% stated that they
had only passed an ordinary level exam.

EROTICS South Asia exploratory research

Key findings
The survey covered 85 respondents (see Figure 1).

Section 2: Background
Sexuality in Sri Lanka
In Sri Lanka, non-heterosexual and non-cisgenderpeople, identified as LGBTIQ Sri Lankans in this paper, continue to live under a shroud of invisibility.
Despite the continuous struggle for legal recognition and reforms since the early 1990s, many people
with these alternate identities continue to live theirlives in secrecy, away from government contact,
beyond the reach of community organisations andmost importantly apart from each other.
This state of invisibility and isolation is broadly
a result of Sri Lankan “conservatism”, in which attitudes towards and discourses on sexuality and sexual
relationships are heavily controlled by societal andcultural forces opposed to sexual and gender diversity.
Sexual conservatism in Sri Lanka regulates individuals through gender roles based on a rigid, male/
female binary construct; sex is restricted by a “logic
of reproduction”7. Sexuality is restricted to marriage,
and those who pursue sexual activity outside theconfines of a marriage, especially women, are vilified. Sexual issues are “privatised” to such an extent
that discussion in the public sphere is discouraged.
Sex education in public schools is virtually non-existent and only exists in a few private schools.8
This conservatism exerts a significant influenceon many aspects of public life, especially in areas oflegal and policy reform. However, behind this conservatism the private lives of many Sri Lankans who
do not seem to conform to such values continues.
According to the Family Health Bureau, Sri Lanka
records the best family planning performance in theregion, with the contraceptive (all methods) prevalence rate among “eligible families”9 registered
7

Groundviews. (2016, 25 August). Submission on LGBTIQ
Persons and Transitional Justice Mechanisms. Groundviews.
groundviews.org/2016/08/25/submission-on-lgbtiq-persons-andtransitional-justice-mechanisms/

8

Women and Media Collective. (2015, 6 March). Country Profile
on Universal Access to Sexual and Reproductive Health: Sri
Lanka. Women and Media Collective.
womenandmedia.org/country-profile-on-universal-access-tosexual-and-reproductive-health-sri-lanka/

9Eligible Family is defined as a family either legally married orliving together where the woman is between 15 to 49 years
and/or has a child under five years. A family with a pregnant or
cohabiting woman irrespective of marital status and age andsingle women (widow, divorced, separated) are also considered
under eligible family.

84

Sri Lanka

with public health midwives at 64.9%.10 For our
discussion, the high contraceptive prevalence rate
indicates that sexual activity among couples (married or living together) clearly takes place outside
the expectation of reproduction.
In 2011, the Ministry of Transport reported that
one in four women experienced sexual harassment
while using public transport. Later that year, theLegal Aid Commission suggested that over 70% of
women (between the ages of 15 and 45) were subject
to sexual harassment while using public transport. In
2015, the United Nations Population Fund (UNFPA)
Sri Lanka claimed that this number had increased toover 90%. Dr Sisira Liyanage, director of the National HIV Programme, stated that in 2015 23 students
in schools became HIV positive through unprotected
sex, with 22 students contracting HIV in 2014.11 Mapping studies estimate that there are approximately
35,000 to 47,000 female sex workers and 24,000 to
37,000 men who have sex with men in Sri Lanka.
In this context, prevalent narratives on sexuality
and gender in Sri Lanka are constructed around thefalse assumption that all people are either male or female, which is determined exclusively by their genitalia,
and that attraction to members of the opposite genderis the “natural” sexual inclination of all people.
These assumptions have enabled widespreadstigma and discrimination against non-heterosexualand non-cisgender people, succeeding in driving
many of them underground, stifling their sexual expression and relationships, marginalising them fromaccessing essential services like healthcare, access tojustice, education, etc., and condemning the mostvulnerable of them to lives of socio-economic andpersonal insecurity.

Homosexuality and the law
The key indicator of this stigma and discrimination lies in the Penal Code provisions, Sections 365
and 365A.
The first section criminalises “carnal intercourse
against the order of nature”, and the second criminalises “acts of gross indecency” between persons.
These laws have been criticised for decades, andthere have been repeated calls for their repeal since

10

Family Health Bureau, Ministry of Health Sri Lanka. (2013).
Annual Report on Family Health 2013. Colombo.
http://medicine.kln.ac.lk/depts/publichealth/Fixed_Learning/annual_report_2013.pdf

11

www.bakamoono.lk/en/hiv/30/how-does-accurate-andcomprehensive-sexuality-education-help-prevent-hiv

EROTICS South Asia exploratory research

the mid 1990s.12 Although the provisions remain formally unenforced since independence in 1948,13 thenecessity of their standing to preserve “public orderand morality” has been touted by the government
before the Human Rights Committee in Geneva
as recently as 2014,14 Even by the end of 2016, thepolice continued to question and apprehend individuals under the provisions to the extent that theseare “valid” laws of the land.15
A situation analysis by Equal Ground highlights
Sections 365 and 365A as a “tool to target and harass the LGBTIQ community”.16 However, the analysis
also stresses that, “parental, communal, and cultural
surveillance… entangle with the law to maintaingender stereotypes and suppress expressions of alternate sexuality”.17 The report provides a concrete
example of such “surveillance” on Sri Lanka: police
consider themselves authorised to arrest gender
non-conforming people because the differencesin their sexual and gender expressions indicate, tothem, the “likelihood” of engaging in either “carnal intercourse against the order of nature” under
section 365,18 or “acts of gross indecency” under
section 365A. However, due to the practice of notformally charging people suspected of committing
the offences, the “enforcement” of Sections 365
and 365A enables the police to subject individuals
to arbitrary arrests, extortion, forced sexual favours,
and sometimes even rape.19 Further, the existence of
these laws prevents survivors of such violence from
12

Baudh, S. (2013). Decriminalisation of consensual same-sex
sexual acts in the South Asian Commonwealth: Struggles inContext. In C. Lennox & M. Waites (Eds.), Human Rights, Sexual
Orientation and Gender Identity in The Commonwealth:
Struggles for Decriminalisation and Change. London: Institute ofCommonwealth Studies, Human Rights Consortium.

13“There have been no convictions under 365 and 365A since Sri
Lanka gained independence in 1948.” See: Equal Ground et al.
(2013, December). Human Rights Violations Against Lesbian,Gay, Bisexual, and Transgender (LGBT) People in Sri Lanka.
tbInternet.ohchr.org/Treaties/CCPR/Shared Documents/LKA/
INT_CCPR_ICO_LKA_15986_E.pdf

14

OutRight Action International. (2014, 20 October). Sri Lanka
Government says LGBT Rights are Constitutionally Protected.
OutRight Action International.
www.outrightinternational.org/content/sri-lanka-governmentsays-lgbt-rights-are-constitutionally-protected15

DIG Ajith Rohana, speaking at an event, High-level Dialogue on
Human Rights and Constitutional Reform, organised by FPA Sri
Lanka and others, Colombo, 16 December 2016.

16

Thangarajah, P. (2013). Strengthening of Legal Protection forLGBT in Sri Lanka: Road to Decriminalization. Equal Ground
GROUND. issuu.com/equalground/docs/situation_analysis

17

Ibid. Emphasis added.

18

Ibid.

19

Equal Ground et al. (2013, December). Op. cit.

85

Sri Lanka

reporting the crimes to the police or accessing otherremedial mechanisms.
The law also enables many discriminatory actsbeyond law enforcement, such as the refusal of accommodation by prospective landlords,20 the refusalof job opportunities,21 and even, as one writer reports, the refusal of advertising space in mainstream
newspapers for LGBTIQ events.22 Thus, the impact of
the law reaches speech and conduct well beyond theacts specifically prohibited in the law. In fact, due tothe generally private contexts in which most sexualacts take place, Sections 365 and 365A are nearly ineffective against the criminalised acts themselves. Still,even without enforcement, the laws act to suppress
the identities and relationships of people with alternative sexual orientation and/or gender identities.
Section 399 of the Penal Code makes it an offence
to cheat by impersonation. A person is said to “cheatby impersonation” if he pretends to be someone else,or by knowingly substituting one person for another, or representing that he or any other person is aperson other than he or such other person really is.
The police have been said to arrest transgender people under this law.23 It has been noted that “In somecases it appears that rape of [trans women and crossdressing people] by police officers may be informallyinstitutionalised.”24 The Vagrants Ordinance of 1841is also used in a similar manner to arbitrarily arrest or
hassle LGBTIQ Sri Lankans in public spaces.

Stigma and discrimination
The stigma and discrimination experienced by LGBTIQ Sri Lankans is not limited to the unenforced,
draconian Penal Code provisions. Quite independently of them, many LGBTIQ Sri Lankans continue
to face discrimination in areas such as housing, employment, education, and access to essential public
services. More importantly, they also experience discrimination in their personal lives.
20

Equal Ground. (2012). Towards a Lesbians, Gays, Bisexuals,
Transexuals and Transgendered (LGBT) Stigma andDiscrimination Index for Sri Lanka. Equal Ground. issuu.com/
equalground/docs/the_lgbt_stigma_and_discrimination_

21

Ibid.

22

Baudh, S. (2013). Op.cit.

23

Human Rights Watch. (2016). All Five Fingers are Not the Same:
Discrimination on Grounds of Gender Identity and Sexual
Orientation in Sri Lanka. Human Rights Watch. www.hrw.org/
report/2016/08/15/all-five-fingers-are-not-same/discriminationgrounds-gender-identity-and-sexual

24

Nichols, A. (2010). Dance Ponnaya, Dance! Police Abuses Against
Transgender Sex Workers in Sri Lanka. Sage, 5(2), 195, 214.
grassrooted.net/wp-content/uploads/2010/08/Nichols-DancePonnaya-Dance.pdf

EROTICS South Asia exploratory research

A Stigma Index25 published by Equal Groundreports data collected in a survey of 119 LGBTIQ
respondents. Some of the findings are extracted below (figures reflect percentages of 119 respondents
and refer to occurrences in the two years leading up
to the survey):•

11.76% were excluded from religious places/activities at least once.

•

21.85% were excluded from family gatherings at
least once.

•

24.37% had to change residence or were unable
to rent accommodation at least once.

•

25.21% lost their jobs.

•

28.57% were excluded from social gatherings/
activities at least once.

•

36.97% had been victims of physical abuse, harassment, threats, assaults, rape and/or battery.

•

62.18% had been verbally insulted, harassed
and/or threatened.

•

62.18% had faced some form of psychological oremotional trauma or abuse.

•

74.79% were aware of being the subject of gossip at least once.

Even where a majority of respondents said they had“never” experienced the type of discrimination or
stigmatisation asked about, subsequent responses
indicate that many respondents also live lives ofnear-absolute secrecy, choosing not to disclose theirsexual orientation or gender identity to family members, employers or even healthcare professionals.
Thus, there may be a relationship between the visibility of a person’s sexual orientation and/or gender
identity (whether voluntary or not) and their vulnerability to stigma and discrimination in society.
At the same time, it must be stated that moststudies undertaken by researchers, like the Stigma
Index discussed here, avoid presenting their researchfindings as “statistical” data. Most studies conductedon LGBTIQ issues in Sri Lanka face structural difficulties in reaching their subjects. The index publishedby Equal Ground had 119 respondents to their survey after quality control. The study Not gonna takeit lying down by the Women’s Support Group had
interviewed 33 LGBTIQ people. The All Five Fingers
Are Not the Same publication by Human Rights
Watch had involved 61 participants. The present
25

86Equal Ground. (2012). Towards a Lesbians, Gays, Bisexuals,
Transexuals and Transgendered (LGBT) Stigma andDiscrimination Index for Sri Lanka. Op. cit.

Sri Lanka

study only saw the participation of 70 people in its
quantitative survey.
According to Equal Ground:
One of the main challenges associated with thisresearch is sampling. LGBTIQ related stigma is soprevalent that LGBTIQ people do not want tobe known as LGBTIQ people within their wider
communities. They fear being discriminatedagainst and are convinced that the less people
know about their sexual orientation and/or gender identity the less chance they have of facing
any form of discrimination.26
While independent researchers face difficulties instudying LGBTIQ issues from a sociological perspective, LGBTIQ Sri Lankans also continue to be invisible
in the eyes of the Sri Lankan government. The only
official/government data publicly available on these
Sri Lankans is in the references to “homosexuality”
and “men who have sex with men” in the Ministryof Health’s report to UNAIDS. Although the Census
and Statistics Department conducted a national survey on self-reported health for the first time in 2014,
it did not incorporate any issues relevant to sexuality and reproductive health. The same department
conducts a quarterly survey of the Sri Lankan labour
force (since 1990), but despite several reports flagging issues of workplace discrimination experienced
by non-heterosexual and non-cisgender Sri Lankans,it has also avoided issues relevant to sexual orientation and gender identity in their questionnaires.

Media
The media plays an important role in perpetuating
stigmatisation of and discrimination against LGBTIQ
Sri Lankans.
In 1999, a mainstream English language daily andweekend newspaper, The Island, published an op-ed
protesting against a lesbian conference that was tobe held in Colombo.27 At the end of the article, thewriter called for the police to “let loose convicted
rapists among the jubilant but jaded jezebels when
their assembly is in full swing so that those who are
misguided may get a taste of the real thing.”28 A complaint against the newspaper was lodged with the Sri
Lanka Press Council, averring that the publication of
26

Equal Ground. (2012). Towards a Lesbians, Gays, Bisexuals,
Transexuals and Transgendered (LGBT) Stigma andDiscrimination Index for Sri Lanka. Op. cit.

27

Alles, P. (1999, 20 August). Lesbian Conference in Colombo? The
Island28

Ibid.

EROTICS South Asia exploratory research

the letter amounted to the promotion of “sadism,
violence or salacity”,29 which is explicitly prohibited
under Rule 9 of the Code of Ethics for Journalists
enforced by the council. However, as Amnesty International reports, “the Press Council refused tocondemn the newspaper and ruled that the author
had the right to offer his point of view, and that hisview was justified because lesbianism is an ‘act ofsadism’ and was an offence under the country’s penal
code. The Press Council also stated that lesbianism is‘at least an act of gross indecency’ and ‘unnatural’and that ‘misguided and erratic women should becorrected and allowed to understand the true sense
and reality of life’.”30 The Council dismissed the complaint and also ordered the complainant to pay costs
on behalf of the respondent. A prominent gay rights
organisation at the time, Companions on a Journey(COJ), had appeared as complainant.
In 2010, the Daily Mirror, a widely read English
language daily in Sri Lanka, ran a scandalised editorial titled, A tide against the natural …31 describing
a conspiracy by “undesirable elements” to “piggy
back on the political dialogue on human rights”.
The editorial highlighted that “controversial moves
are being made by groups within the Colombo social circles along with a few diplomats and leading
civil society figures to create an impression that heterosexuality is an out-dated, obsolete disposition.
Most of these individuals one-time heterosexuals
turn gays. [sic]” In 2011, the Rivira newspaper (aSinhala language daily) ran a series of “scathing”32
exposés on the HIV prevention work of COJ, which
had involved the distribution of condoms and lubricant sachets in specific public spaces pre-identified
as “cruising spots”. Although COJ had been working under the auspices of a GFATM-funded33 project
29

PlanetOut. (2000, 5 June). Sri Lankan’s Media Complaint
Backfires. Glapn. www.glapn.org/sodomylaws/world/sri_lanka/
slnews006.htm

30

Amnesty International. (2008). Love, Hate and theLaw: Decriminalizing Homosexuality. London: Amnesty
International Publications, 17. d21zrvtkxtd6ae.cloudfront.
net/public/uploads/2016/11/12125724/Love-hate-and-the-low.Decriminalizing-homosexuality.pdf

31

Liyanaarachchi, C. (2010, 29 July). A tide against the natural....
Daily Mirror. https://thesakhicollaboration.wordpress.
com/2010/08/11/bent-reasoning/

32

Sarma, N., & Billimoria, H. (2013). Strengthening the Role ofMedia Advocacy in Sri Lanka through a Critical Analysis ofNews Media Coverage. Bangkok: UNDP. www.asia-pacific.undp.
org/content/rbap/en/home/library/democratic_governance/
hiv_aids/stigma--discrimination-and-key-affected-populations-strengtheni.html

33

Funded by the Global Fund to fight AIDS, Tuberculosis andMalaria87

Sri Lanka

implemented through the Ministry of Health, as a
response to the pushback generated by the Rivira
articles, the office of the president called for aninvestigation, intensifying “a sense of fear and discrimination … and forcing both the closure and/or
suspension of several NGOs,”34 including, by someaccounts, COJ itself.
As Lakbima News, a Sinhala language newspaper, reported, the Rivira journalist who wrote theseries had “hoodwinked a counselling officer with aconcocted personal tale. He befriended the counsellor, took pictures of [him] and then abused his trust
by publishing the pictures without his consent.”35
The article also reported that the victimised officer
had lost his place of accommodation as a direct result of the Rivira episode: “I have been kicked outof my boarding place. My landlord saw my pictures
which appeared along with the story in the newspaper. He showed me the newspaper and asked me tovacate my room.”36

Post-war context
The climate of stigma and discrimination faced by
non-heterosexual and non-cisgender people is also
impacted by the militarisation seen in Sri Lankan society through three decades of war that ended in 2009.
In 2016, a group of people identifying themselves“as lesbian, gay, bisexual, transgender, intersex andqueer (LGBTIQ), as family members and friends of
LGBTIQ people, and as individuals/communities coming forward in support of Sri Lankans who wish toacknowledge and break the silence surrounding apeople whose rights have been denied through themechanisms and institutional structures of a democratic state,” made a submission to the Zonal Task
Force and the Consultation Task Force for Reconciliation Mechanisms,37 in which they wrote:
The war created a climate of insecurity which
was attributable in part to decades of militarisation and the resulting breakdown of democratic
norms and the rule of law. Militarisation creates and boosts very stark models of masculinity
and femininity and forces people into adopting
extreme binary gender-conforming roles. This
34

Ibid.

35

Jayasuriya, R. (2011, 6 November). Disgraceful media bigots
hound a gay man. Lakbima News.

36

Ibid.

37

Various. (2016, 25 August). Submission on LGBTIQ persons andtransitional justice mechanisms. Groundviews. groundviews.
org/2016/08/25/submission-on-lgbtiq-persons-and-transitionaljustice-mechanisms/

EROTICS South Asia exploratory research

The majority of the survey respondents stated that they use a combination of devices to access the internet.
Over 50% selected “My own tablet/smart phone, work laptop/desktop” or “My own tablet/smart phone, My
own laptop/desktop”. This may not indicate the socioeconomic status of the survey participants; however, it
is an indication of increased levels of access.

is particularly limiting for people who do notconform to such gender roles. In addition, militarisation paves the way for these rigid gendernorms to be connected to reproductive sexuality(where sexuality is confined to the logic of reproduction – within marriage and the monogamousheteronormative family unit) and its role in therhetoric of ethno-nationalism. The difficulty inasserting sexual and gender diversity and expression that differ from the prescribed norms wasevident during the war and continues today.38
During wartime (and in the years following), LGBTIQ Sri Lankans were made particularly vulnerable
by heightened security in public spaces. Gender
non-conforming people were exposed to risk at
checkpoints, for instance, when their chosen attire
or other gender expressions did not reflect the stated gender in their identification documents. Suchencounters often resulted in harassment and intimidation.39 Government scrutiny of LGBTIQ groups
and organisations, including requirements to submit“work plans to the government”,40 was another way
in which LGBTIQ people were placed under surveillance by Sri Lanka’s state security.
38

Ibid.

39

Ibid.

40

Ibid.

88

Sri Lanka

Section 3: Sexuality and the online spacein Sri Lanka
In this section, the findings of the study are organised along the three main framings of use, accessand safety. While the authors analysed the data, anumber of subordinate themes emerged and eachis discussed in turn and related to one of the framings. The implications of the study’s findings on Sri
Lanka’s legal and policy framework (including thehuman rights analysis) will be discussed in the next
section. It must be noted that although the discussion deploys the framings of use, access and safety,
there is significant overlap between those framings
in terms of the issues highlighted (see figure 2).

Use: Access to information
The internet has significantly improved the ability of LGBTIQ Sri Lankans to access vital information. Previously,
the demure silence surrounding topics of sexuality in Sri
Lanka meant that LGBTIQ people had few sources of
information on their own sexual orientation or gender
identity. They struggled to understand their place in asocial narrative that assumes all people to be heterosexual and cisgender. Access to accurate informationin such a context can greatly assist them in coming toterms with their sexuality and gender identity.
In interviews with LGBTIQ individuals, it wasrecalled how either they themselves or others they

EROTICS South Asia exploratory research

Figure 2. Access

More than 40, but
not always 9.5 %30-40 hours
7.1 %5-10 hours
3.6 %10-20 horas
8.3 %Unlimited access71.4 %

knew had, having grown up in a time before theinternet, been completely unaware of homosexuality as a “phenomenon” or a “concept”. Mahela,41
a gay man interviewed individually, recalled how
he had believed for a long time that his same-sex
sexual attraction was unique, and that he was the“only person in the world” to be going through theexperience.42 It was only after he stumbled acrossthe entry for “homosexuality” in an encyclopedia athome, at the age of 20 in the year 1990, and proceeded to read further on the subject at the British
Council’s library in Colombo, that he came to appreciate the “commonness” of his nature. He says thediscovery of this information was the first step in aprocess of self-acceptance for him. It highlights, forour purposes, the importance of reliable information for people who struggle to understand theirsexual orientation or gender identity. Mahela also
recounts how the indexing system of the library hevisited played a role in his discovery of further information on homosexuality, he could manually searchfor books under categories like “Gay”, “Gay autobiographies”, etc.
41

All names have been changed, unless context provides
otherwise.

42

Interview with Mahela.

89

Sri Lanka

In contrast, Mahela noted how younger LGBTIQ
Sri Lankans who had grown up with some access tothe internet are less likely to be unaware of homosexuality or transgenderness. While this may be true,
it must be emphasised that knowledge of the phenomena does not mean automatic self-acceptance;
however, the broader accessibility of the knowledge
that homosexuality and transgenderness is common
all over the world, means that younger LGBTIQ SriLankans are less likely to grow up believing they arealone. The internet pierces through powerful assertions of heteronormativity and cisnormativity in Sri
Lanka, and provides LGBTIQ Sri Lankans with various types of vital information, including scientificadvances in understanding human sexuality, observations of sexual diversity in other species, as wellas the social transformations taking place elsewherein the world in terms of sexual orientation and gender identity. Moreover, access to information on theInternet is hugely simplified through the functionof search engines, which index web-content andproduce suggestions to a searched query, ranked according to relevance. In this sense, search engines
are a parallel to Mahela’s experience with the library’s cataloguing system; younger LGBTIQ people
benefit from the ready accessibility of information
about sexual orientation through search engines.

EROTICS South Asia exploratory research

Table 1. Have you ever accessed information relating to any of the following themeson the internet? Select all that apply.
LGBT related news from around the world
LGBT themed art (movies, TV shows, stories, etc.)
Legal and policy information related LGBT issues in Sri Lanka
LGBT organisations
Sexually transmitted infections
Safe sex practices
However, the arrival of the internet in Sri Lanka
has not normalised alternative sexual orientations
or gender identities in the country. Media reports
and independent research show this is clearly not
the case.43 The internet is generally a ready sourceof information for those who seek it, but many whoperceive alternative sexual orientations and gender
identities as deviant or unacceptable do not ordinarily seek out information contradicting those views.
Non-recognition of alternative orientations andidentities creates obstacles to LGBTIQ Sri Lankans’ability to access information. For example, wherea library does not include cataloguing based on
topics related to these matters, individuals seeking
information on such topics are unable to use thatlibrary conveniently. In this context the internet has
transformed the information landscape available
to LGBTIQ Sri Lankans. A clear majority of the survey respondents indicated their use of the internet
to access “LGBTIQ related news from around theworld”, “LGBTIQ themed art (movies, TV shows,
stories, etc.)”, “Legal and policy information related
LGBTIQ issues in Sri Lanka”, “LGBTIQ organisations”,“Sexually transmitted infections”, and “Safe sex
practices.” Figures show the number of people who
responded positively to the question and the percentage this made up (see table 1).
However, despite bringing about an “information
revolution”, the internet is seriously compromised bya large amount of unreliable, unverified or patently
falsified information. This raises issues of information
accuracy and media literacy observed at different
levels even within the sample group surveyed forthis study. For instance, asked to describe the steps
they take to ensure that “the information [they]
access on the internet is accurate”, the majority of
respondents indicated they would either read multiple sources to compare information, or only accept
information from “reputed sources”, with some relying on a combination of both. Worryingly, about
See previous Media section in this report.

90

Sri Lanka

93%
79%
80%
73%
67%
65%

17% of respondents indicated that they took nosteps at all. Some mentioned checking with friends
and even directly contacting relevant persons toseek verification. While some respondents mentioned preferring “official” sources, at least one said
they would prefer to use government resources as asource of accurate information.
Most platforms on the internet cater predominantly to an English-reading audience, with mostsources of LGBTIQ-related information being foreign to Sri Lanka. There is a clear need for moreresources in Sinhala and Tamil (Sri Lanka’s two main
vernacular languages), as well as resources that specifically cater to Sri Lankan audiences – at least in
essential areas such as healthcare.
Despite the high preference for “official” sources of information, few such sources seem to exist,
especially catering to a Sri Lankan LGBTIQ audience. The National STD/AIDS Control Programme(NSACP), the national body in Sri Lanka “responsible
for planning and implementing STI/HIV prevention
and control activities”,44 is the only online source thisstudy could identify as a government source that
explicitly recognised LGBTIQ issues; however thequality of discussion and presentation in the website
leaves much to be desired.
It is no coincidence that the only official resource from the state recognising and discussing
LGBTIQ issues in Sri Lanka is the NSACP. The government has long viewed LGBTIQ individuals fromthe limited perspectives of the public health framework, which has cemented layers of stigma anddiscrimination, especially through the close association of LGBTIQ Sri Lankans with HIV and othersexually transmitted infections.
Besides the NSACP, a number of unofficial yet
Sri Lanka-specific sources of information, such as(for example) the Sakhi Collaboration, “Accept –Sri Lanka”, and Equal Ground, are available online.

44
43

79
67
68
62
57
55

www.aidscontrol.gov.lk/web/index.php/en/about-us/overviewhistory

EROTICS South Asia exploratory researchA review of the NSACP website
It is beyond the scope of this study to offer acomprehensive review of the publications available on the NSACP website; however, somepreliminary issues are flagged from an access-toinformation perspective.
The website provides many different typesof resources – spanning a spectrum from informational to administrative – all under the same,first-level category, “Resources”. These resources
are further organised under a second level ofcategorisation that focuses on the formats ofthe featured document, differentiating “Publications”, “Circulars”, “Slides”, “Public Q&A”,
etc. Under the sub-category, “Publications”, annual reports, administrative reports, research
publications etc. are presented side-by-side withguidelines for male-condom demonstrations anda “Hospital infection control manual”. A key document relevant to LGBTIQ communities is foundin this section, labelled, “No One Left Behind”,1
which provides a useful and accessible overview
of concepts relating to alternative sexual orientation and gender identities (SOGIs). However,the document’s label lacks context at first glance
and is indistinguishable from others featured in
the same section.
Under the sub-category, “Slides”, a numberof PowerPoint presentations and PDFs are available; the links are preceded by the note, “It isvery important to custmize [sic] and update yourpresentations according to the target audience.
You can make use of these slides to create yourown style of presentations,”2 giving the strong
impression that the target audience of the resources section is not the general public. Basedon the labelling of the documents available, the91

1Vidanapathirana, J. et al. (2016). No One Left Behind –Understanding Key populations: Achieving Triple Zeros by2030. Nugegoda: National STD/AIDS Control Programme &United Nations Population Fund. www.aidsdatahub.org/noone-left-behind-understanding-key-populations-achievingtriple-zeros-2030-vidanapathirana-jh

2

www.aidscontrol.gov.lk/web/index.php/en/resources/slides

Sri Lanka

documents most relevant to a SOGI topic are
two identical documents titled, “Men Sex withMen [sic]”,3 each offered in one of the two vernaculars. The sub-category “Public Q&A” focuses
exclusively on issues surrounding STD awareness,and does not offer specific acknowledgement orreassurances to people with alternative SOGIs,
despite the many social factors deterring theiraccess to sexual health services.
It becomes clear, as one observes the structure and presentation of the entire “Resources”
section, that even where some state-sanctioned
information for LGBTIQ Sri Lankans is available
online, that information is not being disseminated to members of the community (or eventhe general public) in any deliberate manner.
Documents relevant to SOGI issues are indistinguishable from those that are not: none of the
documents are accompanied by explanatory
notes, abstracts, preview images, or keywords.
Even though some documents do exist on thewebsite on LGBTIQ issues, they are unreachable through the website’s own search engine.
Not only should all documents be search-engine
optimised, such optimisation should also ensurethat documents in all three languages are accessible through in-site search functions, and in a
way that is mindful of the difficulties in typing
vernacular languages. The categorisation of resources would do well to abandon its focus onformat to embrace a more substantive, thematic
focus, organised and presented in a mannerwhere those who need the information the most
may access it with minimum effort. It would also
be appropriate to ensure that the presentationof information does not perpetuate stigmatisation or discrimination (e.g. highlighting thesexual act in “Men Sex with Men”, for instance,
instead of a more comprehensive focus on sexual
orientation and gender identity).

3

Ibid.

EROTICS South Asia exploratory researchWhile Sakhi and Accept operate on Facebook, Equal
Ground maintains its own website in addition toits social media presence. Sakhi operates througha personal profile on Facebook, sharing informative posters on LGBTIQ issues, circulating local andinternational news on the topic, critiquing mainstream media handling of LGBTIQ-related news,
as well as creating informational content, such asa condom-use demonstration through photos offered in all three45 languages. Unlike Sakhi, Accept
operates through a “page”, allowing any Facebook
user to view its content without sharing their own
profiles’ content with the platform. Its main projectseems to be an outreach campaign, featuring LGBTIQ-supportive quotes from well-known Sri Lankan
personalities, such as actors, novelists and humanrights activists. The page also features “memes” incorporating Sri Lankan current affairs, designed in amanner to promote LGBTIQ rights and to challengeestablished notions of “cultural” values in the country. The page also circulates local and international
news postings. Unlike Sakhi and Accept, which areboth operated by voluntary “admins” working intheir personal capacities, Equal Ground’s platforms
are run by a non-governmental organisation by thesame name, featuring a number of research publications, periodicals, and advocacy materials, most of it
being available in all three languages. A key limitation of the website is that most documents may only
be opened through a third-party platform (www.
issuu.com), on which both navigation and downloading of documents are significantly restricted.

Use: Self-expression and identity building
The internet constitutes an unprecedented platform for self-expression and identity building. Morepeople than ever before are afforded the ability to
express themselves, to share ideas, opinions andnarratives, and to do so through a mixture of mediums, including words, sounds, images etc. Previous
mediums of communication, such as television, areconsidered “vertical”, i.e. transmitting from one
person to many others. By contrast, “the use of theinternet … is … horizontal … from many to many.”46
Older communications are also “oppositional”, in45

i.e., English, Tamil & Sinhalese

46

Tubella, I. (2005). Television and Internet in the constructionof Identity. In M. Castells and G. Cardoso, G (Eds.), The
Network Society From Knowledge to Policy. Washington DC:
Johns Hopkins Centre for Transatlantic Relations; see also La
Rue, F. (2011). Op. cit.: “The Internet should ... be seen as acomplementary medium to mass media that has been based ona one-way transmission of information.”

92

Sri Lanka

volving a “passive mode of reception”,47 whereas internet communications depend on the will of eachindividual that participates in the conversation.
The qualities of the internet mentioned above
benefit all people. Yet, to LGBTIQ Sri Lankans they
are especially empowering. In a context where LGBTIQ Sri Lankans are silenced and excluded frompublic discourses, and where stigma and discrimination against them are perpetuated through freely
circulated and harmful stereotypes, misconceptions
and myths, the internet affords them the ability tointerrogate and counter prevailing narratives, andto work to expand the public’s understanding of Sri
Lanka’s sexual and gender diversity.
When a group of LGBTIQ Sri Lankans and their
allies wrote to the Public Representations Committee
on Constitutional Reforms (PRC), the full text of theirsubmissions was subsequently published on Groundviews, an award winning and widely read citizens’journalism platform operating online. In their submission, the signatories identified themselves as “acommunity of Sri Lankans who wish to acknowledge
and break the silence surrounding a people whoserights have been denied through the mechanisms
and institutional structures of a democratic state.”48
In addition to disrupting this imposed silence,
online self-expressions by LGBTIQ Sri Lankans also
have the ability, merely by existing, to broaden
the space for (and participation of) LGBTIQ voices
in public discourses. As signatories to another, similar submission to the PRC asserted, “we come withthe authority of our own lived realities as [LGBTIQ]
persons, with the hope that speaking our truth topower will give way to the creation of a space whereothers like us can follow suit.”49
Social media is a crucial development in thisfunction of the Internet. Mitya, a trans woman participating in the focus group discussion, described
how she uses her Instagram account to express whatbeing a trans woman means to her. She uses imagesof herself to spread the idea that “#transisbeautiful”,
noting that when more people see more images of her
expressing her trans identity, this increases the impact
she can have on normalising trans people in society and
47

Ibid.

48

Groundviews. (2016, 28 March). A Meaningful Right to Equality
and Non-Discrimination: Recognising Sexual and Gender
Identities. Groundviews. groundviews.org/2016/03/28/ameaningful-right-to-equality-and-non-discriminationrecognising-sexual-and-gender-identities/. Emphasis added.

49

Queerrightslka. (2016, 14 March). On the Constitutional Rights
of LGBTIQA Individuals. Queerightslka.
queerightslka.wordpress.com/2016/03/14/on-the-constitutionalrights-of-lgbtiqa-individuals/

EROTICS South Asia exploratory research

Table 2. Content sharing
I share LGBT-related content publicly on my profile feed (e.g. wall, timeline).
I share LGBT-related content on my profile feed, but I limit visibility to my “friends”, or
specific “friend” circles/lists.
I never share LGBT-related content on my own profile feed.
I share LGBT-related content within specific groups, but rarely on my own profile feed.
showcasing how they are beautiful, too. According toher, while there needs to be a balance between posting naked photos and ones of being fully clothed, shebelieves that “uncovering” her body and presenting
her nudity is an important part of her message of destigmatising trans bodies, which she does not shy away
from. With nearly 5,000 followers on Instagram fromall over the world, her message is not limited to changing Sri Lankan attitudes, but those of the whole world.
On the other hand, Sachintha, a gay man participatingin the focus group discussion, also uses social media,
especially Facebook, to publicly share LGBTIQ-related
content and engage in conversations on LGBTIQ rights
in Sri Lanka. However, he was careful not to overstate
his expectations: “I don’t expect a huge revolution tohappen from sharing such content; I don’t have somegrand, conscious intention or motivation behind sharing publicly; I do it, and sometimes there could be somesmall benefit coming out of someone else seeing thatpost, or engaging in a conversation about it.”
However, though the internet has great potential in empowering LGBTIQ self-expression and social
engagement, that potential is limited by how many LGBTIQ Sri Lankans censor themselves online and on social
media in various ways. Nearly 46% of those responding to the survey indicated they share LGBTIQ-related
content “publicly” on their social media profiles. Not all
respondents are as forthright in their sexual or gender
expressions on social media: 18% indicated they share
LGBTIQ-related content under limited visibility settings,
limiting visibility to either “friends” or specific friend“circles” or “lists”; still another 13% of respondents indicated that, though they rarely share such content on
their own profile feeds, they do share the same within
specific groups; 22% said they would “never share LGBTIQ-related content” on their own profiles (see table 2).
Posts on one’s own profile or on groups is not the
only way a person may speak out about sexual orientation and gender identity (SOGI) issues on social
media. Another important site of social media engagement is the comments sections under individual
posts. There, a user has much less control over whosees and reacts to what they share on social media.
Facebook, for example, allows users to control
the privacy of their own posts, but the same level of93

Sri Lanka

39
15

46%
18%

19
11

22%
13%

control is not available for one’s comments and reactions under someone else’s post. Instead, Facebook
actively broadcasts comments and reactions to an audience beyond those who are immediately engaged in
the conversation, by pulling the comment or reaction
out of its original context and featuring it as a snippet
in others’ news-feeds. Since only the specific commentor reaction of a larger conversation is featured in sucha manner, users coming across the comment on theirnews-feeds are required to click and expand the entire
conversation to understand the full context. Twitter,on the other hand, does not incorporate a comments
section at all; instead, those who wish to respond to
an individual post (aka a “tweet”) must create theirown post as a reply, causing an automatic link to theoriginal post, and thus creating a “conversation” consisting of multiple, individual posts. Often, when auser makes a reply to a “trending” post, their followers are notified of this act in a “digest” of trending
activity. Instagram also features a similar, digest-like
page; however, a user must actively navigate to thispage if they wish to view other users’ activity. By contrast, on Facebook, such updates appear on the main
page of the platform, and on Twitter, the updates are“tailored” for individual users and delivered to themas generic notifications.
Thus, LGBTIQ Sri Lankans are less likely to comment on and engage with others’ posts if they feel
their words will be broadcast to more people thanthey intend. Indeed, while 31% of respondents statedthey would mention their sexual orientation or gender
identity in posts and comments in any situation theyfelt like, an equal number of respondents said theywould “never” mention their SOGI in posts and comments. Of the respondents, 38% would only mention
their SOGI “in certain limited circumstances”, whereas
4% said they maintain a SOGI that is “different to what
[they] privately identify with”. All responses were in relation to posts and comments made on “real” profiles(i.e. profiles featuring respondents’ “real”50 names
and/or images of themselves) (see table 3).
50

In this study, “real name” was defined as “how you introduce
yourself to most people” and distinguished from a legal name,which was defined as “your given name in the birth certificate
and other documents”.

EROTICS South Asia exploratory research

Table 3. I would mention my sexual orientation and/or gender identity in my social
media posts and/or comments…
…in any situation that I feel like mentioning it in…in certain limited circumstances
I would never mention my sexual orientation and/or gender identity in my social media
posts and/or comments
I maintain a sexual orientation and/or gender identity in my social media posts andcomments that is different to what I privately identify with

26
32

31%
38%

24

28%

3

4%

Figure 3. Personal details shared publicly on social media profile

Real name97.7 %

Face picture

96.5 %
22.6 %

Home address

37 %Phone number
27.3 %

Sexual orientation

60.7 %

Gender identity
20.2 %

Political affiliation
Groups I belong to32.1 %
025

Similarly, the number of respondents who include their sexual orientation in their public profiles
is relatively low; more respondents share their phone
number publicly than share their sexual orientation.
While a considerable number of respondents share
their gender identity, the lack of sufficient participation of trans Sri Lankans in the survey makes it
impossible to draw conclusions on gender expression based on the data (see figure 3).

50

75

100

Asked whether they limit their social media participation (posts and comments) fearing a numberof specified factors, the respondents reported as follows (see table 4):
Eight of the respondents, however, felt that thequestion did not apply to them. Two others opted to provide their own answers, and stated, “I am worried about
the stigma my family may face if I am open about mysexuality”, and “I’m worried about what my colleagues’/

Table 4. In terms of the social media profiles that include your real name and/or imagesof yourself, do you limit your participation on social media (posts and comments) fearing anyof the following factors? Please choose the three most relevant choices.
I am afraid of other people finding out about my sexual orientation or gender identity
I am afraid of what other people’s comments would be
I am not interested in displaying my sexual orientation or gender identity
I am not sure whether it is legal to post such topics
I am afraid it might result in violence against me in the physical world
I am afraid the government might find out about my sexual orientationor gender identity
I am afraid it might affect my job
I don’t think anybody should talk about their sexuality and gender issues
on social media platforms

94

Sri Lanka

22
16
29
5
15

26%
19%
34%
6%
18%

5

64%

15

18%

5

6%

EROTICS South Asia exploratory research

Table 5. Social media profile strategies

TOTAL = 85

I have morethan one profile,
but not for any
reason related to
my SOGII have more than
one profile, forreasons related
to my sexual
orientation orgender identity.
I don’t havemore than one
profile on anysocial media
platform.

All of myprofiles on thesame platform
feature my realname and/or
images of
my face.

I have many
profiles; only one
or some of myprofiles feature
my real name
and/or images of
my face.

I only haveone profile
per platform.
It features myreal name and/or images of
my face.

I only haveone profile perplatform. But it
does not include
my real name
and/or imagesof myself.

I don’t haveany profiles
on anysocial media
platform.

7

6

0

0

0

7

11

0

0

0

0

0

54

0

0

friends’/ relatives’ comments would be,” respectively.
One respondent also stated, simply, that, “I participate
where I feel okay to participate in ‘those’ discussions.”
Self-censorship extends to the creation and useof anonymous profiles. An important phenomenon
among LGBTIQ Sri Lankans is the widespread useof anonymous and pseudonymous profiles to navigate stigma and discrimination on social media (seetable 5).
From an analysis of the survey data, it is clearthat all respondents had at least one profile with
their “real” name and images of themselves. If anyof them had profiles without their real name orface pictures, such profiles were always in addition
to a “real” profile. Nearly a quarter of the respondents indicated they have more than one profile on
their preferred social media platform, for a reason
related to their SOGI. This is 18 out of 85 eligible
responses. Of them, seven respondents said all theirprofiles on the same platform featured either theirreal name or portrait, or both. The other 11 indicated that, “only one or some … profiles feature
my real name and/or images of my face”. Another
15% of the respondents said they have more than
one profile, but not for any reason related to theirsexual orientation or gender identity. The majority,
64% (54) of the respondents, only had one profile95

Sri Lankaon their preferred social media platform, which included their real name and/or images of their face.
According to the respondents, the following aresome of the reasons for their use of profiles that do
not feature their real name or image of their face(see table 6).

Table 6. Reasons for anonymity
Because my sexual orientation isconsidered to be illegal.
Because I am afraid of my family
finding out about my sexual
orientation or gender identity.
Because I am afraid of my friends
finding out about my sexual
orientation or gender identity.
Because I am afraid of myemployer or work colleagues
finding out about my sexual
orientation or gender identity.
I do not have any profiles that
do not include my real name andimages of myself.

16

19%

14

16%

14

16%

13

15%

47

55%

Respondents could select more than one standard answer, as well as provide their unique answers.
One such unique response asserted, “It is almost

EROTICS South Asia exploratory researchimpossible to find people for sexual encountersin using real profile.” Another user-typed answer
stated, “to be outspoken about things (e.g., to postcontent such as a very bad review on a restaurant,
a service provider etc.).” Two respondents also stated, “for stalking purposes,” while one of them also
added “spying”.
There were a number of difficulties in framing
the questions on “fake” and “real” profiles, thoughthose labels were frequently heard during the research interviews across a spectrum, from LGBTIQ
activists to law enforcement officials. The main difficulty was in how different individuals had different
criteria for what amounted to a “fake profile”. The
most common criterion was whether the profile
was under the person’s real name or not, but this isclearly inadequate from the perspective of LGBTIQ
issues in Sri Lanka, where some LGBTIQ people haveadopted names for themselves that are different towhat was given them at birth. To such individuals,
the newer name was more “real” than the older
one. This is especially true of trans Sri Lankans. On
the other hand, some discussants at the focus group
discussion and individual interviews (all of them, incidentally, gay men) said they had multiple profiles
under their given name and with images of theirface, with one profile maintaining a heterosexual
performance to friends and relatives who did notknow the person’s true sexual orientation, while theother was to maintain existing friendships as well as
find new friendships within the LGBTIQ community.
For such individuals, the “fake” profile was the heterosexual one. However, to those who maintained
an anonymous, or pseudonymous profile without
images of their face, their “straight” profile was thereal profile, usually because it was the only profile
with their name, their face picture, and their friends
and relatives from the physical world.
For these reasons, in the section of the survey
comparing “real” profiles with “fake” profiles, thefirst question was a statement to either agree withor disagree with: “My real name (how I introduce
myself to most people) is the same as my legal name(the given name in the birth certificate, etc.),” with
the implication that all other questions referring to
the “real” name relied on this definition (how one
introduces themselves to most people). All but five
respondents said their real name was the same astheir legal name. Since the concepts of “real name”
and “legal name” were most relevant to the transcommunity, responses were also cross-tabulatedwith the gender identification of respondents: fourof the five respondents who indicated that their96

Sri Lanka

real name was different from their legal name were
“Male,” whereas one respondent was “Trans MTF.”
The gender identifications of all other respondents(i.e. those who said their real name and legal namewere the same) are disaggregated as follows: female(30), male (45), gender non-identifying (2), trans
MTF (1), and trans FTM (1).
Rajesh is a gay man who participated in the focus group discussion. Being Tamil, he has a relatively
longer and more formal given name that he does
not use in his everyday dealings. He said, “On Facebook, I have two profiles. One is under my given
name, which is where I add my family members andfamily friends; but all my friends from the community associate me through a second profile which isunder the shorter name that everybody knows me
by. If someone from my family sends me a request
on the second profile, I quickly add them from theother profile where all the family members and family friends are.”Similarly, Manju, a trans man participating in thefocus group discussion, recounted how he has three
profiles, each created for a specific purpose, andeach of them featuring his face and the name headopted after his physical transition. He explained
the purpose of each as follows: “One profile is toengage and link up with members of the community; one profile is to network and remain intouch with different activists and organisers I have
met through attending international conferenceson LGBTIQ issues. The reason I separate these two
purposes is because I need to use English with myinternational colleagues, but I want to connect withmy community through Sinhala. My third profile isfor a completely different reason: I engage in somepersonal animal welfare work, and I promote animal
welfare issues there, and the profile is very useful forthat work. Because the animal welfare audience isdifferent from the LGBTIQ community, I don’t wantposts I would make about LGBTIQ issues to have aneffect on my ability to talk about animal issues, or
how what I say is received by that audience.”
It was observed during interviews as well as
the focus group discussion, that many individuals
regarded the notion of “fake profiles” with either
disapproval or at least disdain. In an interview with
an officer of the Cyber Crimes Unit, when asked
about the kinds of situations in which the police carry out surveillance on social media profiles, the mostimmediate answer was “fake profiles”. This was
explicitly qualified when he added that the police
do not crack down on fake profiles in general, but
only on those profiles regarding which complaints

EROTICS South Asia exploratory researchhad been made for “harassment”, “extortion”,
etc. Krishna, a gay man participating in the FGD
argued at some length that, “Fake profiles are notprogressive.” Similarly, in an individual interview
with David, who is a gay man, reference was madeto how fake profiles were usually a double-edged
sword. According to him, anonymous profiles allow individuals to express themselves without
any accountability, and sometimes this can have anegative reflection on the “movement” for LGBTIQ
rights in Sri Lanka. He also mentioned how he waspart of an online LGBTIQ community initiative that
actively cracked down on “fake profiles” that posted nude content publicly on Facebook, especiallywhen such profiles interacted with their initiative’s
dedicated profile. The measures taken against suchprofiles included, first, engaging with them oneon-one through the Facebook profile to encouragethem to stop posting such content and, second, toreport their content and/or profiles to Facebook’s
community standards mechanism.

Use: Forming and maintaining
relationships
Meeting each other has always been difficult for Sri
Lankan LGBTIQ people, and continues to be so eventoday. Rampant stigma and discrimination, and theassociated fears of exposure, exclusion, and harm,
deter many LGBTIQ Sri Lankans from publicly seeking out the company and friendship of others who
think and feel like them. The lack of tolerant, safe
spaces to meet and socialise with each other exacerbates this issue; public spaces are heavily policed
for “decency” in Sri Lanka, even for heterosexual
couples,51 but people perceived to be “homosexual”
face the possibility of arrest, or at least extortion
under threat of arrest. Such prohibitive realities
force many LGBTIQ people to navigate public spaces with extreme care, exerting an adverse effect on
their willingness and ability to seek out friendships
and relationships with other members of the LGBTIQ community.
Before the internet became accessible for general consumption in 1995, LGBTIQ Sri Lankans arguably
experienced these constraints more intensely than51

97

See, for instance, Piyumi Fonseka, P. (2016, 06 March). Occupy
the Square against removal of couple. Daily Mirror.
www.dailymirror.lk/106449/-Occupy-the-Square-againstremoval-of-couple and (2010, 10 June). Sri Lanka arrests kissing
couples. The Courier Mail. www.couriermail.com.au/news/
breaking-news/sri-lanka-arrests-kissing-couples/news-story/
c6aec24aed22e6924834b02833d4469e

Sri Lanka

they do now.52 Through the focus group discussion,as well as individual interviews, it appeared that– beyond serendipity – there were not many ways
LGBTIQ people could meet each other, especially notin the way heterosexual Sri Lankans were able to.
Cruising is one way gay and bisexual men met
each other,53 but such encounters generally tended
to be hurried, spontaneous, anonymous, with themain (if not the only) purpose of the encounter
being the performance of a sexual act.54 Drop-in
centres and social gatherings organised by LGBTIQ
advocacy groups, including lesbian support groups,55
were another way LGBTIQ Sri Lankans met each other. Luke, a long-time member of the now-defunct
Companions on a Journey (COJ), speaking at thefocus group discussion, recounted how there weremonthly community meetings, especially for newcomers, held every Poya Day (a public holiday in
Sri Lanka on account of a full moon). Even though
the meetings were held for “newcomers”, older
members were also “so excited” to meet them, andwould attend the meetings, too­ – sometimes to thepoint of straining the organisation’s capacity to hostthe events. Both requests to be invited and the invitations themselves were communicated via thegeneral post. Luke described the process in some detail: “Those days, it wasn’t like now, it wasn’t so easy
to meet another gay man, so there was a kind ofdesperation. We used to promote our organisation,different members appeared a few times on TV andradio to talk about the organisation, and this would
set off many letters, people secretly reaching out tous, asking if there are any events they could attend.
We kept a list of addresses and always informed
them of the next date and venue of the social gathering through letters. We didn’t use letter-heads
or official envelopes, the letters were always plain,
made to look like personal letters from friends, simply giving the details of a time and place to meet up,
the way any letter from a friend could those days.
There were so many who came to those social gatherings, more than a hundred at a time even, and we
could hardly manage the space.”
52

Interview with Mahela.

53

Interview with David. Cruising is the practice of loitering inpublic spaces, such as parks, shopping malls, or public toilets, forthe purpose of meeting another cruiser or passerby who may beinterested in a casual sexual encounter.

54

No negative value judgment of quick, anonymous sexual
encounters is intended; the only intended implication is thatsuch encounters were not conducive to the formation of longlasting friendships and other relationships.

55

Interview with Maryanne.

EROTICS South Asia exploratory research

The arrival of the internet allowed members of
the community to form and sustain relationships
in ways that were not possible until then. According to the focus group discussion, general chatrooms saw their use by gay and bisexual men tomeet each other as early as the mid 1990s. Spanning international brands such as Yahoo! as muchas local brands like kaputa.com, these chat rooms
allowed individuals to sign in anonymously witha username and engage in conversations carriedout by all members of the room, or to initiate conversations between individual users privately. On
Kaputa, users also had the option of creating atemporary, single-use username, which assured optimum anonymity. Around this time, a chat room
service specifically designed for the Sri Lankan
LGBTIQ community was launched, known as Sri
Connect. Though the service was considered successful and was well-received by members of thecommunity, it appears the platform eventually ran
into problems with the law and was discontinued.
According to Deshan, a gay man participating in
the focus group discussion, another, more recent
way to meet each other was “chain SMS meetups”,
where one person would initiate an SMS specifying a location, usually a public space, with a time
to meet up, and this SMS would be forwarded byrecipients to other recipients.
The ability to maintain friendships and relationships is just as important as forming them,and “keeping in touch”56 is an important part ofthat process. Before the internet, methods of communication in Sri Lanka presented many obstacles
to maintaining a new friendship between two or
more LGBTIQ persons. Methods such as “snail mail”,
fixed landlines, mobile phones, and even the rare
email account, came with technical and economic
limitations that added to the reality of stigma anddiscrimination to dissuade LGBTIQ people from relying on them. Mobile phones were prohibitively
expensive;57 fixed landlines had months-long (if not
years-long) waiting lists. Email addresses were available usually through one’s place of employment.
The most commonly available means of communication, i.e. posted letters and phone calls to land lines,
were almost always shared with family members or
56

Perhaps relevantly, “keep in touch” (KIT) was the brand slogan
for what became the fastest-growing prepaid mobile phoneservice in the early 2000s.

57

Gunawardane, N., & Wattegama, C. (2001). Internet in Sri
Lanka: The First Five Years. in S. Ramanathan & J. Becker (Eds.),
Internet in Asia. Singapore: Asian Media Information andCommunication Centre.

98

Sri Lankaother housemates, since such services were provided
at the level of the household, and not at the levelof the individual. This meant that LGBTIQ people,
who generally fear exposure especially to family
members, were deterred from relying on such methods of communication to maintain friendships andrelationships with other LGBTIQ people because ofprivacy concerns.
Today, online platforms that facilitate the formation and sustenance of relationships constitutea diverse landscape. From social media accounts toonline personal ads, many people use the internet
as a means to meet new people, particularly forphysical and emotional relationships. In Sri Lanka,
and within the LGBTIQ community, social media
platforms such as Facebook loom large. The ability
to share content and socialise online, the ability
to carry on private conversations away from thewider online community, the ease with which newconnections can be made, and the considerablylarge network of anonymous LGBTIQ profiles thatexist on Facebook, mean that such social media
platforms provide a convenient and (mostly) safe
alternative to the risks of socialising and seeking
partners in the physical world, which is remarkably
hostile to sexuality and gender minorities.
In addition to social media platforms, however,applications specifically designed for “dating” and“hooking up” have also emerged, combining geopositioning technology with photo-sharing andinstant messaging technologies, allowing individuals to meet each other based on a combinationof their preferences and their physical proximity
to each other. While most such platforms exist
for people of all sexual orientations and gender
identities, platforms specifically targeting LGBTIQ
people also exist. These platforms, especially in acontext where LGBTIQ Sri Lankans do not have access to public spaces in the physical world as socialand sexual beings, have proved to be useful inmultiple ways (see table 7).

Use: Community organising
The internet also has great potential in serving community organising efforts, especially in a context
where a movement exists for the repeal of persecutory laws and other policy reforms. Social media
platforms and instant messaging services, for instance,
have proved useful in community outreach efforts by
LGBTIQ activists. Many such activists participating in
the FGD indicated the use of such platforms to spreadawareness on various issues, as well as to provide vital
information to members of the community.

EROTICS South Asia exploratory researchMaleFemaleTrans M to F

Trans F to M

Non-

Total

38
36

5
4

2
0

0
0

1
1

46
40

18

4

1

0

1

21

9
4
8

7
11
1

0
0
0

0
1
0

0
1
1

13
13
9

5

1

1

0

0

6

1

1

0

0

0

2

Table 7. Thinking about dating and hook-up platforms (Tinder etc.),
please select all the statements relevant to you.

I have found friends on such platforms.
I have found partners for sexual encounters on such platforms.
I am in or have had a romantic relationship with someone I met on such aplatform.
I left those platforms because I did not find them useful.
I have never been on such platforms.
I have attended events promoted/communicated on such platforms.
I promote events organised by me or someone I know through suchplatforms.
I find clients for commercial sex work on such platforms.
Kavinga, a gay man who is active in the field of
HIV prevention and awareness efforts, mentioned
how his visibility on social media as an openly gay andHIV-positive activist attracts many personal messages
requesting information on issues surrounding HIV, suchas locations of gay friendly clinics and other services.
Similarly, Manju, a trans man active in the fieldof FTM trans issues related how individuals needing information on hormonal therapy or contacts ofissue-sensitive doctors have reached out to him privately through Facebook, as a result of his visibility
through his multiple Facebook accounts.
Rajesh, Luke and Krishna, all gay men participating in the focus group discussion, mentioned thevarious ways in which they had used social media
to reach and inform LGBTIQ Sri Lankans of events
organised by their groups and organisations.
Facebook also provides a platform for community discussions in the form of “groups”. A
key benefit in this regard is the levels of privacy
afforded to groups: whereas “open” groups are
public with posts and discussions being broadcast
in others’ news-feeds, “closed” groups are more
limited, with posts and discussions only being visible to members, though the group itself and its
membership is visible to anyone who searches forthe group. “Secret” groups, on the other hand, arecompletely hidden, and their discussions are only
visible to the members. Secret groups are also unsearchable, and new members can only be addedby current administrators of the group. (Open andclosed groups, on the other hand, allow anyone toeither join or request to join, respectively.) These99

Sri Lanka

features are highly useful to the Sri Lankan LGBTIQ community, allowing them to strategically use
available online discussions spaces, to control theaudiences of their various discussions, as well as
to encourage otherwise hesitant members of thecommunity to join in conversations about various
initiatives and incidents without censoring themselves. In this regard, however, a key concern isthat, while secret groups are the most useful inthe context of LGBTIQ Sri Lankans, that categoryof groups also affords a significant amount of moderating powers to group admins, allowing themto choose new members, ban current members,
and even delete posts. While these functions are
essential, they have the potential to lead to arbitrary decisions, which can be, in the context ofthe nascence of the Sri Lankan LGBTIQ movement,
detrimental. Another concern is the fact that mostFacebook groups are highly conducive to discussions in English, whereas discussions in Sinhala orTamil require the taking of additional steps on thepart of the discussants. This may have an impact on
the participation levels and inclusiveness of many
discussions that take place in such groups.
During the discussion with the focus group,
however, an intense debate emerged on the possibility of adverse impacts on the LGBTIQ movement
in Sri Lanka from the spread of internet use in community organising efforts.
The crux of the proposition was that online
participation in LGBTIQ activism only encourages
a certain superficial level of engagement. Mitya,a trans woman, framed this argument as follows:

EROTICS South Asia exploratory research

“There is a regression in community organising because of the internet. A majority are only heroes onsocial media. They are very forward on social media,
whether it is to speak up or to have sex, but they
don’t come out to speak up. The arrival of social
media means that people no longer come together.
Everybody only speaks from the outside, from theirown comfort zones. This affects the involvement,
there’s an emotional contact that is missing. They
all sort out their own needs from within their own
comfort zones, and talk about whatever issues fromtheir social media profiles, but they don’t come out
and get involved; only a few put their necks on theline and speak up and try to organise and make achange, but if something goes wrong, they would
be on their own, and everybody else will remain
hiding behind their social media profiles.”Manju said, “Participation in community eventsis declining because, with the demands of peoples’
busy lives, they settle for social media interactions
with the community as the adequate level of interconnection. This affects the movement; themovement has certain targets, a struggle for attaining ‘freedom’; this can’t be achieved when
everybody is at home posting on Facebook. Where’s
the strength in our demands, if we can’t even showa photo of more than 10 or 15 people at an event?
But, at the same time, there are some things thatyou can’t talk about, face to face: private things,
secret things, individual issues. For those, Facebook
is ideal. Even in the trans FTM community, this happens. They reach out to us to ask about hormonal
therapy, how to grow a beard, which doctor tomeet, and that’s all – then they disappear, and you
never hear from them again. They make use of us
for their personal needs, but they don’t understandhow their indifference and apathy to the community’s needs affects them and everybody else.”
Deshan provided an interesting perspective on
how social media has undercut the relevance of
LGBTIQ organisations. “Social media is ideal for individual users. Individual needs can easily be served
through Facebook, all the way up to a hook-up. But
if you talk about the movement, there’s a conflict
between that benefit and the interests of the community. In the 1990s, gay organisations had moremembership than today, and more participation in
their events, even when those days the climate wasmore dangerous for the community. This is because
social gatherings and other events by organisations
were one of the few ways that we could meet eachother. Now, membership in organisations and participation in their events has rapidly declined. Because

100

Sri Lanka

the community can meet each other directly, online,
through fake profiles etc. They don’t need organisations any more. But the issue is making friends
privately won’t build a community, and building acommunity is important for securing the rights ofeverybody. But people don’t realise this, because
their individual needs are being met.”
However, an alternative viewpoint came from
Duminda, a gay man. He was of the view that,“Comparison with the past is futile; we can’t get
trapped in nostalgia; the reality is that the internet
is here and has changed the environment. We needto figure out how to make use of the internet forthe movement in the present.” Similarly, Krishna,
also a gay man, said, “We don’t need to be pessimistic about the role social media can play in the
movement; it is enough to simply say the role needs
to be diversified. For example, in the most recent
movie gathering we had, there were 50 people,
and 30 of them were newcomers. There were also
some that had known each for many years throughsocial media without ever meeting in person, andthe movie night was the first time they met. Social
media [and the internet] provides useful tools. It is
up to community leaders and organisations to makeuse of them to strengthen the movement and bringpeople together. There needs to be a balance between what we do on social media and what we
do in the physical world. If it is a purely ‘virtual’ or‘online’ struggle for equality, it’s not going to workout. Bringing the struggle to the physical world is amust. But that doesn’t mean online spaces have norole to play.”

Safety: Safety of content
A major stumbling block in the use and enjoyment of
the internet is the lack of security for content stored
and shared on the Internet. LGBTIQ Sri Lankans, because of their general vulnerability to stigma anddiscrimination, suffer acutely from this insecurity.
During the FGD, a number of such experiencescame to light. Deshan, a gay man who was involvedin the production of a Youth LGBTIQ video within the
Asia-Pacific region with his partner, recounted how
their private photos were used in political pages attacking the sitting prime minister, captioning thephotos with questions like “Do you want your children to be like this?”. Deshan said, “They used our
pictures politically and it went around on Facebook.
So I had to remove everyone except my close friends
from my profile. Even now I don’t put a picture of
my partner and myself as the profile picture because
it attracts unnecessary trouble. It doesn’t matter to

EROTICS South Asia exploratory researchus personally, but it affects our family, nephews andnieces, it can affect their future, especially their married life, so I have to be careful.” Luke, another gay
man, recounted a similar experience: “Once someone used a picture of me and one of my colleagues
celebrating the first day at office by the traditionalritual of boiling milk in a pot. The picture was widely
circulated on social media with the caption, ‘two homosexuals boil milk.’ They said we were trying to be
cultural while destroying the culture because we aregay.” Mitya, a trans woman, recounted how someone
had attempted to blackmail her with her Instagram
posts: “Someone took screenshots of my Instagram
photos and threatened to publish them as a porn star.
I told them to go ahead and publish it because I had
already put them on Instagram for everyone to see.
They tried to blackmail me, but at the end it stopped.
If we get scared, they try to push it more.”
While the homophobic/transphobic slant inthese incidents is clear, sometimes such incidents
originate from within the Sri Lankan LGBTIQ community, too. Rajesh, for instance, recounted thefollowing incident: “Once a drag party I participated in was photographed and put on Facebook. I
received many calls from different people who had
seen my drag pictures online. So I immediately called[a senior police official who was a friend of mine]and told him what had happened. He advised me tomake a complaint to the Peliyagoda police station.
But then, I don’t know who specifically did it, but
I knew it had to be someone from our own community. If we went to the police they will get into
trouble. So I decided not to.”
Mayantha, also a gay man, recounted how hisphone was added to a Viber group (of gay and bimen) without his consent by an unknown person.
“Then someone shared a picture I had shared privately with my ex-boyfriend and asked me if thatwas me. This was someone completely unknown tome. I have no idea how this random guy got that
picture. For me it was a threat to my career, because
I work in the media.”
According to Deshan, such violations of privacy
are not only carried out by members of the community, but even organisations that purport to workfor LGBTIQ rights in Sri Lanka: “Some organisations
publish photos of their events with community members but they do not ask for consent. It happened tome personally also.” He also indicated that such anorganisation violated a non-disclosure agreement
signed with him by publishing a video interview heparticipated in on YouTube.

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Sri Lanka

Safety: Safety of devices
In addition to content shared through the internet, individuals also have negative experiences and/or fears
of negative experiences in terms of content stored indevices (i.e. potential risks even where content is notshared with someone else, but is consumed privately).
At the focus group discussion, Mitya highlighted
the risks of using electronic devices to store important content. “We save our passwords on mobile
apps. If we lose the phone, whoever finds it can access everything that we were doing on the phone.
We don’t logout from phone apps. How many apps
do we use? It’s impossible to logout of all of them,
one by one, every day. I have a pattern-lock on mytouch-screen, but it is very easy to crack because thepattern is visible as a smear on the screen.”
In Sri Lanka, a trend has emerged where many
phone repairmen extract intimately private content
on their customers’ phones and distribute it on theinternet. The fear imposed by such incidents pervades
the LGBTIQ community as well. For instance, at thefocus group discussion Deshan explained his fear of
repairing a broken tablet: “I have a tab where thescreen broke recently. But I can’t give it to be repaired,because it has all the pictures of my vows’ ceremony
with my partner. I am scared that the pictures will go
public if I gave it to someone to repair.”Insecurity of devices is also related to arbitrary
policing. Sayuri, a trans woman who also happens
to be a commercial sex worker, indicated that thepolice checked her phone while she was standing on
the road. “When the police jeep stopped in frontof me, and asked to go through my phone, whatelse can I do? They wanted to look at my photos,
so I said that they can only check my gallery. There
were nude photos in the gallery, but they didn’t say
anything. They went through everything and gave itback to me and drove off.”
A related issue in terms of devices is the location of the device. As will be discussed under the“Access” section below, various reasons compel individuals to use devices that do not personally belong
to them. In such cases, LGBTIQ Sri Lankans can beparticularly vulnerable in terms of their privacy. As
Mitya explained, “If we use Facebook at the office
desk, anyone can fiddle with our account when weare not at the table. If we are trying to keep ouridentity secret, this becomes a huge problem; anyone who comes to our seat can see what we do. If
I had a dating site open, they would see that also.”
Rajesh recounted similar concerns in terms ofinternet cafes: “Once at an internet cafe, as soon

EROTICS South Asia exploratory research

Table 8. Have you experienced or personally known someone who experienced anyof the following? Please select all that apply.
Online harassment (bullying, name-calling, condemnation, etc.)
Pictures exposing your or someone else’s sexual orientation/gender identity posted online
or shared with a third party without consent
Sexual orientation or gender identity being publicised online without consent
Verbal threats to do any of the above
Videos exposing your or someone else’s sexual orientation/gender identity posted online
or shared with a third party without consent
The experience of violence in the physical world
I have not experienced any of the above.
Law enforcement officials checking a person’s mobile phone, laptop, internet account etc.
without their consent
I don’t know anyone who has experienced any of the above.
as my friend who was using the computer next tome finished up and left, the owner of the cafe cameand checked the browsing history. When I looked athim, he said that my friend always looks at the samething. I asked him what his problem was to look into
someone else’s browsing history. Then he said sometimes the police comes and checks the history andquestions him. So he checks the history and deletes
it if there is anything unnecessary. I stopped going tothat cafe after that experience.”
Krishna, a gay man who is also an academic ina public university, recounted how he censors his
online communications, even on his own devices,
if the device is connected to a university network.
He explained, “When we access the internet from ashared network at the office there is a possibility ofothers seeing my chats. So I choose not to say certain
things via my office network, especially if it’s related
to my LGBTIQ activism. You never know who the
network administrator is, but you know that they
are monitoring the content. So I have to be discreet
when using my devices on their network.”

Safety: Adverse online experiences
As is evident, the online space, especially social
media platforms, can be remarkably hostile tosexuality and gender minorities. These hostilities
stifle the full use and enjoyment of the internetby LGBTIQ Sri Lankans; many LGBTIQ Sri Lankans
either censor themselves or are forced to resort
to pseudonymous profiles in their daily use of online platforms. Based on the above discussion on
safety issues at the focus group discussion, thequestionnaire listed a number of adverse online experiences and asked respondents to indicate whichof them they or someone they knew personally had

102

Sri Lanka

49

58%

37

44%

35
35

41%
41%

27

32%

17
24

20%
28%

11

13%

4

5%

experienced. (Note that the listed experiences were
not exhaustive, and were representative of issues
emerging from the discussion and, to some extent,
the literature review.) The results were as follows(see table 8).
Only one of the participants had not heardof anyone who has experienced any form of online violence mentioned in the survey and only 24participants said they have never experienced any
form of violence online themselves. “Online harassment” is the most frequent form of violence
experienced or witnessed by the respondents,
while exposing one’s sexual orientation or gender
identity by using pictures is the second highest response. Of the participants 20% have experienced
or personally know someone who has experienced
violence in the physical world based on online
content related to their sexual orientation orgender identity, 41% have experienced or know
someone who has experienced “outing” without
their consent, while 13% have experienced or
personally know someone who has experienced
law enforcement officials checking their digital
devices (see table 9).
In response 79% of participants identified Facebook as the platform mostly impacted by theidentified experiences. (Indeed, Facebook use hasa high prevalence in Sri Lanka, with over 3.5 million Facebook users and counting. All participants(100%) said they use Facebook frequently, with
WhatsApp coming in at a close second (82.1%).)
Dating apps designed for LGBT people are the second most impacted platforms according to the data;
however, at 20%, the gap of frequency between themost impacted and second-most impacted platforms
is worthy of notice (see table 10).

EROTICS South Asia exploratory research

Table 9. What are the platforms mostly impacted by the experiences you identified above?
Facebook
Dating apps specially designed for lesbian, gay, bisexual or trans People
FB Messenger
Whatsapp
LGBT groups
LGBT-themed blogs
Viber
Email
Discussion forums
This question is not applicable to me
Instagram
General dating apps, such as Tinder
Imo
Twitter
Snapchat

67
15
14
11
7
5
4
4
4
9
3
3
2
1
1

79%
18%
16%
13%
8%
6%
5%
5%
5%
11%
4%
4%
2%
1%
1%

Table 10. Thinking of the person or people responsible for the incident(s), how did they relate
to the person affected?
A stranger/someone unknown
Friends
Someone with a sexual involvement
I don’t know the real identity of the person or people
An acquaintanceSomeone with a romantic involvement
This question does not apply to me
Immediate family member
Relative
While 36% of participants said “someone unknown” was responsible, 29% of participants
reported that “friends” were responsible. Threepeople have faced or know someone who has
faced adverse online experiences inflicted by arelative, whereas eight participants said that thisquestion did not apply to them. Sexual partners
were responsible, said 18% and 14% said that romantic partners were responsible for the violence(see table 11).
Unfriending and blocking appear to be themost common action taken by victims of adverse
online experiences (45%), followed by deactivating or deleting the account (32%). Reporting to therelevant platform administrators is the third mostcommon action against adverse online experiences,amounting to only 29%. This may be an indicator of
the lack of knowledge on reporting tools of social
media platforms. The data shows that reporting tolaw enforcement is not a choice of many victims,

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Sri Lanka

31
29
15
18
15
12
15
5
3

36%
29%
18%
21%
18%
14%
18%
6%
4%

with only three participants reporting or knowing
someone who reported such experiences to law
enforcement. Interestingly, 22% have said they did
not respond at all (see table 12).
A majority of participants said they did notreceive a satisfactory resolution, whereas 24 participants said they did. This is an interesting finding yet
not surprising due to the gaps in community standards of social media platforms.

Safety: Literacy in online safety
In an online landscape riddled with privacy and surveillance issues, measures individuals can take toprotect themselves against such risks have an important role to play. However, this is only possible wheresuch users are adequately educated and made awareof the existing threats and possible techniques against
them. Indeed, the Special Rapporteur on the freedomof expression has underscored “the importance of educating individuals about internet safety and security,

EROTICS South Asia exploratory research

Table 11. How did you or the person affected respond to the experience? (Select all that apply.)
Unfriended or blocked the person
Deleted/deactivated the profile on that platform
Reported the person responsible to the platform
Did not respondConfronted the person either privately or in the comments
Was forced to create a new profile on that platform
Made a post publicising the wrongdoer and their actions
This question does not apply to me
Reported the problem to law enforcement
Confronted the individuals concerned personally in the physical world

38
27
25
19
21
8
11
12
4
2

45%
32%
29%
22%
25%
9%
13%
14%
5%
2%

Table 12. Did you/they receive a satisfactory resolution?
No
Yes
I don’t know the result yet
Did not respondThis question does not apply to me

51
24
15
7
12

60%
28%
18%
8%
14%

Table 13. Do you use any of the following tools and methods to increase your security online?
Using strong passwords for your email or other internet accounts
Using only platforms which provide encryption services
Using anti-virus software
Keeping your operating system updated with the latest security patches and updates
Using internet protocol (IP) disguisers/blockers
Using anti-censorship software
Using a virtual private network (VPN)
I have heard of some of these tools, but I don’t know how to use themincluding fraud, potential consequences of revealing
private information on the internet and the use of
encryption or circumvention technologies to protect
information from unwarranted interference.”58
Significant gaps in this awareness were revealed
in both the focus group discussion and the survey. As
Krishna noted at the discussion, “Whatever we doonline is recorded somewhere. Some people cover
their laptop’s camera (by sticking a plaster) because
cameras can be turned on remotely by someone
else. Sometimes Google accounts require telephone
numbers to verify the account, but you can skip thisstep without giving the number. But those who
don’t know that they can skip the step give their telephone numbers thinking it is mandatory.”
Another example is observed in how Sumith, a gay
man who is also a sex worker, explained his reasonsfor using video calls. “Video calls are important forfinding partners,” Sumith said. “It’s very convenient,58

La Rue, F. (2011). Op. cit., 47.

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Sri Lanka

69
15
49
30
5
1
1
12

81%
18%
58%
35%
9%
1%
5%
14%

because I can talk and present myself to the client onvideo apps like Imo before we meet up. The client only
has to come to physically meet me if he is satisfied with
my appearance as seen through the video call.” When
asked if video calls are also important because they aresafer than sending an image of himself that can be
downloaded and saved in a potential client’s phone,
he insisted that video calls are preferred only for theirconvenience, and that in any case photos are also sent
as part of the initial invitation to meet.
Patterns of literacy in online safety were also
demonstrated in their awareness of the survey
participants on some common tools used in online
contexts to protect privacy (see table 13).
Another such indicator could be the practices
surrounding the sharing of pictures on dating andhook-up platforms (see table 14 and 15).
In addition to the photos they share, how andwhere individuals meet physically for the first time
off a dating app is also crucial to their safety. The lackof public spaces for LGBTIQ Sri Lankans to socialise

EROTICS South Asia exploratory research

Table 14. Thinking about dating and hook-up platforms (Tinder etc.),
please select all the statements relevant to you.
I share my face publicly
I only share my face privately
I have never been on such platforms.
I never share my face

39
23
20
3

46%
27%
24%
4%

28
25
22
6
4

33%
29%
26%
7%
5%

Table 15. Thinking about dating and hook-up platforms (Tinder etc.),
please select all the statements relevant to you.
I share non-nude pictures publicly, but I also share nude pictures privately.
I share only non-nude pictures, both publicly and privately.
I have never been on such platforms.
I share nude pictures both publicly and privately.
I don’t share any pictures on such platforms.

Table 16. Fill in the blank with the statement most appropriate to you. When I meet someone
new from such a platform for the first time, “_________________________”
I always meet them in a public space (a main road, a restaurant, a park).
Sometimes I meet them in a public space, sometimes I meet them directly in my place, theirplace, or a friend’s place.
I have never been on such platforms.
I always video call them and see their face before I meet them.
I don’t meet people from such platforms in person.
I always invite them over directly, or I always go to their place, or we always meet at afriend’s place, directly.
We sometimes meet directly in a hotel/rented room.
I always meet them with someone else I know.

has already been highlighted. As the following tableindicates, the absence of such tolerant spaces also has
the possibility of endangering the lives and physicalsafety of LGBTIQ Sri Lankans, with more and more ofthem choosing to meet a relative stranger directly ina private space for the first time (see table 16).
Considering the needs of the Sri Lankan LGBTIQ
community in literacy on online safety, targetedinterventions within the community on the subject appear imperative. Indeed, although 22% (19)
respondents to the survey indicated they had participated in some kind of “digital safety training
courses, seminars or workshops,” 78% (66) of respondents indicated that they had not.

Access: Obtaining services
A key issue in terms of online rights is the availability, affordability and quality of access to the internet.
This theme has a number of dimensions to it, namely, technological, economic and linguistic limitations
to access. Indeed, these dimensions also overlap andintersect with each other.

105

Sri Lanka

22
17

26%
20%

22
12
12
7

26%
14%
14%
8%

5
2

6%
2%

While several such issues on access were flagged
during the focus group discussion, prime among
them was how certain documentary requirements inpurchasing new broadband or mobile connections
indirectly discriminated against LGBTIQ Sri Lankans.
In 2009, the Telecommunications Regulatory Commission of Sri Lanka issued regulations requiring
registration of all new connections to be linked tothe subscriber’s national identity card (NIC) number.59
Accordingly, Sayuri, who is a trans woman, recounted
how an agent of an ISP refused to sell her a SIM card,
because her NIC reflected her assigned gender: “Theagent looked at the NIC and at me, and said, ‘This
isn’t you.’ I said, ‘No, it is me,’ but he kept insistingthat it wasn’t. I didn’t want to cause a scene, because
his shop was on the sidewalk and there were so many
people around, and all of them would have laughedat me if I had kept insisting that it was me. So I left
the place. Since then, I had to use a friend’s spare
59

GSMA. (2013, 3 July). Dialog Connect: A Case Study. GSMA.
www.gsma.com/identity/dialog-connect-a-case-study.

EROTICS South Asia exploratory researchSIM, but that SIM is registered under his name, and if
I need to access services, I need him physically or a letter from him. On top of it all, he’s about to leave thecountry soon for employment in the Middle East, andI am not sure what I will do when he’s gone. Maybe
if I go to a principal service centre instead of a street
agent, I won’t have this problem.”
Manju, a trans man, also recounted a similar
encounter. He had owned a SIM card for 10 years,
one he had purchased and had been using since before his physical transition. All the documentationon the SIM reflected his previous identity, and heneeded to update it to reflect his post-transition details, including his new name. He had approached acustomer care point and lied, saying the SIM was officially under his twin sister’s name and ID card, butthat she was currently abroad. He had requested a“transfer” in ownership, saying that though his “sister” had purchased the SIM, it had always been himthat had used it. The customer care representative
had requested him to come back with a signed letter from the sister, which he had promised to do, but
had not ultimately got around to doing. However,some time later, he had noticed that the connection
had been updated to reflect his current details. He
believes that although the customer care representative had requested an official letter, he had madethe changes anyway.
In addition to the requirement of an NIC, customers purporting to purchase post-paid connections arealso required to produce a recent utility bill as proofof billing address. Here, the general requirement isthat the address on the utility bill is reflected in theaddress on the NIC. However, if the NIC’s address isout-dated (NICs are first issued to citizens at the ageof 16), a customer may simply ensure that the address on the application form for the connection is
the same as that on the utility bill.60 If an individual
lives in rented housing, they are required to accompany the proof of billing with a letter from thelandlord, as utility bills for rented houses reflect thelandlord’s identity. Deshan, a gay man, elaborated
on how these rules impact on sexuality minorities.
He said, “Many gay people, especially middle-aged
and older gay people, live away from their families,
but also live in rented homes. Most service providers, when you’re trying to get wi-fi or a fixed line
connection, require the homeowner to make thepurchase under their name. Many gay people don’t
have their own, permanent place to live. I have had
60

106This information is based on calls to customer care hotlines ofprominent ISPs in Sri Lanka.

Sri Lanka

to buy such services through my mother and herhome address.”

Access: Owning devices
As mentioned in the section above on “Safety of devices”, another issue in terms of access is how someindividuals are required to access the internet on devices and/or networks that belong to others, such as
their workplaces and or proprietors of internet cafes.
While many individuals use devices and networks notbelonging to them in addition to their own devices
and networks, some have online access only throughfacilities owned by others. Considering the sensitive
nature of internet consumption related to one’s sexuality, especially where one’s sexuality is stigmatised insociety, the non-ownership of devices and networks
directly hinders the individual’s ability to enjoy their
online human rights, including the ability to meet
new people, maintain relationships, as well as engage in various discussions and discourses related totheir sexual orientation or gender identity.

Access: Language
Language is another limiting factor affecting
the accessibility of online content. As mentioned
before, many sources of information cater to an
English-reading audience. Moreover, most devices
are designed, in terms of their “input” functions,for the English language by default. Althoughpost-purchase modifications are possible to expand the devices’ functionality to either Sinhala
or Tamil, these modifications are limited in scopeand lack the same functionality of the English features. Although Sri Lanka features high literacy
rates in the general population, English literacy is
not reflected in such indicators. More importantly,
individuals are entitled to the right to access information and engage in communications in thelanguage of their choice.

Access: Quality of service
Finally, data speed and quality of service is an important aspect of online accessibility.61 However,as Manju pointed out during the focus group discussion, “Sometimes data is so slow and expensive
that, when you’re trying to load a page, you runout of prepaid credit while the pinwheel simply
turns without ever loading. You could reload theaccount and try again, and sometimes the credit
runs out all over again. This is especially true if

61

La Rue, F. (2011). Op. cit., 63.

EROTICS South Asia exploratory research

you own a low-feature phone instead of a fullyfledged smart phone.” Indeed, such constraints arecompounded by the significant increase in taxes
on data consumption in Sri Lanka since November
2016,62 which, according to a senior legal officerof an ISP interviewed confidentially for this study,
amounts to approximately 35% to 49% of the raw
user rate. Indeed, according to said interviewee,
some ISPs also employ various tactics to counter thedecrease in data consumption that corresponds toa significant hike in taxes, by lowering the speed of
the connection at specific data consumption milestones of the consumer.

Section 4: Law and policy
Many human rights are relevant when considering
LGBTIQ Sri Lankans in the online space. In the previous section, issues discussed were framed in terms ofuse, safety and access; as regards “law and policy”,
we mainly look at the relation between those issues
and the human rights of the freedom of expression,
the right to information, the freedom of association,and the right to privacy.
LGBTIQ Sri Lankans enjoy the right to information through their use of the internet. They accessinformation of vital importance to their personal
growth, health and well-being through the internet; the types of information accessed span across
categories like news, art, health information, legal
information, etc. At the same time, issues of media
literacy, lack of recognition in official/government
resources, as well as limitations to access in terms of
linguistic, technological, financial issues were also
touched upon.
LGBTIQ Sri Lankans enjoy the freedom of expression through the internet. They use the internet
to raise awareness, to engage with local discourses
on sexuality, to break stereotypes, to advocate theirrights, and even simply to exist. They also use the internet to engage in one-on-one and group conversations,to share ideas, and even for intimate expressions.
LGBTIQ Sri Lankans enjoy the freedom of association through the internet. The internet has been
positively instrumental in the formation of new relationships among members of the LGBTIQ community,
as well as sustaining both old and new relationships.
These relationships could be emotional, romantic,

62

107

Lanka Business Online. (2016, 11 November). Sri Lanka budget
2017: tax and revenue proposals. Lanka Business Online. www.
lankabusinessonline.com/sri-lanka-budget-2017-tax-andrevenue-proposals

Sri Lanka

casually sexual, platonic, amicable, acquaintances,
etc. The internet has also facilitated the creation of
networks of community members, which is crucial toadvocacy efforts.
The internet also impacts the right to privacyof LGBTIQ Sri Lankans. Anonymity and pseudonymous profiles feature in the lives of many LGBTIQ
people in the country. At the same time, the safetyof their content and devices from illegal intrusions
and state surveillance is a matter of concern to LGBTIQ Sri Lankans.
These rights are generally considered “civil andpolitical.”63 This is not to say that socioeconomic
rights related to the issues discussed in this study are
negligible. In fact, the right to health, the right toeducation, the right to science and culture, etc., arealso arguably relevant to a general discussion of LGBTIQ Sri Lankans’ internet rights. However, given thelimited recognition of socioeconomic rights in the Sri
Lankan Constitution,64 as well as a general tendency
to focus on internet rights through the lens of civil
and political rights even within the international human rights mechanisms, this study will also follow
the same approach.
In Sri Lanka, it is widely believed that homosexuality is criminalised under the law. This belief,
its accuracy aside, creates a remarkable interface
between the criminal law of the country, the telecommunications regulatory framework andinternet governance, which renders LGBTIQ SriLankans vulnerable to both law and society in theiruse of the internet.

The human rights frameworkin the Constitution
Articles 3 and 4
Article 3 of the Constitution states, “In the Republic of Sri Lanka sovereignty is in the people and isinalienable. Sovereignty includes the powers of government, fundamental rights and the franchise.”(Emphasis added.) This provision is a foundational aspect of the Constitution, as it cannot be
amended, and laws inconsistent with it cannot bepassed by parliament, without resorting speciallyrestricted procedures, including the requirementof a two-thirds majority in parliament, as well asa simple majority in a referendum. In this way, the63

For instance, they all find expression in the International
Covenant on Civil and Political Rights.

64See, generally, Gunatilleke, G.D. (2010). Judicial Activism
Revisited: Reflecting on the Role of Judges in enforcing Economic,
Social and Cultural Rights. 1 Junior Bar Law Review 21, 28-30.

EROTICS South Asia exploratory researchConstitution expressly ensures that fundamental
rights issues are beyond the tyranny of the (simple)
majority, and that laws affecting core fundamental
rights guarantees are not possible without broadpolitical consensus.
Article 4 requires “all organs of government”
to observe both negative obligations (i.e. to not to
do certain things) and positive obligations (to takesteps, to do things) in relation to the fundamental
rights declared in the Constitution.65 The significance of this provision is that it envisages all organsof government to play a proactive role in guaranteeing citizens’ fundamental rights. Indeed, it could
be argued that, the reference to positive obligations
recognises that state omissions violate fundamental
rights just as much as state actions do. However, this
aspect of Article 4(d) has received little attention indomestic jurisprudence.
Articles 10 to 14
Of the specific fundamental rights recognised in
the Constitution, the freedoms of thought andconscience,66 and of expression67 and association,68 areparticularly relevant to the present discussion. In May
2015, the Constitution was also amended to declareand recognise the “right of access to information”.69
However, neither the right to privacy,70 nor thebroader right to liberty71 (both of which have been
instrumental in vindicating the sexuality rights inother parts of the world), is explicitly mentioned
in Sri Lanka’s fundamental rights chapter. Nor does
the Constitution include any explicit protections
against arbitrary searches and seizures by law enforcement officials.
However, explicit mention in the Constitution
per se is not always necessary to judicially enforce
a right. For instance, in a landmark judgment,72 theSupreme Court once declared the right to life as
implicit under Article 13(4), which reads, “No person shall be punished with death or imprisonment
65

Article 4(d), Constitution of Sri Lanka.

66

Article 10, Constitution of Sri Lanka.

67

Article 14(1)(a), Constitution of Sri Lanka.

68

Article 14(1)(c), Constitution of Sri Lanka.

69

Article 14A, Constitution of Sri Lanka.

70

Toonen v. Australia. Communication No 488/1992. HRC., 31
March 1994); Dudgeon v. the United Kingdom. App. No.
7525/76. ECtHR.,22 October 1981); National Coalition for Gay
and Lesbian Equality and Another v. Minister of Justice andOthers [1998]. ZACC 15. (9 October 1998)

71

Lawrence v. Texas. 539 U.S. 558 (2003) in the United States; Naz
Foundation v. Delhi and Others [2009] 4 L.R.C. 838 in India.

72

Sriyani Silva v. Iddamalgoda (2003) 2 S.L.R. 63.

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Sri Lanka

except by order of a competent court, made inaccordance with procedure established by law.”
At the same time, Article 12(1), which guarantees“equality before law” and “equal protection oflaw” to all persons, is generally regarded as broadin scope,73 guaranteeing against concepts suchas unreasonableness, arbitrariness, etc., and has
been instrumental in recognising “implied” rights
in the Constitution.74
The Constitution does not explicitly mention“sexual orientation” or “gender identity” as categories protected from discrimination either, thoughother categories such as “race, religion, language,
caste” etc. are mentioned. However, in October 2014,
the Government of Sri Lanka took the position before the Human Rights Committee (HRC) in Geneva(HRC) that, “Article 12(2) of the Constitution ensuresthat no citizen shall be discriminated, inter alia, on
ground of sex. In this context, it [is] noted that laws
discriminatory of a person on the grounds of sexual
orientation would not be constitutional.”75 Though
this position comports with the jurisprudence of the
HRC,76 its domestic legal status remains in doubt.
Firstly, because only the Supreme Court is vested
with the jurisdiction to interpret the Constitution;77
and secondly, because the Government of Sri Lanka
has expressly contradicted its position in subsequent
domestic forums.78
Article 15
The Constitution allows reasonable restrictions ofcertain fundamental rights through Article 15. The
general principle of this article has been noted by
the Supreme Court for its resonance with Article
73

Udayanganie, U.A.T. (2013, October) Expanding the Scope of
Judicial Review using Constitutional Interpretation in Sri Lanka:
A Comparative Study of the Development of Judicial Review in
UK. GSTF International Journal of Law and Social Sciences (JLSS)
Vol.3 No.1, 51-54

74

See e.g., VisalBhashithaKaviratne et al. v. Commissioner-Generalof Examinations et al. (The Z-Score Case) S.C. (F.R.) Application
No. 29/2012.

75

Human Rights Committee. (2014, 7 October). Consideration of
the Fifth Periodic Report of Sri Lanka on the Implementationof the Provisions of the International Covenant on Civil andPolitical Rights (Transcript of relevant part). www.youtube.com/
watch?v=iHcREEWl6G8&feature=youtu.be&t=6232

76

See Toonen v. Australia. Communication No 488/1992 (HRC, 31
March 1994)

77

Article 125(1), Constitution of Sri Lanka, which reads, “TheSupreme Court shall have sole and exclusive jurisdiction to hearand determine any question relating to the interpretation of
the Constitution…”

78

Samarakoon, S. (2017, 26 January). Homosexuality | “Threw
out” – Can the President control a person’s sexual orientation?
Vikalpa. www.vikalpa.org/?p=29311

EROTICS South Asia exploratory research29(2) of the Universal Declaration of Human Rights,79
which provides a three-pronged test to assess thepermissibility of a restriction of a right by the State:
to be permissible, any restriction of a human rightmust (a) be prescribed by law, (b) be in the pursuit ofa legitimate state interest, and (c) be necessary in a
democratic society.80
In interpreting Article 15, the Court has followed
the approach of the three-pronged test. In Joseph
Perera v. A.G.,81 a full bench of the Supreme Court
held that “it is competent to the Court to question… whether there is a proximate or rational nexus
between the restriction imposed […] and the object
sought to be achieved by [it].”82
Much later, in Sunila Abeysekera v. Ariya
Rubasinghe,83 counselling against “looking at one’s
own Constitution wearing blinkers,”84 the Court
explicitly adopted the three-pronged test of international human rights law as the suitable yardstickto assess rights-restrictions under the Constitution.85
The “prescribed by law” prong ensures, as abaseline, that all restrictions of rights (except those
enforced during declared states of emergency) will
always be implemented through legislation only.
However, the requirement also imposes certain
qualitative criteria on the law imposing the restriction. For example, the European Court of Human
Rights (ECtHR) has held that under “prescribed bylaw”, a restriction of a human right must satisfy two“substantive” qualities: “Firstly, the law must be adequately accessible: the citizen must be able to havean indication that is adequate in the circumstancesof the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless
it is formulated with sufficient precision to enable
the citizen to regulate his conduct: he must be able
– if need be with appropriate advice – to foresee,
to a degree that is reasonable in the circumstances,

the [legal] consequences which a given action may
entail.”86 In the United States, the Supreme Court
follows a similar approach known as the “void-forvagueness doctrine” under the due process clause:“[G]enerally stated, the void-for-vagueness doctrine
requires that a penal statute define the criminal
offence with sufficient definiteness that ordinary
people can understand what conduct is prohibitedand in a manner that does not encourage arbitrary
and discriminatory enforcement.”87
The other two limbs of the three-pronged test
ensure the principle of proportionality, which requires the state to balance any legitimate aims it
pursues through rights-restrictions with the burdens
they impose on individuals. Under this approach,known as the proportionality test, the state is toconsider such aspects of a given restriction as: theavailability of relevant and sufficient reasons justifying the measure; the availability of less intrusive
measures; the incorporation of adequate safeguards
against abuse, etc. If a restriction fails to satisfy any
limb of the three-pronged test, it is held to be impermissible under human rights law.
Thus, the significance of this provision is that,even where fundamental rights protect the words,
conduct, etc. of a person, the government may still
restrict them, through criminal law, civil law, or evenadministrative action. However, in order to be considered legal, such restrictions need to satisfy thethree criteria outlined above.

79

Universal Declaration of Human Rights, Article 29(2): “In theexercise of his rights and freedoms, everyone shall be subject
only to such limitations as are determined by law solely for the
purpose of securing due recognition and respect for the rights
and freedoms of others and of meeting the just requirements ofmorality, public order and the general welfare in a democraticsociety.”

86

80

Sunila Abeysekera v. Ariya Rubasinghe (2000) 1 SLR 314.

81

Joseph Perera v. A.G. (1987) 1 S.L.R. 199.

82

Ibid., 216-17. Emphasis added. Edited. Although the cited
passage refers to Emergency Regulations, the present
submission will justify the extension of its meaning to coverordinary legislation as well.

83

Sunila Abeysekera v. Ariya Rubasinghe (2000) 1 SLR 314.

84

Ibid., 351.

Sunday Times v. The United Kingdom (No. 1) App. No. 6538/74(ECtHR, 26 April 1979), Emphasis added. However, the
ECtHR, went on to state, “Those consequences need not be
foreseeable with absolute certainty: experience shows this tobe unattainable. Again, whilst certainty is highly desirable, it
may bring in its train excessive rigidity and the law must beable to keep pace with changing circumstances. Accordingly,
many laws are inevitably couched in terms which, to a greateror lesser extent, are vague and whose interpretation andapplication are questions of practice.” See, also, Ontario Filmand Video Appreciation Society v. Ontario Board of Censors(1983) 31 O.R. (2d) 583 (Ont. H.C.), p. 592: “It is accepted that
law cannot be vague, undefined, and totally discretionary; itmust be ascertainable and understandable. Any limits placedon the freedom of expression cannot be left to the whim of an
official; such limits must be articulated with some precision or
they cannot be considered to be law.”85bid., 356-85.

87

Kolender v. Lawson. 461 U.S. 352, 357 (1983).

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Article 16
A major limitation in the Constitution’s human rights
framework is that it precludes “judicial invalidation”
of rights-violating legislation through Articles 16(1)and 80(3). In other words, courts are precluded from“striking down” laws found to be inconsistent with
fundamental rights.

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However, the Supreme Court has made significant inroads to this limitation, for example when it
declared a statutory provision unconstitutional and,without invalidating it, refused to give effect to it.88
Incidentally, the impugned statutory provision inthat case is part of the same 1995 legislation thatamended the provisions of the Penal Code relevant
to LGBTIQ Sri Lankans: Sections 365 and 365A.

Substantive law framework
Sections 365/365A of the Penal Code are at the topof a pyramid of laws directly infringing LGBTIQ SriLankans’ human rights. Criminalising “carnal intercourse against the order of nature” and “acts ofgross indecency”, respectively, these provisions areabjectly vague, and appear to capture many sexualacts committed between persons, irrespective of
their age, their genders, or the existence of consent
between them. Section 365A is particularly broad,covering not only the commission of an act, but also
the procurement and the attempt to procure thecommission of such acts. By criminally sanctioning
certain sexual acts, the provisions directly interferewith how individuals express their identity, how theyexpress themselves sexually, and who they form intimate relationships with.
They also exert an undue influence on otherlaws. This was seen in 1999, when the Sri Lanka
Press Council arbitrarily conflated “gross indecency”
under Section 365A with “sadism” under Rule 9 of
the Code of Ethics for Journalists. It was also seen in
how, under the Penal Code, perpetrators of the nonconsensual, predatory sexual offences are treateddifferently based on the sex of the victim, with themandatory minimum sentence being relaxed wherethe victim is female, and enforced strictly where thevictim is male.89 Here, again, the court deploys vague
references to Sections 365 and 365A as justifying theirdifferential treatment, and here again, the decisionmaking body’s interpretations of the provisions werearbitrary and had no authority in law.90 For one, sentencing disparities in child abuse law enforcement tothis extent discriminates against both girls and boys.
88

Supreme Court Reference No. 03 of 2008, decided on 15 October
2008.

89

Supreme Court Appeal No. 17 of 2013, decided on 12 March2013 and Court of Appeal No. 150 of 2010, decided on 16 July
2014.

90

“Section 365 and 365A [were made] wide enough with
amendments to include ‘unnatural offences and grave sexual
abuse … This court cannot show any leniency on any account,in view of the serious nature of the offence…, mainly to protect
the society from such mentally disordered offences.” (S.C.
Appeal 17/2013, note 102, above.)110

Sri Lanka

In addition to Sections 365 and 365A, obscenity,
profanity and public performance laws are the otherlaws that impact sexuality and sexual expressions in
Sri Lanka. A key characteristic of these laws is thatthey either do not define the scope of the offence,or when they do, they often couch the offence inbroad, vacant language. The Obscene Publications
Ordinance No. 4 of 1927 makes it an offence to produce, possess, import, export, carry on, take part ina business or advertise the availability of obscene
publications. However, the act does not define theterm “obscenity”. The Profane Publications Act No
41 of 1958 makes it an offence for any writer, publisher, printer or distributor to write, produce, print,
publish, sell, distribute or exhibit any profane publication. A profane publication is defined to mean any
newspaper, book, picture, film or other visible representation containing an insult to the founder of any
religion, any deity, saint or person venerated by thefollowers of any religion, or any religious belief or
any representation that ridicules any figure, picture,emblem, device or other thing associated with or sacred to the following of any religion.91 But, again,profanity itself is left undefined.
Though none of the laws have been enforcedin connection with the internet (or even in general, in some cases), “their mere existence warrants
concern.”92 Laws restricting human rights must be,among other things, accessible and foreseeable, sothat those affected by the law may know the extent
of their legal obligations. However, in terms of the
network of vague legal provisions discussed above,
most LGBTIQ Sri Lankans remain unaware of theexact scope of the prohibition of “homosexuality”.
Moreover, the laws are also vague in their potential
applications on the internet: almost all the provisions mentioned include words such as “engage”,“procure”, “publish,” and it is unclear how thislanguage could be applied to expressions and encounters taking place in the online space.
Vagueness also confers broad discretionary powers to law enforcement officials, enabling themto abuse laws and enforce them selectively. As
mentioned before, a requirement under the threepronged test is that there are adequate safeguards
against abuse of a particular restriction. Together,
non-vagueness and procedural safeguards ensure

91

See, in general, Centre for Policy Alternatives. (2011). Freedomof Expression on the Internet in Sri Lanka. Colombo: Centre for
Policy Alternatives. www.cpalanka.org/freedom-of-expressionon-the-internet-in-sri-lanka/

92

Ibid.

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that citizens know their legal obligations and thatthose obligations will be fairly and equally enforced
to all citizens. However, the fact that the impugned
laws operate under a procedural framework withbarely any safeguards against abuse compounds
the adverse effects of their vagueness. Not only do
LGBTIQ Sri Lankans not know the extent of their obligations, they are also constantly under the threatof legal surveillance with little possibility of priornotice or judicial oversight.

Procedural law framework
A significant aspect of online rights, particularly interms of the right to privacy in the digital age, is thepowers of the state to carry out investigations andsurveillance on individuals’ activities on the internet.
In Sri Lanka, no consolidated law exists governing this aspect of the state’s powers. In interviews
with key informants, such as an officer of the Cyber
Crimes Division of the Criminal Investigations Department, as well as a senior official of the National
Child Protection Authority, the Computer Crimes Act
No 24 of 2007 and the Code of Criminal Procedure
were mentioned as the main laws governing thepolice’s procedural powers in online criminal investigations. Both interviewees also averred that theComputer Crimes Act provided the necessary powers
to investigate crimes committed on the internet andthat it was fully compliant with the Convention on
Cybercrime (to which Sri Lanka is a State party).
The Code of Criminal Procedure (CPC) provides
the general procedure applicable in criminal matters, and was first enacted in Sri Lanka in 1889.
While the code provides for various investigatory
powers, the provisions pertaining to searches of“documents and other things” are the most relevantto the present discussion: firstly, under Section 66(1),a relevant court may require any person to produce“any document or other thing [that] is necessary or
desirable for the purpose of any proceeding under[the CPC].” Secondly, under Section 67(1), any court
can require the Department of Posts and Telecommunications to deliver “any book, letter, post card,
telegram or other document” in their custody if thecourt wants it “for the purpose of any investigationor proceeding under [the CPC].”
This latter power is not limited to the exclusive jurisdiction of courts: under Section 67(2),the attorney general (AG) or any police officer of/above the rank of superintendent may also require
telecommunications authorities to deliver “documents” in that manner. Sections 66 and 67 represent
the means by which a court or other investigating

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official may require entities to make documentary
disclosures for the purpose of an investigation. It isonly if these measures are not complied with thata search warrant issued by a court is necessary tocompel the search or seizure of the documentary
evidence sought.
The Computer Crimes Act No 24 of 2007 (CCA)
provides a specific scheme of offences, such as crimes
related to hacking, infecting computers with viruses, unauthorized interception of data, etc. Section
2 of the act specifically states that it applies only in
relation to the offences specified in the act, and subsequent provisions specify a number of investigatory
powers. Key examples of such powers are the ability to “obtain any information including subscriber
information and traffic data in the possession of
any service provider”93 and “to intercept any wireor electronic communication including subscriber
information and traffic data, at any stage of such
communication.”94 Though the general rule is that an
investigator may only access such information undera warrant issued by a magistrate, this requirement
may be unilaterally bypassed if an investigator believes, for instance, that “the investigation needs tobe conducted urgently”95 or that “there is a need tomaintain confidentiality”96 (hereinafter referred to as“extenuating circumstances”). Section 21(1) provides
that, “Any police officer may, in the course of an investigation under this act, exercise powers of arrest,
search, or seizure of any information accessible within any premises.” The only qualifying requirement isthat such an officer is certified by the inspector-general of police as “[possessing] adequate knowledge
and skill in the field of information communication
technology and is thereby possessed of the required
expertise to perform such a function.”97 Section 24(1)requires all officers engaged in investigations under
the act to “maintain strict confidentiality with regard
to all information” that comes to their knowledge
during the investigation.
In order to respect the right to privacy, all surveillance powers of the state must satisfy minimum
criteria, whether under the CPC or CCA. One such
criterion is the requirement of the state to be proportionate in restricting individual human rights.
However, both the CPC and CCA only require theinformation sought to be necessary for the purposes
93

Section 18(1)(i), CCA.

94

Section 18(1)(ii), CCA.

95

Section 18(2)(a), CCA.

96

Section 18(2)(c), CCA.

97

Section 21(2), CCA.

EROTICS South Asia exploratory researchof the investigation. Considerations such as whether
the person being searched is suspected of an offence, the availability of alternative methods ofinvestigation, the scope of the surveillance measure
and whether it accesses more information than isnecessary for the investigation, are not expressly required under the statutes.
Another criterion is the availability of judicial
oversight over any determinations related to surveillance measures. As seen above, under the CPC, judicial
oversight in issuing an order to disclose is only mandatory when the order is directed to a “person”. The
AG or an adequately senior police officer may issue anorder directly to the Departments of Posts and Telecommunications to deliver documents in their custody
without judicial oversight. In either case, a “warrant”
to compel search or seizure is only necessary if theperson or the department refuses to comply with theinitial order made by a court, a police officer or theAG (as the case may be). Even where a court issues anorder, the CPC only mandates courts to evaluate thenecessity of the measure for the purpose of an investigation. Broader considerations, including the humanrights of those affected by the measure, are not expressly required under the law. By contrast, under the
CCA, an investigator may bypass judicial oversight
altogether, even as regards “persons”, by adducing
reasons for extenuating circumstances. Moreover,though the CCA does not mention the Department ofPosts and Telecommunications, it does explicitly recognise “service providers.” This allows police officers
a wider power than under the CPC to directly orderdisclosures by internet service providers (ISPs), without
judicial oversight or departmental intervention, provided there are extenuating circumstances to do so.
The only avenue of judicial redress in such instances
seems to be to challenge the police officers’ assessment of the existence of extenuating circumstances.
The recognition of “service providers” under the
CCA is a crucial development, as it specifically addresses the issue of internet intermediaries. Under
the CPC, ISPs may be considered as falling under thegeneral term “persons,” allowing only a court to require production of “documents” by them; the AG
or a senior police officer may not directly order disclosures of ISPs under this interpretation.
On the other hand, an ISP’s subscriber data could
be considered to be “documents” in the “custody”
of the “Department of Posts and Telecommunications,” in which case, the AG or a senior police
officer may require the Telecommunications Regulatory Commission (TRC) to compel productions by
an ISP without judicial oversight in the first instance.

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However, under either approach, an ISP may
refuse to comply with such a request, insisting on
a warrant to submit to a search or seizure by thepolice. ISPs may also choose to cooperate with law
enforcement officials, volunteering the requested
information without insisting on any further judicial review. ISPs are not precluded from notifying
customers affected by an order made under the
CPC, but such notification is not mandatory either.
Under the CCA, in cases where the police have unilaterally overridden judicial oversight by adducing
extenuating circumstances, ISPs come directly under
the power of the police, and are not only bound tocomply with police orders to disclose, but are also
bound to maintain the confidentiality of ongoinginvestigations. They may not notify their customersof any measures being taken against them. Section
24(3) of the CCA exempts service providers from liability for any disclosures they make under the law
for the purpose of an investigation.
By comparison, the CCA provides far more extensive investigatory powers to police officers ininvestigations than does the CPC, and, perhaps forthis reason, explicitly provides that the specific powers apply only to offences defined under that act.
In the interviews with the CID and NCPA officials,
however, it appeared that the powers recognised
under the CCA were considered as indivisible fromthe powers under the CPC, rather than as the CCA
establishing a special investigatory framework for a
special area of criminal law. Neither of the officials
could recall the contents of Sections 66 or 67 of the
CPC, or Section 18 of the CCA during their interviews.

Telecommunications regulatory framework
Despite the subtle distinctions in how the different statutes govern the Department of Posts andTelecommunications, both interviewees as well asa senior legal officer interviewed from an ISP could
not clearly identify the scope of the TRC’s regulatory power over ISPs in practice. The Departmentof Posts and Telecommunications mentioned under
the CPC was first established in 1896, and continued
in that form until, in 1980, its focal areas of posts
and telecommunications were separated. In 1991,
the Department of Telecommunications was further“transformed into a government owned corporation called Sri Lanka Telecom”98, while an “office of
the Director General of Telecommunications was established at the same time to serve as the regulatory

98

Gunawardane, N., & Wattegama, C. (2001). Op. Cit, 6.

EROTICS South Asia exploratory researchbody.”99 In 1996, the director general’s office wasrestructured as the Telecommunications Regulatory
Commission (TRC) of Sri Lanka.
Both interviewees as well as the senior legal officer of an ISP noted that subscriber data may be
acquired either through an order addressed directly
to the ISP or through a request communicated to the
ISP through the TRC. The approach followed depends
on the circumstances of the case, though no clear
framework exists to guide that choice of approach.
None of the interviewees were able to specify
the legal provisions under which these powers werebeing exercised. The Sri Lanka Telecommunications
Act, no 25 of 1991, which establishes the TRC, specifies the powers and duties of the TRC in section 5.
Section 5(f) allows the commission to “take suchmeasures … to comply with any general or special
directions that may be given to it from time to timeby the government of Sri Lanka in the interest ofnational security, public order and the defence ofthe country.” Also, Section 5(x) authorises the commission “to do all ... acts which may be incidental
or conducive to, the attainment of the objects of
the ommission or the exercise or discharge of its
powers and duties under this act.” The commission
may, under Section 7(b), also require any “person”
to “furnish to the commission … any document …
which is in [that person’s] custody or control [which
is needed by the commission] for the purpose of
exercising, performing and discharging its powers,functions or duties under the act.” None of theseprovisions (or any other provisions of the act) specifically state that the disclosure of an ISP’s subscriber
data can be compelled through the TRC. However,
the existence of such a practice was clearly statedduring interviews.
A key function of the TRC is to issue licenses
to ISPs to operate in Sri Lanka. As such, most ISPs
are dependent on their relationship with the TRC
for the stability of their legal environment, andthe senior legal officer interviewed from an ISP acknowledged the TRC’s “broad discretionary powers”
in the area. Challenging orders to disclose subscriber data requires case-by-case litigation, which ISPs
consider odious, especially in the highly competitive market environment of telecoms services in Sri
Lanka. This fact, coupled with the absolute lack ofa legal requirement to notify customers of surveillance measures they are being subjected to, ensuresthat ISPs simply comply with requests.

99

Ibid.

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The need for positive reforms
for protection
As seen above, in Sri Lanka, the online space is significantly vulnerable to arbitrary policing, basedon the many levels of weaknesses that exist in theprocedural and regulatory framework for surveillance in the country. These weaknesses impact theonline rights of all Sri Lankans. However, Sections
365 and 365A of the Penal Code (and the arbitrary
interpretations of those laws) interact with various other laws and institutions to make LGBTIQ SriLankans vulnerable in many aspects of their sociopolitical life in Sri Lanka, and the internet proves
to be another such aspect. The existence of manyvague laws affecting sexuality and sexual expression
compounds this vulnerability, especially in terms ofobscenity and profanity laws. That these laws havenot been positively enforced remains immaterial, as
they instil fear and uncertainty in the minds of LGBTIQ Sri Lankans who wish to exercise their rights(such as the freedom of expression), and leads toself-censorship and non-participation by them inmany online contexts.
However, the critique of the legal framework
in Sri Lanka does not end with a discussion of already existing laws that violate human rights. It
must include a note on the laws that do not exist to
protect human rights, as well. Though the internet
provides an excellent platform for self-expression,access to information, and relationship-building,those uses are dependent on the freedom of users
to participate in and engage with the platform. Thisunquestionably requires the elimination of lawsthat unduly restrict human rights, such as those laws
mentioned in the preceding sections. But it also requires the promulgation of new laws and policies tofacilitate participation and engagement by marginalised groups such as LGBTIQ Sri Lankans.
For instance, a significant barrier to open participation in online discussions is the fear of abuse andhate speech that might be levelled against an LGBTIQ person. In such cases, laws that positively identify
hate speech based on sexual or gender identity as an
offence, and which are used to prosecute the mostegregious instances of such hate speech, will signala policy of no-tolerance by the government thatwill serve to encourage more participation and engagement by LGBTIQ Sri Lankans in online spaces,
as well as the reportability of such incidents. On theother hand, the lack of comprehensive laws on hatespeech on diverse communities, as well as the continued existence of laws that purport to “criminalise”

EROTICS South Asia exploratory researchhomosexuality not only instil fear in LGBTIQ SriLankans of abuse and hate speech, they also work tolegitimise the words and actions of the abusers.
Another barrier to participation in the online
space is the lack of safeguards for content sharedor stored by LGBTIQ Sri Lankans. For example, according to the senior official of the National Child
Protection Authority (NCPA), a significant lacuna isthe absence of laws adequately addressing the unauthorised distribution of private content. For the
NCPA, the phenomenon is seen in the context of howadolescent girls share pictures of themselves in varying degrees of nudity with their “boyfriends,” only tohave that trust violated by said boyfriends, who sharethose pictures with their friends or even submit themto various porn sites.100 The NCPA official interviewed

for this study bemoaned the fact that the only avenue of redress is under the Obscene Publications
Act (discussed above), which focuses exclusively on
the “obscenity” aspect of such incidents and not on
the aspects of abuse, exploitation and breach of trustthat victims experience. While the NCPA has taken an
initiative to reform the law to target non-consensual
distributions and breaches of confidence in relation
to intimate images,101 the authority is significantly restricted by its statutory mandate of child protection.
It is imperative, especially given the findings ofthis study, that the relevant reforms are not limited
to the context of children, but apply broadly andequally to all people who perpetrate unauthorised
disclosures or distributions of intimate content created by a third party.

100 For an overview of the phenomenon, see Billimoria, H. (2017, 27
January). Investigating Sri Lanka’s nude culture. openDemocracy
50/50. www.opendemocracy.net/5050/hans-billimoria/
investigating-sri-lanka-s-nude-culture

101 NCPA. (2015, 18 June). Task Force to combat the growing threat
to children. NCPA. www.news.lk/news/political-current-affairs/
item/8260-task-force-appointed-to-combat-threat-to-childrenvia-social-media-sites

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part 2

Lesbian women and their use of the online spacefrom the norm – online abuse targeted at women
exemplifies this today again so very well.1

Author:Shermal Wijewardene and Subha Wijesiriwardena

Introduction
The objective of this section of the study is to offer a “thick” account of how lesbian women engage
with the online space. The rationale for devoting
a separate section to this arose from the data. As
one-on-one interviews and a focus group discussion
showed, lesbian women’s online engagements demanded to be treated as specifically gendered andsexualised experiences, while being classed, race
based and so on. Their approach to the online space
was traced through with the awareness that they
had to negotiate being hailed by a patriarchal andheterosexist social system. We felt that this understanding called for a dedicated analysis.
Lesbian women’s responses are discussed under three framings: use, safety and access, as in the
broader framework of the study. In addition, theanalysis also highlights something which the data
yielded, which is the emphasis that many womenplaced on surveillance. If not a separate frame, thiswas a prominent cross-cutting theme that many
participants spoke to when they discussed use andsafety, and it nuanced those two framings.
Surveillance is a historic tool of control and is experienced uniquely by women. Anja Kovacs of theInternet Democracy Project (India), writes:
Indeed, surveillance of women is a long-standing
practice in our society as elsewhere – and one thatwomen from all castes, classes and religions are
too familiar with, even if it affects them differently ... And for centuries, women’s experiences
have provided a wealth of information on what
happens to those who are surveilled yet deviate

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Because “surveillance” is of particular importance towomen – and even more perhaps to lesbian women– and because the conversations with our respondents confirmed this, we were keen to examine“surveillance” as a cross-cutting point of concern.

On the use of the term “lesbian women”
We use the term throughout this paper because wewant to signal both gender and sexuality as important to their narratives; we are not being prescriptive
as far as a norm of “lesbian” or “woman” identities
are concerned. Broadly, we use this term – while
acknowledging its inadequacy and understandingthat is merely approximate – to refer to a participantgroup of women who desire and love women.

Methodology
A focus group discussion which brought together six
lesbian women, 16 responses to the online survey,
from lesbian women (in English and Sinhala), andone-on-one interviews held with three lesbian women.
Additional research on gendered and sexualised perspectives of surveillance and online violenceagainst LGBT persons in Sri Lanka (citations provided).

Use
Lesbian women’s responses from the focus group
discussion and the one-on-one interviews indicatedthat they have three main and overlapping uses forthe online space: as an “information tool”, a “social networking tool”, and an “advocacy tool” for1

Kovacs, A. (2017, February). Reading Surveillance through a
Gendered Lens: Some Theory. Gendering Surveillance.
https://genderingsurveillance.internetdemocracy.in/theory/

EROTICS South Asia exploratory researchsocial justice issues, including feminist and LGBTIQ
issues (Gayani). The majority of these engagements
were on social media platforms like Facebook, whilea few spoke in relation to their use of Twitter, Instagram, and Snapchat. Other uses that were not citedas much but were still important, were work related,
involving sharing and promoting one’s work and following international professional communities.
A number of respondents said that they use theonline space, mostly Facebook, to search for and stay
updated on current affairs, including LGBTIQ-related news. Online spaces are used in a variety of ways
to obtain LGBTIQ news. For instance, some subscribe
to prominent overseas LGBTIQ news magazines andkeep track of the work of local LGBTIQ organisations
via their online posts. Others, like Gayani, are very
deliberate in using online resources for news and information. She said:
I think it [Facebook] is my primary source of information. The newsfeed is very important to me.
[...] I very strategically subscribe to organizations,news sites and groups so as and when things
happen it’s always there. I check Facebook on aregular basis, the news feed, not just to be like“Ok who is having a party?” But as an information tool, where we are constantly consuming
information like BBC and National Geographic or
whatever is going on, the New Yorker, the Economist, everything is happening for me at the sametime. So it’s fantastic as a tool because I don’t
have to individually go for those sites to get those
information – it is there. If there is something I
actively want to pursue I have my information
organized in such a way on Facebook that I canalways follow those threads and then kind of enquire further. So information can be from what ishappening in politics, to world affairs, to philosophy to arts and culture, theatre, everything. So it
is really my primary source of information. Moreso than a social networking tool.
Gayani’s responses also indicated that the online space
is facilitating to the extent that it could create a loop
where these three uses, information seeking, networking and advocacy, come together. She said, “if you arefriends with activists, then you know what is goingon ... like marriage equality and decriminalization ...
through Facebook primarily … and you support theircampaigns and write about it on Facebook.” Online
news was not just viewed as content that was posted by designated and authoritative news sites. Being
able to learn from the exchange of information andideas amongst ordinary people whom one would not

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usually find focusing on LGBTIQ topics, was also treated as part of obtaining news online. Speaking of a Sri
Lankan Facebook groups, Mali said:
The value of it is that LGBT and straight people
meet online and have a discussion on that group.
So I think that this doesn’t usually happen in theworld face to face. But because we share issues
on Facebook, people start talking about what
they are actually thinking about, instead of justgoing to a demonstration and standing there.
So we can see this discussion formulating and an
exchange of information.

“Family surveillance” and “public
surveillance”
If this describes a scenario of lesbian women becoming agentive in the online space by accessing,consuming and producing news and doing advocacy
on LGBTIQ and other issues, Gayani and others werealso quick to qualify and problematise that narrative. They noted that the space for “self-expression”(Gayani), to initiate, and to engage dynamically,
was often contingent on and constrained by theirconsciousness of surveillance. Many stated that they
were troubled by the sense of having to negotiate “family surveillance” and “public surveillance”(Shami). In this dual understanding of surveillance,“family surveillance” was broadly understood as the
feeling of being subject to scrutiny online by family
members. Essentially, this meant “in terms of what
you share, what your thoughts are” there is “theworry: Who in the world is going to see? This aunty?”(Gayani). “Public surveillance” was understood as“the government or other persons are surveilling us
through different mediums [and] without us knowing, reading what we are writing” (Rekha).
Both types of surveillance affected how lesbian
women used online space as an information tool
(and in some instances, to do advocacy) but not
everyone was equally affected. For instance, somefeared online public surveillance more and dismissed
being impacted by family surveillance, while others
felt affected by both types. Those who were “out”
to their family, or refused to be subject to family
control, rejected family surveillance but were nevertheless concerned about public surveillance.
These views highlight the fact that the policing
and control of lesbian women’s online engagements
by their families is an issue of some significance. As
established by a previous study which focused on theoffline space, retaining autonomy within the family
unit can be a problem for some lesbian women, not
EROTICS South Asia exploratory researchleast because women’s personal independence is often not recognised, and also because family honour
and reputation are perceived to rest on women’s
proper conduct in matters of gender and sexuality.2
Echoes of this appear in lesbian women’s narratives
about online space. Two narratives highlighted thefamily’s attempts to surveil and manipulate lesbian
women’s online engagements so that they do notcompromise either the woman’s or the family’s reputation or image. Kala said:
I mean you don’t have to wear a t-shirt and say I
am gay and proud and walk around with that but
in terms of what you share, what your thoughts
are, the need to restrain yourself is so much – forme I found it to be very oppressive in the past... There was a time in the past, I did this wholedrag king kind of thing, like absolutely fantastic,
and I had that as my profile picture and obviously
this aunty calls my mother saying “Something has
happened to your daughter, she has become aweirdo”. And then my mother calls, saying “Youneed to change your profile picture”.
Kala resented her family’s presumed prerogative tohave a say in what she did with her gendered andsexualised self-expression online, stating, “it becomes everyone’s business”. Furthermore, she also
saw this as her family’s attempt to make her adhere
to gender and sexual norms in the online space andto deny her her right to define who she was andexpress herself as she wished. Another participant
cited a similar scenario of her family intervening inways that made her modify her online interactions:
Before I came out to my family, there was a point
when I had told them and they weren’t happy
about it. My mother actually Googled the word“gay” and my name and there were so many
posts that came up and she was horrified. Likeeven things that I had done voluntarily for an
organisation and all these articles or whateverthat I had written on it. So then I actually had
to write to Google and get them to get it off
the cache and all sorts of madness. So that waswhole drama until I got it off.

2

117

Women’s Support Group. (2014). Not Gonna Take It Lying Down.
Colombo: Women’s Support Group.
https://www.scribd.com/document/214827257/Not-Gonna-TakeIt-Lying-Down-English

Sri Lanka

Again, this participant was forced to literally digitally erase a history of her subjective involvementwith LGBTIQ issues – her activist and academic work
– due to her family’s “horror” that such things werevisible online.
Family surveillance, as these women understandit, is a means of disciplining them and curtailing their
online visibility and expression. Their families’ desirethat no one should be able to see their “queer”
markers is clearly not just a technical issue of making
them scrub and sanitise their online engagements.
Family surveillance did not always operate throughincidents. It was manifest through a more generalised consciousness of surveillance, in the sense of anawareness of what their families would disapproveof their doing online, such as being “publicly” andvisibly queer, being involved in LGBTIQ advocacy andacademic work, and so on.
It is important to record that this was not every
woman’s experience. Some, like Rekha, pushed backagainst the idea that family could be inhibiting in
the online space, saying “I am an adult now so I don’t
have my parents looking into my business”. Others,
like Pushpa, did not feel inhibited because they put
their faith in knowing and trusting their families: “In
my family there are a few people who know about
me. They don’t know that I am lesbian but they accept the way I am. Because of that they have noissues. They are all on my Facebook. Because they
love me I don’t think that they are surveilling me. I
know that within my family how they think about
me so because of that.” Still others, like Thusitha,asserted their agency fiercely and refused to recognise the possibility of feeling inhibited by family: “Ihave added my family members onto my Facebook.
If they have a problem with it then it’s their problem
and not mine. If they want to remove me they can... I think because there was no issue for me fromhome ... I think let anyone think what they want it
doesn’t matter to me. I was like that then and I am
still like that now. I don’t restrict myself when I needto express myself, just because my friends or family
are on Facebook.”
It is important to record that, for some participants, family surveillance was felt affectively, as“oppressive”, as a matter of forcing one to “restrain”
oneself, because the issue at stake, as Kala noted, isnothing less than the question of “how open you
are about who you are ... your authenticity”. Family surveillance was seen to disrupt this capacity. As
Kala noted about the affective toll it took on her
after she had to change her online engagement at
her family’s request:

EROTICS South Asia exploratory researchAfter that I was very careful as to what I put out
there. It was fun for me, for me it was a form of
self-expression, like it’s tough, it’s a constant balance, it is at a psychological level, you’re always
making those choices. And I think as a gay person it is unfortunate, in a sense, that you haveto do that because a lot of other people will notthink of it at that micro level, as to what the hell
they are doing every time they post somethingon Facebook.
Similarly, Kishani, was also concerned about her
family finding out via Facebook about her relationship with another woman. “I worry about it because
that’s not the way I want them to find out,” she said.
“Especially Facebook, it doesn’t feel like it would
have my back at any point. The most I protect myself
is on Facebook.”

Family surveillance: “Fun”/“authentic”
These views also provide an important insight into acertain understanding of online family surveillancethat requires interrogation. In attempting to represent
that surveillance, participants such as the one quoted
above, tended to construct the online space as an arena of being playful, ironic, and provisional about one’s
expression of gender and sexuality, and the family as
the disciplinarians who constrained that possibility because they take everything that is said online at facevalue and in earnest and miss the point that “play” and“fun” are defining features of online interactions.
There is a complex set of assumptions behind
this understanding. One strand concerns the presumption that family surveillance is associatedwith the family’s lack of social media literacy. Thisis the rather condescending idea that older members especially, perhaps because they are from an“analogue”’ generation, misread the operationof digital signifiers of gender and sexuality in the
online space and are unable to grasp that the dragking outfit “was fun for me, it was a form of selfexpression” rather than a strict expression of genderor sexual identity. In other words, they do not “get”
the notion that the online space is the space of performativity – what you see is not what you get, but
only a curated version, one product of an attempt to
express oneself. Intersecting with this is also anothercondescending idea about older family members(the snooping “aunty”), which is that they are not
au fait with queer politics and performativity.
These assumptions highlight the intersections ofgender, sexuality, generational politics, assumptions

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about social media performativity, and so on, inthe construction of family surveillance. They also
highlight what appears to be an important pointof incoherence, which is in the juxtaposition of theperformative and the “authentic” in Kala’s understanding. Kala’s emphasis on the idea that she washaving “fun” with her drag king costuming, which
was misread as her “real” identity by an “aunty”
and her mother, brings in her desire to assert the element of gender performativity in the face of what
she sees as an older generation’s inept reading of
how people “do” gender on social media. However,this is curiously out of step with a more essentialist
assertion, which is that family surveillance intervenes in “who you are ... your authenticity”.

Family surveillance:Changes and shifts
A further crucial insight about perceptions of family surveillance, is that it changes and shifts overtime. Those who were not now overly concernedwith family surveillance observed that this had notalways been so, and that it had changed over time
due to various factors such as being “out” to theirfamilies and their families gradually coming to some
acceptance; being older and, and so on. Lara, who
is now out and not overly concerned about family
surveillance, recalled how, “a few years ago, I wasn’t
too cool at that point in my life. I wasn’t out. I mean
I was out but to closer friends. And I remember afriend made a comment on Facebook [that said I wasa lesbian], and I lost it! This is on a platform where
everyone else can see it and home can see it.”
Shami’s mother’s pressure had forced her to go
the lengths of asking Google to delete any LGBTIQrelated post associated with her (perhaps similar toactivating the right to be forgotten), but her circumstances had changed since then. She noted that,
now, “rather than family surveillance my fear is of
public surveillance. About sharing something that isqueer. Or making a post etc. So the public surveillance is more fearful because it is also related to mywork and I don’t want to be outed at the moment. I
am out to my family so it is not an issue at all.”
Perceptions and subjectively felt experiences offamily surveillance also change over time based on
how lesbian women manipulate their online interactions with family members. Mali, Lara and Kishani
were representative of a number of lesbian women
who chose to manipulate standard Facebook repertoires to send the message that the family did nothave the prerogative to observe them, and that, infact, they could turn the tables and make the family

EROTICS South Asia exploratory research

the object of surveillance. This included selectively
adding or not adding family members; adding family but keeping them on limited profile; only adding
the “second generation: cousins, my uncle’s son, myuncle’s daughter” (Mali); ignoring family members
who posted homophobic posts, and so on. When
Mali found “what is known as casual homophobia, I
see it in their feeds”, she was incensed. Initially she
decided that, for her, “family surveillance ... is aboutkeeping family at bay”. However, she accidentally
stumbled upon the fact that “liking” her family’s
posts quite intensively could shift the surveillancefrom her on to them, and make them feel observed,
in an aggressively “nice” way. Because of this reversal, the family member in question “stopped kindof posting those comments”, so, “people can alsochange over time on Facebook”.
What should also not be underestimated in this
discussion is the importance of affective changes
which are connected to lesbian women coming
into their own. Gayani recalled that, “when someinjustice happens maybe in relation to a friend or
something, I used to speak out because there is anaudience usually on Facebook.” She qualified thatby recalling her initial apprehensions that, “the issue with Facebook is that you have your aunties anduncles and neighbours and everybody and then you
are like hmmm.” But looking back now, she felt that
she had grown out of feeling the pressure of family
surveillance as she had before, by a sense of being
an older woman and not as easily inhibited or intimidated. Describing that process of coming into
her own, she said:
There was a point in time in my life where when
I was younger that I was very scared to speakout on LGBTIQ stuff because I knew my aunties
and uncles were on Facebook. I did not want to
put like let’s say a gay pride flag or my profile
picture or something because I did not want tobe outed. So that was an issue. But now I am
like what the fuck, kind of thing. So it’s interesting how that evolves over time, the experience.
Now that I have passed 30, I am less scared totalk on Facebook. I don’t bother anymore withrestricted lists [when I post comments].

Public surveillance
Narratives about public surveillance were also closely associated with what many lesbian women said
about their use of the online space for information
seeking, networking and advocacy. Concerns about
how their professional lives might be affected were119

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voiced by many. Again, Facebook was cited by mostparticipants, as the site which they had to use very
carefully because of potential surveillance by colleagues and others connected to their workplace.
A common anxiety was about never being sure (orable to ensure) that they could filter their audiences
appropriately in each instance that they might post
something that could be the object of surveillanceby their workplace and result in dire consequences.
Rapti said:
How do you then filter your audiences depending on the kind of work you do as well? I think in
my profession, in terms of the content that I post
and people getting to know ... and the legal andsocial background in this country ... I am a very
passionate person, I feel strongly about things.
Not that I vocalize them, but in terms of what I
share I don’t necessarily think much about it. Butthat does come into mind quite a bit, in termsof how that then translates into reality, for mylived experiences.
Similarly, Mali said:
I have added those who work with me, on Facebook. I am not constantly thinking about ifthey are there or not but it’s something that I
do know is at the back of my mind. Because you
think about how much the people in your workplace need to know about you. This is something
you need to think about all the time.
These responses highlighted an interesting insight,
chiefly that lesbian women did see that the issueof public surveillance was not just a matter of malicious actors or authoritarian states, and that it went
well beyond any technical issues of knowing how toprotect oneself by adjusting privacy settings. They
spoke about it in a much broader sense, in terms ofthe nature and politics of social media. They had aconsciousness that “Facebook is a medium of surveillance”, and not a neutral platform on which a few
aberrant actors will create problems by keeping tabs
on what others do: “there is a constant surveillance,
you’re watched, you’re judged, right, I mean likeyou said even if it is a political post, even if it is acomment” (Gayani).
There is a range of ways in which participants
negotiate this understanding. A number of lesbian
women indicated that taking a technical approachto ensuring safety from surveillance is exhausting because they have to think about who their audience

EROTICS South Asia exploratory researchshould be each time they post something. This was
also not viable for everyone, for the very importantreason that the technical solution of adjusting privacy
settings is easier to do on laptops and is more fiddly
with smartphones, and many lesbian women in the
study did not own a laptop or did not frequently use
one they owned. It was because she knew that she
could not always change her privacy settings easily
on her smartphone that Lara, for instance, decided totake a different approach, ensuring that she added
certain people when she felt she could not, but placing them permanently on limited profile.
For Thusitha, holding back is not an option.
She “is not afraid to publish” information from LGBTIQ magazines on her Facebook page, and posts
her personal information (including her telephone
number), with the attitude that not holding to ideasof privacy and accepting that surveillance is built
into Facebook is part of the contract that has always
already been signed by all Facebook users. But hers
was not a fatalistic acceptance. Rather, she felt thatthe feeling of being cowed by surveillance was not arealistic option if one wanted to use Facebook, sincepart of the ways of using Facebook was for the user
to constantly negotiate with surveillance. “If you arescared, why are you on Facebook?”, she asked.
Others had more ambivalent responses. A numberof participants said that they were guarded in how
they posted on Facebook, and were not very active
around LGBTIQ issues because of concerns about public surveillance. Some, like Lara and Harshi, said thatthey could not be bothered to do so. “It’s not that I
don’t want to be open but I don’t have the energy. I
kind of refrain from being too open on Facebook,”
said Harshi. Hiranthi recalled that she had much lessfreedom now than before, to post LGBT information,
because of changes in her personal circumstances.
She observed:
Because I have become a public figure I am notas out as I was before. So I don’t post as many
LGBT or queer posts, whether sharing somethingor an article I have read or whatever, I am more
careful about what I post and what I comment
on. And that is something I am juggling with at
the moment. So I just want to add that also.
Concurring with her, Rekha said:
I am also involved in public service, our institution has a Facebook page. But I do not like get
added onto it because this would directly affect120

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my job. So there are issues like this when I am
using the internet. So I cannot share anything
related to LGBT even if I wanted to. I am not freein that sense and there are problems for me likethat. And it would be great if these are resolved
so that it wouldn’t be an issue for us. I like toshare information
At the same time, Rekha also posts her telephone
number on her Facebook profile.
A noteworthy aspect of this evolution in how
lesbian women experience public surveillance intheir use of the online space, pertains to how they
themselves subjectively come to terms with it andresourcefully tackle it. Rapti, for instance, who is an
instructor at an educational institution, was initiallyconcerned about whether her colleagues or others
would see what she posted. She said,
There are people from my institution who haveadded me on Facebook for a long time … then after a while then that means they know what I am
posting. So that is a bit problematic for me. For along time because of that I censored myself quite
strictly. But now my approach within my institution,
is about how to be open minded and critical, like
if you cannot handle that on Facebook, then, youknow “tough” kind of attitude.

Social networking and dating
Making friends and sustaining friendships are twoother central uses of the online space, chiefly Facebook. Some, like Pushpa, said that they “useFacebook mainly to find friends, especially LGBT
friends that will be coming through friends of mine,
because most of the friends on my list are lesbians.” Others, like Lara, said that they do not actively
search for friends on Facebook, and that they usually “friend” people that they already know. Facebook
was also used for maintaining a “network” of LGBT
friends from different parts of the world. Gayani
said, “In terms of LGBT, I think having a network ofpeople at the international level is enabled throughFacebook, because I have lived in several countries
and then you have friends in several countries.”

Dating
The study probed into whether women used theonline space for dating purposes. The general view
emerging from the focus group discussion (andconfirmed by the online survey), was that online
dating in general, and the use of dating apps more

EROTICS South Asia exploratory research

specifically, was not common amongst lesbians, as
far as women were aware of the behaviour in theircircles. This was confirmed across different age
groups. Except for two participants, the others said
that they had not and did not actively use Tinder or
any other dating apps.
One of the factors cited by a few of the womenin the study was that they were in a “committed relationship” (Thusitha) with another woman, which
implied that they were not looking to date. However, this was not the only factor, not least because
not all women were partnered. Attitudes to dating apps were hinted at as one aspect of it. Mali
wanted to affirm that although dating apps were
not used, there was nothing to show that lesbians
were necessarily averse to them or looked down on
women who used them. Citing a small number ofcases of some lesbians who were comfortable withusing dating apps and had found them fulfilling,
she took the view that it offered a space for women to find other women to date. Although this was
not entirely free from issues of politics or safety,
she felt that that did not entirely gainsay the value of such a space, especially when the space forwomen to meet one another offline was restrictedby structural factors. Thus, “even though we don’t
use it, I think it’s a good thing”. Ratna also thoughtthat dating apps were useful as one way for women to find other women to date, saying “I don’t use
dating sites, but I have gone to them and searchedthem and taken a look at them.” Conversely, theviews of a few women implied that they were neither aware of nor curious about dating apps; many
also didn’t seem to know that there were international dating apps for women only; there was someuncertainty about whether these apps could be
used locally.
Dating apps did not receive much emphasis
from most of the women in the study, but this did
not mean that they did not use the online spacefor forming emotional and sexual connections.
Some stated that they had used the online spacequite heavily to date and form relationships. For
one woman who had a long distance relationshipwith her partner, platforms such as Skype, Gchat
and Facetime were extremely important to maintain the relationship. Two of the respondents in
our interviews – a couple – met and began theirrelationship online, though not through a datingsite or app. They “followed” each other professionally online for a while and then started chatting via
platforms like Facebook.

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Reputation
There was some anxiety about others’ estimationof you depending on what you post and share, andthrough the politics you publicly share online etc. A
certain amount of caution and forethought is practiced by some of the respondents when it comes toassessing what specific posts may or may not “say”
about them to others. This safeguarding of reputation also translates into a sense of surveillance forsome, although the implications are very different
from what we have discussed above.
Referring to her social media circles, Mali took
the approach that “people are very self conscious on
Facebook”, and that she was constantly mindful ofthat when she posted anything, knowing that what
she said would affect how her politics were seen andevaluated. She said:
When I share LBT issues on Facebook, I knowthat there are people who are watching what
we share. We have a peer group and they are
most often trying to see or they say “ah, youshared this? No point, this is fake news” or thisnews is “ara anthavadi patthen inna kattiya liyana ekkak” [it’s written from an extremist or
regressive point of view] or this information iscorrect from this side of politics but incorrectfrom another side of politics.
This sort of surveillance entailed that “we need tothink about these things at least three to four times
before we share something, because we first think
about what people may think about our politics andthen act on Facebook. I know”. Mali explained that
“this is why I share everything very carefully, because
what people think of you also changes when you
share something.”
One of the underlying assumptions in this formof surveillance, is that the social media profile is adirect reflection of one’s “real” self and one’s “real”
politics. Kala disputed this attempt to form quick
and categorical impressions, saying, “people are always going to be like, ‘what is this person about’every time you say something, post something. Havea cat picture? You become a cat person!”Anxieties about one’s reputation or how one isperceived – or how one perceives oneself in thesespaces – seems also connected to one’s “safety”.
One participant deliberately stays out of the way ofconfrontation because it makes her feel unsafe but
also because she believes herself to be someone who
cannot win in such a confrontation.

EROTICS South Asia exploratory research

them what they should do. And many times I
have told people to adjust their privacy settings.
I know a lot of people who get on Facebook andstill don’t know how to adjust their privacy settings. So for them I would make a step-by-stepscreenshot and send it to them to make theirprivacy settings. So the group of friends that arewith me have adjusted their privacy settings accordingly, and even though I haven’t faced any
issues, I know of the issues faced by my friends.
Because of that I have given them advice on how
to adjust their privacy settings. Who should they
accept on Facebook and who they shouldn’t andwhat they should do etcetera. I have informed
them of it.”But because I don’t actually have the tools totake part in a conversation and defend it in a
way that is intellectual or where I can definitely
be confident about making the point very clear,
I don’t take part. But just reading somebody
else’s comment – just reading itself is harassment. that’s enough, that’s the most I can take(laughs). (Kishani)

SafetyIt became clear to us that many of the lesbian women
we spoke with did not approach online “safety” in a
traditionally technical sense. There were certainly anxieties about risk in terms of online engagements, butwhat we highlight is the fact that most emphasised
the value of prudence in their approach, which included the technical but was not limited to it. A more
integrated understanding of being prudent in one’s
online engagements was seen as a more empowering
perspective for lesbian women over approaches thatencouraged technical measures that were defensive or
encouraged feelings of being victimised and afraid.
It was evident that many of the respondents
were consciously prudent in their use of various apps
and social media platforms for different purposes,
particularly in terms of sharing content privately orfor holding private group chats. They were clearlywell-aware of privacy concerns around platforms
such as Facebook. For instance, Pushpa highlighted
how her group of lesbian friends began connectingwith one another through a space like Facebook
which facilitated such networking but was known tobe relatively “unsafe”. Once trust had been formed
and an offline meeting had taken place, they deliberately exited their Facebook group, transitioning
the conversation to another online space which wasperceived to be one that they had more control over,
and which was more private and “safer”, such as
Viber. This was only one example of how most of theparticipants creatively manipulated multiple online
platforms synergistically for their varied purposes.
It is important to note that, except for one
participant, none of the other lesbian women had
attended digital safety trainings, as stated in the online survey. It is safe to assume that their knowledgeof online privacy and safety is almost exclusively derived from experience, both personal and collective.
For instance, Pushpa said:
In terms of those lesbian women who are on Facebook or on the internet, if there is some kindof issue, say we hear of such an issue, we tell122

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Strategies
We observed that their “prudence” has led to manyof these women developing simple and very “practical” approaches and strategies to remain safe
online. Some of these strategies were:•Adding family members on limited profile•

Adding only “second generation” relatives (i.e.
their peer group), not older relatives•

Adding someone only if there are mutual
friends or if there are connections amongst themutual friends•

Not adding relatives / family members at all•

Holding back on engaging / commenting in conversations about sexuality•

Holding back on posting content about sexuality•

Holding back on engaging / commenting on posts
made by family members or relatives which oppose their own views (e.g. Religious posts)•“Liking” political posts/content by others whichreflect what one would want to say, in lieu of actually commenting•

Keeping posts pithy and short in order to avoid
being drawn or baited on them•Not taking objectionable comments head on, butusing an oblique discourse which makes the point
but is more legible to one’s peer group than tothe person making the comment•

Setting up collective action – “alarming” otherfriends if there is someone suspicious online

EROTICS South Asia exploratory research•Giving each other tips on things such as “privacy settings”•

Making judgements about not imperilling otherlesbian women by posting content which identifies themConclusion
We found that many, if not all, of the lesbian women we spoke to, hold perspectives on their online
safety which perhaps run contrary to the stereotypical narratives and beliefs about how women/womenwith diverse sexual orientations and gender identities, approach online engagements.
A number of them acknowledged that their online engagements were constrained, and that thesewere specifically gendered and sexualised experiences. Some of the respondents were not actively
advocating on right-based topics online, or sharing
or commenting explicitly on content directly related
to sexuality and sexual rights on a frequent basis.
They simply did not engage with these conversations online, sometimes out of an anxiety aboutfacing homophobic trolling, but also because thiswas not how they used those tools.
However, while these constraints shaped how they
engaged online, at personal, affective and structurallevels, many also took pains to tease out the different strands in their experiences, so that we did not
simply get a homogeneous and monolithic picture of
oppression and struggle. They were particularly adept
at showing how power flowed in uneven ways in theconstraints placed on them, and how they were able
to manipulate, disrupt, negotiate and manage theiruse of the online space in those interstices.
They focused on the importance of being well-informed; pragmatic about surveillance and constraints;
not giving into fear; being prudent about safety, rather
than defensive and victimised; being vigilant when they
had to be without over-emphasising it; understandingthat their own consciousness of the constraints (particularly surveillance) also shifted over time and was noteternal; taking a holistic view to surveillance, including
recognising that there were structural factors that enabled it on social media, and so on.
What is important is to note that none of thegroup had any experiences with digital safety trainings, as we said before, and their knowledge seemed
to come from a more subjective place, honed
through lived experience and learning from others.
If we were to examine traditional digital safety
trainings and how they are carried out, they largely follow a strictly “technical” approach to safety.

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Trends have changed in digital safety trainings, ofcourse; increasingly trainers are adopting “holistic”
or “integrated” training practices: “The blending ofdigital, physical and psycho-social aspects of security
may be called ‘holistic’ or ‘integrated’ security”. 3
But these are new practices; until recently, the prevailing attitude among many digital safety trainers
was that the solution is purely technical.
Traditional digital safety trainings typically“include hands-on installation and use of tools.”4
A critical research about digital safety trainings
for human rights defenders (cited in this paper),produced some findings about the ways in which
traditional digital safety trainings are carried out
and some of the perceived causes behind their reduced efficacy.
“The most overwhelming and common finding
across both studies was that digital security has to betaught within communities and within existing networks and collaborative structures,” writes Stephanie
Hankey, from the Tactical Technology Collective. “Inour view, the research showed that digital security
taught in a one-off encounter, or on an individual basis rarely works. Community or collective learning isan essential element on multiple levels.”5
In a sense, her words echoed one of our key findings: the lesbian women we spoke with learned tolook at “safety” from their own experiences but also
largely through sharing experiences, tips, knowledge and a sense of collective responsibility for eachother’s safety as well as their own.
In the Tactical Tech research, they observe how
the traditional “fear-based, tool-centric” model ofdigital safety trainings is already being reconceptualized in many circles, as this model of training has
proven over time to be ineffective and unethical.
In addition, we would also like to offer up thenotion that this traditional model of “fear-based,
tool-centric” digital safety trainings is gender-blind
and inherently male-centric in its approach to technology and digital safety, often leaving out a rangeof lived experiences and knowledge of diverse peoples, on navigating and managing technological tools
and digital spaces.
Findings which emerge from studies like thisone show us a contrary picture; that so-called

3

Waters, C. (n/d). Digital Security Trainers’ Practices andObservations. Berlin: Tactical Technology Collective.
https://secresearch.tacticaltech.org/digital-security-trainerspractices-and-observations

4

Ibid.

5

https://secresearch.tacticaltech.org/background

EROTICS South Asia exploratory research

“marginalised” persons, such as the lesbian women in this study, use the internet and online tools
every day in multiple ways, while thinking creatively
and practically about their safety and the safety ofothers in their communities. It was clear that thesestrategies are constantly evolving in ways that aligndynamically with changes in their everyday lives, aswell as in their practices and habits online.
Digital safety strategies and narratives which do
not address everyday realities and the specific ways
in which lesbian women use the internet, will not
feel relevant to them. Furthermore, for many of thewomen, the technical approach to safety did not adequately address the broader issue of the genderedand sexualised surveillance of women.
Privacy and safety concerns were clearly prevalent in our respondent group but what we found wasthat more often than not, they relied on a number ofself-taught tactics – and not only the technology – tocome to their aid. The lived experiences and knowledge of women such as those in this study need tofind their way into how technologies are designed
and managed; how digital safety is conceptualized
and how digital safety trainings are designed andimplemented; and finally, into policy around digital
safety, privacy and autonomy.

•

Establish a separate body, either judicial or quasi-judicial in nature, to oversee ISP compliancewith surveillance measures. Ensure that sucha body will be comprised of individuals withadequate expertise in human rights and law
enforcement and that its members will be independently appointed and secure in their tenure.
Ensure the availability of judicial review against
any measures authorised by such a body. Subject
the body’s conduct to a general periodic review
by the Human Rights Commission of Sri Lanka.

•

Ensure that all online surveillance measures
are subject to the approval of an independent
body, such as the body recommended above;in no case should an investigating official have
unilateral authority to order or initiate online
surveillance measures; if exceptions are madefor exigent circumstances requiring quick action,
ensure that subsequent judicial or similar independent approval of such action is mandatory,
within at least 48 to 72 hours of such time theaction first goes into operation.

•

Ensure that surveillance measures carried out
through intermediaries (such as ISPs) are only
allowed where necessary, after less intrusive alternatives have been considered and shown to
be ineffective or in some other way detrimental
to the legitimate aims pursued by the measure.

•

Enact legislation requiring ISPs to notify users ofsurveillance measures as the general rule; if exceptions are to be applied to this general rule,ensure that the application of exceptions is authorised by an independent body based on theirnecessity, and that the applicability of the exceptions is reviewed periodically. In no case should an
exception be applied indefinitely or terminally.

•

Ensure full compliance with the Convention on Cybercrime and the International Bill of Rights in alllaws related to internet regulation and surveillance.

Recommendations
To the Government of Sri Lanka•

Repeal Sections 365 and 365A of the Penal Code.

•

Reform Section 399 of the Penal Code to explicitly exclude transgender persons from the scopeof “cheat by personation”.

•

Clarify the offences contained in obscenity andprofanity laws, and their applicability to the online space.

•

Ensure that all laws affecting online speechand online privacy are “necessary in a democratic society”, even if this means, in somecases, total abolition.

•

Amend the Telecommunications Regulatory
Commission Act (as amended in 1996), to specifically exclude the commission’s power tooversee surveillance measures in individual cases. Require any general evaluation of an internet
service provider’s (ISP) compliance with surveillance requests, if provided for, to be transparent
and in the public domain.

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Law enforcement agencies•

Enact laws that guarantee the safety and inclusiveness of the online space, including laws thatpenalise persistent and/or particularly egregious
harassment of individuals based on their identity(such as race, religion, gender identity, sexual orientation, national origin). Ensure that such laws
adequately define the prohibited types of speech
and provide intentionality as an essential elementof the offence. Ensure that the penalties imposed

EROTICS South Asia exploratory research

on wrongdoers are proportionate, and serve thepurpose of promoting public order and respect
for others’ rights in the online space.
••

Enact laws that criminalise the unauthorised
disclosure and/or publication of content shared
between private individuals. Ensure that suchlaws focus on and criminalise the aspects of abuse,harassment and exploitation related to such acts,
and the violation of privacy related to such acts.
Shift the focus away from notions of “obscenity”
and “profanity,” in such cases.
Strengthen existing redress agencies (such as
SLCERT) to record and respond to online harassment faced by people of diverse sexualities andgender identities in Sri Lanka with full confidentiality. Ensure that victims seeking redress may holdsuch agents to account (through judicial review
or otherwise), in terms of how reports by victims
are received, and what actions are taken in response to such reports.

•

Develop and implement guidelines for CID
Cyber Crime Division that guarantees non-discrimination based on gender identity and sexual
orientation and protects confidentiality.

•

Investigate complaints of online harassment or
threats against people of diverse sexual orientations and gender identities and ensure fair andimpartial investigations of the complaints that
hold perpetrators accountable to the fullest extent of the law.

•

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Internet service providers•

Develop and implement guidelines that are nondiscriminatory on grounds of sexual orientationand gender identity, particularly when transgender persons obtain services, and where sexuality
or gender minorities are affected by adverse legal procedures.

•

Link regulatory compliance with ISPs’ overall
branding strategy (albeit in a manner respecting
the privacy rights of individual customers). Ensurethat the public is informed of the government’s
various surveillance powers and measures; adopt
policies that prioritise the rights of the customerin all cases except where government agencies
have followed and complied with the necessary
procedural requirements.

Civil society organisations•

Document both online and offline experiencesof people of diverse sexualities and gender identities and advocate with the Government of Sri
Lanka for legal and policy reform related to therights of people of diverse sexualities and gender
identities in Sri Lanka.

•

Strengthen partnerships and referral systems
with government agencies that provide redressfor online harassment.

•

Develop more effective information, educationand communication around existing laws, policies
and services that are related to internet use, so thatpeople of diverse sexualities and gender identities
in Sri Lanka know when their rights are violated
online and are able to seek redress when required.

•Develop strategies to increase knowledge on cyber safety among people of diverse sexualities
and gender identities in Sri Lanka.

•

Adopt a general trilingual policy in all online
communications and interventions to ensure
inclusiveness.

Take measures to ensure that all law enforcement
officers respect the right to non-discrimination on
grounds of sexual orientation and gender identity.

Sri Lanka

EROTICS South Asia exploratory research