STALKING, INVASION OF PRIVACY VS. REASONABLE ACCESS

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Every state of the world possesses the sole responsibility of protecting the privacy of citizens, their homes, property, correspondence, telephone communications and online interactions. An invasion of privacy happens when there is an intrusion and disturbance upon your reasonable expectation to be left alone. For instance, if you accidentally leave a personal diary containing private information on a public park bench, and that diary is picked up and read by someone else. Even if the sharing of this information damages your reputation or causes other harm, it is not a violation of your privacy. That requires a "reasonable expectation of privacy", which would apply if the diary was not left out in public, but if you're having a private conversation in your home and a neighbor uses a recorder to eavesdrop (and this causes injury), then your expectation of privacy has been violated. This is because you have a reasonable expectation that your neighbor is not using surveillance on your home. Stalking is the act or crime of deliberately and repeatedly following or harassing another person in circumstances that would cause a reasonable person to fear injury or death especially because of express or implied threats. It is a crime of engaging in a course of conduct directed at a person that serves no legitimate purpose and seriously alarms, annoys, or intimidates that person. Stalking is often considered to be aggravated when the conduct involved also violates a restraining order protecting the victim. [1] Like domestic violence, stalking is a crime of power and control. Stalking is conservatively defined as "a course of conduct directed at a specific person that involves repeated (two or more occasions) visual or physical proximity, nonconsensual communication, or verbal, written, or implied threats, or a combination thereof, that would cause a reasonable person fear. [2] It can be carried out in person or via electronic mechanisms (phone, fax, GPS, cameras, computer spyware, or the Internet). Cyberstalking—the use of technology to stalk victims—shares some characteristics with real-life stalking. It involves the pursuit, harassment, or contact of others in an unsolicited fashion initially via the Internet and e-mail. Reasonable access, as opposed to stalking and invasion of privacy is a situation where access plans can be left open, allowed, accessed and flexible. This is sometimes called reasonable access or liberal and generous access. For instance, reasonable access to land is fundamental to any property owner. Also, most laws establish that parents are entitled to “reasonable access” to their children. Unfortunately, there is no one-size-fits-all approach to this — every family is unique and what is reasonable for one family will seem extraordinary to another. The Indian Penal Code, which became a colonial law in 1860 ("IPC"), did not mention stalking as an offence. The only protection for women was for sexual harassment under Section 354, and Section 509 IPC for using words or gestures to insult a woman's modesty. Under IPC section 354, anyone who assaults a woman believing it will offend her modesty is liable to be prosecuted by law. Her sex is the essence of a woman's modesty. The ultimate test to be seen if the modesty of a woman is offended is to see whether the act or attack will amount to disturbing a woman's sense of decency. The law only makes it illegal if three conditions are met–that is; a)The attack must be against a woman, b)The perpetrator must have used excessive force, and c)Their modesty should be offended. However, the criminal law bill amendment bill 2013, penalizes certain privacy issues. The ordinance introduces the offence of stalking under Section 345D of the Indian Penal Code, and makes it punishable by imprisonment of not less than one year, which may extend to three years, and a fine. The provision prescribes that ‘Whoever follows a person and contacts, or attempts to contact such person to foster personal interaction repeatedly, despite a clear indication of disinterest by such person, or whoever monitors the use by a person of the internet, email or any other form of electronic communication, or watches or spies on a person in a manner that results in a fear of violence or serious alarm or distress in the mind of such person, or interferes with the mental peace of such person.’ Hence, under the new law, constant, unwanted interaction of any one person with another, for any reason, can be made punishable, if the actions results in fear of violence or distress in any person, or interferes with their mental peace. Also, the freedom of trade and commerce through the medium of the internet is also constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6). The right to access the internet is seen as a fundamental right because they have been able to distinguish between the internet as a tool and the freedom of expression through the internet. [2] According to the Statutory Tort Of Invasion Of Privacy Under The Law Reform (Torts) Law Of Lagos State and the Recent Spate Of Data Breaches In Lagos State, Nigeria, 'anyone who intentionally intrudes, physically or otherwise, on the solitude or seclusion of another or private affairs or concerns, is liable for invasion of privacy, if the intrusion would be highly offensive to a reasonable person.


CITATIONS [1] Tjaden, Patricia and Nancy Thoennes. Stalking in America: Findings From the National Violence Against Women Survey. Washington, DC: U.S. Department of Justice, National Institute of Justice, 1998, NCJ 169592.U.S. [2] Department of Justice. "Cyberstalking: A New Challenge for Law Enforcement and Industry: A Report From the Attorney General to the Vice President." Washington, DC: U.S. Department of Justice, 1999, NCJ 179575. The Law Reform (Torts) Law Of Lagos State, Ch. L82 Of 2015


REFERENCES https://injury.findlaw.com (accessed 13, Oct 2020) https://www.merriam-webster.com (accessed 13, Oct 2020) https://kmjsolicitors.com (accessed 13, Oct 2020) https://www.soolegal.com (accessed 13, Oct 2020) https://cis-india.org (accessed 13, Oct 2020) https://www.outlookindia.com (accessed 13, Oct 2020)