Author: Manjari V, III year of B.Com LLB (Hons.) from School of Excellence in Law, Chennai.
ABSTRACT
Privacy is a myth, they say. In the current world, humans tend to crave for other’s personal space. Revenge Pornography or Non – consensual discrimination means using an intimate photo or video to threaten or punish merely for the egoistic desires. It is sad truth where rape and harassment videos are searched by many and shaming people in the social media has become a new pleasure. We live in a world where sharing intimate pictures with partner has become a need to satisfy love and acceptance in most relationships. So, when they break up or get separated, one of them end up using the private photos and videos as a tool for blackmailing or threatening the other.
The 20th century didn’t have many incidents in the name of revenge pornography. The revenge porn was very less in the early 2000s. The development of Internet, YouTube, Retube and porn sites were famous only after 2005. Now almost everyone owns a smartphone and internet access and the level of porn viewers increased one-third when the free internet access was given in 2016. This paper attempts to show light on the issue related to this and suggests the needed remedy to be done soon.
REVENGE PORNOGRAPHY
Revenge porn is the non – consensual distribution of sexually graphic images and videos on an online platform, it is also known as image – based sexual abuse (IBSA).[1]
Revenge pornography basically means stalking or misusing the private data. It is the upload or distribution of sexually explicit images or videos without the consent of the person in the image or video. When a person uploads another person’s nudes or semi – nudes or private videos without the consent of the victim either in porn websites or in social media it is said to be revenge pornography. Technology, Social Media, Internet and lack of awareness are the main reasons for revenge pornography. We always see the fruits of the technological development and not the thorns that comes attached with the development of the same.
PORN V. REVENGE PORNOGRAPHY
The primary difference between pornography and revenge porn is the purpose of the video. Pornographic contents are recorded for various reasons either to increase the rank of the porn stars or to make profit or establish a fame and name in the porn industry whereas revenge pornography is uploaded for the reasons like insulting the victim, or making the video viral or revenge. Porn is taken and uploaded with the consent of the porn star, whereas revenge pornography is done without the consent of the victim.
On the other side, Morphing the face of the victim and placing it on a porn star’s face is also done. Some people even do this out of anger or frustration of being dumped by their lover.
CASES
India’s first case of revenge porn is State of West Bengal V. Animesh Boxi[2]. In this case the accused shared private images of his ex – partner without her consent because she ended the relationship with him. The victim was pressurized to share her intimate images on the pre text of marriage and later blackmailed into uploading the previous pictures to leverage more pictures from her and also to spend time with him and go outings with him. He was also accused of hacking into the phone. Being unable to take this, she ended the relationship. Later, he uploaded the intimate pictures of her in a famous website and also revealed the identity of the victim and the father.
The accused was charged under sections 354A (Sexual Harassment), 354C (Voyeurism), 354D (Stalking) and 509 (Criminal Intimidation) of the Indian Penal Code, 1860 (“IPC”) and sections 66C (Identity theft), 66E (Violation of privacy) and 67/67A (Transmitting obscene material online) of the Information Technology Act 2000 (“IT Act”).[3]
Accordingly, the Court found Boxi guilty of all the the offences as charged and sentenced him to five years imprisonment along with a fine of Rs. 9,000. The case is of historic significance as it is the first conviction in a ‘revenge porn’ case in India and the harsh punishment sends out a strong message to perpetrators of revenge pornography.
In another case of Subhranshu Rout V. The state of Odisha[4], the young man visited his classmate and raped her when she was alone at her home and also recorded this incident in his mobile. Later, the victim was threatened not to disclose this incident to anyone and if she did, the photos and videos will be leaked to the public. When the vctim opened up to her parents, he released the images and videos in Facebook using the victim’s name. After police intervened, he deleted the content.The Court commented that although Rout had removed the Facebook video after the police intervention
“information in the public domain is like toothpaste, once it is out of the tube one can’t get it back in and once the information is in the public domain it will never go away”. He approached the court for bail. But bail was rejected as this affected a women’s modesty and privacy.
Rout was charged with various offences under the Indian Penal Code, 1860 including rape (section 376), distribution of obscene content (section 292), forgery (section 465), forgery to harm reputation (section 489) and outraging a woman’s modesty (section 509). Rout was also charged under the Information Technology Act, 2000 with computer-related offences (section 66), identity theft (section 66C), publishing obscenity (section 67), and publishing sexually explicit content (section 67A).
SITUATION IN INDIA
In India, Revenge Pornography has not yet been explicitly recognized as a crime and it doesn’t have any specific law for it. All the cases are dealt under the broader statues of the Indian Penal Code,1860 and Information Technology Act,2000.
These offences are also covered under two sections of the Indecent Representation of Women (Prohibition) Act (IRWA), 1986.
The sections to apply will vary from case to case as the facts will be different. However, the laws relating to the breach of privacy and sexual harassment will be used.
UNDER IT ACT[5]
SECTION 66E
This section punishes the offenders with imprisonment which may extend to 3 years and a fine not exceeding 2 lakhs and in some cases both, when a person intentionally captures or publishes or transmits the intimate photographs of the victim’s private body part without their permission.
SECTION 67
This section deals with the publishing or transmitting obscene and sexual material through an electronic mode, where the offender will be punished with an imprisonment up to 3 years or a fine of 5 lakhs and if the offense is committed for the second time, a term of 5 years imprisonment and with a fine up to 10 lakhs.
SECTION 67B
This section is for the children below the age of 18 years. Where any such act of publication of obscene content is made involving a child, the punishment will be imprisonment of 5 years with a fine of 10 lakh rupees.
SECTION 72
This section penalizes for breach of confidentiality and privacy.
UNDER IPC[6]
SECTION 292[7]
This section deals with the selling or distributing or letting to hire or publicly exhibiting or in any manner putting into circulation of obscene materials for which the punishment for the first conviction may extend up to 2 years and with a fine which may extend up to 2000 rupees.
SECTION 354
It explains the use of criminal force or assault on women for outraging the modesty which would impose liability for imprisonment up to 2 years or fine or in certain cases, both.
SECTION 354A[8]
According to this section, any man who advances unwelcome and sexual physical contactor asks for sexual favors, forces a woman to watch pornography or make some sexually colored remarks and statements, he will be committing sexual harassment and shall be subject to rigorous imprisonment up to 3 years or with a fine or both.
SECTION 354C
This section talks about Voyeurism, which is an act of any man who watches or captures a woman engaging in a private act, without her knowledge of being watched or filmed not expecting to be observed by the person and who shares such pictures or clips. The offender will be charged with an imprisonment of 3 years along with fine
SECTION 406
This section talks about the committing of criminal breach of trust, the offender shall be punished with an imprisonment up to 3 years with a fine or both.
SECTION 499
This section allows one to institute a suit under defamation whose criteria is whoever by words either spoken or intended to be read or by signs or by visible representations makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation concerning will harm, the reputation of such person.
SECTION 500
This provides punishment for person involved in defamation with a simple imprisonment for one year and may also extend to two years depending upon the case and also with fine.
SECTION 506
It provides penalty for commission of criminal intimidation where the accused will be subjected to imprisonment of 2 years or a fine or both. If the accused threatens the victim with death, grievous hurt or destruction of property or to impute unchastity of a woman shall be punished with an imprisonment up to 7 years or fine or both.
SECTION 509
This section talks about punishment for a man when he tries to insult the modesty of a woman by words, gestures, sounds or objects, intending for it to be seen or heard, intruding the privacy of the woman. Such person will be punished with imprisonment up to 1 year or fine or both.
UNDER THE IRWA[9]
SECTION 4
The victim can also file a complaint under section 4, which prohibits the act of publication or sending by post of books, pamphlets, distribution, selling, letting for hire, or circulation, etc. in the form of paper, slide, film, writing, drawing, painting, photograph, containing indecent representation of women.
SECTION 6
It provides punishment for contravening section 4 where the offender is to be punished with rigorous imprisonment and with a fine.
RISKS AND UNNECESSITY IN SENDING NUDES
There is no privacy as we think. Our lives, our thoughts, our voices and our conversations. Everything is been watched and been heard and collected. So, there is always risk employed while sharing any important information. And there is always a huger risk involved in sharing nudes.
Having access to the media and the internet, even the teens and young adults engage in sending nudes in the form of love. But where is love when there is threating to release the photos and videos of a woman for some favors or ego?
The app we use always have a copy of the photo or video in our phone and if linked to cloud storage, there will be another copy. So, when we handover the phone to family or even a repair shop, they will have access to it and might be misused.
This can lead to crimes like blackmail, cyber bullying. However, the risks don’t abate even if you believe the person receiving the photos and videos wouldn’t leak them. Thus, the social media is never a safe platform and we should always think twice before sending nudes as it is purely unnecessary and it involves the element of lust rather than love.
PRIVACY IS A MYTH
The conversations we think that are private are not private. It is very similar to pick up a local cordless phone over a radio scanner. Everything we say can be collected and can be used to track, stalk, steal or monitor our activity.
Privacy is definitely a myth. And they say for those who think it is not, they are just not aware. Have you ever wondered when you have searched for a random product and you get a pop up in every website that the random product is on sale? The same random product comes in the YouTube advertisements too. Its just that Google understands what we need and shows us the products. So, it is never ever safe to send any private information or private photos through internet or media. What we think that only one may see, will be seen by many.
Google CEO Sundar Pichai, once said in an interview that google stores the information. Online privacy is something which doesn’t exist in reality, but made to believe that there is. All the pages we visit or surf collects data and they will use it in a way which will bring them money. Educating children once they attain a certain age of understanding all these stuffs is of ultimate necessity to avoid revenge pornography and egoistic behavior of people.
REMEDIES TO BE ADDRESSED IMMEDIATELY
When one becomes a victim of revenge pornography, one should follow the following steps.
First step is reporting to the cyber cell. They are present in every state and union territory. Upon receiving a complaint, they seize the electronic items and forward them to forensic labs to get the whole history of it. The biggest courage of the accused is anonymity and the mindset of women to speak out, that should be stricken down
Second step is to report the website or platform where you identified your image or video and send them via a legal notice to take such content.
Third step is to gather all the evidence such as chats and screenshots or call records of blackmail or threat by the accused.
The fourth step would be to file a complaint either at the national commission of women or at a local police station.
CONCLUSION
The affected victims should come out and raise complaints against such offenders as it would reduce these crimes. As of lawmakers, it is already time that a new and separate law emerges for revenge pornography to punish the offenders appropriately. The specific statute like POCSO act should be enacted to curb this menace as this is silently growing where the victims can’t be identified without reporting and trough cyber cells the awareness to come out courageously with the complaints should be spread, especially to school children. When the backward mentality of speaking out about the wrong or abuse happened is a social indignity thought gets destroyed, the offenders can be immediately taken through bars of law. Along with new statute the awareness should be taken everywhere to save the future assets, our women children.
BIBLIOGRAPHY
Web references
1. <www.indiankanoon.org> accessed 20/12/2022
2. RaslinSaluja, What to do if you are a victim of revenge porn <www.blogipleaders.in> accessed 20/12/2022
3. Aditya Krishnan, Revenge Pornography <www.legalserviceindia.com> accessed 20/12/2022
4. David Evenden, Online Privacy is a myth <www.pentestmag.com> accessed on 20/12/2022
[1] www.indialawoffices.com [2]C.R.M. No. 11806 of 2017 [3] www.globalfreedomofexpression.columbia.edu [4] BLAPL No.4592 OF 2020 [5]The Information Technology Act, 2000 is an Act of the Indian Parliament, dealing with cybercrime and electronic commerce. [6]The Indian Penal Code (IPC) is the official criminal code of India. It is a comprehensive code intended to cover all substantive aspects of criminal law. [7] Ins. By act 36 of 1969, s.2. [8] Ins. By Act 13 of 2013, s.7(w.r.e.f. 3-2-2013). Section 354A,354B,354C,354D were added after the Delhi gang rape case also called the Nirbhaya Case [9] Indecent Representation of Women (Prohibition) Act, 1986, An Act to prohibit indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other manner and for matters connected therewith or incidental thereto.