Click Here To Read LiveLaw Hindi- The First Hindi Legal News Website

Criminalising Revenge Porn: Why Stakeholders Must Not Be Happy With Present Legal Setup…

With the growth of the usage of social media, several new trends of cyber offences have surfaced like interpersonal crimes, especially crimes resulting from emotional breakups.

Revenge porn is one of the worst forms of interpersonal cyber crimes. Way back in 2009, I first came across such forms of ‘harassments’ in social media like Facebook when some women victims contacted me for help.

I term this ‘harassment’ because at that time we had a newly amended Information Technology Act, 2000 (amended in 2008), which prohibited violation of bodily privacy of all, irrespective of gender, through S.66E, but did not mention any motive, including revenge.

We did not have the new legal understanding about cyber stalking and voyeurism as are offered through the Criminal Amendment Act, 2013, which introduced Sections 354C (voyeurism) and 354D (stalking), specifically for women. Observing the nature of the harassment of revenge porn, I understood that there are two sets of contents involved in it: user generated content and user adopted content.

On this very understanding, in my article (co-authored with Professor K. Jaishankar) titled “Revenge Porn by Teens in the United States and India: A Socio-Legal Analysis”, published in International Annals of Criminology, 51(1-2), 85-111, 2013, we developed a definition of revenge porn, which is as follows:

“It is an act whereby the perpetrator satisfies his anger and frustration for  broken relationship through publicizing false, sexually provocative portrayal of his /her victim by misusing the  information that he may have known naturally and that he may have stored in his computer, or may have conveyed to his electronic device by the victim herself, or may have been stored in device with the consent of the victim herself; and which may essentially have been done to publicly defame the victim.”

One important point must be understood from this definition: victims may participate in creating the content (which may be used as revenge porn) either knowingly or unknowingly.

In our article, I explained this victim participation and subsequent victimisation through a table which may be explained as below:

  • It may begin with sexting by the victim herself: she may send her nude, semi-nude image to her partner/ boyfriend/ chat partner/ virtual partner. Nonetheless, this may also involve grooming whereby the victim may gain confidence to share her private images to the concerned ‘partner’. Private images may also be captured during private sexual acts between the couple, forceful sexual assault, including rape.
  • Excluding the situations for rape, I have often observed that these images may remain in the device of the perpetrator as a ‘memory’. This turns as a ‘weapon’ when the perpetrator wants to take revenge and humiliate the woman in the picture or the clipping. The jilted partner may first start circulating the image as it is to friends through digital messaging services and also through social media. In most cases, I have also noticed that the perpetrator had uploaded these images to adult entertainment sites, which are popularly known as XXX sites.
  • The image or the clipping may then rapidly attract attention of millions of viewers worldwide, may also be circulated virally and the targeted woman may become a sex object instantly.

Now, let us understand why revenge porn differs from traditional porn.

The later may be created with the help of professional models who may enter into agreement to act in such consensual porn videos. Several jurisdictions have mandatory licencing for such companies for creating porn contents or distributing porn contents through worldwide web, which necessarily prohibits child porn.

But these companies may not always run the web companies to publish such contents. Such web companies always shield themselves with due diligence clause which may exempt them from third party liabilities.

The Indian laws (in the context of the Information Technology Act, 2000 (amended in 2008)), do not permit creation, production, dissemination etc of the sexually explicit contents or obscene contents or contents depicting children in sexually activities unless the [purpose for the same is either educational (including research), or medical or it is an ancient scripture. The element of consent is, therefore, a key element to differentiate traditional porn from any other form of porn, including revenge porn. It is for this reason that we get to see several XXX sites showcasing millions of consensual porn images or clippings, which may never attract major legal attention.

But revenge porn has some more elements which may differentiate it from traditional rape videos or sexual assault videos or accidental violation of privacy; these may include the trust factor in the relationship between the victim and the perpetrator and the motive, i.e., taking revenge.

Often we tend to overlook this when rape videos are also categorised as revenge porn.

Rape videos may not always be revenge porn, neither may revenge porn always show rape.

Same goes for sexual molestation images and videos. These are not always revenge porn.

Now, let us examine whether our existing laws, including S.354C of the Indian Penal Code (voyeurism) and S.66E (violation of privacy) of the Information Technology Act, can serve as preventive laws for revenge porn.

While the earlier provision is women centric, the later is gender neutral.

But both convey the same message: capturing images of private body parts of individuals or while engaged in private acts without the consent of the person concerned is a punishable offence and this includes disseminating such images as well.

Explanation 2 of S.354C IPC makes the provision more relevant for revenge porn; it says “Where the victim consents to the capture of the images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination shall be considered an offence under this section”. It indirectly implies nonconsensual pornography.

But it does not include any motive as has been done for the purpose of stalking, including cyber stalking, under S.354D.

This was also one of my arguments in my book Cyber Crimes Against Women In India (co-authored with Professor K. Jaishankar), published by Sage in 2016.

As such, S.354C IPC has a very broad scope to penalise voyeurism and very narrow scope for regulating revenge porn.

This is because revenge porn may also involve creation of fake avatar of the victim which may be accompanied by offensive texts.

Consider a perfectly normal simple formal photograph of a woman, which may have been ‘shared’ by the perpetrator with a caption “my sexy wife”, while she is not actually the wife or the fiancé of the man who shared it. Where does a law for voyeurism or violation of bodily privacy come? Isn’t it a form a crude revenge when the woman had probably rejected proposal for love and her family is arranging for her marriage elsewhere? Won’t it create a threat in her for reputation damage?

I have seen several lawyers, academicians and government policy makers offering solution for this by offering a ‘combo plate’ of Ss. 354C, 354D, 509 (punishment for harming the modesty of women), 499 & 500 (defamation and punishment for the same) of IPC and Ss. 66E and 67A (punishment for publishing transmitting etc of sexually explicit contents) of the IT Act, 2000 (amended in 2008). While all of these provisions may really offer help, but in sum, none may offer real restoration of justice for the victim of revenge porn.

Consider again a beach vacation picture of a woman where she is in wet clothes; where would the dispute regarding the consent of dissemination come when this picture is in a ‘consensually shared’ album which can be viewed by the perpetrator’s ‘audience’ if he wishes to continue showcasing this in spite of break up? The police (especially those who may not have proper understanding of voyeurism laws or cyber laws) may find it extremely difficult to understand why the victim never prohibited the perpetrator to share this picture earlier and why suddenly after a fight she wants to report. Here starts the question of victim blaming because in spite of a law like S.354C, the victim apparently did not consider the warning alarm.

The burden falls upon the victim to prove exactly from which time this sharing became a ‘revenge sharing’ and why.

Consider again a situation where this picture would have been part of a group photo of office picnic, which is being shared among the people in the picture by messaging service like WhatsApp with a mischievous smiley by a colleague who may not be in good terms with the woman concerned; can this be concerned as a revenge porn within the meaning of S.354C or 509 of IPC or S.66E of the IT Act? On what basis may the woman report this behavior (and not the picture only)?  Further, would the punishment for jail term restore peace? Heal the damage to reputation of the woman?

The answer is NOT strict implication of the laws, but a proper legal definition of the term revenge porn from the context of emotional intelligence and therapeutic jurisprudential aspect.

It is high time that we adopt the ongoing battle by academicians and lawyers in the US for criminalising revenge porn and frame our own legal provisions for the same which may be beneficial for victims of both the gender including those of third gender.

Dr. Debarati Halder is the Professor and Head of the Department, Research at United World School of Law, Gandhinagar, Gujarat. She is also the honorary managing director of Centre for Cyber Victim Counseling (www.cybervictims.org). She can be contacted @debaratihalder@gmail.com

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same].

Got Something To Say:

Your email address will not be published. Required fields are marked *


*

*

  • Uma says:

    First post did not go throught? 2nd attempt:

    You can’t fight this with de-stimatzing nudity, because it is different if you see a naked person on the internet or if you see a naked person with a dick in her. Sex is something private and should stay there. Revenge porn is awful and should be pun…

    Read more at: http://www.livelaw.in/criminalising-revenge-porn-stakeholders-must-not-happy-present-legal-setup/?replytocom=168290#respond

  • Credit says:

    Going by what you have said a great percent of all XXX sites and the content contained therein would be illegal. People sharing it by pressing like or by uploading it from phone or computer directly would be guilty of a crime. The child pornography law can be extended to it but is it worth it? It is better to de-stigmatize nudity by lawfully adding that no person will suffer official and social sanction from having sacrilegious online profiles. Most information online cannot be verified anyways so it will do society good. Similar was already done in case of untouchability and dalit oppression. If the law says you cannot be victimized like this, who will be able to victimize you?

    • Tumal says:

      You can’t fight this with de-stimatzing nudity, because it is different if you see a naked person on the internet or if you see a naked person with a dick in her. Sex is something private and should stay there. Revenge porn is awful and should be punished with all means.

      x) The uploader should (and I am dead serious) should go to jail for that.
      x) Websites should be punished if the only purpose of it is to share such movies. There once was an article from https://www.porngatherer.com about this on how they avoid such sites as they have nothing to do with “porn” – The solely prupose of revenge porn is humiliation.
      x) People sharing it on their mobiles can’t be held responsible as they just don’t know – but sharing with friends and uploading to a website are 2 different things.

Top