Uploading Photo On Social Media Not Consent For Others To Use It In Obscene Material: Karnataka High Court

The Karnataka High Court has held that uploading a photograph on social media for ordinary and legitimate purpose does not imply consent for others to use it in obscene material or to circulate such material.

Accordingly, Justice Suraj Govindaraj refused to quash criminal proceedings against five men, charged for the Sections 66C (identity theft) and 67 (publishing or transmitting obscene material in electronic form) under Information Technology Act, 2000.

“The use of a publicly available photograph does not, by itself, authorise another person to misuse it, create an obscene or indecent video by associating it with the photograph, or circulate the resulting material along with the woman's identity and contact details,” the Court observed.

It further said, “A photograph posted by a person on a social media account for ordinary and legitimate purposes cannot be treated as consent to its use in obscene material or to the circulation of such material among others.”

The case arose from the complaint alleging that unknown persons used her Instagram ID and photographs available on the social media platform to circulate obscene video in a WhatsApp group named 'Bad Boys'. Subsequently, the complainant's Instagram ID, photograph, video and contact details were forwarded across multiple WhatsApp groups, leading to unwanted messages on her social media account.

Following an investigation, a charge sheet was filed against the petitioners under the IT Act. Aggrieved by this, the petitioners approached the High Court seeking to quash the criminal proceedings initiated against them. They argued that the photographs available on the Instagram account and the person shown in the said video are two different individuals. Further, without any material to establish that the complainant is the person shown in the video, the offences under the IT Act cannot be sustained against the petitioners.

Rejecting the petitioner's argument, the Court noted the Forensic Science Laboratory (FSL) report which found similarity in the facial features of the photographs available on the complainant's Instagram handle and the circulated video.

“The video which has been circulated is an erotic, indecent video, bearing the facial resemblance of the complainant, as per the report of the FSL. Whether it is indeed so would have to be subject to trial,” the Court said.

Noting the gravity of such an act and its adverse effect on a woman's dignity, Justice Govindaraj said, “The alleged act of using the complainant's photograph to create or circulate a fake obscene video, and then placing her Instagram ID and contact details before members of WhatsApp groups, is a serious allegation. If established, such conduct would expose the complainant to unwanted attention, humiliation, harassment and harm to her reputation. It would also adversely affect her dignity and privacy as a woman. The alleged circulation of the material in groups for public consumption aggravates the nature of the allegation, as the complainant's identity and contact details are allegedly made available to persons who may use them to contact or harass her.”

Accordingly, the High Court dismissed the petition, refusing to quash the charge sheet or the criminal proceedings initiated against the petitioners.