This article has been written by Sukanya Mitra pursuing the Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.

Introduction

Cyberspace is a virtual world that is separate and distinct from the real world. While technological advancement has increased access to information and connectivity across the world, it has also led to the emergence of a variety of cybercrimes. Cybercriminals are using technology to not only commit crimes but also to cover their tracks and identities. Sexual crimes have always been a cause of deep concern. Now such crimes are being committed in the cyberworld as well. ‘Revenge Porn’ is one such crime that is on the rise. This article discusses the concept of revenge porn, what laws does India have to deal with this issue and looks into the need for explicit IT laws.

What is ‘revenge porn’?

‘Revenge porn’ is the phenomenon of people sharing/distributing sexually explicit or intimate images/videos of their former partners without their consent. Such images/videos may have been obtained with the consent of the partner during the relationship but are shared as a form of revenge when the relationship comes to an end. In other cases, a person may hack into his ex’s computer/mobile phone to obtain such images/videos. The purpose of sharing these images/videos may be to humiliate, abuse/torture, blackmail or control people. The cyberworld does not have any territorial boundaries and such content spreads like wildfire that is impossible to control. The Odisha High Court, in the case of Subhranshu Rout vs. State of Odisha [BLAPL No.4592 of 2020, decided on November 23, 2020] (“Subhranshu”), likened “information” in the cyberspace to “toothpaste” and commented that once information enters the cyberspace, which is a public domain, it will never go away pretty much like toothpaste out of the tube cannot be returned back.

The District Court of Purba Medinipur delivered the first conviction in India relating to revenge porn in the case of State of West Bengal vs. Animesh Boxi [Case No. GR:1587/17, decided on 07/03/2018]. The victim and the accused were in a relationship for 3 years and the accused had promised to marry the victim. During their relationship, the accused wanted some private photos of the victim. Initially, the victim refused but eventually, based on trust, she shared some photos with the accused. The accused further demanded nude photos and on refusal, threatened to upload the private photos on social media. Subsequently, the accused took private and nude photos of the victim by hacking into her phone. The accused started to blackmail the victim with those photos to go on an outing with him. When the victim resisted, the accused uploaded the images on the website of Pornhub. On being informed by the victim’s cousin that when searching her name on Google, the link of Pornhub which displayed the nude photos came up, the victim lodged a complaint with the local police station.

The accused was convicted under sections 354A/354C/354D/509 of the Indian Penal Code, 1860 and Sections 66E/66C/ 67/67A of the Information Technology Act, 2000 and was punished with rigorous imprisonment for 2 months and total simple imprisonment for 6 years with a total fine of Rs. 9,000. The prison sentences are to run one after the expiry of the previous sentence.

The District Court held that by uploading the nude pictures and videos of the victim, the accused had committed virtual rape against her. Every single time those pictures and videos are being watched; virtual rape is being committed against the victim. Even if the images and videos are removed, people may have downloaded the content and again share it in the virtual world. Thus, virtual rape is committed continuously against the victim till the day she dies. The District Court noted that crimes against women in cyberspace are increasing day by day and it is high time that stringent measures are adopted to suppress such crimes.

Laws regulating revenge porn

India does not have any specific provisions/legislations dealing with revenge porn as it is not recognized as an offence. Some provisions of the Indian Penal Code, 1860 and the Information Technology Act, 2000 are applicable in cases involving revenge porn.

The Indian Penal Code, 1860 (IPC)

1. Section 354: Assaulting or using criminal force on a woman with the intention of outraging her modesty is punishable by simple or rigorous imprisonment of a minimum period of 1 year and a maximum of 5 years and a fine.
2.  Section 354A: If a man physically contacts or makes advances involving unwelcome and explicit sexual overtures, or demands or requests sexual favours, or forcefully shows porn to a woman, or makes sexually coloured remarks, he commits the offence of sexual harassment. The punishment for the first 3 acts is rigorous imprisonment for a maximum period of 3 years or with a fine or with both. The punishment for the last act is simple or rigorous imprisonment for a maximum period of 1 year or with a fine or with both. 
3. Section 354C: If any man watches or captures images or disseminates images of a woman engaging in a private act, under circumstances where she would not expect to be observed by the perpetrator or by anyone at the behest of the perpetrator, commits the offence of voyeurism. If the perpetrator is convicted for the first time, he will be punished with simple or rigorous imprisonment for a minimum period of 1 year and a maximum of 3 years and a fine. For a second or subsequent conviction, the perpetrator is punished with simple or rigorous punishment for a minimum period of 3 years and a maximum of 7 years and a fine.
4. Section 354D: A man would commit the offence of stalking when he follows a woman and contacts or tries to contact such woman to foster personal interaction repeatedly despite the woman showing a clear disinterest in doing so. A man would also commit the offence of stalking when he monitors the use by a woman of the internet, email or any other type of electronic communication. The punishment, on a first conviction, is simple or rigorous imprisonment of a maximum period of 3 years and a fine. A second/subsequent conviction for a maximum period of 5 years or fine or both.
5. Section 406: This Section prescribes the punishment for criminal breach of trust, which is simple or rigorous imprisonment of a maximum period of 3 years or fine or both.
6. Section 499 & 500: Section 499 explains the offence of defamation. ‘Defamation’ is harming or intending to harm the reputation of a person by making or publishing words, spoken or written, or by signs or by visible representations. Section 500 prescribes the punishment for the offence of defamation as simple imprisonment for a maximum period of 2 years or fine or both. 
7. Section 506: This Section prescribes the punishment for criminal intimidation as simple or rigorous imprisonment for a maximum period of 2 years or fine or both. Further, if a person threatens another to

•  cause death or grievous hurt, or
•  cause destruction of any property by fire, or
•  cause an offence punishable with death or life imprisonment or with imprisonment for a maximum period of 7 years, or
•  making a statement of unchastity of a woman is punishable with simple or rigorous imprisonment for a maximum period of 7 years or with a fine or with both.

8.  Section 507: This section makes criminal intimidation by anonymous communication an offence and punishable with simple or rigorous imprisonment for a maximum period of 2 years in addition to the punishment prescribed by section 506.
9. Section 509: Using words, sounds or gestures or displaying any object with the intention to outrage the modesty of a woman or to intrude upon her privacy is an offence punishable with simple imprisonment for a maximum period of 3 years and a fine.

The Information Technology Act, 2000

1. Section 66E: This Section provides for punishment for violation of privacy where any person, intentionally or knowingly, captures, publishes or transmits images of the private areas of a person without his consent. The punishment is imprisonment for a maximum period of 3 years or a maximum fine of Rs. 2 lakhs or both.
2. Section 67: Publication or transmission of obscene material in electronic form is punishable if convicted for the first time, with simple or rigorous imprisonment for a maximum period of 3 years and a maximum fine of Rs. 5 lakhs. A second/subsequent conviction is punishable with simple or rigorous imprisonment for a maximum period of 5 years and a maximum fine of Rs. 10 lakhs.
3.  Section 67A: Publication or transmission of material containing sexually explicit act or conduct is punishable, on a first conviction, with simple or rigorous imprisonment for a maximum period of 5 years and a maximum fine of Rs. 10 lakhs. A second/subsequent conviction is punishable with simple or rigorous imprisonment for a maximum period of 7 years and a maximum fine of Rs. 10 lakhs. 
4. Section 67B: Publishing or transmitting a material depicting children in a sexually explicit act in electronic form is punishable, on a first conviction, with simple or rigorous imprisonment for a maximum period of 5 years and a maximum fine of Rs, 10 lakhs. On second/subsequent conviction, the punishment is simple or rigorous imprisonment for a maximum period of 7 years and a maximum fine of Rs. 10 lakhs. In this section, “children” means a person who has not completed the age of 18 years.

Remedies available to victims

Victims of revenge porn can lodge a First Information Report (FIR) with their local police station. A combination of the provisions of the IPC and IT Act, as stated above, will be applied. The Odisha High Court has emphasized the right to be forgotten as a remedy in addition to the criminal provisions for victims of revenge porn in the Subhranshu case.

Right to be forgotten

The “right to be forgotten” is said to be a civil right that enables individuals to request the removal of personal information from the internet. The case of Google Spain SL & another v. Agencia Espanola de Protection de Datos (AEPD) and another [C-131/12[2014] QB 1022] caused Google to be flooded with requests for removal of personal information. In this case, an individual in Spain had approached Google for removing an old newspaper article regarding his previous bankruptcy on the ground that there was no reason for such outdated information to remain online. The Spanish Data Protection Agency (AEPD) recognized the right to be forgotten of the individual and directed Google to remove the article. On appeal, the European Court of Justice affirmed the decision of the AEPD and held that European citizens have a right to request that commercial search engines, such as Google, that gather personal information for profit should de-link personal information when asked, provided that such information is no longer relevant.

The right to be forgotten is ingrained in the right to privacy. The Supreme Court in the landmark case of Justice K. S. Puttaswamy (Retd.) vs. Union of India [(2017) 10 SCALE 1] (“Puttaswamy”) held the right to privacy to be a fundamental right and an integral part of Article 21 of the Constitution. Further, the Supreme Court held that the “right to be let alone” is part of the essential nature of the right to privacy. The power to seclude oneself and keep others from intruding it in any way is essential to privacy. These intrusions may be physical or visual through instruments, devices or technological aids. The Supreme Court referred to the General Data Protection Regulation adopted by the European Union in 2016 which recognised the “right to be forgotten”. This, the Supreme Court explained, would mean that when an individual no longer desires that his personal data be processed, he should be able to remove it from the system. Personal information/data which is no longer relevant or is incorrect and does not serve any legitimate interest would be removed.

The Committee of Experts on a Data Protection Framework for India (“the Committee”) was constituted in August 2017 while the Puttaswamy case was going on. The Committee submitted its report and a Draft Personal Data Protection Bill (“the Bill”) in 2018. The Committee recommended the right to be forgotten to be adopted and had incorporated it in section 20 of the Bill. The Committee explained the “right to be forgotten” as the ability of individuals to limit, delete, de-link or correct the disclosure of personal information on the internet that is irrelevant, misleading or embarrassing. Under section 20, an individual has the right to prevent continuing disclosure of personal data by a data fiduciary. The Bill was introduced as the Data Protection Bill, 2019 in the Lok Sabha on December 11, 2019, and is yet to be passed.

In the case of {Name Redacted} vs. The Registrar General [Writ Petition (Civil) Nos.36554-36555/2017, decided on January 04, 2018], the Karnataka High Court explicitly recognized the “right to be forgotten”. In this case, the petitioner requested the removal of his daughter’s name from a judgment involving claims of marriage and forgery. This request was upheld. It was held that the recognition of the “right to be forgotten” was an initiative parallel to initiatives of western countries, which uphold this right in sensitive cases where the modesty and reputation of people, especially women, were involved.

Subhranshu Rout vs. the State of Odisha

This was the first case where the “right to be forgotten” was recognized with respect to revenge porn in India.

The brief facts of the case are that the victim was allegedly in love with the petitioner for a period of about 1 year. The petitioner went to the house of the victim and on finding her alone, raped her and recorded the incident on his mobile phone. The victim was threatened with death and her photos/videos would be made viral by the petitioner if she disclosed the incident to her parents. The petitioner continued to be physically intimate with the victim. When the victim told her parents about the incident, the petitioner opened a fake Facebook account in her name and uploaded the pictures/videos of the incident. An FIR was lodged by the victim. The present application is an application for bail by the petitioner.

The Odisha High Court dismissed the application. It was held that it is the right of women in such cases to enforce the right to be forgotten as a right in rem. Even if images and videos were captured with the consent of the victim, its misuse cannot be justified once the relationship between the victim and the accused gets strained. Unless the right to be forgotten is recognized in matters, such as the present case, any accused would freely be able to outrage the modesty of women and misuse the same in cyberspace. This would be against the larger interest of the protection of women against blackmailing and exploitation.

Need for explicit laws to regulate the menace

Ø  “Revenge porn” is not recognized as an offence. The scope of the sections of the IPC, which have been previously discussed, is limited as they relate only to female victims. In this technologically advanced age, there need to be gender-neutral laws as anyone may be a victim of revenge porn, irrespective of their gender.

Ø  The IT Act provides punishment for capturing and sharing images/videos of “private areas” of an individual. “Private area”, as per Explanation (c) to section 66E, means the naked or undergarment clad genitals, public area, buttock or female breasts. The IT Act does not take into account that a person may be captured in a sexually compromising position without revealing parts of the body.

Ø  Section 67A of the IT Act prescribes punishment for publishing or transmitting material containing sexually explicit acts or conduct. The issue here is that if the victim created the content voluntarily for private consumption, the victim himself would be implicated as consent is not a factor for consideration.

Ø  The “right to be forgotten” is not a statutory right in India. Those collecting and sharing data in cyberspace are not obligated to delete personal information on request by the concerned individual nor are they obligated to conduct periodic reviews and clean up their data banks. In the Subranshu case, the Odisha High Court stressed the need to statutorily recognize the right to be forgotten. The High Court stated that though the Indian Criminal Justice System prescribes strong penal action against the accused, there is no mechanism available to the victim to get the objectionable images and videos removed from the internet. The rights of the victim, especially the right to privacy which is intricately linked to the right to be forgotten, are unresolved for want of legislation. In such cases, the High Court recommended victims seek appropriate orders to protect their fundamental right to privacy by seeking appropriate orders to have the offensive posts erased from public platforms, irrespective of the ongoing criminal process.

Global Scenario

Many countries have legislation banning and punishing the distribution of sexually explicit material without consent. Some of them are:

• Africa: The Films and Publications Amendment Act 11 of 2019 criminalises revenge porn and aims to clamp down upon the distribution of images/videos of a sexual nature without the consent of those featured. The punishment is a fine of R150,000 and up to 2 years imprisonment. The fine and period of imprisonment will get doubled if the victim is identifiable in any manner in the images/videos, including by tattoo, birthmark, etc.
• Philippines: The Anti-Photo and Video Voyeurism Act of 2009 was passed to define and penalise the crime of photo and video voyeurism. The offence is punishable with imprisonment for a minimum period of 3 years and a maximum of 7 years and a minimum fine of P100,000.00 but not more than P500,000.00.
• Israel: The Prevention of Sexual Harassment (Amendment No. 10), 5774-2014, criminalized sexually explicit media posted without the depicted person’s knowledge or consent. The Amendment also covers media posted on social media platforms. Those found guilty are prosecuted as sex offenders and victims are recognized as sexual assault victims.
• USA: 48 states have specific revenge porn laws.
• Scotland: The Abusive Behaviour and Sexual Harm Act, 2016 made it an offence to disclose, or threaten to disclose, an intimate photograph or film without consent.

Conclusion

Looking at the global trend, it is clear that India needs to recognize ‘revenge porn’ as cybercrime and suitably amend the IT Act. Additionally, the threat to commit ‘revenge porn’ and abetment of ‘revenge porn’ should likewise be recognized. The judiciary is taking steps to convict those guilty of revenge porn but a lack of legislation means remedies to victims are undefined. The “right to be forgotten” needs to be statutorily recognized as revenge porn violates the fundamental right to privacy of the victim. The victim should be able to directly request the concerned online platform to remove information instead of approaching the court every single time. The law must keep up with technology. Lastly, laws regarding sexual crimes, whether in the real or virtual world, must be made gender-neutral for an inclusive society and protection to all victims.

References

1. https://globalfreedomofexpression.columbia.edu/wp-content/uploads/2018/06/State-of-West-Bengal-v.-Animesh-Boxi.pdf.
2. https://legislative.gov.in/sites/default/files/A1860-45.pdf.
3. https://www.indiacode.nic.in/bitstream/123456789/13116/1/it_act_2000_updated.pdf.

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