This article is written by Rishabh Mishra, pursuing Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho.

Introduction

Revenge porn consists of two words i.e. “revenge” which means inflicting injury or harm to such a person who caused any kind of loss or wrong to the revenge seeker and whereas “porn” means any topic of news, book, magazine, television paper etc which raises the interest of reader or viewer to an excitement level for such subject or a particular product. But the context in which collective use of both words is different from their sole meaning, they together signify that taking revenge from someone by distributing his or her sexually explicit images online for the wrongdoings done by such person without his or her consent. It is basically a sexual abuse of the victim against which the victim generally has no power to fight back. Images or videos are used as a tool for retaliation or blackmail by the revenge seeker. The laws in the UK prohibit and penalize such offences under Criminal Justice and Courts Act, 2015. Section 33 to Section 35 is concerned sections of the Act which are explained in detail further in this article with relevant case laws.

Law and its implications in the United Kingdom

Criminal Justice and Courts Act, 2015 is an Act made by the Parliament of UK to combat crime and disorder, thus, by introducing Section 33 to Section 35 of the Act revenge porn has been inculcated in the provision. Although no words in the Act include the term ‘revenge porn’ but actually covers the act through the conduct of the offender. Section 33 of the Act prohibits the disclosure of private sexual photos or film without the consent of such individuals or with intent to cause distress to the victim but if the disclosure is limited to the victim then it is not an offence. There are certain defences and fair use under this provision which the accuser can use to prevent him during prosecution. Although, fair uses are covered under the defences in the provision but can be differentiated by observing the language of the provision. For instance, in Subsection 3 of Section 33 of the Act, fair use can be used as a defence because it says that disclosure without consent is necessary for prevention, detection and investigation of a crime. The other defences mentioned in further provisions are as follows:

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  1. Use for journalistic material and such publication must be in the interest of the public.
  2. The accused believes that such material has been disclosed for reward by such victim or another person or the accused does not have a reasonable apprehension that previous use of the material was disclosed without the consent of the victim.

Sub-section 6 of Section 33 of the Act, 2015 draws a condition precedent for the accused which says that in order to avail defences in Subsection (4) and (5) of Section 33 there must be sufficient evidence to raise an issue or contrary must be proved against accusation beyond a reasonable doubt.

Section 33 further provisioned that for the purpose of this section consent includes:

  1. Consent for general disclosure, and
  2. Consent for particular disclosure.

Publication of journalistic material for the purpose of this section shall mean:

  1. Publication at large,
  2. Publication to a particular section.

Section 33 Subsection 8 provides a provision mandating what cannot be considered as a defence. It says that by disclosing material distress the probable cause cannot be solely considered to constitute an offence under this section. This section provides a maximum of two years of imprisonment in cases where there is a conviction on indictment and in case of summary conviction, there is a maximum of twelve months of imprisonment.

The very basic difference between an indictable offence and a summary offence is linked to trial by different courts. Indictable offences are those offences that are tried by Crown Court and summary offences are tried by the magistrate court. In case a court of the first instance in UK i.e. Magistrate Court finds that offence consists of indictable offences then it shall escalate the trial to Crown Court. Thus, the sentence provided in Subsection 9 of Section 33 depends on a multiplicity of offences a person is charged with because an offence generally states by which court it can be tried but such is not the case with Section 33, it does not specify when it can be tried summarily and when the offence can be tried by Crown Court, as it simply states that it, if it is tried summarily maximum twelve months imprisonment, shall be there and if there is conviction on indictment maximum two years imprisonment shall be there. Thus, if the offence is coupled with summary offences then he shall be tried summarily and if the offence is coupled with indictable offences then he shall be tried by Crown Court.

Another provision Section 34 elaborates the terms “disclose” and “photograph or film”, although the word “material” has been used in place of photograph or film. The section says that disclose means:

  1. A person by any means gives or shows the material to the person; or 
  2. Make it available to the person.

It does not matter whether disclosure of such material is by giving, showing or making available for reward or previously given, shown or made available for reward.

Sub-section 4 of Section 34 says that “photograph or film” means still or moving images that appear to consist of actually consist of a series of photographed or filmed images; it shall include a negative version of the image as well as an image stored in any means which is capable of being converted to a proper image. Here photographed or filmed image means an image that was originally captured or is a part of an originally captured image as well as it also includes altered images of photographed or filmed images. Filming means a recording on any medium from which a moving image may be produced.

From the perusal of the above definition of photograph or film image, it is limited to originally captured images and does not include any other way through which such a picture can be obtained. For instance, if images are obtained by illegal means then they shall not be covered by these provisions. Another instance is if someone uses an image of a person procured by any means except the original way as mentioned in sections and morphs it by making it sexually explicit content then so far as this law is concerned such act shall not be an offence. As a result, it does not cover deep fake pornography in which image of a person is superimposed on pornographic content and cyber flashing which is an act of sending naked images especially showing genitals using the internet as a medium of exchange to such person who has not asked for it or to any random person. Hence, this law is very much limited to the ground of how the image is obtained i.e. through original means or otherwise and recognizes only original means.

Further in Section 35 of the Act, 2015 the words “private” and “sexual” are defined for the purpose of a “photograph or film” mentioned in Section 33 of the Act, 2015.  Here private means showing something which cannot be ordinarily seen in public. The word sexual is used in reference for showing an individual’s genitals or its parts, reasonably considered as sexual in nature or if the content is taken as a whole a reasonable person would consider it sexual.

In order to determine whether the photographed or filmed image is private or sexual or not, then such images have to qualify the followings:

  1. It must include that is private or sexual,
  2. It must not be private or sexual only by virtue of alteration or combination,
  3. It is only by virtue of the alteration or combination that the person whose consent is required or is distressed is shown as part of, or with, whatever makes the photograph or film private and sexual.

Here alteration includes alteration in any manner; this makes it very much inclusive in nature and on the other hand, the combination means a combination of two or more images with one another or with any other thing.

By including definitions through Section 35 in the Act the law becomes more specific towards the original image and provides protection through technicalities under this law. It disregards the concept of deep fake pornography because firstly, there has to be an original image and secondly, such image is private or sexual only by virtue of any alteration or combination. Use of original private and sexual image cannot be the only tool of taking revenge porn as deep fake pornography and cyber flashing are also some of the widely used tools which can be covered under the concept of revenge porn but the law only recognizes the limited understanding of revenge porn in the UK.

Indian perspective

There is no specific law in India for revenge porn but the offence, in general, can be covered under the provision of the Information Technology Act and the Indian Penal Code. Section 66E, Section 67, Section 67A and Section 67B are relevant sections for covering revenge porn under the Information Technology Act. Section 66E is concerned with the violation of privacy by transmitting sexually explicit material containing still and moving images of an individual without his consent. Section 67 is concerned with the publication and transmission of obscene material and Section 67A is concerned with the publication and transmission of sexually explicit content. Thus, even if there is the consent of the individual for transmission of his sexually explicit content or any obscene material featuring him in any manner, the transmitter of such content can be convicted under Section 67 or Section 67A depending upon the facts and circumstances of the case. So far as Section 67B is concerned, it penalizes the publication and transmission of sexual and obscene content featuring a child. There is imprisonment up to three years in case of an offence under Section 66E with a fine of Rs. 2 lakhs and Section 67 with a fine of Rs. 5 Lakhs but in case of Section 67, the imprisonment may extend to 5 years on the second conviction with a fine up to Rs 10 lakhs. In the case of Section 67A and Section 67B there is imprisonment of 5 years with a fine of Rs. 10 lakhs, but in the case of Section 67A imprisonment may extend to seven-year along with the same limit of fine on second conviction.

The relevant provisions concerned with revenge porn in the Indian Penal Code are Section 354, Section 354A, Section 406, Section 506 and Section 509. Section 354 is concerned with outraging the modesty of women through criminal force or assault. If any person advances sexual contact towards a woman, asks sexual favour, shows her pornography against her will, or makes sexually coloured remarks or statements then he shall be guilty of sexual harassment under Section 354A. If any person captures the image or video of a woman engaging in a private act without her knowledge and consent and disseminates such content then such person is guilty of voyeurism under Section 354C. If any person makes the content with the knowledge and consent of the victim but disseminates such content without knowledge or consent then such person is guilty of criminal breach of trust under Section 406 or if he criminally intimidates the victim with such content he is guilty of an offence under Section 506. 

Finally,  if a man tries to insult the modesty of a woman by words, gestures, sounds or objects, intending for it to be seen or heard, intruding on the privacy of the woman then he is guilty of an offence under Section 509. It is pertinent to mention that in Section 354A and Section 354C mentioned above offence can only be committed by a man but in the case of other offences mentioned above any person can commit the offence with respect to a woman.

Conclusion

The law in the UK attempts to make law on revenge porn but fails to capture various paraphernalia of the subject. It is very much concerned with the fact that content must be original and its private and sexual features must not be the result of alterations which means in original content there must be privacy and sexuality, thus, it disregards the fact that there can be other forms of revenge porn such as deep fake porn and cyber flashing. It recognizes only one mode of revenge porn and its sections such as Section 34 and Section 35 of the Act, 2015 excludes the possibility of including other tools of revenge porn. Hence, we can say the UK made an attempt on making specific laws on revenge porn but failed to make it wholesome which results in loopholes in the provisions and such technicalities can be used by the accused of his acquittal so far as Section 33 of Act, 2015 is concerned. So far as Indian law is concerned there is no specific law the provisions mentioned above need to be coupled with each other in other words to convict a person for revenge porn these provisions act as a crutch to each other. There is a need for wholesome legislation in both the countries for a deterrent conviction because in case if the judge is confused with which law shall be applicable he has to convict the accused with the offence having lesser punishment so far as Indian is concerned, for example, confusion between what is obscene and what is sexually explicit content. Overall wholesome law can eliminate the possibility of an acquittal on the ground of technicality and the possibility of lesser punishment. Another important element that is missing in UK’s legislation is preventive measures for anonymity of identity of the victim but so far as Indian is concerned disclosing the identity of the victim is an offence so far as rape is concerned. Thus, both countries need preventive measures for the anonymity of the identity of victims for making wholesome legislation for revenge porn.

References 

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