This article is written by Harshita Shah, pursuing a Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho.

                                                 The internet never sleeps, and the internet never forgets!

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Introduction

Lockdown has a proportional effect on many relationships and dating experiences. To cope with lockdown and to make relationships survive smoothly, partners have mutually moved in for virtual dating and sexting. Unwary of the implications that can arise by not using safe platforms for such virtual intimate moments, the perpetrators use the same virtual moments for revenge porn. Lockdown has threatened women’s digital safety and the perpetrators come from all ages. The secret boys locker room had left the whole nation in dismay after a group chat revealed young boys’ participation in sharing explicit sexual content followed by active participation in obscene comments. Victims of such crimes often want to exercise their right to be forgotten immediately before their videos and images reach their circle of friends, relatives, and colleagues. In this article, an attempt is made to educate about obscenity, non-consensual sharing of images, the remedies available to the victim, and the manner of enforcement to remove these photos and videos from the internet.

Different forms of cyber violence against women

Ever since virtual dating became the new normal, there has been a surge in virtual sexting. In virtual sexting, perpetrators trick the victims into performing any sexual act or threaten them to do so. This is called cyber grooming. To prevent the fallout of relationships or to prevent a spouse from lodging complaints of domestic violence, perpetrators threaten the women to leak all their intimate images and videos. In some cases, perpetrators deliberately, without consent, leak these videos and images or morph the photos on naked bodies and disseminate them. This has also become a new way of extorting money from women. Strangers also pull out photos from their Whatsapp DP and Instagram profiles, morph them and intimidate women to circulate the same on pornographic websites. In many cases, offenders have without consent circulated victims objectionable or obscene photos on pornographic websites or circulated them using whats app or on any other social media platform to humiliate the victim. Under the present Information Technology Act, Section 66E, Section 67, and Section 67-A and the intermediary rules come to the rescue of the victim to remove and report any objectionable, obscene, and non-consensual images or videos.^[1]

What images and videos constitute obscenity?

Section 67 of the Information Technology Act provides punishment for publishing or transmitting obscene material in electronic form. However, the act does not define “Obscene”, but there are several judgments that lay down the parameters to judge something as obscene and objectionable.

In Aveek Sarkar & Anr vs. State of West Bengal,^[2] a German magazine “STERN” published an article with a picture of Boris Becker, a world-renowned Tennis player, posing nude with his dark-skinned fiancée by name of Barbara Feltus. Boris had covered Barbara`s breast with his hands while the photo did not cover their genitals. The essence of this nude picture was to capture Boris and Barbara championing love over Apartheid.  Since the magazine has a worldwide circulation including India, the petitioner challenged this nude picture in the magazine. The Supreme Court had taken a progressive approach, in this case, taking care of freedom of speech and expression, and held that the question of obscenity should be seen in the context in which the photograph appears and the message it wants to convey. Through the photograph and the content of the article Becker only wanted to sensitize people against apartheid and to convey that the color of skin has no significance.

In Bobby Art International vs. Om Pal Singh Hoon^[3], objections were raised regarding the nudity scenes in the Bandit queen movie, involving the portrayal of “Phoolan Devi” in a scene where she was humiliated by stripping her naked and forcing her to draw water from a well in presence of the upper caste men of the village. The court held that such nakedness was not intended to glorify rape and sex but was used to focus on the trauma and emotional turmoil of the victim to evoke sympathy for her and disgust for the rapist which could not have been depicted without explicitly showing the scene depicting her humiliation.

In X vs. Union of India and Ors^[4], the petitioner prayed for the removal of her photos from a certain pornographic website. Despite the privacy setting of the petitioner’s Instagram account, the perpetrator accessed the victim’s Instagram account and had stolen some photos, and uploaded the same on a pornographic website. The court, in this case, held that uploading the petitioner’s photos on a pornographic website appealed to the prurient interests of the people. The website was used by people only to gain sexual pleasures by viewing photos of women’s and hence it was called obscene. Thus, for any image to be obscene, the picture should be capable of depraving the mind and designed to excite sexual passion in persons who are likely to see it, which will depend on the particular posture and the background in which the person’s photo is depicted.

Should obscenity only include naked or semi-naked bodies? 

From the above case laws, it can be said that a content or image, or video is not necessarily obscene because it is semi-naked or fully naked. Nakedness is not enough to label content as obscene. What is essential is the background of the content and the message it wants to convey.

Provisions for removal of photos and videos from Internet

Under the Information Technology Act, three provisions namely Section 66E, 67, and 67-A could help someone to remove personal or obscene images or videos from the internet upon a complaint made to the cyber cell or local police station in case there is no cyber cell. The cyber cell will register the complaint and undertake all measures to inform the intermediaries to remove the content. Intermediaries will have to remove such content once they receive actual knowledge from cyber cell or police officials.

• Section 66E of IT act– Under Section 66E of IT Act, if anyone knowingly captures images of a private area of any person without his or her consent and under circumstances that violate the privacy of that person or intentionally publish any text, image, audio or video, or any other electronic record then such person should be punishable with imprisonment extending to three years or with fine not extending two lakh rupees. “Under circumstances that violate the privacy of that person” means circumstances in which a person can have a reasonable expectation that (i) he or she could disrobe in privacy, without being concerned that his or her private area is being captured, or (ii) any part of his or her private area would not be visible to the public, regardless of whether that person is in a public or private place”.

The expression private area would include “the naked or undergarment clad genitals, pubic area, buttocks or female breast”. Section 66E has a narrower ground as it can be invoked only when an image of any private area of a victim is captured without the knowledge of the victim and later published without such person`s consent.

• Section 67 can be invoked against anyone for publishing or transmitting any material that is obscene, lascivious, or appeals to the prurient interest of people or if its effect depraves and corrupts persons. The terminology obscene has a wider context and is subjective. The ambit of Obscenity differs with time and place. It is subjective to the moral and immoral perception of society.
• Section 67-A of IT Act, “Whoever publishes or transmits any material containing any sexually explicit act in the electronic form any material which contains sexually explicit act or conduct will be punished with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.

Legal provisions for removing non-consensual personal and sexually explicit photos and videos under the new IT Rules 2021

1) Removal of content within 24 hours – Under Rule 3(2)(b), if the intermediary receives any grievance regarding any information that shows any person in full, or partial nudity or in any sexual act or conduct, including artificially morphed images then the intermediary has to act upon the complaint and remove or disable access to that content within 24 hours. This mandate has been put on the intermediaries so that they will have to in all cases comply with such grievances and without fail to remove such explicit images, to prevent further harm to the victim. There is no necessity to produce a court order to direct intermediaries to remove such non-consensual sexual imagery from their platform. In the earlier Intermediary Rules of 2011, the separate provision to takedown non-consensual transmitted images and videos of private areas of the victim was not in place and hence this is a good development in the new intermediary rules of 2021.

2) Actual Knowledge – Under Rule 3(1)(d) of the new Intermediary Rules, 2021 if the intermediary receives any actual knowledge from the court or government or its agency concerning any information that is defamatory, obscene, pornographic, pedophile then the intermediary should immediately cease hosting, storing, and publishing such information within thirty-six hours and not later than that. In X vs. Union of India^[5], since the photos uploaded from the Instagram account did not disclose the private areas of a victim, the case was registered under Section 67 of the IT Act. The victim had approached the cyber cell, but due to inaction, she had filed a writ petition seeking immediate prayer to direct intermediary to remove or disable access to such content.

To uphold the fundamental right of freedom of speech and expression mentioned under Article 19 of the Indian constitution, any content that is alleged to be defamatory, obscene, and pornographic is to be removed only after the intermediary receives actual knowledge from the court or government agency. However, clubbing of Paedophile content in the same group warrants critical analysis concerning the impact it can have on a child.

How to address the grievance and seek removal of such videos and images?

1) Submit your grievance directly to intermediaries

Most of the intermediaries have a support/ help option on their page, where any victim can write a complaint to the website or social media platform or any other intermediary stating about the non-consensual images and videos that are shared on their platform. A victim should also mention the nature of such information i.e. if it is defamatory, obscene, pornographic, paedophilic, or includes nudity, involvement in sexual conduct. Upon receipt of the complaint, the intermediary should remove such information within 24 hours.

On any website, the reporting form should be available in the “help section” or the “contact section”. The victim will be asked to share certain details, such as the nature of content that you want to remove, URL to the specific content, etc. A screenshot from Instagram`s reporting guidelines has been annexed below-

Once, this information is recorded, and upon the review of the complaint, the intermediary will have to remove and disable the content within 24 hours of receipt of the complaint.

Apart from this method, social media platforms, including Facebook, YouTube, Twitter, and Instagram, provide an option of reporting or flagging objectionable content. The flagging mechanism is provided to comply with the Intermediary Rules 2021 which says that intermediary should deploy certain technology-based measures, including automated tools or other mechanisms to proactively identify information that depicts any act or simulation in any form depicting rape, child sexual abuse or conduct, whether explicit or implicit, or any information which is exactly identical in content. The flagging option is provided right above the images and videos. They then may take appropriate action based on their content policy. The victim should check their content policy to find how they can review and take action on such flagged content.

2) Contact the grievance officer

Under the new Intermediary Rules 2021, the victim can submit its grievance to the grievance officer established under the new intermediary rules of 2021. A grievance can include any complaint regarding any content or duties of an intermediary or publisher of such information. The intermediary has to publish on its website or any mobile-based application or both, the name of the grievance officer, contact details, and the mechanism by which a user can make a complaint against such non-consensual sharing of personal or obscene images. The intermediary should remove or disable access to such information but it will have to preserve the record of such content for investigation purposes for a further 180 days.

Also, if the offending content is published on some website which is a significant social media intermediary, then it should also use automated tools to identify and remove or disable access to any content which is ‘identical’ to the offending content that is the subject matter of the court order, as contemplated in Rule 4(1)(d) of the 2021 Rules.

3) Complaint to National Cyber Crime Reporting Cell 

You can also submit your complaint online to the National Cyber Crime Reporting Portal. Click on report on Women and Child-related crime. You can report complaints about online Child Pornography (CP), Child Sexual abuse material(CSAM), or sexually explicit content such as rape/gang rape content. Another form of non-consensual content that concerns private and personal images of victims which are shared with the intent to deprave and corrupt the minds of viewers, can also be complained against to be removed from the internet. You will have two options to either report the crime anonymously or report and track. 

Here, you will fill in all the details. Then, the National Cyber Crime cell will forward your complaint to the respective cyber cell of your district. In case your district does not have a cyber cell unit, then the same will be forwarded to the police station having jurisdiction to take cognizance of the complaint. You will have to provide details such as the URL of the webpage, Videos and images, and any other kind of document.

The cyber cell or concerned police are the law enforcement agencies and the intermediary has to provide them with all the details when any complaint is made. The intermediary will have to provide URL, account ID, handle name, Internet Protocol address, and the hash value of the actual offending content along with the metadata, subscriber information, access logs. Upon receipt of such an order, the intermediary has to provide all the information within 72 hours to comply with the orders of investigation agencies as per Rule 3(1)(j) of the new 2021 rules.

4) Approach the court of law

If the cyber cell of the Police does not take any action upon the cyber complaint or FIR, then the victim has the right to make a private complaint to the magistrate, or else the victim can directly approach the High Court under Writ Jurisdiction. Writ jurisdiction in this scenario would be an appropriate remedy as it would guarantee appropriate directions from the court to remove any such content. Also, under Intermediary rules, an order from the court would be effectively called actual notice and intermediaries would have to swiftly take any appropriate actions to play safe with safe harbor protection. In X vs. Union of India,^[6] the court had directed Search Engines such as Google Search, Yahoo Search, Microsoft Bing, DuckDuckGo should make the offending content non-searchable by de-indexing and dereferencing all offending content in their search results. De-indexing is the process through which the search result will not appear on Google’s search engine. Although if someone knows the website, they can directly go through the website and find such offending content. De-referencing is a process in which Google will not show the web address of a particular website that has offending content.  As opposed to geo-blocking where a site is blocked from being accessed from a particular national territory, in de-referencing the search results are not available across the world.

6) Failure to comply with such orders

If the intermediaries fail to comply with the order of the court or to assist police or any other authorized agencies by law in the investigation or any other requests or fail to observe rules under the new Intermediary Rules 2021, then they will lose the exemption from any liability as under Section 79 of the IT act. Under Section 79 of the Information Technology Act, if an intermediary wants to exempt itself from any liability arising out of any third party information, data, or communication link made available or hosted by it.

7) Lacunas with the existing law and their enforcement

• Conundrum between Section 66E and Section 67 of IT Act

In Kedarnath Kashyap vs. State Of Chhattisgarh^[7], the Applicant /Accused No. 2 Nitesh Kumar while downloading a film on Jamunabai’s phone had allegedly also downloaded certain obscene photos of Tersabai and had asked Jamunaai to see those photos after returning home. Jamnabai later brought this to the notice of Terabai and accordingly Tersabai complained against the accused. Further, the story of the prosecution was that Applicant No. 1 Kedarnath Kashyap had also kept obscene photos of the complainant in his mobile phone and he used to circulate the same to persons contacting him.

During the investigation, it was found that obscene photos of the complainant were found in the mobile phones of Applicant No. 1 Kedarnath and Jamnabai and the hard disc of the computer of Applicant No. 2 However, none of the witnesses had stated that Kedarnath had shown, transmitted or published those obscene photos to anyone. Since the offense of transmitting and publishing those obscene photos was not established, the applicant was acquitted.

Lacuna- Thus, it can be said that Section 66E, Section 67, and Section 67A of the IT Act do not punish the act of storing, viewing any sexually explicit act, and obscene material on a device. The act of storing such content without the consent of the victim infringes the privacy of the victim and can be used as a threatening tool by the perpetrator to extort money or force the victim to perform some sexual act in the future. The definition of the word transmitted under Section 66E of the IT Act means “to electronically send a visual image with the intent that it be viewed by a person or persons” and the word published is defined as “reproduction in the printed or electronic form and making it available for the public”.

Thus, if any non-consensual sexual explicit act or obscene material is stored or captured on a device and is shown to different people on the same device without transmitting in electronic form onto any other device or without publishing the same on any platform would not be punishable under Section 67 and Section 67A of IT Act. If the accused has to be punished under Section 66E of the IT Act, then the offense of capturing any private area of the victim under circumstances that violate the privacy of that person will have to be established.

• Bodily Privacy

Under section 66E of the IT Act, the provision casts a limitation concerning privacy, as it recognizes privacy of only a private area disregarding the privacy of any other acts related to the body done in private. The dignity to the body is the highest form of dignity and when one chooses to engage with any acts concerning their body in private, even the slightest violation of the same should be fit to be tried under section 66E of the IT Act, as capturing images, filming or recording video in the course of such privacy and disseminating the same would be non-consensual dissemination and disrobe the victim of her privacy.

Conclusion

IT act has not been fruitful enough to takedown such non-consensual content and often before any due action can be taken, enough harm is done to the reputation and body of the victim. There is a mismatch between law enforcement officers and the nodal officers of the intermediaries. Often the complaint addressed to intermediaries through their grievance redressal portal is nothing specific but just a template kind of response. However, with the new IT Rules of 2021 in place, intermediaries have been grappling with the stricter provisions regarding any non-consensual sharing of images and videos, the new rules also establishes grievance redressal mechanism and mandates grievance officers to receive and take call on complaints. Only with some time with these new rules, will we be able to see the fruits. But a seamless collaboration and communication is much needed between the law enforcement officers and intermediaries. Also, the existing provisions of IT Act are outdated with the kinds of crimes that are increasing against women on the internet. There is a need to relook Section 66 E, Section 67 and 67A of IT Act.

References

• Is this you?!’ How revenge porn victims are forced to deal with the incompetence of the police, https://www.insider.com/revenge-porn-victims-and-the-law-2019-12
• https://www.newindianexpress.com/cities/chennai/2020/jan/26/dealing-with-revenge-porn-2094621.html
• Route 67: How the IT Act’s Section on Obscenity is Being Misused to Violate Digital Freedom, https://thewire.in/gender/victorian-censorship-research-finds-section-67-act-grossly-misused
• Non-consensual sharing of intimate images online: Solutions in Criminal, Media & Technology Laws
• https://www.sociolegalreview.com/post/non-consensual-sharing-of-intimate-images-online-solutions-in-criminal-media-technology-laws
• Information Technology Act
• Information Technology (Intermediary guidelines and Digital Media Ethics Code Rules 2021)

[1] https://www.indiatvnews.com/news/india/delhi-man-extort-harass-indusind-bank-manager-fake-obscene-pics-instagram-account-674939

[2] https://indiankanoon.org/doc/195958005/

[3] https://indiankanoon.org/doc/1400858/

[4] https://indiankanoon.org/doc/190535334/

[5] ibid

[6] ibid

[7] https://indiankanoon.org/doc/88786836/

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