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Legal steps to take when someone creates your revenge porn

May 08, 2017
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revenge porn

What to do when someone publishes pornographic image or video of yours over the internet? What are the legal steps to take? Which law governs the distribution of such pornographic content popularly know as revenge porn?

Laws governing the issue of revenge porn in India

In India, there is no specific separate legislation dealing with pornographic content. Mostly crime related to pornography are covered under the sections of Information Technology Act and Penal laws (Indian Penal Law and Code of Criminal Procedure).

Laws governed by the Information Technology Act relating to revenge porn in India

Where a person intentionally captures, uploads content on the website, or share via any device private areas of a person thus violating their right to privacy and that too even without their consent are liable for punishment for a jail term upto 3 years along with a fine of a maximum two lakh rupees. Therefore, when a person electronically sends a visual image via the internet which breaches a person’s right to privacy with an intent that it will be viewed by the public at large, such person is liable for the offense of breaching the privacy of others. Now, what does privacy means? What is private area of a person? It is a broad generalisation which means, naked body, undergarment clad genitals, buttocks or breast of a female. This offense is not only limited to publication but even capturing of images, making a videotape, or by recording through any means. This is a threat to privacy of a person. A person can have a reasonable expectation that,  he or she could disrobe in privacy, without being concerned that an image of his private area was being captured or 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. Hence, if someone creates your revenge porn this provision along with several other provision of IT Act and IPC is there to compensate you.

Sexchat (audio or video) and its publication over the internet and breach of privacy. Legal recourse to revenge porn.

Partners often in their relation establishes sexual relations over facebook messages, online video chats. Cases of extortion or blackmailing is very often observed based on these facts. What is the legal position where both the partner intentionally enter into sexchat and one among these illicitly records or captures such chats or video or images? What if such chats are used as a revenge later?

The above legal provision explains the legal point in these types of cases. Though, the couple entered willingly and established sexual relation over the phone or video whatever the mode is, but, such images are not captured with the permission of other. Therefore, it comes under breach of privacy.

Punishment for publishing or transmitting obscene material in electronic form

When anyone, publishes or transfers any material in an electrical form which has the tendency to deprave or corrupt people who are likely to see or read or hear such matter, it is a punishable offence for a term upto 3 years along with fine upto 5 lakh rupees. Therefore, in situations like above the offender will still be punished as the consent was their but limited till the viewing of the receiver and not of publication.

What if, someone willingly gave the other their nude images (or whatever which breaches one’s privacy as defined above) and the other malafidely published it over the internet

Anyone who publishes or transmits in electronic form any material which contains sexually explicit act or conduct is to be punished for a term upto 5 year along with fine upto INR 10 lakhs. If a person willingly gave his/hers nude or private image and such image is published without consent of the sender, in such cases this provision will come into action. Most of the cases on revenge porn is based on such facts.

Revenge porn in cases where victim is a child

  1. A person is said to be involved in child pornography in these following cases
  2. Anyone who publishes or transmits material in an electronic form which depicts children engaged in sexually explicit act or conduct .
  3. Creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner
  4. When any person entices a child to go for online relationships with one or more children for sexual act
  5. Facilitates abusing children online.
  6. Where a person is involved in such offence, he/she will be convicted for upto 5 year jail term along with 10 lakh fine.

Therefore, in cases where the offender creates a porn out of revenge of a children (below 18 year) in such cases more severe punishment is provided by the law.

These are the following situation which will not come under the purview of revenge porn in cases of child pornography

  1. Content of the above legal provisions does not extend to any book, pamphlet, paper, writing, drawing, painting, or representations or figure in electronic form where
  2. Such publication is made for public good in the interest of science, literature, art or learning or other objects of general concern.
  3. Which is used for religious purposes

Legal recourse available against revenge porn in Indian Penal Code (IPC)

Voyeurism (capturing or watching a person private act where such person is unknown of happening of such act)

In hotels or changing room or public toilets, instances of hidden camera being placed is often observed. In many a time the offender keeps a track of whereabout of the victim and record such private instances and later threatens to publish it on web.

Any man who watches, or captures the image of a woman engaging in an act where  the circumstances, would reasonably be expected to provide privacy and where the victim’s genitals, posterior or breasts are exposed or covered only in underwear, or the victim is using a lavatory, or the victim is doing a sexual act that is not of a kind ordinarily done in public. In such circumstances where she would usually have the expectation of not being observed such image will be punished with a term not less than 1 year and upto 3 years along with fine.

Does publication of revenge porn amounts to defamation

For filing a charge for defamation, the following three ingredients must be true.

Presence of defamatory content. In cases of revenge porn, one can easily contend and it is prima facie (at the first instance) visible that such act of publication degraded the reputation of the victim. Hence, in cases of revenge porn such defamatory content is presumed.

Secondly, content should refer to a particular person and it should be very easy for others to infer, who is in the defamatory image or video.

Thirdly, publication. If a person creates a revenge porm and keeps it to himself, then this section of defamation cannot be invoked by the victim. Yes, if the offender published it over the internet then no defense is applicable. If held guilty of defamation the alongwith a fine a jail term for maximum two year.

Criminal Intimidation and revenge porn

When a person threatens another of doing harm to his person, reputation or property or to the person or reputation of any one in whom that person is interested, with intent to cause harm to that person commits criminal intim­idation. A threatens B that, if, B tried to avoid A, A will publish nude images of B over the internet. This is an example of criminal intimidation.

Concluding

An understanding of these provisions makes the following conclusions about the law of cyber pornography in India extremely clear:

  1. Viewing Cyber pornography is legal in India. Merely downloading and viewing such content does not amount to an offence.
  2. Publication of pornographic content online is illegal.
  3. Storing Cyber pornographic content is not an offence.
  4. Transmitting cyber pornography via instant messaging, emails or any other mode of digital transmission is an offence.

 

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