Record video
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This article is written by Komal Saloni, from Jamnalal Bajaj School of Legal Studies, Banasthali Vidyapith. This is an exhaustive article which talks about the recording of someone’s video without their consent. What can a person do in that situation? What remedy can they avail of?

Introduction

We subsist in the digital era where we feel constrained to videotape interesting things moving around us in the world. But before you put out your phone to start recording, you must hold the legality of it. Assume that a woman went into a mall where she picked a dress and asked for a trial, then she stepped off to the trial room and undressed where some hidden camera was fixed over there which captured her picture while changing clothes, we call it a crime which is termed as voyeurism. In India, every citizen has the right to privacy, the right to protect themself from distress, social harm, embarrassment etc, including any disturbance in privacy that drives to affect human dignity, reputations, etc. Accordingly, our Constitution provided the right to privacy of the citizens under the fundamental rights. So, if you’re wondering, “Is it a crime for someone to record private or intimate videos of me without my knowledge or consent”? “Can I sue someone for recording me without my permission”? 

Is it a crime to record private videos of someone without their knowledge or consent

It depends, recording video or photographs of a person perpetrating sexual acts or in a state where they cannot allow someone to shoot without their consent is usually a crime if the videos are taken in a place where a person may reasonably suppose that they have privacy.  For example, if someone adjusts a hidden camera in your bedroom or bathroom that too without your consent or knowledge, almost all the time that is illegal. However, if you are unclothed on the beach or in a public park and someone catches a video of you nude or doing sexual acts, it may not be illegal to share these images because you possibly cannot expect to have privacy in a public place like the beach, park etc. However, the specific laws applied in your state will make it clear whether it is illegal or not.

Violation of privacy or incursion of privacy

In our country, considering some states where the same law is interpreted differently. On one hand, the law that prohibits sharing intimate videos may also support the taping of videos and capturing images without one’s knowledge or consent. The state which comprises both the practices is called to be in violation or invasion of privacy. Despite that, in some states, the act of capturing your image or videos without your consent is included under a different law called an unlawful act or voyeurism. 

The most generous thing is to know first whether you are in a one-party or all-party consent requirement. There are both state and national laws that can influence a video recording and the laws are more restrictive. So keep it very simple whichever law is more strict that is likely to be followed, if your state has more stringent laws than general laws, then you would like to follow your state laws.

One can go into the local laws (state laws) to find more information that provides you with relevancy. While answering the question, is it illegal to record video of someone without their knowledge and consent depends on the place of recording, and whether audio is included in that recording or not.

Can I video record someone without their consent

Yes, recording someone’s video is not an offence but it is important to keep in mind whether it is legal or not. Whether the video recording infringe their privacy or not? Let’s quickly come to the answer:

  • In the case of one party recording, someone’s video without audio in public space is allowed, yes you can record.
  • In the case of one party recording someone’s video in a private space, there is a need for consent. 
  • In case of all the party consent in private space, a person needs permission for recording a video of that particular person. 
  • In the adjusted case of all-party consent, recording video in a public space without audio is not illegal anymore. A person can record. 

Definition of privacy, confidentiality and personal data by Indian laws

According to Indian law, it does not determine what privacy is but provides legal protection in the case where privacy will be afforded. Therefore, it must be shown that the photographs were revealed in case of bearing an obligation of confidence. The application of the word ‘privacy’ and ‘confidentiality’ is slightly interchangeable. ‘Confidentiality’ invokes the equitable system of confidence whereas ‘privacy’ would be recognised as the claim of ‘aggrieved’ persons (celebrities), who have ascertained for themselves that for when, how and to what extent their nude photographs or videos are to be disclosed to others. 

In case a piece of evidence that may be applied by the ‘victims’ that may be the photographs, videos which have been procured by hacking (or unlawful access to a computer resource) by someone. Nevertheless, the viewer of such videos or photographs may be expected to know that the recording and photograph were confidential.

In India remedies for invasion of privacy subsisted under the Law of Torts and also the Supreme Court of India admitted confined constitutional recognition to the right to privacy under Article 21 of the Constitution of India. After this the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 came into existence to protect personal information. IT Rules only protect individual privacy and their personal information by the codified provisions of this rule. As per Rule – 03 of this the aggregated definition of sensitive personal data are:

Sensitive personal data or knowledge of a person consist of such private information which consists of the following things –

  1. Password;
  2. Physical, mental and physiological health condition;
  3. Sexual orientation;
  4. Financial data such as bank account, debit card, credit card or any other payment device details;
  5. Medical records and history;
  6. Biometric information;
  7. All these details relating to the above clauses as provided to body corporate for providing assistance and services; and
  8. Any of the information which is obtained under the above clauses by body corporate for processing, storing under lawful contract or otherwise;

Provided that; whatever information that is easily accessible or available in the public domain or provided under the Right to Information Act, 2005 or any other law for the time being in force shall not be regarded as sensitive personal data or information for these rules.

To implement the above rules, firstly, we need to verify whether the unclothed pictures or videos come under ‘sensitive’ personal data or not? Under Rule 8 – Reasonable Security Practices:

(1) A body corporate or a person on its part shall be considered to have complied with reasonable security practices and procedures, that they have implemented security control measures as per their documented information security programme and information security policies.

(2) The International Standard IS/ISO/IEC 27001 on “Information Technology – Security Techniques – Information Security Management System – Requirements” is one such standard referred to in sub-rule (1).

Voyeurism

Voyeurism in a real sense refers to viewing and watching for some kind of gain or pleasure from it. It is an offence committed against women in which the perpetrator takes snoops, records videos, photographs around women or disturbs her privacy. Voyeurism is defined under Section 354C of the Indian Penal Code along with its punishment.

Essentials of voyeurism

The very essentials of the crime of voyeurism are the elements which are required to be proved by the victim are followings:

  • Any man who commits the act of Voyeurism against women- The crime of voyeurism must be committed by man, this shall be provided under the Code then only he could be considered as an accused of this offence and also the action must be compulsorily committed by a man against any woman.
  • Viewing and recording the act or any image of the woman- The crime of voyeurism must consider either of the two-act i.e., watching the private activities of any woman or capturing or recording the images or videos of a woman.

In the case of State vs. Unknown (2017), it was held that expectation does not work. It has to be proved that the accused had recorded the videos of the victim and it is very important that such video contains an obscene nature.

Expectations not being entertained in the court- The crime must include zero expectation or women should not be aware of the offence. In other words, it is stated that a woman must not have knowledge or given her consent of being viewed or while doing any private act if any person had taken any kind of private pictures, videos of her.

  • For gaining pleasure- The offence committed by any person must have been done to gain pleasure as if he had viewed or observed any woman pursuing any private activities. Any person who observes or watches any woman while doing any private acts and the only purpose of such a person behind his observation is to benefit a kind of enjoyment or gratification.

Punishment

The punishment for this offence is provided under Section 354 (C) of the Indian Penal Code. Any person who is found guilty under Section 354 (C) shall be punished with imprisonment of not less than 1 year and may be extended to 3 years and shall also be liable for a fine. However, any person who has been given a second chance assured by the court and held liable for the same consequently then he shall be punished with imprisonment of not less than 3 years which may extend to 7 years and shall also be liable for a fine.

What happens if a someone’s pictures are leaked

This issue is very common in our society, crimes are increasing day-by-day however the rate of solved cases and the action taken against the crime is less. Many times we hear in our friends, family, society that this happened and most of the time we didn’t do anything because of fear, embarrassment etc. it has been done for some kind of gain, revenge, pleasure or something else. Unlike celebrities, the normal individual would not have the proper resources to take action in such a situation. Therefore, we rely on the government, local laws, and general laws to protect our rights. 

Here comes our fundamental rights Article 21 of the Constitution – Right to life and personal liberty, where all citizens have the right to live with dignity and have the personal liberty of its own to protect us from these evils.

Also, there are criminal offences such as, unlawful access to computer resources (i.e., without permission), altering computer data without permission, disclosure of computer records which may apply under the Information Technology Act, 2000. The penalties for these offences are listed later on. Although to ascertain which provisions under the Information Technology Act would apply, this needs to establish how the hackers gained access to the photographs or videos. Whereas the IT Act 2000 does have extra-territoriality, I doubt there could be an easy identification of jurisdiction (and consequent laws) for raising a claim in such a situation. The hacker, the data, the cloud providers, the Indian celebrity victim or any other person may all belong to different countries (and subject to different laws).

Specific offences and punishments under the IT Act

There are many provisions under this Act. Here we are discussing only those sections which specify the punishment and offence in case of breach of privacy. As per Section 72 of this Act, the penalty provided for breach of privacy and confidentiality is any person who, in pursuance of the powers conferred under this Act, rules or regulation made thereunder, has secured access to any electronic record, register, book, document, correspondence information, or any other material without the consent of the concerned person if discloses such material to any other person. Shall be liable for punishment with imprisonment for a term which may extend to 2 years, or with a fine which may extend to Rs.1 Lakh or both.

In the case of State of Tamil Nadu vs. Suhas Katti (2004), the fact of the case is about an annoying and defamatory message about a divorced woman on a Yahoo message group. As the accused was found guilty of offences under Section 469, 509 of Indian Penal Code and 67 of Information Technology Act 2000 were convicted to undergo Rigorous Imprisonment for 2 years under Section 469 of the Indian Penal Code and also liable to pay a fine of Rs.500/-. Accused of the offence u/s 509 of Indian Penal Code sentenced to undergo 1 year of simple imprisonment and liable to pay fine of Rs.500/- and he is also sentenced for the offence u/s 67 of Information Technology Act 2000 to undergo Rigorous Imprisonment for 2 years and also liable to pay fine of Rs.4000/-. All the sentences run concurrently.

In the case of Avnish Bajaj vs. State (2008), it was held by the court that the whole case brings out a prima facie considering the offences under Section 292(1)(a) and 292(2)(d) of Indian Penal Code and Section 67 of IT Act, which is made out against BIPL named as EIPL in respect of the listing and the video clip consequently. Therefore, in this case, the petitioner will stand discharged concerning the offences under Sections 292 and 294 IPC. A prima facie case for the offence under Section 67 is against the petitioner. Consequently, while the case against the petitioner of the offences under Sections 292 and 294 IPC is repealed, the offence under Section 67 read with Section 85 IT Act will continue.

Cyber crime complaint online

In the past few decades, with the evolution in technology and increase in the use of the internet, it is apparent that there will be consequences for excessive use of it. Instead of excessive use, certain online crimes are committed, for that protection of the victim, it is obligatory to have provisions for intimating the officials and registering the complaint about the performance of the crime for punishing the accused person. The following steps can opt for the same –

  • One can submit a complaint about cybercrime both online and offline. Cyber Cell India is the department that deals with online and offline cyber complaints. Firstly, one should report the complaint to this department. You can also give a call on the cybercrime helpline number. You can visit these links – http://www.cybercelldelhi.in/, https://www.cybercrimehelpline.com/cyber-crime-police-stations-cells/, to file an online cybercrime complaint.
  • The victim has to file a written complaint with the cyber cell in the city he/she is in. But since cybercrime comes under the amplitude of the global jurisdiction thus, it is implied that filing a cyber complaint in the cybercrime cell of any city disregarding the fact that the person originates from some other cities in India.
  • The following information is required to be given by the victim while filing the complaint-
  1. Name of the person/victim filing the complaint,
  2. His/ Her contact details,
  3. Address for mailing.
  4. The written complaint shall be addressed to the head of the department.
  • In case of no access to the cyber cell in India, one can report the matter to the local police station by filing a First Information Report. If the complaint due to any reason does not get accepted in the police station then in that case one can approach the judicial magistrate or the commissioner.
  • One can also file a First Information Report under the provision of the Indian Penal Code if the offence falls under this Code. Every police officer must have a Cyber Crime complaint as it has been made mandatory under Section 154 of the Code of Criminal Procedure.

However, most of the cyber crimes under the Indian Penal Code are classified under cognizable offence in which to carry out the investigation or for making an arrest there is no stipulation of any warrant. Thus, there is no need for a warrant for arresting the accused. 

The Ministry of Home Affairs established and launched a centralised online cybercrime registration portal to remove the requirement of moving to the police station for lodging any cybercrime complaint.

An online portal for the registration of Cybercrime has been launched by the Cybercrime cell of the Delhi police.

Conclusion

Knowledge and consent both work simultaneously as in this situation if someone records you without your knowledge or consent it might be an offence in some situations as discussed above or may not be an offence in some conditions. Let’s come to the point if it comes under an offence then there are penal provisions for punishing the person who is liable for the act, one can file a case against him, a complaint under the IT Act as there are prescribed provisions for the victims to avail and most importantly our soul the Indian Constitution which provides rights to every citizen under Article 21 to live with dignity, right to life and right to privacy. Here I conclude my words and hope this write up helps you.

References


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