This article is written by Bhavesh Guliani, a student of CLC, Delhi University, on what to do if someone has published your nude pictures without your consent.

Would you like to see a nude or smutty picture of yourself on your favourite social networking website or on thousands of lascivious websites and satiate copulating desire of millions? Well, if your answer is yes, then don’t read further and if it is one your worst nightmares then this article is only for you.

It is no secret that technology has become a vital part of our work life and as we get more comfortable with it, we allow it to overrun our personal lives too. We share and store information from our credit card number to social website passwords never thinking about the fact that what if the information shared is abused. In a world where governments are putting surveillance over people and organisations and where internet has become a hub of international corporate giants with their own set of privacy safeguards and standards, the subject of privacy becomes dubious in the mind of a citizen because you never know that whether you are being watched?

Comprehending the problem

We have all heard about the celebrity nude leaks now and then and no less do we hear about nude photos of people otherwise – making their way onto the internet without ones consent. When technology and human emotions interact to cause trouble, at times, the existing legal remedies may not be the most powerful weapon. The victim may look for other non-conventional alternatives to seek immediate relief, because till the time our existing statutes actually become actionable, the victim’s reputation is already corroded beyond repair.

The question arises that how did some content so intimate end up on the internet? The answer is simple because someone had it. Either it was given by you or by someone close to you. The perpetrators are almost always those closest to us. Evidently there are other ways too that miscreants can steal such explicit content by way of committing other net-crimes. While in the former I believe the primary responsibility of the safeguard of interests lies with one’s own self, in the latter it clearly means that you have been the unfortunate target of ever increasing cyber-crimes.

In our country, the captious society does not react to the obscene stuff online in the same way as it prohibits it offline.

How does it happen?

It is impossible to estimate the number of voyeuristic websites operated and propagated today. The visuals congenial to the ogling eyes are often copied and replicated across these multiple porn sites. So even if you are able to get one website to take down certain images that are defamatory in nature, there is a high possibility that other websites have already copied and posted them. Also the present colossal status of social media makes it virtually impossible for the authorities to wipe off the digital prints. The impact of this is more than shame and shock for the victim. The immediate effect is the social stigmatization and blame arising questions on their character.

Numerous websites have become a platform for a new form of online abuse that is bringing out the uglier side of relationships. Posting explicit pictures or videos of an ex-lover or spouse has become the new rage to let off steam and show hatred. This is called ‘revenge porn’. The term is new not the form of harassment. Other menaces through which private confidential content becomes public are hacking, copyright infringement, child pornography and child grooming. The category ‘transmission of obscene content in electronic form’ witnesses a sudden explosion in the number of cases with a 104.2 per cent increase from the year 2012 to 2013. The real number although could be much higher as many victims do not come forward due to fear or embarrassment.

Beaucoup cases which do come before courts like the famous case of Fatima Riswana vs. State Rep. by ACP., Chennai and others (AIR 2005 712), the victims misery is never ending from the time the matter is disclosed before the court and proceedings carried on, the case had to be transferred again and again and later on to a fast track court because of the embarrassment felt by victim.

In other cases and scandals, the victim’s plight becomes extendedly insufferable as the matter becomes public and further prolonged before the accused is taken into custody like in the notorious case of Jawaharlal Nehru University (JNU) MMS scandal where it took several months for the police to arrest the culprit.

What to do in case you are victimized?

The first priority for any victim is to have the images or video removed from the public domain – permanently. Therefore requests must be made to the website(s) hosting the material. The websites where your explicit content is most likely to be found are subject to a number of laws and restrictions. Websites that offer to take down photos in return for payment are clearly in the business of extortion, which, once again, is already illegal. The knowledge of cyber laws can be of great help here.Obtaining injunction from a court of law will prevent the images continuing to be published elsewhere. On June 19, 2015 google search published a policy stating that they would honour the requests of those who have been victims of ‘revenge porn’ and remove nude or sexually explicit images shared without their consent from Google search results.

In our country pornography can be safely consumed from one’s home or from one’s personal devices but cyber cafes are required to block pornographic sites, evidently because of the danger of children gaining access to them.  Recently, our government, taking cover under the supreme court’ observation ‘that little had been done to prevent child pornography’, restricted access to porn websites asking internet service providers to block over 850 websites. The step taken can be considered more of a prelude to the creation of a regular regulatory oversight. But with more than forty millions of such websites around the globe, most of them operating from where porn is legal and with free availability of proxy servers in our country, this move by the government may not be just enough.

Governments across the globe have reacted aggressively to this cyber-crime. Many countries today have a national helpline along with a separate cell to deal with this as these matters require immediate restitution before the content goes viral.

The competency of Indian IT (Information Technology) and other cyber laws has come into question recently due to the growing number of incidents that are being reported. As a matter of fact various civil and criminal law remedies are available under the Indian legal system.

Section 67 and 67A of the IT act prohibit the publication and distribution of obscene and sexually explicit material respectively, while 67B forbids all publication, distribution, facilitation and consumption in any manner of child pornography. Section 66E of the same act deal with punishment for violation of privacy, and explicitly forbids capturing, publishing or transmitting ‘the image of a private area of any person without his or her consent’

In cases where the victim’s nude or obscene photos are uploaded without consent, the accused is booked under different sections of the IT act and the Indian Penal Code(IPC). Also the subject can book cases of defamation under section 500 and 506 of IPC and section 66e and 67a under the IT act also provide legal remedies under which one can charge the accused.

New laws and their effect

Government has set up cyber forensic training and investigation labs in various states (9) for training of law enforcement and also for judiciary in 3 states. Cyber-crime cells have been set up in all states and Union territories for reporting and investigation of cyber-crimecases.

The amended 354(C) of the Criminal Law (Amended) Act 2013, also known as the ‘’Voyeurism Section’’, criminalises capturing and sharing images of a woman in private space.

The IT act lays down an extensive set of laws and covers the crime extensively and deals with punishment comprising of imprisonment which may extend to 5 years and fine up to 2 lac rupees or with both in certain cases. These are watertight laws, strong enough to book offenders and also protect victim’s identity.

When a victim files a complaint, cognizance is definitely taken. Charges depend on what kinds of pictures are shared and sentence can range from 1 to 3 years with bail, if convicted. Criminal charges can be filed under section 504 and 506 of IPC. The privacy (protection) bill, 2013 deals with the collection, storage, destruction, processing, security and disclosure of personal data. The bill bars interception of any communication of another person except in pursuance of an order by Chief Privacy Commissioner in which case too the person whose communication is intercepted is duly notified and given reason thereof in form and manner prescribed. The bill also outlaws the surveillance by any person and puts restriction on surveillance by state except for the matters of national security or investigation purposes.

Be bold! Law will back you.

Speaking in terms of the related rules, accessing obscene content is not illegal, although hosting and transmitting such content is punishable by law. The IT Act (Amended) 2008, criminalizes browsing, downloading, creation and publishing child pornography. While there are arguments against putting restraint on publishing explicit intimate stuff as it transgresses the fundamental right of freedom and is a violation of Article 21 (right to personal liberty, Constitution of India), there are two lurking questions in the background to all this, which is why people go to such websites and ogle at these naked images and why do people post this online to cause such harm to others. It can all be attributed to human nature, but then, so could murder, and yet it’s not acceptable conduct. Although a person browsing adult websites in private cannot be unlawful, the purpose should not be to put a restraint but to regulate; keeping in mind that someone’s freedom cannot infringe another’s privacy.

Such acts are a breach of privacy so you cannot be calm and cool about it. It is okay to get mad because it’s a crappy thing that just happened. The impact of such acts on the victim is more than the shame and shock. The immediate effect is the social stigmatization and blame arising questions on their character.  Despite of all the legal remedies available, even if they are sought, a victim can never be content. The sad fact, however, is that no reasonable remedy may ever be sufficient. In the shy Indian society which is not accustomed to openly talking about sex and looks at it is a tabooed subject, the pain of a victim is hard to understand. These are the times when you need support not criticism. The problem does not pertain to a specific gender or caste but to society as a whole. To what extent can regulating the internet be useful when restraining orders cannot be enforced, when domestic violence victims are obstructed in initiating legal actions, when employers can fire their employees for being sexualized on the internet? The questions will stand unanswered like the one’s raised and overlooked in our parliament. Our efforts would be better spent seeking legislation to remedy the suffering that victims actually experience.

Privacy is one of the most important subjects and has to be taken care of with the internet users multiplying every year. The world is becoming a un-safer place to live by the passing of each day. The key to avoid becoming a victim is not to get into such situations in the first place. Regardless of whom you are (which is not always the case in our country), you do have a legal recourse if someone posts graphic image of you without your consent. Law exists to support victims and you just have to remember that in case you become one, DON’T BACK DOWN.

Bibliography

  1. http://internetdemocracy.in/events/international-conference-on-cyber-law-cyber-crime-and-cyber-security/
  2. The Telegraph – http://www.telegraph.co.uk/women/womens-life/11386513/Revenge-porn-What-to-do-if-someone-posts-your-naked-pictures-online.html
  3. com – http://lawquestinternational.com/article/revenge-porn-and-the-efficacy-of-indian-laws
  4. The Times of India – http://timesofindia.indiatimes.com/life-style/relationships/man-woman/Are-you-a-victim-of-revenge-porn/articleshow/46852091.cms
  5. IPLEADERS – http://blog.ipleaders.in/online-revenge-porn-recourse-for-victims-under-cyber-laws/
  6. cis-india.org – http://cis-india.org/internet-governance/blog/privacy-protection-bill-2013-citizens-draft
  7. Privacy law – https://en.wikipedia.org/wiki/Privacy_law
  8. The Indian Express – http://indianexpress.com/article/india/india-others/porn-ban-govt-asks-isps-to-block-857-websites-but-will-it-work/
  9. The News Minute – http://www.thenewsminute.com/article/google-cracks-down-revenge-porn-heres-what-indians-should-know-31437
  10. Privacy and the constitution – cis-india.org/internet-governance/privacy-and-the-constitution
  11. The Times of India – http://timesofindia.indiatimes.com/india/Govt-working-on-right-to-privacy-law-Minister/articleshow/48476530.cms
  12. Child grooming – https://en.wikipedia.org/wiki/Child_grooming
  13. The privacy (Protection) bill, 2013 – cis-india.org/internet-governance/blog/privacyprotectionbill2013.pdf
  14. The Information technology act, 2008 – pondicherry.gov.in/Information%20Technology%20Act%202000…
  15. The Times of India –http://timesofindia.indiatimes.com/india/Browsing-child-porn-will-land-you-in-jail/articleshow/4134097.cms
  16. India Today –http://indiatoday.intoday.in/story/five-reasons-why-porn-ban-wont-work/1/456023.html
  17. Cyber law consulting –http://www.cyberlawconsulting.com/cyber-cases.html
  18. india.com – http://zeenews.india.com/news/nation/jnu-mms-scandal-accused-arrested_707899.html

By

Bhavesh Guliani

1st Year Student, Faculty of Law

University of Delhi

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4 COMMENTS

  1. i am a girl i have lost my pendrive. my all personal datas nd some of my personel videos was in that oendrive it was my carelesness. but right now i am very much afraid of data in my pendrive somebody can not misuse it please help me out what should i do i am afraid of the people cant upload that data on internet

  2. I am researching this problem of non-consent and I came across this. Kudos for speaking up. I read all the articles…very few good articles on the subject and I say you should write more for newspapers…

    But from a purely historical and sociological perspective I would like to say that this social problem is not going to go away soon. It can be compared with selling liquor or drugs. Both cannot be completely curbed but both can be controlled to a great extent.

    I do not see how this problem can be solved by punishing the perpetrators one by one or case by case basis. It will be like taking drunkards to court one by one. The only way I see is go after the publication agency. As long as the publication sites are not curbed the problem will only increase. Just like if everyone is allowed to make liquor and drugs at home entire society will be devastated so we do not allow it.

    Society is built upon law and the internet is not. Internet has become the easiest place to commit any crime. Time will show if parliament catches up to it. But do not lean towards the Americans they have a very different history and society.

    Once again good article but kindly provide any case details for reference. Thank you

  3. I am worried now-a-days about gangrape to girls/women irrespective of their age. That is being the REASON of other social-people etc.,likewise this humble sr.citizen to think over moral duties if such a victimised family-member comes along with the problems of rapes/gangrapes etc., to me for advice to them for future/post duties of all of us in the society.[SATURDAY,24th OCTOBER,2015 at 16:58:45 PM/Hr/IST]

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