This article is written by Vanya Verma from Alliance University, Bengaluru. This article talks about what a person can do if his/her photo is posted online without their consent, in what cases will it allow legal action and the laws that deal with the same.
Table of Contents
Introduction
In 2014, following the enormous leak of nude photos of several Hollywood celebrities, including Jennifer Lawrence, Selena Gomez, Kate Upton, and Ariana Grande, celebrities are facing a significant copyright issue. Celebrities who have agreed that the images are authentic are attempting to remove them off the internet, claiming ownership of their copyright. What would be the legal ramifications if the leak occurred in India? This article will discuss the same.
There may be a fair use of someone’s picture posted online without their consent, that can be friends or family, the problem lies when someone posts the picture inappropriately or illegally. The line between professional photography and these acts of perversion is thin but the law makes it clear that the nature of the picture plays an important factor in deciding to register a complaint and in deciding the case in court as well.
Cases where posting picture without consent is not illegal
Here are some instances where posting photo without consent does not amount to legal action-
Photo shared by a friend or family member
If the photo was taken by a friend or family member, you should politely request that they remove it. These photographs are frequently taken on someone’s private property (such as their home), where they have the legal right to take photographs.
You provide them with some rights to your presence by agreeing to be on their land. Furthermore, even if they are sued, that would not result in many changes and the attorney fees required to manage the case would cost much more.
A photo posted by a stranger
This can be a little tricky. By being in a public place, such as a park or a city street, you are giving your agreement to a stranger taking photos of you. You may have some rights if someone you don’t know takes images of you on private property, depending on the restrictions of the private property.
If a stranger captures images of you while you are on your property, such as a privately hired surveillance person or a nosy neighbour, you should look into a breach of privacy or see an attorney. If you are not in the photo, however, it is legal to take images of your house, such as your balcony lights.
A photo posted by an event venue or bar
The restrictions of the event venue or site may apply if the image was taken at an event, concert, restaurant, or bar. These events frequently have photo restrictions in place, such as a bar crawl notifying participants that photographers would be capturing event images all night.
It’s sometimes enough to just ask management to remove event photos from their Facebook page or website. If the image is being used for commercial purposes, such as on a poster or an event invitation, you may have legal remedies.
Photo is being used in advertisements
If your images appear in a marketing campaign, print commercial, or internet commercial without your permission, you should take legal action. If a person or business makes money from your image, you have rights to it being “commercially used.”
Negative feedback or inappropriate content with your photo
There’s a potential your photo will be used to mock you, cast you in a negative light on purpose, or be accompanied with vicious comments. To understand more, look into your state’s laws against bullying, cyberbullying, libel and defamation. The Indian laws that deal with this have been discussed below.
Cases where right against publication of a photo without consent is not available
The Court said that, “A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. None can publish anything concerning the above matters without his consent – whether truthful or otherwise and whether laudatory or critical.”
The court acknowledged that this right to privacy against the publication of photographs is not absolute and is not available to a person in the following circumstances:
- if the person voluntarily becomes involved in a controversy;
- the matter in question has become part of the public record including court record except for the name of “a female who is the victim of a sexual assault, kidnap, abduction or alike offence” and the incident to protect her from further indignity; and
- if the person is a public official and the issue in question is with “respect to [his] acts and conduct relevant to the discharge of [his] official duties” except if protected under any law.
It is commendable that the court explicitly said that if the topic is unrelated to the fulfilment of a public official’s official duties, the public official is entitled to the same protection as an ordinary person. Using these grounds, the court determined that the petitioner, a magazine, had the right to publish a prisoner’s life storey without his or her agreement as long as it did not go beyond what was available in public records. This reflected the need to strike a balance between the right to free speech and expression and the right to privacy.
Photograph used in the public interest
The Article 21 violation argument was rejected in the majority of the cases (some listed below) because the publication was authorised by statutory rules.
Publication of images by statutory banks
In the case of Mr. K.J. Doraisamy v. The Assistant General Manager, Monal Dineshbhai Chokshi and Ors. v. State Bank of India and Ors, Mohan Products Pvt. Ltd. and Ors. v. State Bank of India, Ku. Archana Chauhan v. State Bank of India, Jabalpur, it was held that the banks had a duty to disclose such information to the public with the enactment of the Right to Information Act in 2005, and it was justified in the larger public interest. The argument was rejected in Venu v. State Bank of India.
Publication of images of suspected criminals
In case of publication of images of history sheeted rowdies (G. Raman @ Ramachandran v. Superintendent of Police, Karur District and Ors) and suspected criminals (Ayyappankutty v. The State), once again, the court rejected the Article 21 argument in these cases, stating that the public interest or state interest in such publishing exceeded the private interest.
Publication of images in voter identity proof
The privacy argument was rejected in another case, M. Ajmal Khan v. The Election Commission of India represented by its Chief Election Commissioner and Ors, where the decision of the Election Commission of India to include voters’ photographs in the electoral roll was challenged, because the decision “was taken with a view to improving the fidelity of the electoral rolls, to check impersonation, and to eradicate bogus voting.”
As a result, while the courts recognised that the publication of photographs may intrude on people’s privacy, they did not uphold the constitutional right to privacy because they found a greater public or state interest (i.e., right to information, eradication of bogus voting, prevention of crime, ensuring people’s safety, etc.) that would prevail over the private interest of privacy.
Options for claiming control over your photograph
If the photographs or videos belong to you, you have three options for reclaiming control, including claiming invasion of privacy, defamation, or a breach of your right to privacy. These three means of redress, like social networking site policies, are one-of-a-kind. Contact an experienced lawyer for assistance in navigating them or to continue with a lawsuit.
Privacy invasion
If the individual wrote in a way that inaccurately or offensively portrays you, you have the right to take action. Using your photograph to establish a page on a pornographic website is an example. Although taking a photo of you in a public place is not an invasion of privacy, you have legal remedies if the individual takes a photo of you in your house and then posts it on social media without your permission.
Defamation
To prove defamation, a photo posted on a social networking site by someone else must defame you. That the image would be damaging to your reputation or provide the wrong impression of you. Defamation occurs when an individual or company utilises a photograph or video to make it appear as if you committed a crime when you did not, and you or your business suffers as a result.
Right of Publicity
Someone exploits a photograph of you for commercial purposes in this scenario. In other words, if that person uses your photograph without your consent to market a product or service online or as an endorsement on a business website, he or she has violated your right to privacy. The public must be able to recognise you in the photo used for this type of violation to occur.
Because all of the major social media sites, such as Facebook, Twitter, and others, constantly collect data about their users, a circumstance in which your image or video appears can be perplexing. If you hire a lawyer who specialises in this area, he or she can examine and research to see if you have grounds for legal action.
If you discover your image or video has been posted without your permission, you can contact the person who posted it if you know who they are and request that they delete it. If that person continues to refuse, you can pursue legal action. If you need more information or find yourself in this scenario, don’t be scared to call a qualified lawyer.
Redressal mechanism in India for someone whose picture got posted without their consent
Filing a writ petition
Article 19 of the Indian Constitution states that you are free to photograph other people for personal use in public places, but publishing a photo in a way that is “embarrassing, mentally traumatic,” or causes “a sense of insecurity about the activities the person in the photograph is involved in” is illegal under Article 21. Article 21 of the Constitution guarantees all citizens the right to life and personal liberty, and this right can be used to impose a duty on the government.
According to the current legal situation, if a person believes that his or her privacy has been invaded by the state by publishing his or her photograph in any way, he or she can file a writ petition under Article 32 before the Supreme Court of India or a High Court under Article 226 for the enforcement of his or her fundamental right to privacy under Article 21 of the Indian Constitution. If the publication was made by a private body exercising a public role, such as the media, the person can nevertheless seek enforcement of his or her right through the High Court under Article 226.
Indian law does not define privacy, but rather the circumstances under which it will be protected by the law. As a result, it must be demonstrated that the photograph was disclosed in circumstances implying an obligation of confidence. The terms “confidentiality” and “privacy” are nearly interchangeable. Confidentiality is based on the fair idea of trust.
To succeed, a petitioner must show that the publication of the photograph invades his or her privacy and is not done in compliance with a legal procedure that is fair, just, and reasonable, as well as for the protection of a broader public interest, or the ‘victims’ may argue that the images were obtained by some type of hacking (or unauthorised access to a computer resource) and that any viewer of such images may be believed to have known the photograph was confidential.
Claim under Indian Copyright Act
If the photo is being used for commercial purposes, the photographer must obtain permission beforehand. The photographer of the images whose photos have been leaked may file a claim for infringement of intellectual property under the Indian Copyright Act, as the photographer owns the copyright in the photograph (unless it was commissioned work, and the copyright moved to the person who commissioned the photograph, then the right to sue would also move to such person in all probability).
Filing an online complaint with the cyber cell
If the person’s photos are posted unethically or in an obscene way, the person may report it to the cybercrime cells.
Cybercrime cells are present in all major cities in India, and they have global jurisdiction under the Information Technology Act of India, so one cell can handle crimes from a large region remotely. Although you can register a complaint in person, here we’ll go through how you can make a complaint online if you’ve been a victim of cybercrime.
The first step in filing a complaint is to submit an online complaint to Cyber Cell India, which serves as a consolidated online forum for all cybercrime complaints.
Following that, a formal written complaint should be sent or delivered to the cybercrime cell in the specific city or district. If there is no cell in your area, you can register a complaint with the nearest one, as cells have worldwide jurisdiction. Personal information such as the victim’s name, contact information, and a mailing address must be submitted to the cyber cell in addition to the complaint.
If a cyber cell is accessible, a complaint can be filed as a First Information Report with the local police station or a judicial magistrate.
If the offence falls within Section 154 of the Indian Penal Code, which is a cognizable offence, police stations are required to accept the complaint. As most cyber crimes are considered cognizable, the police must accept and act on reports as soon as possible. They also don’t require a specific warrant to arrest a cybercriminal because these are cognizable crimes.
To file an online cybercrime complaint, go to this website- http://www.cybercelldelhi.in/Report.html
The cyber cells begin their investigation after filing a preliminary complaint. Initially, all digital evidence relating to the occurrence is gathered from the internet as well as local computer discs. Expert online forensic data analysts perform this task to ensure that no sensitive or important data is lost in the event of a hacking or virus attack.
In many situations of online abuse and harassment, the cyber cell is required to determine the perpetrator’s true identity, as he or she is frequently operating under a pseudonym or anonymously.
This involves tracing computer IP addresses, breaking through basic anonymity protections such as VPNs, and tracking timelines and history of social media activity to determine identity.
As a result, cybercrime redress systems have grown at a rapid pace, providing much-needed protection for vulnerable people online, particularly young people who are frequently victims of online abuse, fraud, or harassment. However, cyber cells are primarily found in major cities, and security against cybercrime has yet to reach India’s Tier 2 and Tier 3 cities. As a result, though India’s cybercrime protection is impressive and fast developing, there is still a significant opportunity for development and increased victim protection.
Prevailing laws in India
Sharing any content that the childbearing violates a person’s privacy is consequently a violation of Article 21 of the Indian Constitution held in Puttaswamy (Retd.) and Anr. V. Union of India and Ors.
While the remarks and debates are concerning, the legal ramifications would most likely be related to the distribution of private images and modified photographs of the group’s minor girls. Sections 66E, 67, 67A, and 67B of the Information Technology Act and Sections 354D, 465, 471, 499, 500, and 509 of the Indian Penal Code apply. Furthermore, Sections 14 and 15 of the Protection of Children from Sexual Offenses (POCSO) Act, 2012, are also applicable here.
The Information Technology (IT) Act, 2000
Section 65: Tampering with computer source documents
Whoever knowingly or intentionally conceals, destroys, or alters any computer source code used for a computer, computer programme, computer system, or computer network, or who intentionally or knowingly causes another to conceal, destroy, or alter any computer source code used for a computer, computer programme, computer system, or computer network when the computer source code is required to be kept or maintained by law for the time being in force, is punishable with imprisonment up to 3 years, or with a fine up to 2 Lakhs or both.
The purpose of this section is to safeguard the computer’s “intellectual property.” It is an attempt to extend the protection to computer source materials (codes) beyond what is provided by Indian Copyright Law. This is a non-bailable, cognizable offence. To apply this part to the current situation, we must first establish that the section’s key ingredients are present, which include someone who is:
- knowingly or intentionally concealing,
- knowingly or intentionally destroying,
- knowingly or intentionally altering,
- knowingly or intentionally causing others to conceal,
- knowingly or intentionally causing another to destroy,
- knowingly or intentionally causing another to alter.
Section 66E – Punishment for violation of privacy
This section deals with the transmission of photos of “any person’s private area without his or her consent.” For the same, the penalty is either three years in prison or a fine of not more than two lakh rupees, or both.
In the landmark judgment in Justice K. S. Puttaswamy (Retd.) and Anr. V. Union of India and Ors., the right to privacy was recently held to be guaranteed as a fundamental right and protected under the Right to Life in Part III of the Indian Constitution. Sharing any content that violates a person’s privacy is consequently a violation of Article 21 of the Indian Constitution.
Section 67 – Punishment for publishing or transmitting obscene material in electronic form
The publication or transmission of obscene material is dealt with in this Section (described as “any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons”). The first conviction carries a sentence of up to three years in prison and a fine of up to five lakh rupees, with subsequent convictions carrying a sentence of up to five years in prison and a fine of up to ten lakh rupees.
Section 67A – Punishment for publishing or transmitting of material containing the sexually explicit act, etc., in electronic form
The publication or transmission of material that contains sexually explicit acts or conduct is punishable under this Section. In case of a first conviction, the penalty is up to five years in prison and a fine of up to ten lakhs. The present section was applicable in the Bois Locker Room incident as it involved sharing morphed images of girls.
Section 67B – Punishment for publishing or transmitting of material depicting children in the sexually explicit act, etc., in electronic form
This Section encompasses the creation or distribution of any digital text or photos that depict minors “in an obscene, indecent, or sexually explicit manner,” not merely depictions of children in sexual acts or conduct.
It’s worth noting that the current situation involves the distribution of obscene or private photos of minor girls. As a result, this Section can also be used as a recourse.
This Section, on the first conviction, imposes a penalty of up to five years in prison and a fine of up to 10 lakhs.
Section 72: Punishment for breach of confidentiality and privacy
Any person who, without the consent of the person concerned, secures access to any electronic record, book, register, correspondence, information, document, or other material in pursuance of any of the powers conferred under the IT Act, rules or regulations made thereunder, discloses such material to any other person may be punished with imprisonment for a term of up to two years, or with both.
Protection of Children from Sexual Offences (POCSO) Act, 2012
Section 14 and 15 – Child pornography
The use of a minor or children for pornographic purposes is punished under Section 14(1) by up to five years in jail and a fine. Furthermore, storage of pornographic material involving a child to distribute is punished by up to three years in prison or a fine, or both, under Section 15 of the POCSO Act, 2012.
Indian Penal Code
Section 354D – Stalking
The Criminal Law Amendment Act of 2013 introduced this Section to the IPC. After the notorious gang rape and murder of the victim, the Nirbhaya case, the amendment act of 2013 was passed, introducing several changes to the IPC, notably section 354D.
“Monitoring a woman’s use of the internet, email, or any other kind of communication,” according to Section 354D(b). As a result, gathering images of ladies from their social media profiles would fall under this category. Conviction under this clause can result in a sentence of up to three years in prison and a fine.
Section 463, 465 and 471 – Forgery
Forgery is defined as “making any fake documents or false electronic record, or portion of a document or electronic record, with intent to inflict damage or injury,” according to Section 463. Forgery is punishable under Section 465 by up to two years in prison or a fine, or both. Section 471 also punishes the use of forged documents or electronic records as genuine, and it is punishable in the same way as forging such a document. Making a fake electronic record would include making digital changes to a photograph.
Section 509 – Word, gesture or act intended to insult the modesty of a woman
This Section that deals with outraging a woman’s modesty are a provision under IPC that is commonly used in conjunction with other parts of the IPC dealing with sexual assault. In the case of State of Punjab v. Major Singh, it was decided that any act done to or in the presence of a lady that is suggestive of sex in the eyes of humanity falls under this provision. This section can be used to cover messages that make lewd remarks about the physique or body of the girls whose photographs were distributed in the group. This clause provides for a penalty of up to one year in prison, a fine, or both.
Section 499 and 500 – Defamation
In this case, the victims have the option of suing for defamation. Section 499 of the Indian Penal Code prohibits producing or publishing allegedly defamatory assertions about a person in the form of other words, writings, or visible representations to injure that person’s reputation. As a result, men’s motivation to harm someone’s reputation is a prerequisite for an offence under this section. If the victims so desire, they may make a lawsuit under this provision. Defamation is punishable under Section 500 IPC by simple imprisonment for a term of up to two years, a fine, or both.
What if the accused is juvenile?
It becomes pertinent to examine the existing legal provisions which can be used to deal with an incident like this. The present incident presents a unique challenge wherein almost all the boys involved are below the age of 18, bringing it under the ambit of the Juvenile Justice (Care and Protection of Children) Act, 2015. An analysis of the sections under various Acts which might apply to the above offence would help understand the application of the Juvenile Justice Act.
The Juvenile Justice Act, on the other hand, allows a “minor in dispute with the law” to be tried as an adult if the Juvenile Justice Board determines that it is appropriate. This can only be done if the juvenile has committed a heinous crime, which is defined as any crime that carries a minimum sentence of seven years or more.
As can be seen from the preceding analysis, none of the sections that apply to this instance carries a penalty of that duration. As a result, all of the defendants will be regarded as juveniles alone. Juveniles face a maximum sentence of three years in prison. However, in the case of juvenile offenders, the Act favours as much reform as feasible. Sending juveniles to Rehabilitation Centers, Juvenile Schools, or immersing them in other government or non-governmental initiatives are included as part of reformation punishment under the Act.
Conclusion
As discussed above it’s not always illegal if someone’s photograph is posted online without their consent, but it becomes illegal when used inappropriately and not taken down even after request. The person should always be concerned about their privacy and take legal action when the privacy is infringed.
References
- https://www.findlaw.com/injury/torts-and-personal-injuries/online-photos–taken-and-posted-without-your-permission.html
- https://www.nolo.com/legal-encyclopedia/question-unauthorized-use-of-photo-28285.html
- https://www.livemint.com/Consumer/x32Rcm7l26gT1cRNMDPAMP/Indian-law-only-determines-the-situations-where-privacy-will.html
- https://poseidon01.ssrn.com/delivery.php?ID=965089116025101074026017122110001070005032032002040049023072125078085006076083094095117062001119114023042027014001113103119123015046088093022107125091021019093108090020085076088079078114071016068004127124114090000022019015064081030112005126010001073006&EXT=pdf&INDEX=TRUE
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