Complexities of The Digital Age- Criminal Liability of ‘Revenge Porn’ In India And Rest Of The World

Kunika Kanodia[1]

Abstract

What happens online always invades the offline realm. Revenge Porn is appropriately called as Non-Consensual Pornography as it is about dissemination of sexually represented images of individuals without their consent as well as images formerly procured with consent within the purview of an intimate relationship for no legitimate purpose. The circulation of such content is hostile to the victim’s autonomy as it transforms unwishful characters into tools of sexual entertainment for unfamiliar masses. This paper lays emphasis on the need of responsiveness of Legislators with regards to the growing danger and repercussions from hate crimes in Cyberspace. The objective envisaged from the study is to come with a possible approach to formulating a law that addresses the greater menaces of revenge porn. This work is conceptual in nature, attempting to throw light over the existing cyber laws combating online hate crimes. The present study entails a comparative analysis of laws related to revenge porn across the USA, European, Australian and Asian countries than that of Indian laws available.This paper is intended to highlight the need to help non-consensual pornography victims to regain their reputation, their privacy, and their lives, and to rightfully criminalize the non-consensual circulation of victims’ personal and confidential images or videos, and to incorporate in the law a protective provision with a “notice-and-takedown” procedure.

Non-Consensual Pornography: Interpersonal hate crimes in cyberspace

In the online world, we easily let ourselves indulge. The online world is the perfect place to let all of us swim in the sea of our own gluttony, envy, greed and lust.[2] Non-Consensual Pornography is one of the menaces of such a sea of greed and is about dissemination of sexually representational images of individuals without their consent as well as images formerly procured with consent within the purview of an intimate relationship for no legitimate purpose. The perpetrator is often an ex-partner who obtains images or videos in the course of a prior relationship, and aims to publicly shame and humiliate the victim, in retaliation for ending a relationship. However, perpetrators are not necessarily partners or ex-partners and the motive is not always revenge.

Images can also be obtained by hacking into the victim’s computer, social media accounts or phone, and can aim to inflict real damage on the target’s ‘real-world’ life. It can be a bit of a misnomer because offenders are sometimes motivated by something other than revenge, such as financial gain[3]for example, intending to cause a person to be fired from their job, or in some cases causing suicide[4]. Revenge porn is a subcategory of an even larger problem, known as non consensual pornography sharing.[5] This is why not every type of non-consensual porn is called as revenge porn, as it serves as an umbrella term for all such content.

Citron & Franks define Non-consensual Pornography[6]as an offence which involves the distribution of sexually graphic images of individuals without their consent. This includes images originally obtained without consent (e.g., hidden recordings or recordings of sexual assaults) as well as images originally obtained with consent, usually within the context of a private or confidential relationship (e.g., images consensually given to an intimate partner who later distributes them without consent, popularly referred to as “revenge porn”).[7] The UK Law School Academicians Clare McGlynn and Erika Rackley coined the term, more appropriately, “Image-based Sexual Abuse”[8], which, needless to say, depicts a broader rationale in using this term. Since the images are sexual; the abuse and harassment[9]are sexualized and ultimately cause harm to the victim’s sexual freedom and autonomy. Several non-consensual pornography websites encourage users to submit nude photos of their ex-partner(s) for revenge. These websites often include forums that allow others to leave derogatory or salacious comments about the women in the photos. The first revenge porn website named “isanyoneup.com” was created in 2010 by Hunter Moore.[10]

Revenge porn includes activities involving the sharing or posting of sexually explicit images of another person without their consent.[11]  Internet Pornography in India has taken up a new shape defining criminal behaviour of the offenders. The ‘realness’ of certain kinds of images raises certain dilemmas – the anxiety is not as severe and troubled as it was when Mysore Mallige became popular (2000-01) and it was haunted by urban legends of the couples or only the woman committing suicide, forced marriage at a police station, etc.[12]The problem of ‘morality’ is always taken into consideration and the menace is multiplied manifold because pornography has its own certain ‘moral’ standards and uses controversial parameters like ‘indecency’ and ‘obscenity’. The Apex Indian Court in Abbas v. Union of India[13] has recognized that the standard of ‘morality’ is not uniform and flexible. In India, the legal discourse on pornography is missing as a category except as an aggravated form of obscenity.[14]

Psychological Ramifications of Revenge Pornography on Victims

The offenders are mostly found posting revenge pornography just in order to humiliate their ex-partners supporting with disgusting texts which may put the viewer under the impression that the victim wants to enter into sexual relations with strangers online.

For the already shy Indian society, which is not accustomed to openly talking about sex and looks at it as a tabooed subject, it is difficult to imagine the pain and extent of social alienation that a victim of such ‘revenge porn’ can face in the context of Indian Society.[15] Depression is like sex, middle-class people don’t realize that their children are having it!While the statement might seem funny but ironically it stands true to its words. Young school and college students might avoid discussion of such incidents with some elder persons, especially their own parents because they fear being subjected to violence on disclosing about their romantic lives. It is a common phenomenon in South Asian Countries, including India, for parents to select their children’s life partners which should be according to their cultural norms and familial traditions. Sex is a taboo in Indian communities, so if a person comes out to their parents about an incident of revenge pornography, he or she might be murdered in the name of honour of the kin.

Also Read  Special Autonomous Provisions: Uniting States in a Diverse Nation

There are gendered biases in both the effects of revenge porn as well as the criminal justice (non) response to victims.[16] Women who experience sexual victimization often feel shame and embarrassment regarding their victimization.[17]Shaming a victim of sexual offence is very common; people imply that they are facing what they wanted. It becomes a point of ridicule centered on such survivors. As a human, it becomes our duty to banish this toxic culture of victim blaming that fuels so many traumatic experiences. As Samantha Bates has pointed out in her survey report of 2016[18], the victims of revenge porn may experience serious mental health damages such as PTSD[19], depression, suicidal instincts, and many other disorders.

Online harassment is a form of sexual violence in part because of the emotional distress and breach of an individual’s sense of safety. Moreover, when people’s safety and integrity is compromised online, they are marginalized and/or pushed out of these spaces. When this happens repeatedly based on gender identity and/or sexual orientation (among other factors, including racism), these patterns of discrimination exclude certain social groups from full participation in society.[20]Rather than placing the blame for revenge porn or other related incidents on those who distribute these pictures with the intent to harm another person, many people’s instantaneous reaction is still to shame the women in the pictures for having sent them in the first place.[21]

Overseeing the Revenge Pornography- Indian Legal Standpoint

Criminal Laws

Defamation on internet is a gray area which has plenty of issues including the issue of jurisdiction[22]and lack of legal knowledge amongst people on the internet. Internet users cannot be regarded as a homogeneous group. It is imperative to distinguish the liability of those who give individuals and corporations access to the internet from that of individual users.[23]The former includes not only ISPSs but also non-commercial hosts such as universities. [24] It also attracts the offence of Criminal Intimidation. 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.[25]Other than this, an accused may be charged under Sections 354A (Punishment for Sexual Harassment), 354C (Voyeurism), 354 (Assault or criminal force to woman with intent to outrage her modesty) and 509 (Word, gesture or act intended to insult the modesty of a woman).

Cyber Laws

Section 66E provides with the Punishment for violation of privacy as a maximum term of 3 years of imprisonment or with a fine of Rs. 2lacs or with both. The instances which may be included are installation of spy cams/ hidden cameras/ communications device inside washrooms, bedrooms, changing rooms, hotel rooms, etc. for the purpose of violating bodily privacy of any user/occupant of such.[26] State of Tamil Nadu v. Suhas Kutti[27] is the first case of conviction under section 67 of the IT Act, 2000 in India. In this case, some defamatory, obscene and annoying messages were posted about the victim on a Yahoo messaging group due to which the victim started receiving annoying calls. She filed an FIR and the accused was found guilty under sections 469, 509 of the Indian Penal Code 1860 and section 67 of Information Technology Act.[28]

In addition to this, Section 67A states a punishment of 5 years. Through Section 67A, the legislature has sought to add a specific section which only deals with electronic material which contains sexually explicit act or conduct.[29] This Section is broad enough to cover even photo shopped or morphed images.[30]Recently in the case of State of West Bengal v. Animesh Boxi,[31] in a shocking incident being reported from Mandipore, a B. Tech student was sentenced to five years in jail and was also imposed with a fine of Rs 9,000 for uploading the explicit pictures and videos of a girl on the internet. The accused had been blackmailing the girl for physical relations constantly. However, after the girl denied his advances, the accused shared the content on the internet. [32]The final sentence was given out by a court in Tamluk, East Midnapore. In this particular case, the judgment was pronounced within six months and it is the first such case of conviction by the state for cybercrime against women.[33] In a recent Supreme Court case, Prakash (Dr.) v. State of Tamil Nadu[34] it was held that the State Governments, if they wish to, may apprehend perpetrators of “cyber obscenity” by invoking local State Legislations accordingly.

Constitutional Laws

A survivor of revenge pornography faces an extreme invasion to their sexual privacy and unfortunately it is also done by the person with whom the survivor had shared a personal relationship. The recent Supreme Court judgment[35] recognizing privacy as a fundamental right could have substantial implications on revenge porn and non-consensual pornography in general, in light of arguments recognizing the right to bodily integrity.[36] It is implied that such an offence is a violation Article 21 of the Indian Constitution.

Other enactments having a bearing on the issue are Indecent Representation of Women’s Act, 1986 and Young Persons (Harmful Publication) Act, 1950. Persons dealing in cyber pornography that is accessible to persons under the age of 20 years are also liable to be prosecuted under Section 293 of the IPC.[37]IT Act has made many amendments in order to make the new age criminals liable for such serious offences. We see from the Indian viewpoint that the laws are there to bulwark the modesty of the victim but with a danger of leak of content through personal connections. 

Also Read  Role of judiciary in maintaining rule of law

Criminal Liability of Revenge Pornography in Rest of the World

Alabama: After the 2017 amendment, the law extends to the depicted person who has not consented to the transmission and the poster intends to harass or intimidate the depicted person. The offence is punishable from 1 year of imprisonment to maximum 10 years, depending upon the class of the offence in a case.

Alaska: The Alaskan Criminal law provides that whoever publishes or distributes electronic or printed photographs, pictures, or films that show the genitals, anus, or female breast of the other person or shows that person engaged in a sexual act commits a crime of harassment in second degree.

Florida: The Florida Statute terms revenge porn as “Sexually Cyber-harass” which means to publish a sexually explicit image of a person that contains or conveys the personal identification information of the depicted person to an Internet website without the depicted person’s consent, for no legitimate purpose, with the intent of causing substantial emotional distress to the depicted person.

Michigan: Under the Michigan Penal Code, if a person threatens, coerces, or intimidates dissemination of any sexually explicit visual material of another person, he/she shall be punishable under section 145f with 93 days of imprisonment or a fine up to $500. 

England and Wales: In 2015, revenge porn, under Section 33 of the Criminal Justice and Courts Act, 2015 was recognized illegal in England and Wales[38], which criminalizes the online sharing of sexually explicit graphics without the consent of the subject(s) and results into an imprisonment for a term of 2 years. Within a year of the law, it was observed by a Report[39] that majority of the victims were aged 20 to 29, however children as young as 11 had reported being the victims of revenge porn. United Kingdom also offers a “Revenge Porn Helpline”[40]to help victims, established in 2015.

Germany: Under the GDPR and Section 22 of the Art Copyright Act, a person has the right to object to the unauthorized dissemination or public display of his/her photograph and can seek civil remedies such as damages, cease and desist orders. In 2014, the Bundesgerichtshof (BGH), upheld an earlier ruling from a regional court in Koblenz, Germany, that said a man did not have the right[41] to keep intimate photos of his ex-lover just because she had consented to taking them in the first place.[42]

France: With the new Digital Republic Act of 2016, the users possess a right to oppose the use of their personal data which may be sanctioned by 2 years of imprisonment and a 60,000 Euros as a hefty fine.

New South Wales: Post 2018, sharing an “intimate image” without consent may lead to an imprisonment for 3 years, or fine or both under the Section 91Q of the Crimes Act, 1900.

South Australia: In 2017, the first comprehensive research on “revenge porn” has revealed the mass scale of victimization across Australia, with 1 in 5 people[43]suffering image-based abuse. Under the Summary Offences Act, 1953, the maximum penalty in a case where the invasive image is of a person under the age of 17 years is $20,000 or imprisonment for 4 years otherwise the fine is $10,000 or imprisonment for 2 years.

Western Australia: Since 2016, a court may restrain the respondent from doing all or any of the following in the case of a family violence restraining order: distributing or publishing, or threatening to distribute or publish, intimate personal images of the person seeking to be protected. The punishment is 2 years of imprisonment.

Victoria: Section 41C, Summary Offences Act 1966 states that “a person who visually captures or has visually captured an image of another person’s genital or anal region must not intentionally distribute that image.” The law prescribes for a punishment as 2 years of imprisonment. Recently new provision of jail up to 3 years [44] has been passed on 19th February, 2019 by the State Parliament; the law will come into force on 15th April, 2019.

Japan: Act on Prevention of Damage by Provision of Private Sexual Image Records Act since 2014 criminalizes the provision of a private sexual image of another person without the person’s approval via means of telecommunication to an unspecified number of or to many people.  It allows Internet service providers to delete suspected revenge porn images without the poster’s consent. It gives a punishment of three years in jail and a maximum sentence of 5, 00,000 Yen.

Suggestions

Although there are many legal provisions protecting the victims as discussed above in Chapter 4 and 5 but all of these are short term measures and might further expose the victim to the brunt of retaliation from the poster. Youngsters are posed with such threats since schools and colleges are well knitted in terms of communication, the private messages may be circulated at a wider level.

Everything we post online is always stored on the data servers and on request, that data can be retrieved. If something you feel is very private to you and can be used in order to misuse it, then such content must not be shared with anyone immaterial of what relationship you share. If it gets public, document the incident of video abuse with you. 

Most common policies against nudity are adopted by the social media websites which allow you to report the content directly. Ask friends and family to report it largely to get it noticed. Facebook has recently adopted a policy where one can directly report the non-consensual pornography.

Revenge Porn is construed as Virtual Rape and one cannot really undermine the after effects of having an image distributed to many strangers worldwide. The consequences of Revenge Porn are on similar lines with that of sexual offences to a victim. It is, therefore, suggested that the victim’s treatment should be the same and the survivors must be taken seriously. It is seen that women are sexually objectified and ridiculed in such cases but there is a need of procedure to specially deal with victims of revenge porn. It would not be wrong to state that the Indian criminal justice is not exactly technically upgraded and personnel’s training is the need of the hour.

Also Read  Article 368: Boon or Bane

Even after a law is passed by the victim’s country, if a victim approaches for take down from foreign websites, the requests are mostly ignored. The author proposes for some reasonable suggestions that should be passed. Also, there is a need of recognizing Revenge Porn specifically, as it is done by other countries of the world.


[1] Law Student, Delhi Metropolitan Education, GGSIPU.

[2] Jean-Loup Richet, Viewpoint – Non-consensual Pornography: How petty desire becomes a tragedy to an individual, (Nov 17, 2019),  https://blogs.harvard.edu/cybersecurity/2018/11/10/viewpoint-non-consensual-pornography-how-petty-desire-becomes-a-tragedy-to-an-individual/.

[3] National Council of Juvenile and Family Court Judges, What is Nonconsensual Pornography? (November 19, 2019), https://www.ncjfcj.org/TDVAM-Scott.

[4] European Institute for Gender Equality, Gender Equality Glossary and Thesaurus, (Feb. 25, 2019, 10:46 PM), https://eige.europa.eu/rdc/thesaurus/terms/1487?lang=en.

[5] The Fight The New Drug, 10 Need-To-Know Facts About How Common Revenge Porn Is, (Feb. 24, 2019, 6:58 PM), https://fightthenewdrug.org/need-to-know-facts-about-revenge-porn/.

[6] Nonconsensual pornography is also sometimes referred to as “revenge porn,” “cyber rape,” or “involuntary porn.”

[7] Danielle Keats Citron & Mary Anne Franks,Criminalizing Revenge Porn, 49 Wake Forest Law Review 345 (2014).

[8] Clare McGlynn & Erika Rackley, Not ‘revenge porn’, but abuse: let’s call it image-based sexual abuse, Ending Victimisation & Blame, (Feb. 27, 2019, 6:00 PM), http://everydayvictimblaming.com/media-complaints/not-revenge-porn-but-abuse-lets-call-it-image-based-sexual-abuse-by-%E2%80%8Fmcglynnclare-erikarackley/.

[9] Dr. Claire Meehan, Revenge porn is sexual abuse, Newsroom NZ Limited, (Feb. 27, 2019, 6:06 PM), https://www.newsroom.co.nz/@future-learning/2019/02/20/453284/revenge-porn-is-sexual-abuse.

[10] Scott R. Stroud, The Dark Side of the Online Self: A Pragmatist Critique of the Growing Plague of Revenge Porn, Taylor and Francis, (Feb. 24, 2019, 7:15 AM), https://www.tandfonline.com/doi/abs/10.1080/08900523.2014.917976.

[11] Hall Payne Lawyers,  Revenge porn – new Queensland laws set to come into play (Feb. 24, 2019, 5:50 PM), https://hallpayne.com.au/revenge-porn-laws-queensland/.

[12] Namita A. Malhotra, Porn: Law, Video, Technology, Centre for Internet & Society, (Feb. 21, 2019, 8:30 PM), https://cis-india.org/raw/histories-of-the-internet/porn-law-video/view.

[13] Abbas v. Union of India, AIR 1971 SC 481.

[14] Ranjit Udeshi v. State of Maharashtra, AIR 1965 SC 881

[15] LawQuest, India: Revenge Porn And The Efficacy Of Indian Laws, Mondaq, (Feb. 21, 2019, 7:36 PM), http://www.mondaq.com/india/x/437942/IT+internet/Revenge+Porn+and+the+Efficacy+of+Indian+Laws.

[16] Michael Salter, Responding to Revenge Porn: Gender, Justice and Online Legal Impunity (November 19, 2019),https://www.researchgate.net/publication/294787472_Responding_to_revenge_porn_Gender_justice_and_online_legal_impunity/link/56c4046a08aee3dcd41684db/download.

[17] Karen G. Weiss, Too Ashamed to Report: Deconstructing the Shame of Sexual Victimization, Feminist Criminology, (Feb. 23, 2018, 7:21 PM), https://doi.org/10.1177/1557085110376343.

[18] Samantha Bates,Revenge Porn and Mental Health: A Qualitative Analysis of the Mental Health Effects of Revenge Porn on Female Survivors, Sage Journals, (Feb. 24, 2019, 7:03 PM), https://journals.sagepub.com/doi/full/10.1177/1557085116654565.

[19] Boeschen, L. E., Koss, M. P., Figueredo, A. J., Coan, J. A., Experiential avoidance and post-traumatic stress disorder, Journal of Aggression, Maltreatment & Trauma, (Feb. 21, 2019, 2:47 PM), https://www.tandfonline.com/doi/abs/10.1300/J146v04n02_10.

[20] Jordan Fairbairn, Chapter IX. Rape Threats and Revenge Porn: Defining Sexual Violence in the Digital Age, (Feb. 26, 2019, 8:09 PM), https://books.openedition.org/uop/510?lang=en.

[21] Sharanya Sekaram, On revenge porn and shaming women’s bodies, Women’s Media Center, (Feb. 27, 2019, 9:36 AM), http://www.womensmediacenter.com/fbomb/on-revenge-porn-and-shaming-womens-bodies.

[22] This is common to all legal issues related to the Internet and also to defamation generally.

[23] Nandan Kamath, Law relating to Computers Internet & E-Commerce, (5h ed. Universal Law Publishing, 2017).

[24] Lillian Edwards, Defamation and the Internet: Regulating Cyberspace 184 (Hart Publishing, Oxford, 1997).

[25] Anubhav Pandey, Legal steps to take when someone creates your revenge porn, Ipleaders, (Feb. 23, 2019, 9:10 PM), https://blog.ipleaders.in/revenge-porn/.

[26] Vakul Sharma, Information Technology- Law and Practice 209 (Lexis Nexis, 2018).

[27] State of Tamil Nadu v. Suhas Kutti, Cr. Comp 4680/ 2004.

[28] Sushila Devi Chauhan & Ritu, Combating Cyber Obscenity in India and USA: A Comparative Analysis, 3 Jamia Law Journal, 77-90 (2018).

[29] Pavan Duggal, Textbook on Cyber Law (2d ed., Universal Law Publishing, 2016).

[30] The First Post, Revenge Porn: How does one define this phenomenon when Indian Laws don’t cover it? (Feb. 22, 2019, 7:49 PM), https://www.firstpost.com/tech/news-analysis/revenge-porn-how-does-one-define-this-phenomenon-when-indian-laws-dont-even-cover-it-3703857.html.

[31] State of West Bengal v. Animesh Boxi, on 3 January, 2018.

[32] NewsX Bureau, Revenge pornography! B.Tech student gets 5 years in jail and Rs 9,000 as fine for uploading explicit videos of girl on internet, NewsX, (Feb. 27, 2019, 11:01 PM), https://www.newsx.com/national/revenge-pornography-b-tech-student-gets-5-years-in-jail-and-rs-9000-as-fine-for-uploading-explicit-videos-of-girl-on-internet.

[33] Sahana Chaudhuri, Indian Court Sets Precedent in a Revenge Porn Case, The Cyber Blog India, (Feb. 27, 2019, 11:06 PM), https://cyberblogindia.in/revenge-porn-judgement-west-bengal/.

[34] Prakash (Dr.) v. State of Tamil Nadu(2002), 7 SCC 759.

[35] Justice K.S. Puttaswamy (Retd.) v. Union of India & Ors. 2017 (10) SCALE 1.

[36] Yesha Paul, Dealing With Revenge Porn in India, The CCG Blog, (Feb. 27, 2019, 9:49 PM), https://ccgnludelhi.wordpress.com/2018/05/23/dealing-with-revenge-porn-in-india/.

[37] S.K. Verma & Raman Mittal, Legal Dimensions of Cyberspace (Indian Law Institute, 2004).

[38] The BBC, ‘Revenge porn’ illegal under new law in England and Wales (Feb. 23, 2019, 7:58 PM), https://www.bbc.com/news/uk-31429026.

[39] Victoria Spratt,Here’s How Many Cases Of Revenge Porn Have Been Reported Since It Became Illegal Last Year, Grazia (Feb. 21, 2019, 8:47 PM), https://graziadaily.co.uk/life/real-life/heres-many-cases-revenge-porn-reported-since-became-illegal-last-year/.

[40] Alexandra Topping, Revenge porn victims’ helpline launched in UK, The Guardian, (Feb. 25, 2019, 6:12 PM), https://www.theguardian.com/technology/2015/feb/08/revenge-porn-victims-helpline-launched.

[41] The Local Europe AB, Court orders ex-lovers to delete sexy pics, (Feb. 25, 2019, 11:17 AM), https://www.thelocal.de/20140522/court-forces-ex-lovers-to-delete-sexy-photos.

[42] Frida Garza,Germany just made it a lot more complicated to keep nude photos of your ex, Quartz, (Feb. 25, 2019, 11:16 AM), https://qz.com/580663/germany-just-made-it-a-lot-more-complicated-to-keep-nude-photos-of-your-ex/.

[43] Gosia Kaszubska, Not just ‘revenge porn’ – image-based abuse hits 1 in 5 Australians, RMIT University, (Feb. 23, 2019, 6:17 AM), https://www.rmit.edu.au/news/all-news/2017/may/not-just-_revenge-porn–image-based-abuse-hits-1-in-5-australian.

[44] Peter de Kruijff, New laws make revenge porn and ‘sextortion’ a jailing offence, The West Australian and Seven West Media, (Feb. 26, 2019, 6:55 PM), https://thewest.com.au/technology/internet/new-laws-make-revenge-porn-and-sextortion-a-jailing-offence-ng-b881110707z.