Revenge Pornography: Urgent Need For Legislation

Dr.Vishal Guleria & Himani Bisht

Abstract

Technology and its proliferation expanded the ambit of pornographic crimes. The rapid development of information and technology has made pornography more accessible, bringing decadent and hard-to-get images into our homes. Cyber Pornography is an act of using cyberspace to create, display, publish, distribute or impart pornography or obscene materials. Out of various cyber-pornographic crimes, ‘Revenge pornography’ is a viable peril on all social media and websites which serve porn. However, Revenge Pornography being an important facet of Cyber Pornography has been omitted from all sorts of legislation in India. It may precisely be defined as “uploading and dissemination of sexually explicit material (images or videos) of individuals without their consent”. It may be made by the partner in an intimate relationship with/or without the knowledge and consent of the victim to blackmail or torture the victim into performing other sexual activities or to force them to be in a relationship or to torture them for ending the relationship. There is now a wide network of dedicated websites and blogs that encourage viewers to maliciously upload material of their partners or ex-partners. The recent peril of revenge porn has prompted many countries (UK, Canada, Australia, Japan, Philippines and many states in the USA) to enact legislation that criminalizes it. At present, there are no legal provisions that directly address revenge pornography in India. Though certain sections in the Indian Penal Code and Information and Technology Act can be invoked by victims however, they fail to fully encompass the complexity of such cases. The focus of this paper shall be to examine the various cyber pornographic crimes with special emphasis on revenge pornography; the adequacy of present legislative mechanisms to deal with revenge pornography and to discuss the immediate need to have anti-revenge porn law in India.

Introduction

The development of information and technology has paved the way for a new world of internet, e-banking and business networking, budding to change the sophisticated economic affairs to a much easier, efficient, speedy and time-saving method of transactions. Over the past 20 years, the internet has become an expedient mode of communication, providing access to a wealth of information. The internet is an important tool; however, it can also be detrimental to the wellbeing of humans due to various online hazards. The internet is also a place that is flooded with online predators always awaiting an opportunity to strike. These online predators give rise to numerous cyber-crimes. The word ‘cyber-crime’ is an amalgamation of two words: ‘cyber’- related to internet or other electronic networks and ‘crime’- a criminal activity. Thus, a cyber-crime may be defined as a crime that is committed with the aid of communication devices, i.e. computer, network or hardware devices. Generally speaking, a cyber-crime can be referred to as an ‘unlawful act, wherein the computer is used either as a tool or a target or both’. Cybercrime, in a narrow sense, targets the machine and its data while in a broader sense, it targets not just the machine and its data, but also anything related to it. The term Cybercrime is neither defined in the Information Technology Act, 2000 nor in the Information Technology (Amendment) Act, 2008 nor in any other legislation in India. Therefore, simply stated, cyber-crime is a crime committed over the internet. In other words, it is a computer-related crime.

Concept of Cyber Pornography

Technology serves to facilitate commercial activity and pornographers have never shied away from it. Huge amounts of pornographic material can be reproduced more quickly and cheaply. The new technology is not merely an extension of the existing forms like text, images, and photographs. Apart from still footage and pictures, full-motion video clips and complete movies are also on the market. The latest trend seems to be towards interactive live sex where people perform according to requests of the subscribers. Cyber Pornography is one such area that has come to a serious focus on unprecedented growth and development of internet technology. More than 50% of global websites carry pornographic materials. Cyber pornography can be simply defined as an act of using cyberspace to create, display, import, distribute or publish pornographic or obscene materials. With the advent of cyberspace, traditional pornographic content has now largely been replaced by online/digital pornographic content. Cyber pornography plays an important role in negative social issues such as violence against women, child abuse, rape, youth crime and sexually transmitted diseases.

Types of Cyber Pornographic Crimes

In the new millennium, the world is running with liberalization, globalization, and communication convergence technology. With the rapid development of science and technology, the ugly face of the crime chart is, unfortunately, rising higher to cause more and more human tragedy. Due to easy access to the World Wide Web through new multimedia technology; various cyber pornographic crimes are increasing with the passage of each day. Few of the cyber pornographic crimes with special emphasis on revenge pornography are as under:

  1. Voyeurism: It is a psychosexual disorder, where a person gains sexual gratification and pleasure from seeing the naked body and genitalia of others or witnessing other’s sexual behavior. In India, it is a penal offense for any man who watches or captures the image of a woman engaging in a private act, where she would usually expect not being watched either by the wrongdoer or by any other person at the dictation of the wrongdoer or disseminates such image. The first explanation to this section clarifies that ‘private act’ includes an act of watching or capturing images of a woman engaged in sexual activities which are carried out in a place that 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 washroom or the victim is engaged in doing a sexual act that is not of a kind ordinarily done in public.  The second explanation further clarifies that where the victim consents to the capture of the images or any act, but not to their distribution to third persons and where such image or act is distributed or transferred, such distribution shall be considered an offense.
  2. Sexting: Sexting simply means sending and receiving text messages carrying sexual expressions and sexual images through mobile phones. Technically, it may mean any such electronically communicated text message which can include email messages as well as a mobile phone message. But the term is popularly used for indicating mobile phone text messages only. Presently, sexting is used to mean text messages which include individuals’ (especially teens) nude pictures or naked private parts or even intimate positions of two partners captured by themselves with the help of mobile camera and disseminating the same, via mobile phone or email or uploading these messages to social networking sites through camera phones.
  3. Cyber Obscenity: While speaking about sexual offences on the internet, especially with regards to India, pornography and obscenity are often understood as synonymous. Though it is true that these two terms are interlinked, it is to be noted that pornography is one of the modes to express obscenity. Pornography is largely used to explain sexual activities with the help of graphics, including movies and still photos. Obscenity can be expressed even by verbal or written words which may not include such images.[1]
  4. Revenge Pornography: It refers to cyber victimization, mostly to indicate victimization of adult women at the hands of their dating partners. The most common way of creating revenge porn is the use of personal information and pictures of the victim and uploading them in various cyber portals to spread the message that the victim is available for the sexual gratification of men. Apart from adult women, children (especially teens) are equally vulnerable in this case.
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Revenge Pornography vis-à-vis Cyber Pornography

Revenge Pornography is an emerging menace in the cyber pornographic world. It is a form of online pornography that includes amateur videos and images, which were then made with the consent of those depicted but shared without their consent. This is done out of revenge/hatred/ridicule following the breakdown of a relationship, to harm the reputation of the person depicted. Thus, revenge is the basic element of these videos. It is done by the husband or/ boyfriend or/ girlfriend or friend. Thus, revenge pornography is uploading sexually explicit videos or images on the cyber portal with the intent to humiliate the person depicted. The custody of these videos may be used by the perpetrators to torture, blackmail the victims for performing other sexual favors or force them to continue or end the relationship. The pictures are more often accompanied by enough information to identify the pictured individual such as names, locations and include the link to social media profiles, workplaces, and home address thus exposing them to cyber-stalking, physical attack, etc. The circulation of revenge pornography is a highly gendered activity that severely impacts women although men may also be victimized. Children, especially teenage in the age group of fourteen to nineteen are equally vulnerable. The anomaly is that minors who engage in such acts appear to be criminalized in arguably inappropriate ways by child pornography statutes while adult perpetrators are almost immune from legal sanction. Such material may be obtained by hidden cameras or exchanged within a confidential relationship or stolen from the mobile phone or recordings of sexual assaults.

Characteristics of Revenge Pornography

Revenge pornography differs from the traditional concept of cyber pornography in the sense that the perpetrator intentionally misuses the information about the victim in-order to traumatize her. Revenge pornography is a multiple-step procedure which comes into play depending upon the mental and emotional status of the revenging partner. Revenge Pornography is thus, a relative phenomenon which does not have much uniformity instead it has relativity as its unique feature.

It involves four major steps:

  1. The victim takes her nude/semi-nude pictures in her phone or agrees to be captured in her compromising position with the partner through phone or webcam and sends that images to her partner and that partner stores the image/clipping in his device.
  2. The partner transfers such images/clipping to his friends in order to humiliate the girlfriend as a revenge taking measure.
  3. Partner himself or his friends who are the secondary recipients then upload the clipping on the internet.
  4. The clipping rapidly attracts the eyeballs and the person depicted’s reputation is severely damaged.[2]
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Effects of Revenge Pornography

The internet administers an astonishing means of intensification, extending the reach of content in an unimaginable way. The whole process becomes extremely easy for the person who does such heinous acts even without thinking about the person depicted. Revenge pornography’s serious consequences warrant its criminalization. Uploading someone’s naked images along with their contact information can inspire strangers to confront them online. Fear of the victim is that innominate or anonymous callers would follow up on their sexual demands in person. Victims are encountered with anxiety and suffer panic attacks. It can also be considered as an instance of domestic violence where abusers threatened victims to disclose her intimate images if she attempts to leave the relationship. Such videos affect both men and women. Empirical evidence points out that revenge porn primarily affects women and girls. Victims of revenge pornography experienced more severe and disruptive mental health effects such as depression, suicidal thoughts, etc. Such videos not only harm the victims emotionally but also ruin their professional lives. Professionally victims may be unable to find work at all, as most employers rely on a candidate’s online reputation as an employment screen.

International Framework to Combat Revenge Pornography

Many countries have started considering revenge porn as a serious challenge and are mulling laws to battle the menace. Discussed herein under is the legal position of some of the countries which have enacted legislation to deal with the menace:

  1. United Kingdom: It has recently enacted national laws specifically criminalizing revenge pornography with imprisonment and fine. England and Wales criminalized the conduct in April 2015 with a maximum imprisonment of 2 yrs.
  2. United States: There is no national law against revenge porn, but 34 States have passed criminal legislation to address this conduct.
  3. Germany: It has a very strict law on privacy which equally applies to revenge pornography. A German court ruled in 2014 that ex-partner must delete intimate images of his former partner upon request.
  4. Australia: Like U.S, there is no national law on revenge pornography; however, Victoria and South Australia outlawed revenge pornography in 2013 with imprisonment up to 2 years in the 1st case (Victoria) and 2 years imprisonment or fine up to $10,000 in the 2nd case (South Australia). New South Wales is in the process of proposing legislation.
  5. Philippines: In 2009, the Philippines became the first country to nationally criminalize revenge pornography, with a penalty of up to 7 years imprisonment.
  6. Israel: became the first country in 2014 to classify revenge pornography as the sexual assault which is punishable by 5 years imprisonment.
  7. Canada: Cyber bullying Act, 2015 which protects children from online harassment and bullying, criminalize revenge pornography too.
  8. Japan: enacted anti revenge porn laws in November 2014 that carry imprisonment up to 3 years or fine of 500,000 yen.                                                                            

Legal Paradigm in India

Revenge Pornography is a relatively new phenomenon that has grown substantially in the past few years. Hunter Moore in 2010 created the first Revenge Porn website- ‘Is Anyone Up’ which allowed users to upload nude photographs. Within 3 months in 2011, the website received 10,000 photo submissions. This website was subsequently taken down in 2012. The peril of revenge porn has prompted many countries to criminalize it by enacting legislation. At present, there are no legal provisions that specifically deal with the menace in India. Mostly crimes related to pornography are covered under the sections of Penal Laws (Indian Penal Code and Criminal Procedure Code) and Information Technology Act (ITA) in India. 

Legal Framework against Revenge Pornography in India

                                      Information Technology Act, 2000
SectionOffencePunishment
Section 66EViolation of privacyImprisonment up to 3 years and/or fine up to 2 Lakh
Section 67Publishing or transmitting obscene material in electronic formOn first conviction imprisonment up to 3 years and/or fine up to 5 Lakh. On subsequent conviction imprisonment up to 5 years and/or fine up to 10 Lakh.
Section 67 APublishing or transmitting of material containing sexually explicit act etc. in electronic formOn first conviction imprisonment up to 5 years and/or fine up to 10 Lakh. On subsequent conviction imprisonment up to 7 years and/or fine up to 10 Lakh.
Section 67 BPublishing or transmitting of material depicting children in sexually explicit act in electronic form.On first conviction imprisonment up to 5 years and/or fine up to 10 Lakh. On subsequent conviction imprisonment up to 7 years and/or fine up to 10 Lakh
                                                          Indian Penal Code,1860
Section 354 ASexual harassmentFor physical contact/or demand for sexual favors/or showing pornography, rigorous imprisonment for 3 years or fine or both, and; For passing sexually colored remarks, imprisonment for 1 year or fine or both.
Section 354 CVoyeurismOn first conviction imprisonment up to 1 year, but which may extend to 3 years and fine. On subsequent conviction imprisonment up to 3 years, but which may extend to 7 years and fine.
Section 354 DStalkingOn first conviction imprisonment up to 3 years and fine. On subsequent conviction imprisonment up to 5 years and fine.
Section 499Criminal DefamationImprisonment up to 2 years or fine or both.
Section 509Word, gesture or act intended to insult the modesty of a womanImprisonment up to 3 years and fine.

In the absence of specific separate legislation on revenge pornography, victims often resort to above mentioned legal provisions, though they fail to fully encompass the complexity of such cases and do not particularly target revenge pornography published online. The majority of the explicit images in cases of revenge pornography may be morphed and section 354C of IPC that deals with voyeurism does not speak about morphed pictures transferred or published or uploaded for gratifying revenge i.e. ultimate motive of taking revenge is absent here. Also, section 66E of the Information Technology Act does not cover this aspect.

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Judicial Discourse on Revenge Pornography in India

In India, the very first reported case of revenge in the cyberspace was in the year 2001(Airforce Bal Bharti School Case), when a 16-year-old Delhi schoolboy created a porn website as a means of exacting revenge for being teased by his classmates and teachers. On the website, he posted porn images of girls of his class and his teachers with lewd remarks. The boy was arrested under Section 67 of the Information Technology Act for charges of obscenity in cyberspace and was later released on bail by the juvenile court. He was then rusticated from the school as a punishment. This case drew huge attention from the public, police, and media as this was the first-ever case of revenge porn (teen revenge) through cyberspace in India. The first Revenge Porn conviction in India has been in the case of State of West Bengal v Animesh Boxi, where the facts of the case are as follows:

“The victim had been in a relationship with the defendant for 3 years. While being in the relationship, the defendant had asked for private and nude pictures from the victim. The victim being emotional had sent the private pictures but denied giving the nude pictures. He copied her nude pictures from her phone and started blackmailing the victim to go on an outing with him. Otherwise, he would upload her pictures and videos on all social sites. The victim disagreed and as a result, the defendant uploaded the pictures and videos on porn sites.”

The perpetrator was convicted under Sections 354, 354A, 354C and 509 of the Indian Penal Code as well as Sections 66E, 67 and 67A of the Information Technology Act, on account of evidence provided by service providers (Reliance Jio and Google) and the judgment was pronounced in the victim’s favour convicting the accused with an imprisonment of five years and a fine of around Rs 9000. In addition to the imprisonment and fine, the State government was directed to treat the victim as a survivor of rape and grant appropriate compensation.

According to Advocate Bivas Chatterjee, Public prosecutor in this case-

“Revenge Porn is a universal phenomenon but unfortunately only two percent of the actual crime is reported in India. He also stated that 67% of the virtual data is pornographic content. With the ever-increasing demand for such videos, one needs to understand that in India circulation of content that threatens the modesty of a woman is a punishable offence. He energizes everyone to raise an alarm and lodge a complaint if they come across revenge porn or rape videos. Any responsible citizen can lodge a complaint even journalist while doing any investigative stories related to revenge porn or rape videos can approach the judiciary. Such a step will surely make a man with such intentions to think twice before resorting to revenge porn. In this particular case, the judgment was pronounced within 6 months and it is first such conviction by the State for cybercrime against women. It has been now witnessed that Indian judiciary has started dealing with such cases efficiently and also focusing on its speedy disposal. Apart from this, let it be any person, male or female need to act cautiously.”

Conclusions

The internet age has provided us a new medium to express ourselves. But the misuse of technology is rampant. The majority of the websites have now become a platform for a new form of online abuse that is bringing out the uglier side of relationships when breakups are less than cordial. Pornography is not a new issue though the emergence of revenge pornography is of recent origin. Revenge Pornography is a trend that has taken over the cyberspace and is rapidly becoming the cruelest method of coping for jilted partners or lovers.

Revenge pornography is a phenomenon which though has its origin in the west, but it has of late caught the fancy of many people in India. The passage of each month and each day sees the emergence of new cases of revenge porn in India. Presently, it is dealt with under the Information and Technology Act and the Indian Penal Code. Though, the Information and Technology Act does not carry any provisions by way of helping victims takedown obscene material posted on the internet by way of revenge. This new and shocking form of abuse on popular social networking websites and porn websites needs the construction of a specific legal mechanism to combat the negativity being propagated. However, Google, Facebook, Porn websites and other social platforms have come up with some effective solutions against this law.

Seeing the harm caused by revenge porn, the Government of India is considering changes in the law to ensure stringent action against cyber-crimes targeting women such as ‘revenge porn videos’ in the wake of an increasing number of such incidents on social media. Ministry of women and child development (WCD) is exploring ways to bridge the gap between IPC and IT Act to deal with ‘revenge porn’[3]. It is high time for India to look at this as a serious threat to the people and come up with strong anti-revenge porn legislation. The world is becoming a less safe place every day and we are running out of ways to fix the numerous damages being done to the victims of sexual abuse and harassment both physical and online.


[1]Debarati Halder & K. Jaishankar, Cyber Crimes against Women in India149(1st ed. SAGE Publications Pvt. Ltd,2017).

[2]Supra note at 1.

[3] Ambika Pandit, Centre Plans to tighten laws following surge in ‘revenge porn videos’, Times of India,(February 27, 2019, 9.00 PM),  https://m.timesofindia.com/india/centre-plans-to-tighten-laws-following-surge-in-revenge-porn-videos/articleshow/58953474.cms