Non-consensual sharing of sexually explicit content online: An analysis of existing safeguards and the way ahead

Using Copyright to Combat Revenge Porn

 

by Shubhangi Singh          27 August 2020

Introduction

In 2004, an unconsented sharing of a private video involving underage students of an elite school in Delhi alarmed the entire nation as the phrase “MMS Scandal” entered into the collective consciousness of the people of India for the first time. The sensationalization of the case as a “scandal” by the Indian media triggered a discussion on issues like students carrying mobile phones to schools, the annihilation of moral values in the younger generation due to an influence of western culture and the likes. But little or no heed was paid to the fact that the circulation of the video was not consented to by the girl. Both the students were suspended from the school and no criminal action was sought against the boy who had captured the video.

With the growing use of the internet and social media, the dissemination and publication of any such material are much easier than it was in 2004. Since then, many cases of non-consensual sharing of private videos have hit the headlines. In recent times, a phenomenon called revenge porn has also garnered widespread attention. Merriam-webster defines revenge porn as “sexually explicit images of a person posted online without that person’s consent especially as a form of revenge or harassment”. In 2018, a 23 year-old-man was sentenced to five years of imprisonment for uploading a nude video of his ex-girlfriend by a Bengal Court.

According to the National Crime Records Bureau, 401 cases were reported in 2017 relating to publishing or transmitting of material containing sexually explicit act in electronic form. This brings us to the question that what are legal remedies available to the victims of non-consensual dissemination of explicit content? And if such remedies are sufficient enough given the spurt in the number of cases like these owing to technological advancement and growing internet reach?

Legal Remedies

Under the Information Technology Act, 2000(“IT Act”).

  1. Section 66E– It prescribes punishment in cases of intentional capturing, publication or transmission of the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person. Clause (c) of the section explains private area as naked or undergarment clad genitals, pubic area, buttocks or female breast. Clause (e) states that circumstances in which a person can have a reasonable expectation of privacy are when he or she could disrobe in privacy, without being concerned that an image of his private area was being captured; or any part of his or her private area would not be visible to the public, regardless of whether that person is in a public or private place. This explanation under this section is problematic because it limits the scope of privacy of an individual to images of his/her naked or undergarment clad genitals, pubic area, buttocks or female breast. This definition of privacy in terms of “private area” is in stark contrast with the interpretation given in Justice K.S. Puttaswamy and Ors. Vs. UOI. In this case, it was held that the privacy ensures fulfilment of dignity and it is a core value intended to be achieved by the protection of life and liberty under Article 21. An individual might be fully clothed or semi-clad and can be engaged in any sexual activity which he/she didn’t want to be captured or filmed.
  2. Section 67 and Section 67A-Section 67 of the act prescribes punishment for publishing or transmitting obscene material in electronic form while Section 67A prescribes punishment for publishing or transmitting of material containing the sexually explicit act, etc., in electronic form. The problem with these sections is that they do not take into account whether such publication or transmission is consented to or not by the victim. In most MMS leak and revenge porn cases, the victims themselves record and share the content with a specific person who further publishes it on other platforms or transmits it to other parties without the victim’s consent. Therefore, the victims can also be made liable under this section as the element of consent is blatantly ignored.

Under the Indian Penal Code, 1860(“IPC”)          

  1. Section 354C-This section prescribes punishment for voyeurism. The section states that “any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished…”. The problem with this section is two-fold: firstly, the section is gendered and only men can be held liable under it. Secondly, for fixing liability under this section, either the man captures the image of a woman engaging in a private act without the woman’s consent or the woman consents to the capturing but not to the dissemination of image. But in most cases of revenge porn, the woman herself captures the images and not merely consents to such capturing. There is a need to further widen the ambit of this section.
  2. Section 509– This section deals with word, gesture or act intended to insult the modesty of a woman. The act of sharing explicit content online without the consent of the woman will come under the second branch of the section i.e. intrusion of privacy of a woman with an intention to insult the modesty of such woman. But the section fails to provide any comprehension meaning of the term “privacy” and therefore, the scope of this section cannot be clearly defined.
  3. Other relevant sections are section 292(sale, etc., of obscene books), section 292A (printing etc. of grossly indecent or scurrilous matter or matter intended for blackmail) and section 499(defamation) which is punishable under section 500. But none of these sections specifically deal with the non-consensual circulation of explicit content online.

Under the Indecent Representation of Women (Prohibition) Act, 1986 (“the act”).

Section 4 of the act deals with prohibition of publication or sending by post of books, pamphlets, etc; containing indecent representation of women. The punishment for this section is prescribed under section 6 of the act. The problem with this section is that it prohibits the publication of such content by anyone and does not draw a consent-based line in such acts. So, in cases where the victim has herself captured and shared the content to a specific person but does not consent to its third-party dissemination, the victim also becomes liable under this act. The punishment provided under this section is also very less as compared to the gravity of the offence and a bill has been proposed to amend this section to bring it in line with the IT Act.

Need for specific legislation

Currently, no specific laws are dealing with non-consensual capturing and transmission of sexually explicit content online. The increasing menace of revenge porn and MMS leaks need specific legislation to govern the legal consequences of such acts. Some suggestions for the legislation are as follows:

  1. It should be gender-neutral.
  2. It should draw a line of distinction between consensual and non-consensual acts.
  3. The terms “revenge porn”, “private area”, “obscenity” and “intrusion of privacy” must be defined comprehensively to ascertain the scope of this legislation.
  4. There should be a stricter punishment which is proportionate to the gravity of the offence. The social stigma surrounding sex and nudity in India has multi-fold implications on the lives of the victim. The seriousness of the offence should be judged in the context of the social background of India.
  5. The private and consensual act of sharing sexually explicit content between two adults should be excluded from the purview of the legislation.

Conclusion

The widespread use of the internet and mobile phones is both a boon and a bane in today’s world. Mindless sharing of content online is just a click away and this encourages the irresponsible transmission of sexually explicit content. Therefore, there is a need for the laws of the country to be changed accordingly so that these emerging problems are effectively dealt with.

Currently, most of the laws applicable in such cases are either outdated or not comprehensive enough to govern the issue of non-consensual capturing and transmission of sexually explicit content. Therefore, new legislation specifically dealing with the issue and prescribing stricter punishment to deter the offenders is the need of the hour.

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