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REVENGE PORNOGRAPHYAND LEGAL PROTECTION OF VICTIMS IN INDIA
BY: NAINA GUPTA
EDITOR – KANISHK KUMAR SINGH
Abstract
Digital technology, social media and the internet have evolved rapidly, which has given significant benefit in sharing information and communication globally. These developments have, however, led to new types of cyber crimes and revenge porn which means the non-consensual sharing of intimate visual or recorded materials is one of the form. Revenge porn consists of publishing, distribution or threatened publication/distribution of intimate visuals without the consent of the concerned persons-either to embarrass, sexually harass, shame, or to insult and defame or to damage a person’s name or reputation. Revenge pornography is on the rise in India along with the use of smartphones and social networking sites. While no separate law deals with the offense of revenge pornography in India, some sections of the IT Act 2000, the Bharatiya Nyaya Sanhita, 2023 and related legislations provide the necessary remedy to a victim of revenge pornography. In this article, revenge porn has been discussed as a form of crime, present scenario and legal status in India has been analyzed and reforms have been discussed with the aim to provide better support to victims of revenge porn in India. The issue of revenge porn is increasingly being addressed as a crime and also as a threat to a person’s privacy, dignity and control over their body.
Introduction
Interpersonal relations are now, mediated by technology due to digital revolution, facilitating personal communications, exchange of personal information, and intimacies between persons, on the digital world. Sharing personal photos/videos has become an accepted feature of personal relationships owing to increased access to smart phones and social media networks. If such sharing happens on the voluntary basis within private relationships, issues arise when personal intimacies are put on public domain without any regard to the right of victim. This concept of revenge pornography has became one of the most concerning types of cyber enabled gender based violence that largely targets women and young people.
Revenge pornography can have devastating physical, emotional, social and financial impact. Sharing of private images can lead to humiliation, anxiety, depression, loss of social standing, loss of employment, etc. Unlike other forms of harassment, digital material can be reproduced, distributed, and accessed without limitations. Thus revenge pornography is a major concern for many legal systems including India where cyber crime has flourished parallel to advancement of technology.
Meaning and Nature of Revenge Pornography
Revenge pornography happens when images of an individual are distributed, circulated or published on internet ( social media network) without their knowledge or consent of the third party or within the context of a past or current relationship. Originally the term was primarily focused on incidents where ex-partners distributed explicit imagery following the end of the relationship in an attempt to extract revenge. However, contemporary literature acknowledges the more complex nature of phenomena, now including blackmail, sextortion, harassment and dissemination by a third party after an attack, a hacking or an abduction. For this reason many academics favor the more widely-used term, “non-consensual intimate image distribution” or “image-based sexual abuse”.
The defining characteristic of the revenge pornography is that the consent that was given to the creation of the imagery within a private space has not been extended to the publication or dissemination of the imagery, and the individuals concerned have suffered an acute breach of privacy. It’s impacts are often devastating as digital images can be instantly transmitted to a multiplicity of parties, copied numerous times and difficult, if not impossible to erase from the internet, unlike a traditional form of harassment.
Causes and Growth of Revenge Pornography in India
There are a number of reasons for the increase in the incidence of revenge pornography in India. Firstly, an increasing number of smart phones are now equipped with sophisticated cameras, which make it possible for people to take and store pictures of an intimate nature. Applications used for networking, instant messaging and cloud storage further ease the distribution of this material. The growing accessibility of internet services and technology have, in turn, increased the scope for its abuse. Secondly, relationship breakdowns have led to instances of misuse of the sexual material of an individual. For example, a woman’s estranged partner may circulate her private pictures to get even with her or for his personal satisfaction. In other instances, criminals steal sensitive photos via hacking, phishing or unauthorized access of the digital storage devices of a woman and subsequently blackmail or extort money from her. Third, due to the recent advancement in artificial intelligence and deep fake technology, it is possible to create simulated pornographic videos and images by super-imposing a person’s face on another.
Legal Framework in India
Right now there is no separate law specifically to combat revenge pornography. However, victims can receive protection under several sections of existing laws, particularly under criminal and cyber laws. The IT Act, 2000, is mainly aimed to restrict the publication or transmission of obscene and sexually explicit material on the internet. Sections 67 and 67A of the IT Act, made the publication or transmission of obscenity or sexually explicit material in electronic form an offense and these sections were used to prosecute cases related to the non-consensual distribution of sexually explicit material and images. The Bharatiya Nyaya Sanhita, 2023 has replaced the Indian Penal Code (IPC) and provides a number of provisions that are relevant to revenge pornography. In few circumstances, acts like voyeurism, stalking, criminal intimidation, defamation, and invasion of privacy may be brought under the perview of criminal law. Voyeurism has been used in some cases where there was surveillance to record intimate pictures and images. Many Indian courts have now established that sharing sexually explicit pictures of a person without their consent amounted to violation of individual dignity and privacy. The right to privacy which has been declared as a fundamental right by the Indian judiciary, by the case of Justice K. S. Puttaswamy v. Union of India, can also be enforced to seek protection from revenge pornography. Decision of the Supreme Court of India, inter alia established the privacy as a fundamental right, under Article 21 of the Indian Constitution, which could now be used to support claims for protection from unwarranted disclosure of sexually explicit content. It violates bodily autonomy and privacy informational.
Challenges Faced by Victims
For the victims of revenge pornography, there are many hurdles that can prevent access to meaningful relief and justice. The primary obstacles include: The excessive growth of the content through the internet, even though authorities can delete the content from the one specific website, copies can spread through other web sites, messaging applications or anonymous bulletin boards, so the full removal of the images from the internet becomes impossible, thereby causing an unending pain to the victim. Social branding is the second main obstacle, in India, victims of revenge pornography are often held responsible for a too much high degree for the publication of their private images, especially when they are women. They often face social isolation, victim-blaming, social stigma, as well as a professional impact on their lives and psychological damage. These factors lead the victims to avoid reporting such offences to law enforcement agencies because they are afraid of the societal repecurssion of an already deeply humiliating experience. It is for this reason that many instances of revenge pornography go unreported in India. Procedural and investigation obstacles are also relevant in enforcing the existing provisions of the law; investigations into crimes occurring over the internet require establishing jurisdiction, identifying anonymous persons who can utilize encrypted communication and have access to transnational data transfers, so agencies will likely need to receive additional specialized training and acquire relevant technological means, in addition to being able to remove content and prosecuting culprits.
Judicial Response and Emerging Trends
Indian courts have recognized the severity of revenge pornography and its effect on the rights of the victim. Judicial pronouncements have affirmed that, “unauthorized distribution of sexually explicit images is a violation of fundamental rights of privacy and dignity of a woman”. Courts have issued orders and injunctions directing removal of the offending material and provided an immediate remedy to curb the harm.
The judiciary seems to be slowly catching up on contemporary notions of cyber sexual violence. We are moving towards conceptualizing revenge porn as gender based violence and not just obscenity offense. The focus of the courts has moved from concerns about obscenity to the plight and protection of the victim, her privacy, dignity and psychological distress. Many law scholars have argued that revenge porn should be a separate offense because of the specific circumstances of the violation.
Need for Legal Reforms
While current legislation affords some protection, there are several limitations within India’s existing revenge pornography law. The lack of a specific revenge pornography offence contributes to ambiguity regarding the application of the various criminal provisions and the manner in which these provisions are enforced. The creation of a specific offense of revenge pornography would make the investigation and prosecution and judicial proceedings related to cases of revenge pornography easier and more certain. Furthermore, there should be an affirmative duty on digital service providers and intermediaries to take prompt action to remove non-consensual intimate images from their services. Delay in removing the images continues to cause considerable damage by allowing wider proliferation. Given international legal trends toward requiring a greater degree of platform liability and rapid takedown procedures for image-based sexual abuse, India could implement similar legal reforms.
Recommendations
There is a need to pass specific laws in India criminalizing revenge pornography as well as all kinds of nonconsensual distribution of intimate images. This legislation should cover strict punishments, clear definitions and remedies centered around the victim. The legislation should not forget about the new threats like AI deepfake pornography and digital intimate image manipulation. Specialised cyber crime units need to be empowered by adequate technological training and resource distribution. Quick processes for content removal and assistance to victims need to be established to mitigate an ongoing harm. Confidentially and easily available psychological counseling, legal aid facilities and reporting methods need to be provided to the victims. Public awareness drives also need to be undertaken to overcome victim blaming tendencies and encourage digital consent awareness.
Conclusion
Revenge porn is a very serious issue that warrants a separate statute for itself. Presently, several provisions from IT Act and IPC have been used in India to proceed against the perpetrators several convict them but such perusal of different provisions under various laws is not a viable course of action. None of the existing laws deal specifically and substantially with the problem of Revenge porn. Thus, multiplication of laws creates confusion and ambiguity regarding the application and hence conviction in these cases becomes highly improbable.
The enormous growth of the internet and the access to every information has become a threat to privacy. With the increase in revenge porn crimes, there needs to be an encouraging environment for the victims to come forward and report the crimes in an already tabooed society with all the societal pressure and social stigma. Though the existing laws in India are trying to combat the rise in cases related to ‘revenge porn’ every single day, they are not adequate enough in dealing with the entirety of the issue. To deal with all these perpetuating problems, an exclusive and extensive statute, with gender neutrality and detailed definitions, Solely dealing with ‘revenge porn’ had to be enacted.
REFERENCES
Statutes
1. Information Technology Act, 2000.
2. Bharatiya Nyaya Sanhita, 2023.
3. Constitution of India, Article 21.
Books
4. Danielle Keats Citron, Hate Crimes in Cyberspace (Harvard University Press, 2014).
5. Clare McGlynn & Erika Rackley, Image-Based Sexual Abuse: A Study of the Causes and Consequences of Non-Consensual Intimate Image Sharing (Routledge, 2021).
Journal Articles
6. Danielle Keats Citron & Mary Anne Franks, “Criminalizing Revenge Porn”, 49 Wake Forest Law Review 345 (2014).
7. Clare McGlynn & Erika Rackley, “Image-Based Sexual Abuse”, 37(3) Oxford Journal of Legal Studies 534 (2017).
Reports and Online Sources
13. National Crime Records Bureau (NCRB), Crime in India Report (latest edition).
14. UN Women, Online Violence Against Women and Girls: A Global Wake-Up Call.
15. Ministry of Electronics and Information Technology, Government of India, Cyber Laws and Guidelines.
16. Law Commission of India Reports relating to Privacy and Cyber Crime.
17. India Code Portal – Legislative Database of India.