Dealing With Revenge Porn in India

Also see: Legal Remedies for Online Harrasment in India

By Yesha Paul

In March of 2018, a man in West Bengal was sentenced to five years imprisonment and fined Rs 9,000 for uploading private pictures and videos of a girl without her consent as revenge for ending their relationship. Under the promise of marriage, the accused pressured the complainant into providing explicit images of herself, and leveraged his threats to upload these pictures onto social media to acquire more pictures. Later, he accessed her phone without her knowledge to retrieve more private pictures and videos. When the complainant refused to continue their relationship, he uploaded this material onto a popular pornographic website along with both her and her father’s names. In addition to the defendant’s imprisonment and fine, the state government was directed to treat the victim as a survivor of rape and grant appropriate compensation. With evidence provided by service providers Reliance Jio and Google, the perpetrator was convicted under Sections 354A, 354C, 354 and 509 of the IPC as well as Sections 66E, 66C, 67 and 67A of the IT Act, in what is likely the first revenge porn conviction in India.

Revenge porn is a form of non-consensual pornography that came to international attention with the 2010 launch (and subsequent 2012 takedown) of the popular website IsAnyoneUp, which allowed users to upload nude photographs. While a number of these images were ostensibly self-submitted, many were revealed to have been submitted by angry ex-lovers, which would amount to ‘revenge porn’. Compounding the issue was the fact that these explicit images deliberately linked to the social media profiles of the person in the image.

According to Halder and Jaishankar, the essential elements of revenge porn are that the perpetrator and the victim shared an intimate relationship, and that the former has deliberately (and without the victim’s consent) released sexually explicit information online in order to cause distress and harm to the victim’s reputation.

While revenge porn is often used interchangeably with the term “non-consensual pornography”, it is distinct from other forms of non-consensual pornography such as rape videos, morphing or voyeurism. For instance, non-consensual pornography includes within its ambit sexually explicit images captured without a person’s knowledge or consent. However, revenge porn often includes such sensitive information that has voluntarily been captured or sent to the perpetrator in good faith in the course of an intimate relationship. Further, unlike in the case of revenge porn, not all perpetrators of non-consensual pornography are motivated by personal feelings such as revenge (as in the case of hackers who released intimate photos of more than 100 female celebrities after gaining access to their private iCloud accounts).

As a result, researchers are moving away from the term “revenge porn” as it can be somewhat misleading. “Revenge” limits the scope of this offence to motivations of personal vengeance, whereas such an act could be motivated by a desire for profit, notoriety, entertainment, or no reason at all. “Porn” implies that all images of nudity are intrinsically pornographic. Sexually explicit images created and shared within a private relationship should not be considered pornographic, unless they are distributed without consent, as this results in a private image being converted into public sexual entertainment. Accordingly, many victim advocates prefer to use the term “non-consensual pornography” or non-consensual sharing of intimate images.

Although the National Crime Records Bureau documents cyber-crimes against women, there are no official statistics available that pertain specifically to revenge porn in India. A 2010 report suggests that “only 35 per cent of the women have reported about their victimization, 46.7 per cent have not reported and 18.3 per cent have been unaware of the fact that they have been victimized … women prefer not to report about their victimization owing to social issues.” Victim-shaming (both by the criminal justice system and the public at large) is common, and the potential social fallout often extends to the victim’s family as well.

The recent surfeit of revenge porn has prompted many countries to enact legislation that criminalises it. These include the UK, many states in the USA, Canada, Australia, Japan and the Philippines.

At present however, there are no legal provisions that directly address revenge porn in India. While certain sections in the Indian Penal Code (IPC) and Information Technology (IT) Act can be invoked by victims, they fail to fully encompass the complexity of such cases and do not specifically target non-consensual pornography published online.

Section 354C of the IPC makes voyeurism punishable, and Explanation 2 to the Section deals with the non-consensual dissemination of consensually-captured images. However, this section limits its scope to female victims and male offenders.

In cases of non-consensual pornography (particularly those that involve morphing), victims can also seek recourse under Section 499 of the IPC for criminal defamation.

Section 66E of the IT Act punishes the transmission of images depicting the private areas of a person. The Explanation to the section limits private area to “… the naked or undergarment clad genitals, pubic area, buttocks or female breast”. This provision is gender-neutral and captures every aspect of revenge porn while not addressing it by name. However, the narrow definition of “private areas” in this case could limit the applicability of the act in cases where the victim is captured in an intimate position without showing those particular areas.

Section 67A of the IT Act punishes publication or transmission of “material containing sexually explicit acts, etc. in electronic form”. While this can effectively punish perpetrators, it also risks including within its ambit, victims who may have voluntarily captured and shared such private content with their partners.

The recent Supreme Court judgment recognising privacy as a fundamental right could have substantial implications on revenge porn and non-consensual pornography in general, in light of arguments recognising the right to bodily integrity. Copyright law could also potentially be used by victims, particularly when the content is a selfie. By claiming a violation of their copyright, a victim could potentially get such material taken down. While Indian copyright law does not presently provide any relief to victims of revenge porn, some victims in the US have successfully enforced their copyright to get such images taken down.

Social media platforms are often used to disseminate such content. Until recently, their role was limited to removing non-consensual pornography and other offensive images. However, there have been calls for them to play a more active role and filter this content before it is uploaded. Facebook has attempted to prevent the re-posting of revenge porn by cataloguing content which had been previously reported as revenge porn on its site.

The gender disparity in victims of non-consensual pornography is a reflection of the hostility still faced by women on the internet today. Involuntary porn today can be considered “the sexual harassment of 20 years ago. It’s an easy way to punish women for behaving in ways that they don’t approve of – for leaving them, for rejecting them, for being happy without them.”

Also see: Legal Remedies for Online Harrasment in India

Yesha is a Programme Officer at the Centre for Communication Governance at National Law University Delhi