In the prevailing era of digitization, the ambit of cyber-crimes is evolving at an alarming rate, a byproduct being the Non-Consensual Dissemination of Intimate Images. The structure of the blog is as follows. It begins with a semantic analysis of the term ‘Revenge Porn’ and how it is not applicable in the context of the abovementioned offence by interpreting each term and providing a brief analysis of the underlining concepts.
This is followed by the statutory framework through analyzing provisions from the Indian Penal Code, 1860 and the Information Technology Act, 2000 which implicitly deals with the offence. Then, further through case laws that refer to the Code as well as the Constitution to lay down holistic analysis which widens the scope of human rights. Lastly, a multijurisdictional approach is taken to analyze the legal framework of nations, namely Australia, Canada, and the UK to trace their progress in sexual crimes specifically focusing on intention as well as consent.
Why it is not termed as “revenge porn”?
To provide analysis in this regard, each term will be explained in brief along with context. The term “Non-Consensual”[1] elaborates on the fact that it is the consent that forms the basis of this offence sidelining the content itself. This distinguishes it from sexual violence which revolves around victim blaming. “Dissemination” is an umbrella term that covers different forms of possible forms of transfers like transmission, conveyance, publication[2] etc. of intimate materials. Lastly, the term “Intimate Images” encompasses all forms of materials which can be in obtained in someone’s private domain.
When an inaccurate term is used, it impacts victim in many aspects. When the term “Revenge” is used then resultantly, the onus shifts on the victim as why he/she consented to it. This leads to moral policing which spreads awareness to refrain from sharing such content altogether which do not help the cause. This narrows down the spectrum of harms which are covered under this complex offence. Therefore, the term used now is more comprehensive and focuses on the foundation which is consent.
Unveiling the statutory provisions under Indian Penal Code and Information Technology Act
The relevant provisions include Section 292[3] which deals with selling, hiring, distributing as well as exhibiting obscene materials, although it fails to consider circulation undertaken through electronic means. Secondly, Section 354C[4] which mentions voyeurism to encounter private act of females, no transfer of published materials takes place in this offence. Section 499[5] deals with defamation which negatively impacts an individual’s reputation either in reality or belief, the damage inflicted through the offence goes beyond mere reputation but destroys relationships, privacy and mental health as well. Section 509[6] dealing with harming a women’s modesty by ways of words, objects and action encroaching upon her privacy, this provision has limited application in respect of the concerned offence.
Section 66E[7] provides for punishment relating to transmission of images of private parts which includes “naked or undergarment-clad genitals, pubic area, buttocks, or female breast.” The ambit of this provision is restrictive since it delineates only the specific body parts which is not applicable in all cases. Under Section 67A[8], the individuals engaged in publication and transmission of sexually explicit materials are prosecuted, the grey area in this provision is that the victims who took such picture themselves without any force and sent them to their partners also fulfil the criterion to be held punishable under this act.
Exploring judicial decisions
A rationale of a landmark judgement K.S. Puttuswamy Vs. Union of India[9] is applicable in this context. It emphasized on the fundamental right to privacy, which includes right to be forgotten. The privacy includes regulating the availability of personal information to the public and control data. This enables to understand this offence in context of right to privacy.
One of the first cases to discuss the issue was State of West Bengal Vs. Animesh Boxi[10], he was held guilty of distribution of intimate audio and visual materials of his partner post relationship. The case was treated in the same manner as that of sexual violence. The inadequacy in terms of approaches adopted by the court was victim centric additionally, the victim was treated as a rape survivor which was not adequate. On the constitutional front, one of the major views upheld in Subhranshu Rout Vs. State of Odisha[11] was that circulation of objectionable material pertaining to the victim on social media platforms without obtaining consent is considered outraging women’s modesty and violates right to privacy. Under ‘Right to be Forgotten’, in view of this case, deleting the materials permanently is essential.
Determining criminalization through multijurisdictional approaches of various nations
Australia
One of the major legislative measures adopted by the nation is ‘Criminal Code Amendment (Private Sexual Material) Bill 2015’ aims to punish individuals who share or threat involved to share[12] sexually explicit images and videos which are obtained without consent or there is similar risk of damage or distress to the victims is introduced at commonwealth level. It also covers individuals involved in possession, control, production, supply sexual private materials for commercial purpose or for deriving a benefit.
Canada
The relevant legislation in this regard is ‘Protecting Canadians from Online Crime Act 2014’ under which if an individual intentionally publishes, sell, distribute or transmit[13] an intimate image of another individual provided it can be both consensual or reckless disclosure to commit crime and be guilty. Defence available is that the conduct serves public purpose without extending what goes beyond that. While the former is question of law and latter, question of fact.
UK
Under the legislative frameworks[14], the ingredients of the offence include:
- Disclosure to outside party of private picture or video which include sexual connotations.
- Consent of the victim not obtained.
- Intention to harm another individual is present.
- Distribution made electronically or physically.
This affirms a narrow approach which interpret sexual in literal sense. However, another framework titled ‘Abusive Behaviour and Sexual Harm (Scotland) Act 2016’ is more holistic. It charges the person who transmit or merely threaten to transmit an image or video which is taken in compromising position, whether the intention to harm is involved or not is immaterial.
Conclusion
Analysing the semantic framework of the term, it was established that revenge porn is not sufficient to inculcate the ingredients of the concerned offence. Whereas in revenge porn, the sole focus lies in ascertaining the motives and sideline consent which form the crux of the offence analysed.
IPC adopts a more gendered approach and deals with sexual offences which are female centric. IT Act, on the other hand, adopts gender neutral approach to deal with cyber-crimes. The legislative frameworks are not exhaustive in nature. They must be intertwined with the Constitution as well as the Cases to arrive at liberal interpretation which is more suitable. The legal frameworks in several nations are progressive steps undertaken to address the evolving nature of the crime.
Overall, revoking the penal system and addressing the terminological deficiencies are the need of the hour. Priority should be placed on developing safe passages for filing complaints and undergoing trials. The approach must be multidimensional to address the complexities involved.
[1] Miha Šepec, Revenge Pornography or Non-Consensual Dissemination of Sexually Explicit Material as a Sexual Offence or as a Privacy Violation Offence, 13 Int. J. Cy. Crim. 418. 427 (2019), visit at https://www.cybercrimejournal.com/pdf/MihaSepecVol13Issue2IJCC2019.pdf
[2] Id. at 429.
[3] Indian Penal Code, 1860, No. 45, Imperial Legislative Council, 1860 (India).
[4] Id.
[5]Id.
[6]Id.
[7] Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India).
[8] Id.
[9] (1964) 1 SCR 332.
[10] C.R.M. No. 11806 of 2017.
[11] BLAPL No.4592 OF 2020.
[12] 474.24F Criminal Code Amendment (Private Sexual Material) Bill 2015.
[13] Section 162.1 Protecting Canadians from Online Crime Act,2014.
[14] England and Wales Criminal Justice and Courts Act (2015), Justice Act (Northern Ireland) 2016.
Author: Deepika Pathania is a 4th Year student at Hidayatullah National Law University.
