Understanding ‘Revenge Porn’:
The term ‘Revenge Porn’ is not common among the masses; though it is becoming increasingly familiar. The victims of the Revenge Porn are in the corners, waiting to get justice. But, what exactly is Revenge Porn? Is the use of the phrase ‘Revenge Porn’ even appropriate? It is not. Because the use of the word ‘porn’ suggests that it is consensual, which is not in reality. It is better described as Non-Consensual Pornography[1].
Revenge porn is mainly, a combination of two things: Sexual abuse and breach of sexual privacy. The hint is in the name itself; revenge taken by a former partner when a person leaves the relationship. However, now it also includes disclosure of images and films by any person without the consent of the victim and with the intention of emotional distress and harasses. Moreover, there are websites specially designed for revenge porn which makes it impossible for the victim to live in society[2]. There have been cases where the victim had to legally change her name, relocate, and find a new job[3].
There are only a handful of countries that have defined ‘Revenge Porn’, which states the underwhelming awareness on this issue. In the United States, almost every state has defined it differently, along with its punishment. However, after a thorough examination of the definitions, there are few elements which are necessary for an act to constitute and be labeled as ‘Revenge Porn’[4]:
- Disclosure of private sexual photographs and films without the consent of the individual with the intent to cause distress, harassment, or embarrassment.
- Discloses, or threatens to disclose, a photograph or a film which shows another person in an intimate situation.
- Such photograph or film has not been disclosed to the public with or without the individual’s consent.
- Distributed such photographs or films knowing that the individual has not given consent.
Is the release of every such photograph liable to be curtailed?
When the release of an image or film is in the public interest[5], it should not be criminalized. For instance, releasing intimate pictures of a sexual predator who holds an influential position in society is a matter of public importance and should be exempted from the purview of Revenge Porn.
Combating Non-Consensual Pornography:
India is far behind in the game of condemning Revenge Porn. Revenge Porn has not been defined specifically in any Indian laws nor does it specifically make it a crime. Usually, the impunity for engaging in such an act is around two years, with a penalty which different among countries.
Why there should be specific legislation to curb Non-Consensual Pornography?
It is necessary to understand that the act of releasing intimate data does not breach only one area of law. It is sexual harassment, breach of privacy, cyber offences, obscenity, and also copyright law. That is why it is important to make the act of ‘Revenge Porn’ a separate offence for the sake of clarity.
One of the reasons for the need for specific legislation is the question of whether ‘Revenge Porn’ should be classified as a civil or criminal wrong. Theoretically, an act of Revenge Porn is actionable under Tort Law, because it causes distress and harm is suffered by the victim, intentionally caused by another person. It is defamation as well as breach of privacy. Another area is the sexual harassment law wherein the images or films are made or distributed by employers or co-workers, however, it is applicable only to a specific demographic and fails to cover the entire population. One of the interesting arguments is the use of copyright law[6] to protect the victims because, in a situation where the victim captured her own image, it will automatically convert into her copyright over such an image. However, this legal route is also supplemental in nature and is not the solution to the actual problem of sexual abuse. And that is why, most countries have criminalized the act of ‘Revenge Porn’ so that there is a deterrent effect, same with sexual assault. The act of non-consensual pornography is hence, a form of sexual assault with the only difference that the victim might not always be physically assaulted.
India’s Legal Position:
It rare in India that an act of Revenge Porn goes into the trial. One such rare case was decided in 2018[7], wherein a man had uploaded pictures of the girl without her consent because she ended the relationship. Hence, as a ‘revenge’ he decided to upload pictures. He was sentenced to five years’ imprisonment and was convicted under Sections 354A, 354C, 354 and 509 of the IPC and further, Sections 66C, 66E, 67 and 67A of the IT Act. It is at this moment that a need is felt for specific legislation to overcome non-consensual pornography. For instance, Section 354C deals with Voyeurism, meaning if any man watches or captures the image of a woman engaging in a private act when the woman would not have the expectation of being watched. This only covers the situations where pictures are taken non-consensually. However, the issue of Revenge Porn is that even if they are clicked through the consent of the woman, they are leaked or distributed without consent. Similarly, Section 66C of the IT Act deals with Identity Theft and does not cover the essence of Revenge Porn. Section 67E of the IT Act is the closest to capturing the essence of non-consensual pornography. However, it misses the fact that such disclosure of images without the consent of the individual is aimed at causing distress and harassment, majorly by previous relationship partners and while the capture of such image may be consensual, its disclosure is not.
One of the main reasons that such acts do not go to trial is because of the victimization[8]. The feeling of shame affects the victims in a psychological manner in a society where sexual autonomy and sexual activities are not encouraged. And going to trial only makes the victim’s life more public.
What should be India’s way forward?
Incidents of non-consensual pornography are becoming increasingly common, however, convictions are not. The act of non-consensual pornography affects women at the ground level and very few women actually report such abuse. While issues such as victimization will decrease only with societal change and time, a provision which specifically deals and recognizes the act of non-consensual pornography with the intent to “injure, harass or cause emotional distress” to the victim would be the first step. If a law is specifically designed to cater to such acts, more women would come forward to report such acts. Second, there are websites[9] who encourage and promote non-consensual pornography, even provide a forum to the deranged past lovers. Such a forum which provides non-consensual pornography should be banned to decrease the level of such acts. As long as such websites are operating, the number of cases is not likely to decrease. It is time to bring sociological change through law.
References:
[1]Danielle Keats Citron and Mary Anne Franks, Criminalizing Revenge Porn, 49 Wake Forest Law Review, 345 (2014).
[2]Daniel J. Solove &Paul M. Schwartz, Information Privacy Law, (4th Ed. 2011).
[3]Taylor v. Franko, 2011 U.S. Dist. LEXIS 75128 (D. Haw. July 11, 2011).
[4]Shradha Nigam, Revenge Porn Laws across the World, (The Centre for Internet & Society, 25th April, 2018), available at: https://cis-india.org/internet-governance/blog/revenge-porn-laws-across-the-world.
[5]Supra at 1.
[6]Amanda Levendowski, Using Copyright to Combat Revenge Porn, N.Y.U Journal of Intellectual Property & Entertainment Law, Volume 3, 423-439, https://jipel.law.nyu.edu/wp-content/uploads/2015/05/NYU_JIPEL_Vol-3-No-2_6_Levendowski_RevengePorn.pdf.
[7]Yashee, Man getting 5 years in jail for sharing nude video of ex shows India is waking up to Revenge Porn, DailyO, (12th March, 2018), https://www.dailyo.in/variety/revenge-porn-midnapore-cyber-crime-crimes-against-women/story/1/22796.html.
[8]Sara Hussain, Surviving Revenge Porn – 3 Indian Women share their experience, Homegrown, (29th November, 2018), https://homegrown.co.in/article/803204/surviving-revenge-porn-3-indian-women-share-their-experience..
[9]Danny Gold, The Man Who Makes Money Publishing Your Nude Pics, The Awl, (Nov. 10, 2011), https://www.theawl.com/2011/11/the-man-who-makes-money-publishing-your-nude-pics/.
This article is written by Priyanshi Joshi student of 5th Year, B.A.LL.B (Hons.) at Institute of Law, Nirma University.
Also Read – What is Illegal to Watch on the Internet in India?
