Author - Vidhik Kumar
Introduction
The advancement of the cyber industry led to the emergence of various cyber threats, which were relatively unheard of, and revenge porn is one of such pitfalls. Revenge porn erupted as one of the most common and recurring types of cybercrime all over the globe as cyber laws in most jurisdictions were lagging far behind and were not at par with the rapidly evolving cyberspace, and in jurisdictions where they existed, they were not framed efficiently at all. Though the situation has changed for the better now, there is still room left for further development in the laws regarding revenge porn.
The U.S. and India being the cyber hotspots of the world required a quick formulation of laws to criminalise revenge porn. Though the countries successfully implemented laws, there are still shortcomings that need to be addressed. Before divulging into how the legal system of these two democracies dealt with the issue of revenge porn, it is vital to comprehend as to what amounts to revenge porn.
Outlining the definition of the ‘revenge porn’ and the drawback attached to it
Publishing or transmitting an identifiable person’s naked images on the internet without their consent as an attempt to punish or harass them for revenge amounts to revenge porn.[1] Though it cannot be pointed out when such a crime surfaced in our legal systems, yet it only managed to gather public attention in 2010, when a website ‘Anyone Up’ came up,[2] where the users were allowed to upload nude photographs. Though the website was subsequently succumbed to be put down, it exposed the overdue of the developments in cyber-criminal-law.
The term revenge porn itself is misleading and has thus often been the core factor behind legislators to legislate in the wrong direction missing out the core nature of the crime. As the commonly known definition of revenge porn goes, it amounts to an act of posting explicit private pictures of a person online without their consent, seeking revenge with an attempt to punish or harass the person.[3] In most of the cases, the legal junctions of the definition can be observed to be met, wherein the perpetrators were generally, jealous ex-partners of a person seeking revenge.[4] There also have been instances where the perpetrators did not even know the victim and were not seeking revenge, but were acting due to various other impersonal reasons;[5] that is to boast among friends, gather fame, make money, to provide entertainment or for sexual gratification.
For instance, consider these cases where the perpetrators were not seeking revenge: leaking of private images stolen from numerous celebrities by an anonymous individual in order to obtain bitcoins;[6] intimate images obtained from a female arrestees phone leaked by California Highway patrol as part of a game among colleagues;[7] notorious revenge porn sites by Hunter Moore and Craig Brittain publishing thousands of sexually explicit images for profit and entertainment; the controversial case of Bois Locker Room,[8] where a group of several school teenagers from different schools posted images of girls and engaged in sexually explicit conversation.
The evidence thus indicates that revenge porn need not always be about revenge, and the perpetrator may not always be acting in an attempt to harm, punish, or harass the victim. Therefore, the notion that revenge porn is intentional misconduct to harm at its center must be dropped. Just like every other wrongful misconduct, where the violation of a person’s privacy is wrong and punishable, irrespective of motive; revenge porn must be looked at without the lens of motive or intention. Revenge porn is less about revenge, but more about privacy infringement and thus should be termed as non-consensual pornography,[9] as the essence of it is leaking private images without consent.
Critical appraisal of the standing laws pertaining to revenge porn in the U.S. and India
In view of the abovementioned notions, it is vital to note that various states throughout the U.S. made a major blunder in formulating the law by making it about harassment instead of violation of privacy.[10] Only if harassment laws were efficient enough to curtail ‘non-consensual pornography’ there would not have arisen a need to enact a new duplicative harassment law, and then thousands of victim would not be stranded without legal recourse.[11] Also the condition regarding ‘intention to harm’ makes it further difficult to bring justice to the victim as there may not exist an intention to harm as the perpetrator may be acting out of other impersonal reasons, as mentioned above. However, the nonexistence of intention to harm and actually causing harm are two different scenarios, and one can cause harm without an intention which surely happens in every case of non-consensual pornography. Therefore, the problem does not arise with respect to that; the problem arises when the intention to harm leads to an unavoidable interpretation of privacy infringement law into harassment law. Though it appears irrelevant at first glance, it becomes highly deadly when the defence attorney twists it. Mostly in harassment cases, a course of conduct is a pre-requisite, that is a single incident is not enough to make a person liable;[12] it revolves around repeated behaviour. Further harassment law requires the perpetrator to have direct contact with the victim,[13] and it is highly unusual in cases of non-consensual pornography that the perpetrator may contact the victim. The repercussion of such an edgy law became evident in the first case of revenge porn in New York; People v. Barber,[14] where the charge on Barber was dismissed as he did not send the pictures directly to his girlfriend.
On the other hand, as compared to the U.S., Indian legislators were successful in reaching the core of the issue. The essence of §66E of the Information Technology Act, 2000 relates to the violation of privacy and not harassment.[15] It not only prescribes punishment for publishing or transmitting an image of the private area but also for capturing it, even though there exists a separate section for voyeurism in the Indian Penal Code.[16] Furthermore, §66E of the Information Technology Act, 2000 is gender-neutral, unlike, many other gender-biased sections of the Indian Penal Code, 1860 dealing with crimes of violation of privacy (rape) or violence and thus does not consider women only as victim and men only as perpetrators. Also, the section defies the general definition of revenge porn occurring only in cyberspace and thus penalises the transmitting of explicit private images without consent in printed form also, which is absent among many U.S. state laws.
However, they made a categorical error in framing other subsequent sections encompassing non-consensual pornography. §67 of the Information Technology Act, 2000,[17] brought in with an amendment in 2008, served as an ally to §66E and provided additional relief to the victims of non-consensual pornography. It further prohibits publishing or transmitting sexually explicit content which is lascivious and would corrupt the mind of a person who may see or read it. However, as to what constitutes luscious or obscene is vague in the section, and thus renders it prone to misuse and misinterpretation.
The language of the section is plain and simple, and it becomes apparent that the purpose of it is to restraint publishing and transmitting sexually explicit, obscene content. However, on closely reading the section it prima facie becomes clear that though the section can be invoked to provide a remedy to the victim, it can also be invoked to prosecute them.[18] The section fails to distinguish consensual acts involving obscenity from the non-consensual ones, as a result of which there exists a scope for the societal/cultural standards to creep in. Thus due to this neglect to ‘consent’, the acts of violation of privacy are often looked from the lens of obscenity, therefore defeating the entire purpose of the section. The DPS MMS scandal,[19] perfectly demonstrates how the section was invoked to stop obscene material instead of protecting the victim’s privacy, which was grossly being violated due to the wide circulation of their video having sexual intercourse in the school premises in which their faces were clearly visible and hence easily identifiable.[20]
According to the report ‘Guavas and Genitals’[21], out of 99 cases registered for obscenity between 2015-2017, only 28 were non-consensual. Further, despite these 28 cases of being non-consensual nature, they were only booked for obscenity under §67 and not for violation of privacy under §66E. The report also demonstrated how the crimes involving consent were consistently booked under §67, making it the most invoked section of the Information and Technology Act after §66E.[22] The report further found that rape videos and other non-consensual acts were only being booked for obscenity and not for violation of privacy, henceforth the purpose of both the sections was being defeated.[23]
Thus, it becomes highly difficult to determine whether the legislators framed the sections in such a way on purpose or was it an inadvertent error, as the sections have been invoked by the government both to curb obscenity over the internet and to curtail political, religious, and artistic comments under the garb of obscenity.
Irrespective of such shortcomings in the law, the High Court of West Bengal not only fined and imprisoned the perpetrator for five years but also directed the state government to treat the victim as a rape survivor and further provide her appropriate compensation, in State of West Bengal v. Animesh Boxi[24] which is considered to be the first ever-case of conviction in India.
Conclusion
The only conclusion which can be drawn from the development of cyber-criminal-law in the U.S. and India is that implementing laws to curtail nonconsensual pornography though were the required initial steps in the right direction, the situation has hardly changed in India and the U.S.[25] In both India and the U.S., laws regarding revenge porn are not quite longstanding, and thus there exists a deficiency of precedents for the courts to decide the issues of revenge porn and provide an appropriate remedy to the victim of revenge porn as a result of which both reporting and conviction of perpetrators remain low in both the counties.[26] Further, due to the shame and stigma often attached to the victim of non-consensual pornography by the people, the victims refrain from reporting the crime. Furthermore, the incident of non-consensual pornography leaves an everlasting devastating impact on the victim’s life after coming to limelight and keeps haunting them for years by continously popping up and affecting their chances of future employment and relationships. Thus there arises a need to educate the people about survivors of non-consensual pornography and provide them with essential therapies and utmost care and respect which are often provided to survivors of rape and other sexual offenses.
[The Author is a 4th-year student from National University of Study and Research in Law, Ranchi.]
[1] Definition of revenge porn, Cambridge Advanced Learner's Dictionary & Thesaurus Cambridge University Press, available at https://dictionary.cambridge.org/dictionary/english/revenge-porn (Last visited on September 9, 2020).
[2] Amanda Hess, Hunter Moore Is Probably Going to Prison. How Scared Should Revenge Porn Kingpins Be?, SLATE, February 20, 2015, available at
https://slate.com/news-and-politics/2015/02/hunter-moore-guilty-plea-revenge-porn-king-pleads-guilty-to-hacking-faces-years-in-prison.html (Last visited on September 19, 2020).
[3] Mary Anne Franks, Drafting an Effective 'Revenge Porn' Law: A Guide for Legislators, August 17, 2015, available at https://ssrn.com/abstract=2468823 or http://dx.doi.org/10.2139/ssrn.2468823 (Last visited on September 19, 2020).
[4] Matthew Hall & Jeff Hearn, Revenge pornography and manhood acts: a discourse analysis of perpetrators’ accounts, 28 (2) Journal of Gender Studies, 158-170, (2019).
[5] Mary Anne Franks, How to Defeat ‘Revenge Porn’: First, Recognize It’s About Privacy, Not Revenge, HUFFPOST, June 22, 2015, available at
https://www.huffpost.com/entry/how-to-defeat-revenge-porn_b_7624900 (Last visited on September 19, 2020).
[6] Rob Price, Bitcoin beggars try to profit off #CelebGate, Dailydot, March 1, 2020, available at https://www.dailydot.com/crime/celebgate-jennifer-lawrence-nude-leakers-bitcoin/ (Last visited on September 19, 2020).
[7] Martha Gafni & Malaika Fraley, Warrant: CHP officer says stealing nude photos from female arrestees ‘game’ for cops, The Mercury News, August 12, 2016, available at
https://www.mercurynews.com/2014/10/24/warrant-chp-officer-says-stealing-nude-photos-from-female-arrestees-game-for-cops/ (Last visited on September 19, 2020).
[8] Mahender Singh Manral, Bois Locker Room case: 5 boys questioned over messages on Instagram group, The Indian Express, May 6, 2020,available at
https://indianexpress.com/article/cities/delhi/bois-locker-room-case-5-boys-questioned-over-messages-on-instagram-group-6396040/ (Last visited on September 19, 2020).
[9] Danielle Citron & Mary Anne Franks, Evaluating New York’s “Revenge Porn” Law: A Missed Opportunity to Protect Sexual Privacy, Harvard Law Review Blog, March 19, 2019, available at
https://blog.harvardlawreview.org/evaluating-new-yorks-revenge-porn-law-a-missed-opportunity-to-protect-sexual-privacy/ (Last visited on September 19, 2020).
[10] Mary Anne Franks, It’s Time For Congress To Protect Intimate Privacy, HUFFPOST, July 18, 2016, available at
https://www.huffpost.com/entry/revenge-porn-intimate-privacy-protection-act_b_11034998 (Last visited on September 19, 2020).
[11] Citron & Franks, supra note 9.
[12] Id.
[13] Michael L. Pittaro, Cyber stalking: An Analysis of Online Harassment and Intimidation, 1 (2) International Journal of Cyber Criminology, 180,197; Citron & Franks, supra note 9.
[14] People v. Barber, 289 N.Y. 378 (N.Y. 1943).
[15] Information Technology (Amendment) Act 2008, §66E.
[16] Indian Penal Code, 1860, § 354C.
[17] Information Technology Act, 2000, §67 (Punishment for publishing or transmitting obscene material in electronic form., inserted vide Information Technology (Amendment) Act 2008).
[18] Aditya Krishna, Revenge Porn: Prosecution Under the Current Indian Legal System, The Criminal Law Blog, National Law University, Jodhpur, April 13, 2020, available at
https://criminallawstudiesnluj.wordpress.com/2020/04/13/revenge-porn-prosecution-under-the-current-indian-legal-system/ (Last visited on September 19, 2020).
[19] Ayswaria Venugopal, Scandal in school shakes up Delhi, The Telegraph Online, November 26, 2020, available at
https://www.telegraphindia.com/india/scandal-in-school-shakes-up-delhi/cid/1667531 (Last visited on September 19, 2020).
[20] Shubhra Agarwal & Anusha Agarwal, Section 67 of IT Act 2000: Scope, Misuse and the Striking Inadequacy, The Criminal Law Blog, National Law University, Jodhpur (June. 2, 2020), available at https://criminallawstudiesnluj.wordpress.com/2020/06/02/section-67-of-it-act-2000-scope-misuse-and-the-striking-inadequacy/ (Last visited on September 19, 2020); Id.
[21] Bishakha Datta, Guavas and Genitals, National Dialogue on Gender-based Cyber Violence, avialable at
https://itforchange.net/e-vaw/wp-content/uploads/2018/01/Smita_Vanniyar.pdf (Last visited on September 19, 2020).
Bishakha Datta, Guavas and Genitals, National Dialogue on Gender-based Cyber Violence, avialable at
https://itforchange.net/e-vaw/wp-content/uploads/2018/01/Smita_Vanniyar.pdf (Last visited on September 19, 2020).
[22] Id.
[23] Id.
[24] State of West Bengal v. Animesh Boxi. (2018). C.R.M. No. 11806 of 2017.
[25] Mudasir Kamal & William J. Newman, Revenge Pornography: Mental Health Implications and Related Legislation, 44 (3) Journal of the American Academy of Psychiatry and the Law, 359-367; Yeshapaul, Dealing With Revenge Porn in India, Centre For Communication Governance, NLU Delhi, May 23, 2018, available at https://ccgdelhi.org/2018/05/23/dealing-with-revenge-porn-in-india/ (Lastly visited on September 19, 2020).
[26] See Krishna, supra note 18; Id.
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