Revenge Porn and the Legal Protection against it in India

Updated: May 16, 2021


What is Revenge Porn?

Revenge porn is the act of “posting sexually explicit images of a person without that person’s consent especially as a form of revenge or harassment.” Those images are usually published by a former partner or spouse to entice or to take revenge on them, therefore the term revenge. 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. It also does not include images leaked or hacked by the perpetrator from the phone or other devices of the victim, as prior consent of the captured or sent image is vital for it to be considered revenge porn.


Impact on the victim

The survivors of revenge porn feel that the term “revenge porn” trivialises their experience. It makes them feel as if they have hurt the perpetrator to justify an act of revenge, and the focus on porn encourages victim-blaming as if they should not have taken or allowed to be taken these videos or pictures. This can be related to the Victim precipitation theory, the first theory of victimisation, which contends that victims contribute to the criminal events that harm them, either through victim facilitation or through victim provocation. A victim precipitated crime is an offence that would not have occurred except for the precipitative actions of the victim. For example, a victim of revenge porn may be viewed as responsible for taking and sending an image to someone in the first place. Victims of revenge porn often hesitate in reporting the crime or opening up about it to their family or friends fearing the humiliation that they might have to face. In many cases, the existence of sensitive imagery of the person on the internet is informed to the victims by their family or friend. The process of disclosure of this fact is often more mortifying for the victim than the act of revenge porn itself.



Prior Protection under Indian Law

In a conservative society like India’s, female victims of revenge porn are likely to be emotionally distressed and to have an enormous impact on their future which may last for a lifetime. The harm caused to them is irreversible, mainly because there was no effective legal framework to disable the access to such content or to place any liability on the intermediaries on whose platforms such content is circulated.

Perpetrators of revenge porn in India, if caught, can be punished under the provisions of the Indian Penal Code, 1860 (“IPC”) and the Information Technology Act, 2000 (“IT Act”). These provisions are not specific but cover within their ambit, the offence of revenge porn.

Section 354 IPC that deals with assault or criminal force to a woman with intent to outrage her modesty is a cognizable and non-bailable offence that can be attributed to revenge porn. Further, under Section 354A of the IPC is another penal provision that covers “showing pornography against the will of a woman” as an offence, which though not direct, does cover an aspect of revenge porn. The perpetrators of this crime can also be punished for the offence of Voyeurism under section 354C of the IPC and Section 509 which inflicts a penalty on the use of words, acts, or gestures intended to insult the modesty of a woman.

Under the IT Act, the offence of revenge porn is punishable under Section 66E that deals with the punishment for violation of privacy. Another penal provision that covers this offence is Section 67 of the IT Act. Section 67 of the IT Act lays down the punishment for publishing or transmitting obscene material in electronic form. However, these provisions are inadequate to remediate the situation for the victims of revenge porn. Punishing the perpetrator is an approach that needed development as it did not necessarily holistically address the mischief that needs redressal. This is something that can be witnessed in the case of cyber-crimes.


What has been done to improve the plight of the victims?

The Ministry of Electronics and Information Technology (“MEITY”), on 25th February 2021 notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Guidelines, 2021”). Besides regulating social media platforms and increasing government surveillance on these platforms, these rules address the long due issue of revenge porn. Although not explicitly mentioned in the rules, the grievance redressal mechanism in these rules provides a more effective remedy to this issue than what existed before.


Redressal under the Intermediary Guidelines, 2021

The new Intermediary Guidelines have been in controversy ever since the draft guidelines were released by MEITY. The guidelines have been criticised for not inviting comments from stakeholders before being notified. The guidelines will increase the compliance burden on intermediaries and create a barrier of entry for new entrants. However, the guidelines provide some positive clauses, especially concerning revenge porn.

Rule 3 of the Intermediary Guidelines, 2021 deals with the due diligence requirements for the intermediaries. Sub- rule 3(2) lays down the Grievance Redressal Mechanism that needs to be established by the intermediaries. Under this rule, an intermediary is obligated to address within 24 hours, a complaint made by any person pertaining to content that exposes their private area or depicts them in any sexual act or conduct. This sub-rule also covers showing full or partial nudity of a person and impersonated or morphed images of an individual. The intermediary is directed under this clause to take all reasonable and practicable measures to disable access to such content. Further, this sub-rule requires intermediaries to create a separate communication link for receipt of complaints which can enable individuals to provide details with respect to such content as and when necessary.

This redressal mechanism extends the liability of such content from just the perpetrator to the intermediaries that not only host but also store, publish or transmit such content. This provision will help victims to take immediate action and control the lasting effects that can or could have been caused in the victim’s life. Making such redressal time bound was extremely pertinent as even a 24-hour window is long enough for the content to be shared over the internet as it spreads rapidly. Another upside to this law is that the victims can anonymously report these crimes, as most of the times these crimes go unreported due to the social issues and stigmas associated with them.


Conclusion

The technological boom has been the cornerstone of human development in the 21st century. We have built an infrastructure strong enough to provide unimaginable amounts of information to the masses which can be carried in our handbags or pockets. This information in countries like India has been further been subsidised due to competition and ergo has allowed the economically weaker individuals to surf the net. While the internet is an amazing tool to be entertained or a platform to learn, it is also a source for insidious acts like revenge porn, which once out there, can never be retrieved. The internet has developed and spread with such high momentum that our laws have not been able to handle its growth. The laws do not address the act of revenge porn as a distinct and specific criminal offence. There is also a need to be clear with the distinction of the role consent plays in differentiating the act of revenge porn from other kinds of pornographic distribution. The societal prejudice also ends up demonising the victim for exercising a legal act and brushes over the obviously illegal and flagrantly unethical act of the perpetrator. Any statute/provision that is drafted to protect the victims of revenge porn needs to address the likelihood of victim-blaming along with the other issues associated with it.


Author

Vidushi Sharma


References

1. Yeshapaul, Dealing With Revenge Porn in India, (May 23, 2018), Centre For Communication Governance at NLU Delhi

2. Clare McGlynn, Call “revenge porn” what it is: sexual abuse, (Jul 10, 2017), Vox, < https://www.vox.com/first-person/2017/7/8/15934434/rob-kardashian-blac-chyna-revenge-porn-abuse>.

3. Nicole V. Lasky, Victim Precipitation Theory, Wiley Online Library, (23 August 2019) <https://doi.org/10.1002/9781118929803.ewac0517>

4. Gobert, James J. “Victim Precipitation.” Columbia Law Review, vol. 77, no. 4, 1977, pp. 511–553. JSTOR, www.jstor.org/stable/1121822. Accessed 22 June 2020.

5. Vol 12 Issue 2 , Tegan S. Starr & Tiffany Lavis, “Perceptions of Revenge Pornography and Victim Blame”, (December 2018) , International Journal of Cyber Criminology.