Revenge Porn: Prosecution Under the Current Indian Legal System

Introduction

In March of 2018, in the case of State of West Bengal v Animesh Boxi, which is widely considered the first-ever, the Sessions court in Tamluk, West Bengal, sentenced a man to five years imprisonment along with a fine of Rs. 9,000, for uploading private and objectionable pictures of a girl on the internet without her consent. The accused was convicted under Sections 354, 354A, 354C and 509 of the Indian Penal Code along with Sections 66E, 66C, 67 and 67A of the Information Technology Act. What was interesting about the judgment was that along with the aforementioned fine and imprisonment, the courts even directed the state government to treat the victim as a rape survivor and to provide her appropriate compensation.

The accused was in an intimate relationship with the victim prior to the commission of the offence and had obtained the said intimate pictures from the victim under the promise of marriage. Subsequent to the victim breaking off the relationship, the accused uploaded the pictures and videos onto pornographic sites with both her and her father’s names. Cases such as this have become common in both India and around the world in what have been termed as ‘Revenge Porn’ cases. Before analysing the legal system in place to tackle the said issue it is pertinent to understand what constitutes as revenge porn. Hence, this article begins by defining the term, followed by an analysis of the current legal system in place to address the said issue and finally concludes with a critical comment on the same to portray the inherent contradiction in the legal system while addressed such instances of revenge porn.

Defining Revenge Porn

Women in India perpetually suffer from being subjected to crime and sexual violence in their daily lives. Digitization in India has brought an increase in technological power and access to technology within the country leading to a subsequent increase in the instances of harassment and crimes in the virtual world. Such crimes termed as cyber-crime have evolved as a major predicament that the law enforcement agencies in the country and around the world are struggling to address and the lack of laws to adequately address the same make the process even harder.

Revenge porn is one such cyber-crime that has become too common in our society. As defined by the Merriam-Webster dictionary, revenge porn is the “sexually explicit images of a person posted online without that person’s consent especially as a form of revenge or harassment.” In a conducted by Cyber & Law Foundation, an NGO in India, it was found that 27% of internet users aged 13 to 45 in India have been subjected to such instances of revenge porn. The problem with revenge porn is that once it is posted online, it can be accessed not just in India but in other parts of the world. Additionally, even if the content is removed from one site, its spread cannot be contained as any individual who has downloaded the content can republish it elsewhere, hence perpetuating the existence of the content of the internet. This aspect has also been duly acknowledged by the court in the judgment of State of West Bengal v AnimeshBoxi, as constituting an instance of virtual rape persisting throughout the victim’s life.

Another problem that is faced by law enforcement is that such crimes usually go unreported due to social issues and stigmas. According to Adv. Bivas Chatterjee, who was the Public Prosecutor in the West Bengal case, “98 percent of cyber-crime victims do not even lodge a complaint as the victims, who are usually women, fear they will get identified and labelled in society. Hence along with the legal and logistical issues, prosecution for the crime is also affected by the lack of reporting of such incidents.

Legal Remedies

The recent surge in instances of revenge porn has led to many countries around the world enacting laws to address the same. None the less, at present, in India, there exists no specific law that deals with revenge porn. However, various sections of the Indian Penal code, 1860 (IPC) and the Information Technology Act, 2000 (IT act) are used to convict the offenders which do not fully beset the nuances of revenge porn.

The act of revenge porn for the purposes of the IPC attracts a conviction under Section 292, 354C, 499 and 509. The relevant provisions and what they entail are enclosed below:

1. 292: Distribution or circulation of obscene material.
2. 354C: Capturing or dissemination of pictures of a woman engaged in a private act without her consent
3. 499: Act done by a person intending to harm or having a reason to believe the same would harm an individual’s reputation or character.
4. 509: Act intended to insult the modesty of a woman.

With respect to the IT act, revenge porn attracts prosecution under Sections 66E, 67, 67A and 72 of the Act. The relevant provisions and what they address are enclosed below:

1. S.66E: Violation of privacy; Publishing or transmitting obscene material in electronic form
2. S.67: Publishing or transmitting of material containing sexually explicit act, etc. in electronic form
3. S.67A: Publishing electronic material containing sexually explicit act
4. S.72: Breach of confidentiality and privacy

Additionally, other laws also have their application in such situations such as Section 4 and 6 of Indecent Representation of Women (Prohibition) Act, 1986, (IRWA) which prevents publishing of photographs (among other things) which contain indecent representation of women. Further additional provisions of various statutes may also be used depending on the facts and circumstances of the given cases.

Issues With Status Quo

Notwithstanding the fact that none of the laws actually adequately address revenge porn, the existing laws also suffer from various other major drawbacks. One main issue that may be seen from the newly implemented section 354C of the IPC is that it is gendered in its application and limits its scope to a male offender and female victim. A similar drawback is also portrayed by Section 509 of the IPC and Section 4 and 6 of the IRWA.

While the IT Act, does not suffer from the same issue of being gendered, it suffers from a much graver issue that lies testament to inherent contradiction prevalent in the current legal system in addressed revenge porn. The provisions of 67A of the IT, which criminalises individuals who publish or transmit electronic form any material which contains sexually explicit act, being the best examples of the same.

As can be inferred prima facie from a reading of the section, while the section can be used to prosecute offenders,[iv] it also can lead to the possible prosecution of the victim as well who may have voluntarily taken the said pictures or videos and sent the same to their partners.[v] A similar issue is also seen in the case of Section 67 of the same act which deals with the offence of publishing or transmitting obscene material in electronic form. This can be quite problematic as the same section the victim is relying on to obtain legal relief could be used to prosecute him/her.

Conclusion

It is clear that while courts and the legal system are attempting to help provide justice to victims of such crimes, other provisions of the laws could possibly stifle their efforts. This could also further affect the access to justice to victims of such crimes who already being burdened by societal pressures and stigmatisation, may further choose not to report the same to prevent being prosecuted (as the law has no regard for the consent of the receiving party). While the provision of the law is required to prevent the unsolicited sending of pictures, the same must take into consideration the consent of the opposite party in receiving the same, especially in a romantic/interpersonal relationship between parties. Another possible solution is for new laws to be made which adequately address such new issues which are emerging in the virtual world and which are not gendered in nature. Without such changes being implemented, the contradictions in the legal system would perpetuate and prevent victims from conclusively obtaining justice.

• State of West Bengal v AnimeshBoxi, C.R.M. No. 11806 of 2017, GR/1587/2017.
• Page 127 of the judgment.
• See also Akshay Sripad Rao v. The State of Maharashtra, CrBA 2304 of 2017.
•  As the same constitutes an offence under Section 67(A) of the act as well. (as it involves the transmission or publishing of sexually explicit content in electronic form)