By Sreeja Sengupta, co-founder of Himmat & final year student at NUJS.
Social media has grown into one of the most popular modes of communication. Especially during the global pandemic, given the imposition of the nationwide lockdowns, social media has become the primary mode of communication. It unites people across the world and provides a platform for everyone to express themselves. It also helps to hold people accountable as once something is shared on social media, it is veryyy hard to erase completely. While the wide platform and permanence provided by social media can be used to steer positive change, it can also at the same time be misused to carry out image based sexual abuse and to blackmail and threaten people. A survey revealed that 27% of Internet users between the ages of 13 and 45 had dealt with incidents of image based sexual abuse. Some well-known forms of image based sexual abuse are ‘revenge porn,’ and ‘doxing’ and they can be amplified through ‘downstream distribution.’
Revenge porn is essentially the publication of sexually explicit images or videos of an individual by violating their consent. The content shared can range from nude or semi-nude pictures, or videos of sexual intercourse. It thrives on the culture of shame created by ‘tarnishing the reputation’ of a woman. The term ‘revenge’ porn arises from the increasingly common practice of obtaining sexually explicit videos or images with consent of a romantic partner, and following a breakup, releasing such images or videos to either humiliate or blackmail the partner, as a form of revenge. However, there is no necessity for the motive to be revenge or the images or videos to have been obtained consensually. In fact, hidden cameras, or coercive tactics are also often used by perpetrators to obtain the sexually explicit images or videos. Therefore, irrespective of the way in which the images or videos are obtained by the perpetrator, its subsequent public dissemination is non-consensual and therefore it amounts to sexual abuse.
Doxing refers to the online publication of personal or identifying information about an individual, which is not already present in the public domain without the individual’s consent. In the context of revenge porn, doxing is the revealing of personal or identifying information about the person who’s sexually explicit images have been non-consensually shared. For example, if a perpetrator makes a video of sexual intercourse with the victim and it is non-consensually shared on a porn website, then revealing the name, address, or any other identifying information about the victim therein would amount to doxing. Doxing makes it easier to find or attribute the image or video to the victim.
The permanence of social media makes revenge porn and doxing all the more dangerous since images or videos that are posted online can be removed only by the publisher. Therefore, if it is reposted or shared on the internet or downloaded by third parties, then even after the removal by the original publisher, the information remains on the internet and can be accessed by the public. This reposting or distribution of such images or videos by third parties is known as downstream distribution.
Revenge porn and doxing are not only a gross violation of an individual’s privacy but are also considered as criminal offences that are broadly covered by the Indian Penal Code (IPC) and the Information and Technology Act (IT Act). Publication of content involving minors attracts aggravated punishment under the IT Act and can also be covered under the Prevention of Children from Sexual Offences Act. Some anti-sexual harassment policies also include these offences under the Prevention of Sexual Harassment (Prevention, Prohibition and Redressal) Act, 2013. Revenge porn is increasingly being recognized by courts as a heinous way of abusing women online. In the case of State of West Bengal v. Animesh Boxi, the court sentenced a man to five years of imprisonment for non-consensually publishing sexually explicit videos of his partner on a pornographic site. In this judgement, revenge porn was equated to ‘digital rape’ and the victim was directed to be compensated akin to a rape survivor.
While the IPC and the IT Act are useful to penalize the offender, they do not account for the fact that often times the image or video content that damages the reputation of the individual remains on the internet as a product of downstream distribution. This can lead to continued trauma or re victimization of the victim. The right to have this content taken down follows as a natural extension the victim’s right to privacy. In India, however, the right to privacy was only affirmed as late as in 2017 in the case of K.S. Puttaswamy v. Union of India. This right has therefore not been invoked so far in the context of revenge porn until recently.
In November 2020, the Odisha High Court, while hearing a bail petition of a perpetrator accused of committing rape and circulating revenge porn through a fake Facebook profile, made a very important observation. Not only did the court deny bail due to the gravity of the offence, it also emphasized on the importance of the right to be forgotten of the victim.
The right to be forgotten is a right stemming from the fundamental right to privacy of an individual. This right entitles the individual to request to have particular personal information about them removed or erased under certain circumstances. This right arises from that fact that personal information regarding an individual can only be shared with consent, and such consent can be revoked at any point of time. If any content is shared illegally without the individual’s consent, they may request it to be removed. This right is recognized expressly in the European Union General Data Protection Regulation (EU GDPR). In India, the personal data of an individual is protected under the IT Act and the Sensitive Personal Data or Information Rules 2011. These rules do not specifically provide for the right to be forgotten. However, the upcoming Personal Data Protection Bill (PDP Bill) 2019, which is awaiting the legislature’s approval currently, does recognize the right to be forgotten explicitly.
The Odisha High Court judgement recognizes the permanence of social media and how circulation of non-consensual, sexually explicit content can impact the victims of revenge porn. It agrees with the ‘trend in western countries’ to give recognition to the right to be forgotten in sensitive cases, and acknowledges that it is being increasingly acknowledged by Indian courts as well. In fact, the Court highlights the need of granting legislative recognition to the right to be forgotten specifically in lieu of the increasing trend of violation of privacy of individuals through non-consensual publishing of objectionable pictures or videos. It states that the justice system is punitive towards the offender as is necessary, however it also needs to be restorative of the rights of the victim. It is thus not feasible to expect victims of revenge porn or cyber bullying and blackmail to approach the court each time to reinforce their right to privacy to have non-consensual content taken down from the internet. Instead, the court suggests that victims may seek appropriate orders to protect their fundamental rights and have such content erased irrespective of the initiation of criminal process against the accused.
Despite there being penal provisions to tackle Revenge porn and doxing, these crimes are heavily underreported not only due to the lack of awareness regarding the criminal nature of the activity but also due to the the deep-rooted culture of shame that survivors are made to feel. This shame is reinforced by the notion that women supposed to be ‘virtuous’ and not expressly assertive of their sexuality as by doing so they are ‘asking for it.’ Providing victims of these crimes the right to have their non-consensually published intimate content removed from the internet, not only prevents re-victimization and resurfacing of trauma, but also gives women the agency to assert their right to privacy over their sensitive information as an affirmative right. This could help to remove the stigma around victims of revenge porn and doxing and encourage them to come forward to at least preserve their privacy, if not to take criminal action as well.
Therefore, this judgement takes a stride in the right direction by providing for a mechanism for victims to assert their right to be forgotten before the courts, until the PDP Bill gets enacted. It does justice to the saying that the internet may have a long-lasting memory but humans have a right to forget!
For your information: The relevant provisions mentioned in this blog are Sections 292, 345C, 499 and 509 of the IPC and Sections 66E, 67 and 67A of the IT Act.
Image Courtesy: Freepik.com
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