Introduction:
We are living in such an age that is going through a massive technological revolution. Technology has affected every sphere of our life starting from accessing any needed information or any data previously stored to making new friends or connecting with old friends over social networking sites.
However, new inventions and technological development has brought new challenges for the legal world as well. The widespread growth of the technologies has led to the commission of new kinds of crimes in cyberspace. Cybercrimes like attack on secured information of individuals, corporations, the government, etc. have seen a rise in the recent years.
In the current digitized world that we live in and quite naturally almost everyone owns a smartphone, people have access to the world of lust or porn too in addition to the other services mentioned earlier. Teenagers of today are more attracted to such lustful sites which are very easy to access, they are addicted to live sex, sex videos, MMS clips, etc. Thus, owing to such easy access to the world of pornography, the world and India particularly have seen a rise in crimes in the virtual world.
“Revenge Porn” is one of such crimes being committed to the virtual world (cybercrime) which is on its rise all over the world. It includes sharing or threatening to share private pictures of a person without his/her consent in order to gain revenge, cause shame, or get some other benefit.
It must be noted that this crime can be committed against both males and females. However, in both the circumstances, the number of cases is underreported due to fear of societal norms and further harassment.
What is Revenge Porn?
According to the Merriam-Webster dictionary, Revenge pornography is the online posting of sexually explicit images of a person without that person’s consent.
Revenge porn is a form of non-consensual pornography that gained international attention with the launch of a website named “Is Anyone Up?” in 2010 which was however subsequently taken down in 2012. The website allowed users to upload nude photographs; however, this was certainly a bit different from the conventional porn sites as the explicit images that were posted contained links to the social media profile of the person in the image.
The essential elements that constitute a revenge porn are that the perpetrator and victim shared an intimate relationship, later on, the perpetrator released all the sexually explicit information in order to cause shame and harass thus further damaging the victim’s reputation.
The term “Revenge Porn” is often used interchangeably with the term “non-consensual pornography”; however, it is distinguished from other forms of non-consensual pornography such as rape videos, morphed images, or voyeurism. In cases where sexually explicit images are clicked without a person’s knowledge or consent, also hackers who get hold of private images of female celebrities through cloud data and subsequently publishing them online.
Many researchers and jurists are of the opinion, the term “revenge porn” is inappropriate and misleading. The word “revenge” limits the scope of the crime, that is, only in cases of personal vengeance. However, such an act of crime could be encouraged by the perpetrator for the desire of money benefit, notoriety, entertainment, malevolence, or even no reason at all.
The problem with “revenge porn” or nonconsensual pornography is that once the media file is posted online, it can be accessed by anyone, anywhere in the World. Even if the content is taken down from one site but its spread cannot be contained as any person who has downloaded the file may republishing it anywhere, hence continuing the existence of the explicit content on the internet.
Revenge Pornography: A foreign outlook
Revenge porn or Non-Consensual Pornography is a rising global issue that occurs in the virtual world. However, there is no specific law governing the crime on international terms.
A middle-aged woman of Alabama went into an online relationship which proved to be of much trouble for her. The perpetrator texted her on Twitter and after a few months from the initial message, he asked for her nude pictures, out of her feelings for the perpetrator she did send her nudes to the person. The perpetrator threatened to release her nude images to her friends if she didn’t send him more such pictures. Eventually, on refusing to send further such images, the perpetrator posted her nude images on fake Instagram pages and also on various pornographic sites, which were subsequently pulled down. Proving to be more embarrassing to the woman, the perpetrator sent the pictures to her boss and also to the young teenagers of her town. The woman was forced to resign from her job. She turned to the local police and FBI, however they were unable to help her as the cyberstalker lived in another country and there is no law protecting victims from international revenge porn[1].
Many countries such as the United Kingdom have enacted national laws specifically criminalizing revenge porn and punishing the perpetrators with jail time or a large fine. Philippines was the first country to nationally criminalize revenge porn in 2009, it required the perpetrator to serve a three year jail time. The French Penal Code forbids the transmission of pictures “taken within a private place without the consent of the person concerned”. Revenge porn is considered a sex crime in Israel and penalties are some of the strictest with up to five years of jail time. In England and Wales, revenge porn became illegal in April 2015 and carries a maximum jail time of two years. Northern Ireland and Scotland enacted similar laws in 2016.
In the United States, there is no national law criminalizing revenge porn, however, several states have enacted laws regarding the same. Many of these have been successful in taking down large sites that encourage or are a platform for revenge porn. The owners of such sites have received jail time in Ohio and California. However, prosecution standards and protection for victims can vary across state boundaries.
In the case of Patel v Hussain[2] in the trial court, Nadia Hussain, the appellee sued the appellant Akhil Patel of offensive and threatening communications, attempt to hack her accounts. Also, the appellant posted secretly recorded sex videos on the internet. The Jury found in Nadia’s favor on her claims for Intentional Infliction of Emotional Distress (IIED), intrusion on seclusion, public disclosure of private facts, and defamation. The Jury awarded her damages totaling $500000, including past and future mental anguish damages, past and future reputation damages and exemplary damages. The trial court signed a final judgment for $500000 in damages and a permanent injunction.
On appeal in the Court of Appeals of Texas, Houston (14th District), Patel does not challenge the evidence supporting the allegations. Rather, in six issues, Patel contends the error of the trial court by:
- denying his motion for JNOV (Judgement Notwithstanding the Verdict, also called Judgement Non-Obstante Veredicto) on the defamation claim because the Jury found it substantially true.
- denying his motion for JNOV because the trial court’s judgment violated the one satisfaction rule.
- awarding damages to Nadia’s claim of IIED because this “gap filler” tort was unavailable in the context of the case.
- awarding mental anguish damages because Nadia’s social medial posts established that she did not have substantial disruption to her daily routine.
- awarding mental anguish damages because the evidence is factually and legally insufficient.
- awarding exemplary damages when the evidence is legally and factually insufficient to support mental anguish damages
The Court of Appeals of Texas sustained Patel’s first and third issues and overruled the other issues. The trial court’s judgment was modified to remove the damages associated with defamation, IIED claims resulting in a damage of $345000 instead of $500000 to Nadia.
In another case in the State of Illinois, Bethany Austin[3], an Illinois woman found out that her fiancé was having an affair when nude pictures of his mistress popped up on her device which used a shared I-Cloud account.
In the argument between Austin and her fiancé, she sent the nude images of the other woman in a four-page letter to their families. Austin was arrested and charged with a felony under Illinois’ revenge porn law which bans “non-consensual dissemination of private images”
Appealing against her prosecution, Austin agreed that the state law banning revenge porn was an unconstitutional restriction on the content of her speech. Austin won her appeal initially in the trial court however Illinois State Supreme Court overturned the decision of the trial court and ruled that the State’s Anti-revenge porn law was constitutional.
Similarly like the United States, there was no National Law in Australia criminalizing revenge porn until 2017. However, in 2018 the House of Representatives passed legislation aimed at protecting its citizens from revenge porn.
Under the legislation, individuals could face civil penalties up to AU$105000 and corporations of up to AU$525000 if they do not remove an image when requested by the e-safety commissioner. Further, according to the Criminal Code Act perpetrators could face criminal penalties up to 5 years of imprisonment for transmitting private sexual material and up to 7 years for transmitting such order if they already have 3 civil orders against them.
However, long before the legislation was passed, in 2015 the Supreme Court of Western Australia awarded AU$48000 in damages for breach of confidence in a case involving photographs and videos of her of sexual nature being shared online by the defendant, plaintiff’s former boyfriend. The Judge also granted an injunction against the defendant to prevent further use and publication of the images.[4]
In the case of Jane Doe v. David K. Elam II,[5] the victim was awarded $6.4 million as damages which are considered to be among the largest ever payouts in a revenge porn case. Doe sent the perpetrator her nude images while they were in a relationship. Quite interestingly here the victim copyrighted her breasts in order to get her intimate pictures off the internet. She was awarded $450000 in form of damages for copyright infringement, $3 million in compensatory damages for emotional distress, and $3 million in punitive damages.
Revenge Porn: Indian Aspect
India has seen a steady rise in the number of revenge porn cases. These cases as mentioned earlier come under the purview of Cyber Crime. The law enforcement agencies are finding it difficult to address the crimes being committed over the virtual world due to a lack of proper laws.
India does not have a law that specifically criminalizes revenge porn or non-consensual sharing of private images. A survey conducted in 2016 by Cyber and Law Foundation, an NGO, points out that in India 27% of internet users aged 13 to 45 have been subjected to situations of revenge porn[6].
In March 2018, in the landmark case of State of West Bengal v. Animesh Boxi[7] , the Sessions court in Tamluk sentenced a man to 5 years imprisonment along with a fine of Rs.9000 for uploading private and objectionable pictures of a girl on the internet without her consent.
Like in most of the revenge porn cases, here too, the victim knew the perpetrator for three years and he had obtained the intimate pictures from the victim on the promise of marriage. The perpetrator asked the victim to send more such pictures, on refusing to do so the perpetrator hacked her phone to get hold of the pictures.
Further, the perpetrator wanted to have a physical relationship with her, when she denied the same, he threatened to upload the pictures and videos on the internet and subsequently he uploaded them on a pornographic site with the name of the victim and her father too.
The accused was convicted under section 354A (Sexual Harassment), section 354C (Voyeurism), Section 354D (stalking) and Section 509 (Criminal Intimidation) of Indian Penal Code, 1860 and Section 66C (Identity Theft), Section 66E (Violation of Privacy) and Section 67/67A (Transmitting obscene material online) of Information Technology Act, 2000.
Third Judicial Magistrate, Gautam Nag directed the State Government to treat the victim as a rape survivor and provide her appropriate compensation. In the judgment, it was duly acknowledged by the court that even if the content is removed from one site it remains and continues to be shared thus perpetuating the existence of the content online which constitutes the virtual rape of the victim.
Advocate Bivas Chatterjee said, “I told the court that this is revenge pornography and the girl underwent virtual rape every time somebody clicked on one of her photographs”[8]
Currently, India does not have any specific law which criminalizes revenge porn. However various Sections of the Indian Penal Code and Information Technology Act are used to convict the offenders.
The act of revenge porn attracts a conviction under sections 292, 354C, 499, and 509 of IPC. In respect of Information Technology Act Section 66E, Section 67, Section 67A and Section 72 addresses the problem of revenge porn.
Also other laws like, Section 4 and Section 6 of Indecent Representation of Women (Prohibition) Act (IRWA), 1986 which prevents publishing of photographs (among other things) which contain indecent representation of women. Further other statutes may also be used depending on the circumstances of the specific case.
With the sudden surge seen in the number of cases of Revenge Porn in India, it is high time that we address the serious issue of revenge porn. The nation should have a specific law for Revenge porn like the Philippines and many other countries. The Sections used to convict a perpetrator of the crime suffer from serious drawbacks like Section 354C of IPC is gendered in nature thus limiting its scope. Also, a similar drawback is portrayed in Section 509 of IPC and Section 4 and Section 6 of IRWA.
There is also a need for a framework of speedy justice as in such cases the content is spread like wildfire over the internet.
Conclusion
It is very evident that the current legal system is reforming itself with the change in the nature of cases over the virtual world. However, there is a need for specific laws of crime committed in the cyberspace. Also, the ones falling victim to such crimes must not fear social stigma and report any such situation at the earliest.
References:
[1] https://abc3340.com/news/abc-3340-news-iteam/alabama-woman-victim-of-international-revenge-porn
[2] Patel v. Hussain (485 S.W. 3d 153)
[3] People v. Austin (2019 IL 123910)
[4] Wilson v. Ferguson [2015] W.A.S.C 15 (Jan 16,2015)
[5] 2:14-cv-09788
[6] “The wrath of Revenge Porn in India” (https://tech.economictimes.indiatimes.com/news/internet/the-wrath-of-revenge-porn-in-india/61633860)
[7] State of West Bengal v. Animesh Boxi (C.R.M No. 11806 of 2017, GR/1587/2017)
[8] https://www.indiatimes.com/news/india/in-a-landmark-judgement-student-gets-five-years-jail-for-posting-revenge-porn-on-internet-341044.html
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