Criminalizing Revenge Porn from the Privacy Aspects: The Model Revenge Porn Prohibitory Provision
Debarati Halder, Professor & Head - Centre for Research on Law and Policy Unitedworld School of Law - Karnavati University
Since the Supreme Court of India had pronounced the judgment on the right to privacy on August 24, 2017, making it a fundamental right, several legal luminaries have expressed their views on the impact of the judgment on various issues including data security of individuals. On several occasions, I had the opportunity to critically analyze India's penal as well as Information technology laws including Indian Penal Code, Information Technology Act, 2000(as amended in 2008) from the perspective of cyber victimization of women. This essentially included analysis of laws regulating infringement of privacy from different aspects. I have observed that in many occasions, lawyers and legal researchers refuse to press on the need for a separate law regulating revenge pornography in India.
"It has been seen that the police may not be willing to register offenses of revenge porn because it is neither defined in any law, nor regulation of the same is mentioned in any existing law" - Debarati Halder
This is because of the overshadowing existence of S.66E of the Information Technology Act, 2000 (amended in 2008) prescribing punishment for violation of privacy and S.354C of the Indian Penal Code (inserted vide the Criminal Law Amendment Act, 2013), prescribing punishment for voyeurism targeting women, and S.354D of the Indian Penal Code (prescribing punishment for stalking).
Why S.354C IPC would not be able to regulate revenge porn:
1. S.354C IPC speaks about voyeurism, which is inclusive of "private acts" whereby victim's private body parts may be shown. It does not mention anything about publishing/conveying/morphing etc of pictures of women for taking revenge. The ultimate motive, i.e., taking revenge is absent here.
2. S.354C does not speak about morphed pictures published/conveyed/transferred etc for gratifying revenge. In cases of revenge porn, majority of the offensive images may be morphed. This has neither been covered under S.66E of the Information Technology Act.
3. Creation of revenge porn may be done with normal, innocent, un-morphed pictures as well. In such case, we need to look into the accompanying text that describes the image. For example, a normal picture of the woman victim may be published with a text describing her as "horny", "Prostitute", when in reality, the woman is not married to the perpetrator, or even if married, did not allow publication of such normal photo with such text.
4. Revenge porn differs from non-consensual pornography as well. Non-consensual pornography is a larger term which may include revenge porn, voyeurism or even sexual slavery including forcing the woman to be captured naked for some unethical gain. Hence, revenge porn needs a separate definition.
Considering these lacunas in S.354C of the Indian Penal Code, I have suggested a model prohibitory provision, which was emailed by me to the ministry of Women and child development as well as to the Ministry of Law & Justice recently. This model prohibitory provision is as follows:
The model Revenge porn prohibitory provision: (This can be included in Chapter XVI of the Indian Penal Code as S.354E, which may be inserted after S.354D (stalking)):
Revenge Porn:
1. Anyone, who in order to satisfy his anger and frustration for a broken relationship, takes revenge through publishing, transmitting, conveying, publicizing false and sexually provocative portrayal of his/her victim, by misusing the information that he may have known naturally and that he may have stored in his personal computer, or that which may have been conveyed to his electronic device by the victim herself, or may have been stored in the device with the consent of the victim herself; and which may have been done to publicly defame the victim essentially, commits the offence of revenge porn.
2. Whoever commits the offence of revenge porn, shall be punished in the first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine of not less than 1 lakh rupees and pay reasonable compensation to the victim for damaging his/her reputation in real life and online.
Provided that the perpetrator must also be liable to remove the offensive image either original or morphed, irrespective of the fact whether the image was conveyed to him by the victim herself or not, from his own electronic devices and from the websites and social media profiles where he may have uploaded the same for the purpose of taking revenge. Further, the investigating officer shall immediately contact the concerned website to remove such contents, after coming to know of the offense of revenge porn committed by the perpetrator as reported by the victim or anyone on behalf of the victim.
However, it has been seen that the police may not be willing to register offenses of revenge porn because it is neither defined in any law, nor regulation of the same is mentioned in any existing law. If the above-mentioned draft model law to regulate and criminalize revenge porn is considered by the concerned ministries to develop proper provision/s, it is expected that the existing lacuna may be addressed and victims of revenge porn may get justice.
Debarati Halder
Dr. Debarati Halder is Professor and Head at the Centre for Research on Law and Policy in United World School of Law, Gandhinagar, Gujarat. She is honorary managing director of the Centre for Cyber Victim Counselling (CCVC), India. She is the founder secretary of South Asian Society of Criminology and Victimology. She received her LLB from the University of Calcutta and her Master's Degree in International and Constitutional Law from the University of Madras and PhD degree from the National Law School of India University (NLSIU), Bengaluru.
"It has been seen that the police may not be willing to register offenses of revenge porn because it is neither defined in any law, nor regulation of the same is mentioned in any existing law" - Debarati Halder
This is because of the overshadowing existence of S.66E of the Information Technology Act, 2000 (amended in 2008) prescribing punishment for violation of privacy and S.354C of the Indian Penal Code (inserted vide the Criminal Law Amendment Act, 2013), prescribing punishment for voyeurism targeting women, and S.354D of the Indian Penal Code (prescribing punishment for stalking).
Why S.354C IPC would not be able to regulate revenge porn:
1. S.354C IPC speaks about voyeurism, which is inclusive of "private acts" whereby victim's private body parts may be shown. It does not mention anything about publishing/conveying/morphing etc of pictures of women for taking revenge. The ultimate motive, i.e., taking revenge is absent here.
2. S.354C does not speak about morphed pictures published/conveyed/transferred etc for gratifying revenge. In cases of revenge porn, majority of the offensive images may be morphed. This has neither been covered under S.66E of the Information Technology Act.
3. Creation of revenge porn may be done with normal, innocent, un-morphed pictures as well. In such case, we need to look into the accompanying text that describes the image. For example, a normal picture of the woman victim may be published with a text describing her as "horny", "Prostitute", when in reality, the woman is not married to the perpetrator, or even if married, did not allow publication of such normal photo with such text.
4. Revenge porn differs from non-consensual pornography as well. Non-consensual pornography is a larger term which may include revenge porn, voyeurism or even sexual slavery including forcing the woman to be captured naked for some unethical gain. Hence, revenge porn needs a separate definition.
Considering these lacunas in S.354C of the Indian Penal Code, I have suggested a model prohibitory provision, which was emailed by me to the ministry of Women and child development as well as to the Ministry of Law & Justice recently. This model prohibitory provision is as follows:
The model Revenge porn prohibitory provision: (This can be included in Chapter XVI of the Indian Penal Code as S.354E, which may be inserted after S.354D (stalking)):
Revenge Porn:
1. Anyone, who in order to satisfy his anger and frustration for a broken relationship, takes revenge through publishing, transmitting, conveying, publicizing false and sexually provocative portrayal of his/her victim, by misusing the information that he may have known naturally and that he may have stored in his personal computer, or that which may have been conveyed to his electronic device by the victim herself, or may have been stored in the device with the consent of the victim herself; and which may have been done to publicly defame the victim essentially, commits the offence of revenge porn.
2. Whoever commits the offence of revenge porn, shall be punished in the first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine of not less than 1 lakh rupees and pay reasonable compensation to the victim for damaging his/her reputation in real life and online.
Provided that the perpetrator must also be liable to remove the offensive image either original or morphed, irrespective of the fact whether the image was conveyed to him by the victim herself or not, from his own electronic devices and from the websites and social media profiles where he may have uploaded the same for the purpose of taking revenge. Further, the investigating officer shall immediately contact the concerned website to remove such contents, after coming to know of the offense of revenge porn committed by the perpetrator as reported by the victim or anyone on behalf of the victim.
However, it has been seen that the police may not be willing to register offenses of revenge porn because it is neither defined in any law, nor regulation of the same is mentioned in any existing law. If the above-mentioned draft model law to regulate and criminalize revenge porn is considered by the concerned ministries to develop proper provision/s, it is expected that the existing lacuna may be addressed and victims of revenge porn may get justice.
Debarati Halder
Dr. Debarati Halder is Professor and Head at the Centre for Research on Law and Policy in United World School of Law, Gandhinagar, Gujarat. She is honorary managing director of the Centre for Cyber Victim Counselling (CCVC), India. She is the founder secretary of South Asian Society of Criminology and Victimology. She received her LLB from the University of Calcutta and her Master's Degree in International and Constitutional Law from the University of Madras and PhD degree from the National Law School of India University (NLSIU), Bengaluru.
