AUTHOR:

Ms. HANNAH MARY VARGHESE,
Student,
Christ (Deemed to be University)

CO-AUTHOR:

ABSTRACT

In recent modernity, the Internet has been one of the key elements driving for social change. Owing to this phenomenon, this era has witnessed vicious news of cybercrimes ranging from hacking, fraudulent transactions and cyber extortion. However, what has been on the rise since the evolution of netizens is the targeted crimes at women, in particular, the ruthless crime of revenge pornography. The growth of the Internet is most evident in the changing nature of the global commercial sex industries and their rising demand. The author in this paper has elaborated the possible definitions of revenge pornography through intensive research from different publications and case laws while exploring and addressing all the potential roots of this immoral act. Apart from investigating the rationale behind the circulation of such obscene material, the author has also attempted to recommend modes to curb the occurrence of such offences. The number of women affected by the publication of their intimate moments is escalating as we breathe. The lack of a punitive provision for this crime, particularly in India, has led to many cases going unreported, and many offenders sliding through the loopholes of the legal system. The paper, apart from revealing the deaf ear that legislators have turned to this issue, aims to assemble the major instances of revenge pornography from all over the globe. Thus, the author has suggested a legislative framework which may be effective to put such wrongdoers behind bars for the act of circulating revenge pornography.

 

Introduction

Psychological as well as sociological factors have an equally reasonable impact on morality. It is an individual’s perception which makes him accept certain things in society as good and reject other things as bad.[1] Morality is subjective; what is immoral for one may not be so to others or in another society. The lack of strict differentiation between morality and immorality has often pushed the judiciary to lay down the moral standard for society.

The yardstick of morality in India is quite higher than the other nations. A sense of patriarchy runs in the blood of more than half of Indian population, irrespective of gender, religion and education. The role that these moral standards have to play in these cases is significant. Families in India still hesitate to discuss menstruation, sex education and STDs among themselves. This pushes a majority of the younger generation to educate themselves via the Internet, and the results they get may be inappropriate for their age. Consequently, the Internet has been identified as space through which more can be learnt about sexual behaviour.[2] But what do they learn? Do they learn about consent? What about privacy? Can one learn all they need to know from the Internet or do some things require teaching and discussion? The questions remain.

Another feature of the Indian patriarchal regime is sexual intercourse being triumphant for the men and furtive for the women. A man can boast about his sexual interactions as achievements, but a woman keeps it to herself, lest she is labelled a prostitute. This mindset has been disadvantageous to the female population in India since decades, but it increased manifold with the inception of online websites and social media, where there are no walls or barriers.

That leads us to the most frightening side of the Internet. The major shortcoming of the cyberspace is that what has once been uploaded here has no coming back. Any piece of data once entered into an online portal remains there till the end of time, even after being deleted. Such data can also be shared multiple times with any number of users in the blink of an eye, so any data out on the cyberspace is out of your control forever.

Gauging the morality standards in India, a photograph of a woman kissing a man is sufficient to bring shame to the former. Picture the life of a woman whose video of intimate moments with her partner has been leaked. It would never be the same. Men being aware of the damage that it can create to the mind, body and life of a woman, often  resort to circulating these videos as a means to avenge their broken relationships. Unfortunately, the Internet has a billion vultures preying for such videos and within seconds of a video being released, it goes viral. This is an instance of how one gender takes advantage of the societal moral standards to defeat another.

This is why it has been repeatedly established that in the modern phenomenon, the World Wide Web has become a playground[3], particularly for men. The Internet, social networking sites and mobile phones have now been recognized as an integral part of the everyday social lives, identities and relationships of the youth.[4] On the one hand, this opens up a whole new horizon impending benefits and opportunities for creativity, learning and the expansion of media literacy; but on the other, it increases the chances for exposure to numerous online risks which have the potential to negatively affect their psychological well-being. Moreover, one of the crucial concerns over the online behaviour of today’s youth is its potential for sexual exploitation.[5]

Websites can be accessed 24 hours a day without geographical, spatial or time restrictions.[6] The reach of pornography is boundless; several users spend hours on the Internet to watch these videos from all sorts of locations. Image sharing is another central aspect of social networking which raises safety concerns.[7] Those who upload these videos or images online mostly do it from unknown locations which are almost impossible to detect. This makes it difficult for the authorities to pin liability on anyone. Even if liability could be traced, very few victims come to the fore to report these incidents. This takes us back to the moral standards in society, and this is why these standards have a decisive role in such cases.

 

Revenge Porn: A Global Perspective

There is no straitjacket formula to define revenge pornography. A publication titled ‘Revenge Porn by Teens in the United States and India; A Socio-Legal Analysis’ has defined revenge porn as an act where the perpetrator gratifies his frustration for a broken relationship through exposing forged, sexually provocative portrayal of his/her victim, by exploiting the information that was entrusted with him, stored in his personal computer with or without the victim’s consent, or may have been conveyed him by the victim herself, and mostly done to publicly defame the victim.[8] In general terms, it can be interpreted to mean the pornography produced or circulated by partners in a relationship to humiliate or harass the victims.[9] These predators employ various modes to produce these videos. Mostly they are shot discretely, while other times, the victims are forced into an inebriated state and sexually assaulted. In some cases, victims are pressurized through violence to produce revenge porn. However, there are also situations where victims consent to shoot pornography with their partners but do not consent to distribute them. Women often consent to shoot their intimate moments on the condition that it will be kept private. This is what happened in the case of Annmarie Chiarini in the United States. As Mary Anne Franks put it, giving your credit card to a waiter doesn’t entitle him to buy a yacht with it.

Once revenge porn is uploaded online, it may be viewed thousands of times within a few days.[10] Many commercial and amateur websites capitalize on this category of revenge porn. This is because the people who circulate revenge porn make it easily accessible so that they can reach a larger audience and mentally harass the victim to a larger extent. With the market growing thirsty for more of such content, the position of the victims in the scenario has been deteriorating with time, with no recourse available to them.

The story of Chrissy Chambers is a beacon of hope for the future of revenge pornography. She was the first woman to seek criminal prosecution of her former boyfriend in England for posting revenge pornography on the internet. Chrissy was 18 when she realized her controlling boyfriend was toxic for her, so she decided to take a break. When her boyfriend asked her for one last meeting before he left for England, she agreed. Young Chrissy had never been drunk before, so when he persuaded her to play a drinking game, her approval was hesitant. She passed out after a few drinks, and what happened next was revealed to her after four years.

In 2013, she received messages from her friends suggesting that a link was available online with her full name in it. On the page that followed the link, Chrissy saw her unconscious self being sexually assaulted by her former boyfriend. All the lawyers she reached out to could only sympathize with her, substantiating that there was no law in either US or UK criminalizing revenge porn. The only legal recourse available to Chrissy was to file a lawsuit in the UK to get the copyright owner of the leaked videos. Although the UK had by then framed legislation criminalizing revenge pornography, it did not have the retrospective application, and hence did not apply to Chrissy’s case. It was on the 17th of January, 2018 that she won the civil case and set a legal precedent to deter those who plan to use revenge porn to avenge a failed relationship.

 

Legal Infrastructure Around the Globe:

The instances when the criminal justice system can involve itself in case of publication of revenge pornography are mostly when the victims are minors or when the representations either are stolen or hacked. The case of Hunter Moore is an apt example of a revenge porn fetish. Hunter Moore and his associate together ran a website IsAnyoneUp.com where they posted pornographic content. He generated around $13,000 per month from this website. To fulfil all the content demands that he received from the users, initially he allowed his users to post revenge porn on his website. Later, he went a step ahead and started hacking the email accounts of the victims to get more content for his website. Finally, in 2014, Moore was charged with conspiracy to hack computers for pornographic content.[11]

However, it is not accurate to establish that the victims of revenge porn have no recourse through the criminal justice system at all, although the current laws In India may not protect them. Looking at the global scenario, there seem to be some of the other laws criminalizing revenge pornography. As per the Communications Decency Act in the US, if the victims are children, then the government may order depictions to be removed from the internet. Similar legal consequences entail in India as well. If victims are adults, courts may order pornography to be removed and prosecute the offenders, though victory is less certain for adults. This is a positive step although it does not assist the victims of revenge porn in any manner whatsoever. Moreover, ex-lovers who circulate pornography could be charged with criminal harassment, cyberstalking, criminal invasion of privacy, and other related crimes. 

Several legislators have attempted to pass laws directly targeting revenge porn.[12] Article 9 of the European Union’s draft Convention prohibits cyber pornography but is ineffective in its member nations. The Communications Convergence Bill 2001 has a clause 70prescribes penalty for sending any abhorrently offensive content or of an offensive obscene or threatening character or to cause annoyance, inconvenience, obstructing, criminal intimidation, enmity, etc. utilizing communication service or a network infrastructure facility, knowing that the content is false and for persistently making use for this purpose a communication service or a network infrastructure facility.[13] This is not sufficient in the current social scenario.

However, surprisingly, some courts have found the circulation of revenge porn legal. In New York, a man posted exposed photos of his ex-girlfriend on Twitter without her consent.[14] He also sent these to her employer and sister. Later, he was charged with aggravated harassment. The court decided that his reprehensible actions were entirely legal. It reasoned that the defendant’s speech could not be suppressed since the victim’s portrayal in the photos was not obscene.

To circumvent justice, some amateur websites began requiring persons posting videos to upload expressions of consent. All the people depicted in every video must express consent. Express consent can vary from a statement of free will, sobriety, and agreement to the terms and agreements of the website. This gives surety viewers that they are not viewing revenge porn.[15]

 

The Indian Outlook

While reported cases on revenge porn among the teens are plenty in the Western countries, including the United States, in Indian judicial decisions regarding revenge porn-related cases for children are very rare.[16] Nevertheless, there have been many cases of reported revenge pornography in India as well. But before discussing the legal treatment of these issues, and analysis on the Indian socio-economic condition concerning sexting is essential here.[17]

In a country where pornography in its entirety is prohibited, the question of revenge pornography should not ideally arise. However, the lack of proper implementation of the laws and inefficient regulation has let the offenders walk free in society. Sexting has become a usual practice among the youth today. This consensual digital capturing of sexual performances with the partner gets stored in their devices and later proves to be the villain after a bad breakup. This trending teen sexual behaviour became popular after the Delhi DPS school case. In this case, a 16-year-old boy circulated a video of his sexual activities with his classmate, another 16-year-old girl.[18] However, there is hardly any research on the usage of such videos for revenge, nor anything on the possible legal treatment of the same from the perspective of pornography.

Even though neither the IT Act nor the POCSO Act has any dedicated provision to prohibit revenge porn, Section 66E of the IT Act, 2000 as amended in 2008 may be read with section 67B of IT Act and sections 11, 13 and 15 of the POCSO Act as discussed in the previous paragraph about sexting.[19] Section 66E of the IT Act is emphasized here especially because this provision prohibits creation, production and dissemination of content against the consent of the individual whose images are being captured.[20] In the same Act, Section 67B provides for the punishment for publication or transmission of material where children are depicted in sexually explicit acts. As is evident from the provision, this only protects children and does not cover adults. The issue lies herein; most of the victims of the revenge pornography are adults previously involved in a relationship or the like. There is nothing much in the Indian legal system that could aid these victims to justice.

Looking into the POCSO Act is not so reassuring either. Section 11 of the Act covers the intimidation to use any material depicting children in sexual acts under sexual harassment and Section 12 lays down the penalty for the same; but yet again, this only protects minors under the age of 16. Section 15 of the Act is a provision that lays down punishment for storing pornographic material and could have been apt to prosecute revenge porn cases, but this comes with an age limit as well, since it only applies to children. Hence, at the outset, it appears that while children may have recourse if trapped in a revenge pornography case, adults may not have an appropriate remedy for the same in India.

 

Recommended Legislative Framework:

Today in India, there is no direct legislative provision that could prosecute an individual for distributing revenge porn. However, the instances of such distribution are increasing as time ticks by. We require more teeth to the law to resolve this situation. Although International treaties, co-operation and initiatives are taken by the European Union to combat possessing and distributing cyber pornography and computer-related offences,[21] these are not binding on any state, irrespective of whether they are signatories or not. Hence, there is no mechanism to ensure complete compliance with international treaties and obligations.

There are many nations which have come up with a new law criminalizing revenge porn. For instance, the UK has Section 33 of the Criminal Justice and 2015 Courts Act, 2015. In Scotland however, there is a Part 1 to Section 2, which deals with the Abusive Behavioral a Sexual Harm Act. An Amendment to Article 208E of the Justice Act, 2020 also made revenge pornography punishable under the law. Alabama, Alaska, Arizona and other states in the US have already included some of the other provision which can deal with this matter.

Drafting legislation prohibiting, punishing and deterring the circulation of such videos has become an urgency. In the era of online communication, issues like borders, jurisdictions and territories are raising serious problems at the global scale. There is an immense need to impose more responsibilities on Internet Service Providers and cyber cafes.

Disclosing private sexual photographs and films without the consent of any one of the persons depicted in such media should be made an offence in India. A person who commits such an act should be imprisoned for a minimum period of 6 months and should be fined. Any individual who publishes a video or a photograph revealing the sexual activities of any other individual without their consent with the intent to cause a mental disturbance, trauma or distress to the other party shall be penalized for a term up to 3 years. A person has the right to object to any photograph or video depicting them in any sexual manner uploaded online. The aggrieved party shall also be entitled to compensatory damages.

 

Suggestions:

From the way things are at the present, the need of the hour seems to be providing intricate training to the law enforcing agencies, judiciary, Internet Service Providers, cyber cafes, teachers, students, parents and general public about the reasons and modes of circulation of revenge pornography apart from its consequences. This is because the awareness about the result and punishment of revenge porn is the least that can be done as a step towards prohibiting revenge porn.

Some precautions taken at the right time can prevent the circulation of revenge pornography. Before selling an electronic device, one should make sure that he deletes any pornographic material, if any. However, this seldom works because these can be revived through gadgets like a memory card reader, and the chances of retrieval are higher in case of camera phone with reader facilities.[22] Another inevitable step that could change the entire perspective of revenge pornography is if the mobile phone providers refrain from providing mobile service with camera facilities unless security is ensured and true identity is obtained. Nevertheless, they can formulate obligatory undertaking from purchasers and service users that they will be liable for their illegal use, abuse, misuse of devices or service.[23]

Yet another step that could help in changing the scenario would be the development of the technological infrastructure in line with contemporary multimedia in every field including the judiciary. Banning mobile phone within the premises of educational institutions is another way to prevent cyber pornography within educational institutions.[24]

But even if the aforementioned steps cannot be implemented, the basic right to privacy of an individual should be respected. Confidential and private information are to be undisclosed and not to be published for the outsiders to see. Freedom of speech and expression is recognized as a Fundamental Right under Article 19 of the Constitution does not entitle any man to harm the reputation of another through his speech. Therefore, an end to the circulation of revenge pornography will not see the light of day till the day drastic measures are implemented to prevent the same.

Conclusion

Online sexual exploitation of the youth is a considerable setback in the contemporary society that has a variety of depressing psychological and social consequences for the victims. The need to ensure that the youth is safe in their online behaviour and interactions has led to many development approaches. Offenders generally utilize different strategies to initiate and develop relationships with their victims, and these differ based on their motivations and underlying psychological and social aspects. This proves that many online sexual abuse cases do not entail deception, compulsion or intimidation, but are brought forward by building trust and romantic relationships, where the victim knows the true identity and intentions of the offender. However, recent UK enforcement reports still suggest that there is an escalating use of blackmail, hacking and duress by offenders to guarantee victim compliance.[25]

To tackle this issue, further research examining the motivations, behaviours and psychological traits of offenders is vital. The comparatively fresh nature of this set of criminal behaviours and processes and difficulties associated with access to appropriate empirical data raise some methodological and theoretical challenges. This suggests the need to explore collaborative relationships with enforcement to access relevant data about the offending process to enable further development of theoretical understanding and inform risk assessment, management and treatment of offenders. However, to solve contemporary problems in the dynamic society, the law must be interpreted dynamically with liberal construction.

 

 

[1] Dr. M Dasgupta, Cyber Pornography, Chapter 5, pg. 134, Cyber Crime in India, Eastern Law House, 2009

[2] Teela Sanders, The Sex Industry, Regulation and the Internet, Chapter 15, pg.302, Handbook of Internet Crime, Willan Publishing, 2010

[3] Footnote 1 supra p.135

[4] Jo Bryce, Online Sexual Exploitation of Children and Young People, Chapter 16, pg. 320, Handbook of Internet Crime, Willan Publishing, 2010

[5] Footnote 5 supra

[6] Teela Sanders, The Sex Industry, Regulation and the Internet, Chapter 15, pg.306, Handbook of Internet Crime, Willan Publishing, 2010

[7] Jo Bryce, Online Sexual Exploitation of Children and Young People, Chapter 16, pg. 332, Handbook of Internet Crime, Willan Publishing, 2010

[8] Halder and Jaishankar, “Revenge Porn by Teens in the United States and India,’ 90

[9] Ann Bartow, Copyright Law and Pornography, 91 Or. L. Rev.1 (2012)

[10] Anne Flaherty, “Revenge Porn” Victims Press For New Laws, 15th November, 2013, https://www.nbcwashington.com/news/national-international/natlrevenge-porn-victims-press-for-new-laws/1931208/, last accessed on 27.05.2020

[11] US v. Hunter Moore, 2014

[12] Olympia Meola, House Passes Bill to Outlaw “Revenge Porn”, Richmond Times, February 11, 2014, https://www.richmond.com/news/local/government-politics/house-passes-bill-to-outlaw-revenge-porn/article_9202f01e-935c-11e3-80fc-0017a43b2370.html, accessed on 27th February 2020

[13] Dr. M Dasgupta, Cyber Pornography, Chapter 5, pg. 179, Cyber Crime in India, Eastern Law House, 2009

[14] New York v. Barber, 2014

[15] People v. Kochanowski, 2000

[16] Debarati Halder, Child Sexual Abuse and Protection Laws in India, SAGE Publications, 2018

[17] Footnote 16 supra

[18] ‘Sex Scandal: Boy Who Shot MMS Clip Held’, Express India, 19 December 2004, Available at: https://www.expressindia.com/news/fullstory.php?newsid=39787 (last accessed on 27th May 2020)

[19] Debarati Halder, Child Sexual Abuse and Protection Laws in India, SAGE Publications, 2018

[20] Footnote 19 supra

[21] Dr. M Dasgupta, Cyber Pornography, Chapter 5, pg. 135, Cyber Crime in India, Eastern Law House, 2009

[22] Dr. M Dasgupta, Cyber Pornography, Chapter 5, pg. 181, Cyber Crime in India, Eastern Law House, 2009

[23] Dr. M Dasgupta, Cyber Pornography, Chapter 5, pg. 181, Cyber Crime in India, Eastern Law House, 2009

[24] Footnote 23 supra pg.182

[25] CEOP (2008) Strategic Overview 2007-2008. London: CEOP

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