AUTHOR:

PRAJITH PRAKASH,
Student,
Jindal Global Law School

CO-AUTHOR:

ABSTRACT

In the present day and age, there has been rapid development in technologies at a pace which isn’t matched by amendments or creation of codified laws that govern them. The anonymity and ease of access provided by the internet has been used as a tool by individuals who use platforms to spread illegal and sadistic sexual content. Instances of online abuse is not limited to the sending of obscene messages, but also includes the creation of fake social media profiles, morphing of images without consent as well the transmission of images and videos captured in private, intimate spaces. A cursory search on popular online platforms also produces hundreds of profiles which engage in the sale of pornographic images and videos of non consensual sexual acts.

The purpose of this paper is to delve into the different laws which govern non-consensual transmission of intimate acts and transmission of non-consensual sexual acts on social media platforms. To analyse and critically examine the scope and limitations of existing laws in the country, this paper will look into two distinct aspects, I. Revenge Porn, and II. Child Porn and Sexual Abuse Videos, and how the lack of stronger laws which govern social media leads to their proliferation.

REVENGE PORN

“Revenge porn is generally described as the practice of someone (usually a man) sharing intimate photos in order to humiliate an ex-partner (usually a woman). The photos are often thought to have been taken consensually initially (though this is often not the case), but are then used by the “spurned lover” for revenge when the relationship ends. Revenge porn, as a social phenomenon, came into the spotlight during 2012 and 2013 primarily through the identification  and arrest of an American man named Hunter Moore. Moore created and ran the site isanyoneup.com, where he encouraged men to share naked photos of women, along with their names, age, location, and links to their various social media profiles.”[1]

The website ‘isanyoneup.com’ acted as medium to share and download photos of women without their consent. In the present day and age however, anonymous social media profiles are used across the world for the spread of revenge pornography. There is also the emergence of an online marketplace on social media with intermediaries who sell such content to other users. While Indian Courts have acknowledged its existence and dangers, the ambiguity of existing laws creates loopholes for perpetrators, there is still no law in the country which specifically addresses revenge porn.

In the case of State of West Bengal v. Animesh Boxi[2], the victim was manipulated into sharing intimate pictures with her partner which was then subsequently uploaded to a pornographic site without her consent. While convicting her partner, the court spoke about virtual rape. It acknowledged the fact that once any content was uploaded on the internet it would spread in the virtual world uncontrollably. As a result of this spread it would invariably result in the woman being subject to the same crime of virtual rape multiple times.

Despite the emotional trauma which victims of revenge porn go through and the volume of cases which are emerging, there are no provisions in the Indian Penal Code or the IT Act which deals specifically with instances of revenge porn in the country. Perpetrators are charged with varying sections and provisions of these laws which has a number of gaps. Under the IPC, individuals can be convicted under Section 292(distribution/ circulation of obscene material) , Section 354C(voyeurism) , Section 499(defamation) and Section 509(outraging the modesty of a woman).[3] The IT act provides for prosecution under Section 66E(Violation of Privacy), Section 67(electronic transmission of obscene material), Section 67A(electronic transmission of sexual explicit act), Section 72(Breach of confidentiality).[4]

The provisions under the IT Act as well as the IPC does not adequately address the problem of revenge porn. They also do not provide mechanisms for curbing of its spread on social media platforms. Section 354C of the IPC was added in the year 2013 to strengthen the laws related to sexual abuse and criminalised the capture and transmission of voyeuristic material through digital platforms, however it is gendered in nature. Along with Section 509 of the IPC the scope of Section 354C is limited to instances where the victim is a female. The law does not provide relief to individuals who belong to the male, transgender or non-binary genders.  In contrast to the IPC, while the IT Act is not gendered, it acts as deterrent for individuals to report instances of Revenge Porn. Sections in the IT Act can be used to prosecute perpetrators as well as victims, who may have shared the pictures but not consented to its transmission.

Transmission of Child Porn and Videos of Sexual Abuse

“According to a recent report by U.S. National Center for Missing & Exploited Children (NCMEC) at least 25,000 images of child sexual abuse were uploaded every day from India. This amounts to 12 per cent of the child sexual abuse images circulation globally being generated in India.”[5]

During the first week of May 2020, the screenshots of an Instagram Group ‘Bois Locker Room’ went viral on the internet. The conversations on the group included objectification of women, underage children and sharing of private photographs. While this incident highlighted the use of social media platforms as a tool to further misogyny and rape culture it is necessary to further scrutinise the content being shared on platforms like Instagram . Widely used applications like Instagram and Twitter have moved away from being safe spaces, and turned into mediums to share pictures and videos of forced sexual assault as well as child porn.

Hundreds of pages on the app openly advertise themselves as platforms to purchase illicit pornographic content. A majority, if not all, of these pages contain extremely disturbing material, from child pornography and rape videos to hidden camera footage from shopping centres and public washrooms. These pages sell videos of women and underage children being subject to abuse for prices as low as Rs. 50. Owners of these pages endorse and glorify acts which are extremely violative of women and child rights and a shocking number of individuals interact with these accounts and purchase such content on a daily basis.

The widespread availability and easy accessibility of this material on a platform like Instagram is extremely concerning. A notion of safety which blankets the app minimizes parental supervision over interactions on the platform. With a majority of educational institutions across the country switching to the online medium as a result of the COVID-19 pandemic, more and more students are entering the online space where they could potentially get exposed to such disturbing content. This places the mental health of young individuals at risk, creating an unsafe online environment.

The lack of a statutory regulation related to minimum age criteria leads to further exposure of young children to pages which glorify sexual abuse. In response to a petition seeking for stronger oversight of social media platforms, the Supreme Court of India in October 2020 directed the government to respond to the plea seeking for the implementation of an age limit for creation of social media accounts. It also asked for an investigation on the spread of videos containing instances of sexual abuse and child porn.

Section 67B of the IT Act criminalises child pornography, and section 14 of the POCSO[6] act criminalises the use of a child for the purposes of filming pornographic content. However, despite the existence of these laws, there is a lack of a framework which effectively maintains checks on the content being shared on popular online social media forums. Notwithstanding the lack of a proper framework, section 15[7] of the POCSO Act which criminalises possession of child pornography deals only with storage for commercial purposes. The caveat of storage for commercial purposes leads to further difficulty during prosecution and it is essential that mere possession of child porn is made illegal.

“Women’s welfare officials say that intimidating victims with video recordings is on the rise in gang rapes in India. These recordings complicate the government’s efforts to encourage women to report the crimes and hinder police efforts to halt the explosion of “obscene” online content targeting women.

“More and more women are reporting that men are recording the act of rape with their smartphones, and they are using these recordings to threaten women into silence,” said Shamina Shafiq, a member of the state-run National Commission for Women. “In many cases, they actually upload the rape video or circulate it among friends on WhatsApp. The woman is raped not just once, but again and again when people view the video.”[8]

Under the POCSO act, Section 21[9] says that failure to report a crime against a child is an offence, this helps in making sure that widespread transmission of child sexual abuse videos are curbed, however, there is no such provision in existence for rape videos. In addition to the lack of such a provision, a bigger problem lies in the fact that there is no law which specifically criminalises the distribution of rape videos. Offenders can only be punished under sections in the IPC and IT act which deal with transmission of any pornographic content. Without the existence of specific and more stringent laws, the crime continues to be committed by individuals who do not have the fear of being prosecuted by stringent laws.

CONCLUDING REMARKS

The laws related to the distribution of obscene and illegal content in India is not fully developed to counter the present widespread occurrences of these offences. One of the primary drawbacks is the gendered approach of laws related to sexual harassment in the country. The laws offer little to no protection of victims belonging to a male, transgender or non-binary gender. Coupled with the lack of proper statutory laws to govern social media platforms, online environments are turning more paedophilic and exploitative in nature.  

The anonymity of social media applications  is often misused. Reporting and taking down of one account simply leads to the same individual creating multiple other similar accounts. The ease at which one person can create multiple social media profiles adds to instances of cyber crimes on these platforms. Suspension/ banning of accounts does not provide an avenue for restricting perverse usage of platforms and does not provide a concrete solution.

Indian users on social media in terms of percentage of population has grown from 19.13% in 2015 to 50.44% in 2020. The growth is exponential and it is expected to continue to rise through the years.[10] While it is clear that the existing laws in the country related to transmission revenge porn, child porn and sexual abuse requires an overhaul and further streamlining. It is also essential to create stronger laws to govern social media platforms. Anonymity has become a tool used by harassers as well as intermediaries who sell videos of illicit pornography on the internet. The requirement of completing a basic verification procedure before the creation of a social media account would go a long way in ensuring accountability of the actions of individuals on popular online forums as well as make it easier for law enforcement authorities to track and prosecute individuals who violate existing laws and statues.

Along with verification processes, social media companies should also be responsible for monitoring the content which is shared on their platforms. A streamlined process which involves identification of users/pages promoting the sale or transmission of illicit content and immediate reporting to law enforcement agencies will go a long way in curbing the occurrences of these crimes.

In Shreya Singhal v. Union of India[11], the Supreme Court held that Internet Service Providers(ISP’s) are not required to disable access to illicit material if there is no court order or government body notice. As a result of this holding, ISP’s are not required to notify the police or other government bodies if there is a movement of illicit content through their servers. While the judgement in the Shreya Singhal case went a long way in ensuring personal data protection of individual users, when coupled with the anonymity offered by social media platforms, it fuelled the usage of social media to transmit and sell illegal and abusive content. In contrast to the position of the Indian Legal System, in the United States of America, it is mandatory to report such content to the authorities. As a result of this stance of the US Justice System, in the year 2017 alone, the National Centre for Missing and Exploited Children (NCMEC) received nearly 10 million reports of Child Pornography from Internet Service Providers in the Country.[12] 

The current problems plaguing governance of online social media platforms is never ending. From the dissemination of fake news to instances of defamation and sale of illicit pornographic content, it is essential to create a proper legal framework for social media platform governance. Creation of a statutory body to govern this space along with framing of laws specific to these platforms will ensure that every individual is held accountable for their actions on the internet. While the fear of government overreach leading to curbing of free speech does pose a concern when there is regulation of content on online forums, this fear should not dilute the necessity to govern them. In a rapidly developing country like India, the use of internet and technology is also fast growing, the absence of regulation or lack of modern laws can only spell disaster for the country and lead to the internet turning into a hostile space. Currently, however, the advantages of social media outweighs its disadvantage, but without proactive steps taken by the government or regulatory authorities, it will soon turn into an extremely unsafe environment.

 

BIBLIOGRAPHY

Table of Legislations:

  • The Indian Penal Code, 1860 292, 354C, 499, 509, 1860 (India)
  • The Information Technology Act, 2000 66E, 67, 67A, 72, 2000 (India)
  • The Protection of Children from Sexual Offences Act, 2012, 14, 15, 21, 2012 (India)

 

Table of Cases

  • State of West Bengal v. Animesh Boxi, (2017) GR/1587/2017
  • Shreya Singhal v. Union of India, (2015) 5 SCC 1

 

Secondary Sources

  • Jordan Fairbrairn, EGirls, ECitizens: Putting Technology, Theory and Policy into Dialogue with Girls’ and Young Women’s Voices 229- 252 (University of Ottawa Press 2015)
  • Strategy for Ending Violence Against Children, UNICEF (2020) https://www.unicef.org/india/media/4151/file/End%20Violence%20Against%20Children%20Strategy%20India.pdf
  • Rama Lakshmi, Video recordings of gang rapes on rise in India in effort to shame, silence the victim, WASHINGTON POST (August 14, 2014), https://www.washingtonpost.com/world/video-recordings-of-gang-rapes-on-rise-in-india-in-effort-to-shame-silence-the-victim/2014/08/13/41d8be42-3360-4081-9ff0-dee2df54f629_story.html
  • Sandhya Keelery, Indian Social Networking Penetration, STATISTA (Oct 16, 2020), https://www.statista.com/statistics/240960/share-of-indian-population-using-social-networks/
  • K. Vij, India Must Review it’s Law on Child Pornography and Address Gaps, OUTLOOK INDIA (Nov. 15, 6:00 PM), https://www.outlookindia.com/website/story/opinion-india-must-review-its-law-on-child-pornography-and-address-gaps/357863

[1] Jordan Fairbrairn, EGirls, ECitizens: Putting Technology, Theory and Policy into Dialogue with Girls’ and Young Women’s Voices 229- 252 (University of Ottawa Press 2015)

[2] State of West Bengal v. Animesh Boxi, (2017) GR/1587/2017

[3] The Indian Penal Code, 1860 §292, 354C, 499, 509, 1860 (India)

[4] The Information Technology Act, 2000 §66E, 67, 67A, 72, 2000 (India)

[5] Strategy for Ending Violence Against Children, UNICEF (2020) https://www.unicef.org/india/media/4151/file/End%20Violence%20Against%20Children%20Strategy%20India.pdf

[6] The Protection of Children from Sexual Offences Act, 2012, §14, 2012 (India)

[7] The Protection of Children from Sexual Offences Act, 2012, §15, 2012 (India)

[8] Rama Lakshmi, Video recordings of gang rapes on rise in India in effort to shame, silence the victim, WASHINGTON POST (August 14, 2014), https://www.washingtonpost.com/world/video-recordings-of-gang-rapes-on-rise-in-india-in-effort-to-shame-silence-the-victim/2014/08/13/41d8be42-3360-4081-9ff0-dee2df54f629_story.html

[9] The Protection of Children from Sexual Offences Act, 2012, §21, 2012 (India)

 

[10] Sandhya Keelery, Indian Social Networking Penetration, STATISTA (Oct 16, 2020), https://www.statista.com/statistics/240960/share-of-indian-population-using-social-networks/

[11] Shreya Singhal v. Union of India, (2015) 5 SCC 1

[12] R.K. Vij, India Must Review it’s Law on Child Pornography and Address Gaps, OUTLOOK INDIA (Nov. 15, 6:00 PM), https://www.outlookindia.com/website/story/opinion-india-must-review-its-law-on-child-pornography-and-address-gaps/357863

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