Introduction
The world of internet has evolved the ways of online harassment of individuals especially women. One of the most common forms of such harassment is the non-consensual sharing of someone’s intimate images. In India, though this crime is being committed at a very rapid pace, there is no specific legislation that deals with it. Though there are some provisions of the Indian Penal Code and the Information Technology Act that are invoked in such situations but considering the gravity of the situation, there is a need to devise legislation on this issue. Bermuda is one such country that amended in penal code in 2021 in order to statutorily incorporate this offence in Part X of its criminal code which deals with offences against morality. The amendment made changes to section 176A of the Act and introduced section 199A-E. In this article, we will discuss these legislative changes in order to fully grasp the essence and need of the statutory recognition of non-consensual intimate image sharing as a penal offence.
Definitions
The Amendment added the explanation to terms that are vital in understanding the legislative changes. According to the Act, an ‘intimate image’ does not literally mean a still image. The phrase encompasses videos as well. Any photo or video will be classified as an intimate image if it – depicts persons engaging in sexual activity which is ordinarily not done in public or if it exposes a person’s bare or covered (by underwear) genital or anal region or a female’s breasts. It is noteworthy to mention that the section widens the horizon of the phrase ‘intimate image’ by encompassing images that are altered to show any of the things stated above. This means that the provision can also be invoked in cases of deepfakes.
The section defines ‘private act’ as acts of showering or bathing, using, another activity when a person is in a state of undress, or intimate sexual activity that is not ordinarily done in public. This definition covers various forms of non-consensual recordings which may be done in pursuance of voyeuristic acts. Many a times, cameras are recovered from public toilets, public baths and changing rooms. Therefore, it is necessary to extend the definition of ‘private act’ to incidents of breach of privacy and not just explicit sexual images.
According to the provision, a ‘private place’ means a place where a person is expected to be engaging in a private act. Examples of private places can be toilets, changing rooms, bedrooms, hotel rooms etc. In such cases, the place should be of such nature where there is reasonable expectation of privacy. Such places also include public places where a person could expect reasonable privacy.
A ‘prohibited visual recording’ means the recording of a person in a private place or engaging in a private act, made in circumstances which would, in the normal course of action, be expected to afford reasonable privacy. It also means the visual recording of a person’s genital or anal region, when it is bare or covered only by underwear in circumstances where a reasonable adult would expect privacy with respect to that region. All the definitions provided in the section are inter-connected and the legislation attempts to give a wide scope to intimate acts which are not limited to sexual intercourse.
Dealing With Voyeurism
Recently, a raid was conducted in a hotel where a camera was installed in the keyhole of the hotel room. The accused captured intimate moments of a couple with the help of the hidden camera and later threatened them to leak their videos if they refused to pay money. Such cases are steadily rising due to innovative spy devices such as pen cameras, charger cameras, watch cameras etc. These cases are blatant acts of voyeurism which must be dealt with strictly.
Section 199A of the Code deals with observations or recordings in breach of privacy. The section states that if a person observes or visually records another person or his/her genital or anal region in circumstances where a person would expect reasonable privacy without the other person’s consent and when the other person is in a private place or is engaging in a private act. The section clearly prohibits voyeurism which is one of the gravest forms of privacy violations.
Tackling Non-Consensual Pornography
Many people record such videos and upload them on pornographic sites or social media. Section 199B of the Code prohibits the distribution of such intimate images without a person’s consent in a way that causes distress to the other person.
In X v. Youtube, the plaintiff had consented to film for a web series which was never released. The scenes contained nudity which were later released on online platforms without the plaintiff’s consent. The videos were edited in a pornographic manner which severely hampered the reputation of the plaintiff. Therefore, a provision like this can have a deterrent effect on such activities.
Similarly, Section 199C of the Code prohibits the distribution of prohibited visual recordings without the consent of the other person. Recently, a shocking incident took place in Manipur in which two women were publicly being sexually harassed. The video of those women went viral which can be regarded as breach of their privacy and integrity. If we scrutinize the definition of ‘prohibited visual recording’, it would encompass such incidents as any reasonable adult would expect privacy with respect to their genital or anal region in such circumstances.
The abovementioned provisions clearly tackle the problem of non-consensual pornographic content which is one of the most heinous crimes against human privacy. Voyeuristic content is often found on such sites which clearly proves the importance of such laws.
Online Threats
A recent incident took place in Noida with respect to hidden cameras in a hotel. It was reported that two men recorded intimate videos of a couple staying in the hotel room and then attempted to extort money by threatening them to leak the video. Section 199D of the Code deals with such problems. If someone threatens to distribute an intimate image or a prohibited visual recording of the other person without consent or in a way that would cause distress. Further, the threat must be made in a way that would cause reasonable apprehension of the execution of the threat.
In the landmark judgement of Subhranshu Raut v. State of Odisha, the court discussed this problem. In this case, the accused posted intimate images of the victim of a fake Facebook profile in order to take revenge on her. Such content is also known as revenge porn. The accused threatened the victim to publicise her images. In such cases, a provision like Section 199D can be of help to take punitive action against the perpetrators of such crimes.
Recognition of Right to be Forgotten
The evolution of privacy jurisprudence has led to the extension of right to privacy to the right to be forgotten. The right to be forgotten is the right of an individual to get his/her personal data removed from the internet. The Code has adopted this concept in the form of Section 199E. The section empowers the court to order the person to take reasonable action to remove, retract, recover, delete of destroy an intimate image or visual recording in cases dealing with Sections 199A, 199B, 199C and 199D.
The Indian judiciary discussed the significance of the right to be forgotten in cases of non-consensual sexual content in Subhranshu Raut v. State of Odisha. The Court said that if the right to be forgotten is not recognized in matters like the present one, any accused will surreptitiously outrage the modesty of the woman and misuse the same in cyber space. The court further stressed on legislative gap in the Indian legal system due to the absence of any law under which the right to be forgotten could be exercised.
In X v. Union of India, the accused leaked the petitioner’s explicit on various pornographic websites without her consent. The court invoked the right to be forgotten and held that it was a facet of the right to privacy. Bermuda’s Criminal Code Amendment gives statutory recognition to this right and enables the victims of such offences to invoke this provision and get their intimate images deleted. Therefore, it serves as a comprehensive legislation with respect to the sharing of non-consensual intimate images.
Conclusion
The crime of non-consensual intimate image sharing is growing rapidly in India. The Indian judiciary has also pointed out this loophole. The Indian legislature should devise a comprehensive law according to the specific needs of the nation. By giving statutory recognition to this offence, Bermuda’s Code has set a legislative precedent for all those nations which do not have a law which directly addresses this problem.
The Code has been analysed in the light of Indian problems and cases in order to bring out the relevance of the legislation in the Indian context. In India, though there are some scattered penal provisions that deal with non-consensual sexual content, there is no single provision which talks about the remedying the victim.
The victims in such cases must be compensated for the mental agony and loss of reputation. Though the code does not deal with this aspect, it is something that can be incorporated by Indian legislators. Further, the Code has recognised the right to be forgotten which must be an inherent remedy in such cases. Foreign laws often serve as the guiding spirit in the vast domain of legal knowledge. Therefore, India must incorporate similar legal remedies in order to protect its citizens from such abusive offenders.
