Student Column

Non -Consensual Porn and  Human Right violation of women by Manthan Sharma . BBA-LLB, 3rd year, Unitedworld School of Law, Karnavati University . 20-08-2019

Innovations are vital for the growth of any nation. One of the astonishing aspects of innovation is technology. It is the key which expanded the human perception of public welfare. But, who would have thought that its misuse can defeat the very idea of welfare?

Every day we come across various headlines regarding harassment, stalking, bullying and sending obscene content through internet. These are the acts which fall under the category of “Cyber Crimes”.  Cybercrimes against women may include three types of issues[1]: (a) cases of interpersonal harassment (b) financial crimes such including credit card frauds (c) online harassment by strangers.

In this write-up I would be concentrating on online harassment more specifically  from “non-consensual porn” perspective. According to Citron (2014) “It involves the distribution of sexually graphic images of individuals without their consent. This includes images originally obtained without consent (e.g., hidden recordings or recordings of sexual assaults) as well as images originally obtained with consent, usually within the context of a private or confidential relationship (e.g., images consensually given to an intimate partner who later distributes them without consent, popularly referred to as revenge porn)”[2]. Halder (2017) however adds that all non consensual porn images may not be revenge porn. The non-consensual porn which may be distributed or may be stored to distribute motive to take revenge may be considered as revenge porn.[3]  Nonetheless, these are gender specific acts which are entrenched in our society where the victims are usually women and children.  There are plenty of examples victimisation of girls and women by way of non-consensual porn India : circulation of pictures of girls in their underwear, intimate photographs taken with ex, etc are just some examples. Perpetrators could be as young as 16 or 17 year olds who may have felt cheated or dumped by their girlfriends. [4].

Now here comes the most ironical part of this distressed situation i.e. absence of any law in this regard. As a result of this inaction it will not be incorrect to say that we are the facilitators of these human right violations. What is expected from the survivors who have suffered such humiliation? Aren’t they supposed to live a life with dignity? The society in which we are living is not static anymore, we are progressing. But with the evolution of society there are changes in circumstances as well (such as technology). The crimes which are taking place are same i.e. the end result is that the victim is still harassed and tormented but the mode in which the crime was committed has changed. Non-consensual porn and revenge porn violate the very basic human right of women. It violates the principle to live with dignity. The apex court in India in several of its judgements have indicated that privacy ( including sexual privacy) is a supreme right and women and men enjoy it as a basic right.[5]

Therefore, it is high time to work on this alarming situation and safeguard the very idea of protecting the rights enshrined in our constitution.

“Laws and institution must go hand in hand with the progress of the human mind”

-Francis Bacon


[1] Debarati Haldar, K. Jaishankar, Cyber Crimes against Women In India, 2017.

[2] Citron, D. K., & Franks, M. A. (2014). Criminalizing Revenge Porn. Wake Forest Law Review,  345(49), 1-38. (cited in Scott R. Stroud, Ph.D., & Jonathan Henson, What Exactly is Revenge Porn or Nonconsensual Pornography?), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2828740

[3] Halder Debarati (2017) Criminalizing Revenge Porn From The Privacy Aspects: The Model Revenge Porn Prohibitory Provision @https://www.livelaw.in/criminalizing-revenge-porn-privacy-aspects-model-revenge-porn-prohibitory-provision/

[4] Available at https://homegrown.co.in/article/803204/surviving-revenge-porn-3-indian-women-share-their-experience

[5] State of Maharashtra v. Madhkar Narayan, AIR 1991 SC 207, Puttasamy vs Union of India, WP(CIVIL) NO. 494 OF 2012

Gender and internet : Cyber law magazine for women News update 1st -20th August, 2019

Israeli Man who harassed underage girls and young women by impersonating as gynecologist, swimming coach etc on internet to groom them only to do sextortion later, tries to escape clutches of law by faking mental illness. Psychological tests prove that he was doing online harassment in a very organised manner. Prosecutors asked the court to put him in custody unless proper legal recourse is decided. https://www.timesofisrael.com/israeli-indicted-for-sexual-abuse-of-45-underage-girls/

Man targets women staff and female HR officials with lewd messages in India, gets arrested http://www.millenniumpost.in/delhi/man-booked-for-sending-obscene-texts-367832

Law fails to deter conman : Man dupes many women on Facebook promising marriage http://www.newindianexpress.com/cities/bengaluru/2019/aug/07/man-held-for-cheating-women-on-social-media-2015312.html

Messaging apps being misused to impersonate and send lewd messages to women in India https://www.freepressjournal.in/mumbai/aurangabad-women-approach-police-after-getting-lewd-messages

Dubai police warns beach-goers regarding taking pictures of women without their consent : jail term or hefty fines await law breakers https://www.thenational.ae/uae/government/snap-with-caution-dubai-police-issue-new-warning-to-beachgoers-1.894327

Bitcoin sextortion scamming cases reaches record high https://www.cryptoglobe.com/latest/2019/08/bitcoin-sextortion-scammers-stole-1-2-million-in-bitcoin-last-year/

Female researcher of Makerere University becomes the first person to be convicted under the Computer Misuse Act for offensive communication targeting President Yoweri Museveniof Uganda after she expressed her dissatisfaction when she was acquitted of charges for offensive communication. Apparently, Nyanzi, the researcher has been protesting against abuse of presidential power. https://observer.ug/news/headlines/61520-stella-nyanzi-found-guilty-of-cyber-harassment

Court system under the Information Technology Act, 2000 (amended in 2008) by Dr.Debarati Halder

Often I have been asked by victims, stakeholders and students of law about the jurisdictions of the courts and court system as a whole under the Information Technology Act, 2000 (Amended in 2008). This query carries great significance especially at a time when subscribers, consumers and civil society members are facing numerous problems due to data theft, data diddling, and data leaking etc. by the body corporate, intermediary and service providers themselves. Such issues of piercing the veil of cyber security and data privacy due to inefficient data protection mechanism of the body corporate may in turn help individual predators and even criminal gangs to target individuals including women and children to make it a large scale offence. Let us consider the case of Facebook facial recognition case in the US : even though Facebook as a company has been strongly contesting the case, the federal appeals court has given a green signal  for this class suit whereby Facebook can be prosecuted for infringement of data privacy  and would be liable to pay a huge compensation to the petitioners.[1]  What we understand from here is, such cases in the field of cyber law, may be dealt by courts in the nature of civil cases as well as in the nature of criminal cases.

In India, the primary regulatory provision for cyber issues is the Information Technology Act, 2000(amended in 2008) (IT Act, 2000, amended in 2008). This provision indicates that there are two types of authorities and tribunals/courts who may handle cases in the nature of civil and criminal liabilities, i.e., civil and criminal court and tribunals . We may understand this typology by understanding the nature of the cases under the Information Technology Act first, which is as follows:

In the issue of civil nature of cases, the administrative tribunal system under the IT Act has three tiers.

As may be seen from the above flow chart, at the grass-root level is the Certifying Authorities. A licensed Certifying Authority (CA) who has been granted licence under S.24, issues the digital signature certificates. CAs are controlled by Controllers, who are appointed by central government under S.17 of the Act. This provision also mentions about the appointment deputy /assistant controllers who should work under the instructions of the Controller.

Functions and responsibilities of the controller can be discussed under three broader heads:

S.18 of the IT Act provides essential functions of the Controller. Apart from S.18, there are certain other provisions under the IT Act, which speaks about other responsibilities and powers of the Controller.  The functions under S.18 are as under:

  • Exercising supervision over the activities of the Certifying Authorities;
  • Certifying public keys of the Certifying Authorities;
  •  Laying down the standards to be maintained by the Certifying Authorities;
  • Specifying the qualifications and experience which employees of the Certifying Authority should possess;
  • Specifying the conditions subject to which the Certifying Authorities shall conduct their business;
  •  Specifying the contents of written, printed or visual materials and advertisements that may be distributed or used in respect of an Electronic Signature Certificate and the public key;
  • Specifying the form and content of an Electronic Signature Certificate and the key;
  • Specifying the form and manner in which accounts shall be maintained by the Certifying Authorities;
  •  Specifying the terms and conditions subject to which auditors may be appointed and the remuneration to be paid to them;
  •  Facilitating the establishment of any electronic system by a Certifying Authority either solely or jointly with other Certifying Authorities and regulation of such systems;
  •  Specifying the manner in which the Certifying Authorities shall conduct their dealings with the subscribers;
  •  Resolving any conflict of interests between the Certifying Authorities and the subscribers;
  •  Laying down the duties of the Certifying Authorities;
  •  Maintaining a database containing the disclosure record of every Certifying Authority containing such particulars as may be specified by regulations, which shall be accessible to public.

As such, other than the functions mentioned above, the Controller may also have the following powers and functions:

  • Controller may also recognize the foreign certifying authorities with prior approval from the government under S.19.
  • Controller is the authority to suspend license of the CA in case of any discrepancies in the function of the CA under S.25
  • Controller has power investigate contraventions or authorize any officer to do the same under S.28.
  • Controller may also access to computer and data under S.29 if he has reasonable cause to suspect for any contravention of the provisions etc.

Apart from this, controller also has powers for dispute resolution: As such, .controllers can take over matter for regulating and resolving any conflict of interests between the Certifying Authorities and the subscribers.

Adjudicators along with the controllers form the second tier of tribunal system for civil nature of cases under the IT Act.  Adjudicating officers are appointed by the Central Government under S.46 of the IT Act for holding inquiry (in the manner prescribed by the Central Government) in cases where any person has committed a contravention of any of the provisions of this Act or of any rule, regulation, direction or order made thereunder which renders him liable to pay penalty or compensation. Such officer should not be below the rank of a Director to the Government of India or an equivalent officer of a State Government.S.46 clearly mentions that no person shall be appointed as an adjudicating officer unless he possesses such experience in the field of Information Technology and legal or judicial experience as may be prescribed by the Central Government. The adjudicating officer appointed under S.46(1)  are empowered to exercise jurisdiction to adjudicate matters in which the claim for injury or damage does not exceed rupees five crore. In case the jurisdiction in respect of claim for injury or damage exceeds Rs. five crore, the jurisdiction to try such cases then shall vest with the competent court. Every adjudicating officer shall have the powers of a civil court which are conferred on the Cyber Appellate Tribunal under sub-section (2) of section 58. As such, all proceedings before the adjudicator (a) shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code; (b) shall be deemed to be a civil court for the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973. And (c) shall be deemed to be a Civil Court for purposes of order XXI of the Civil Procedure Code, 1908

But, the adjudicating officer cannot fix the quantum of punishment (especially fines, damages and compensation) at his own whimsies and fancies. S.47 says while adjudging the quantum of compensation under Chapter IX, the adjudicating officer shall have due regard to the following three factors, namely –

  • the amount of gain of unfair advantage, wherever quantifiable, made as a result of the default;
  • the amount of loss caused to any person as a result of the default;
  • the repetitive nature of the default

As such, adjudicators are responsible to handle cases of data infringement, unauthorised access to computer, offences to the computer (of civil nature), and fraudulent data leaking cases etc. under chapter IX of the IT Act.

At the top tier of the tribunals for dealing with cases of civil nature under the Information Technology Act, 2000(amended in 2008) exists the Cyber Appellate Tribunal. S.48 of the Information Technology Act, 2000 (amended in 2008) stated that the central government shall by notification establish one or more appellate tribunals to be known as Cyber Appellate Tribunal. However, it has been observed by several cyber law practitioners that the Cyber Appellate Tribunals in some places in India were not functioning properly. As such, since 2017 The Telecom Disputes Settlement and Appellate Tribunal (TDSAT) established under section 14 of the Telecom Regulatory Authority of India Act, 1997 (24 of 1997), (TRAI Act) has substituted CAT & working as Appellate Tribunal for the purposes of IT Act. It also exercises the jurisdiction, powers and authority conferred on it by or under IT Act. The TDSAT shall consist of a Chairperson, and not more than two  members  to be appointed by the Central Government.[2] Prior to the coming into existence of  TDSAT within the meaning of Appellate tribunal under the IT Act, online High Court judges could  qualify  to be appointed as Chairpersons  of the cyber appellate tribunal as per S.50 of the IT Act. However,  presently  as per S.4 of the TRAI Act, the Chairperson and other members of the Authority shall be appointed by the Central Government  only if such candidate has special knowledge of, and professional experience in, telecommunication, industry, finance, accountancy, law, management or consumer affairs.  Further, a person who is, or has been, in the service of Government shall not be appointed as a member unless such person has held the post of Secretary or Additional Secretary, or the post of Additional Secretary and Secretary to the Government of India or any equivalent post in the Central Government or the State Government for a period of not less than three years (as per Proviso to S.4 of the TRAI Act). s. 57, IT Act, 2000(amended in 2008) speaks about the jurisdiction & limitations of the Appellate authority , which to large extent is practiced by the TDSAT now. According to S.57, any person aggrieved by an order made by controller or an adjudicating officer under this Act may prefer an appeal to Appellate Tribunal having jurisdiction in the matter. However, no appeal shall lie to the Appellate Tribunal from an order made by an adjudicating officer with the consent of the parties. Every appeal under 57(1) shall be filed within a period of forty-five days from the date on which a copy of the order made by the Controller or the adjudicating officer is received by the person aggrieved and it shall be in such form and be accompanied by such fee as may be prescribed. Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause for not filing it within that period.

Court for dispute resolution of criminal nature: Information Technology Act, 2000(amended in 2008) does not specifically mention about any court which may handle cases of criminal nature under this Act. But S.77A of the Information Technology Act is mentionable here, which speaks  about  compounding of offences According to S.77A of the IT Act, 2000(amended in 2008), a court of competent jurisdiction may compound offences, other than offences for which the IT Act provides punishment for life or imprisonment for a term exceeding three years.  As per S.77A, the court however, shall not compound offences falling under the categories as below:

  • Where the accused is, by reason of his previous conviction, liable to either enhanced punishment or to a punishment of a different kind:
  • Where such offence affects the socio economic conditions of the country.
  •  Has been committed against a child below the age of 18 years or a woman.

S.77A(2) of the IT Act states that  a person accused of an offence under this Act may file an application for compounding in the court in which offence is pending for trial and the provisions of sections 265B and 265C of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply. From the above discussion, it may be inferred that any competent criminal court under Cr.P.C which are competent to handle cases involving offences and punishments as has been prescribed under Chapter XI under the IT Act, may be considered as competent court for the purpose of this Act. Now, the question which may arise is, which criminal courts may handle cases of criminal nature under IT Act, 2000 (amended in 2008). For this, we may need to understand the patterns of punishments under Chapter XI of the IT Act, 2000 (amended in 2008). These can be listed as below:

  • Imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.
  • Imprisonment of either description for a term which may extend to three years or with fine which may extend to rupees one lakh or with both
  • Imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lakh.
  • Imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both
  • Imprisonment up to three years, or with fine which may extend up to two lakh rupees, or with both.
  • Imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both.
  • Imprisonment extending to imprisonment for life.
  • Imprisonment in first conviction of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.
  • On first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees
  • Life imprisonment

Now, to find the answer as which court may try cases of criminal nature under the IT Act,  the above mentioned  list has to be matched with the powers of various criminal courts under Ss.28 & 29 of Cr.P.C. The powers of the courts under the Cr.P.C can thus be categorized as follows:

As such it may be understood that cybercrimes and offences recognised under Chapter XI with various degrees of punishment may be dealt by various criminal courts as has been discussed under Ss.28 and 29 of the Criminal Procedure Code. But, in such cases also, the aggrieved party (including the offender) may make an appeal to the appropriate courts including the Session’s court,  High Court and also to Supreme court. However, in case the offence includes any offence targeting children, then along with Information Technology Act, 2000(amended in 2008), provisions of Protection of Children from sexual offences Act may also be applied. In such cases, the offence may necessarily be dealt with by courts designated under POCSO Act : such courts may be Special Court or Children’s Court or the Sessions court itself.

Note: Please do not violate the copyright of this writeup. If you wish to use this writeup for your report/assignment/project etc, please refer it as Halder Debarati (2019) Court system under Information Technology Act, 2000 (amended in 2008). Published in http://www.internetlegalstudies.com on 12-08-2019

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[1] For example see @https://www.theguardian.com/technology/2019/aug/09/facebook-facial-recognition-lawsuit-can-proceed-us-court?CMP=share_btn_fb&fbclid=IwAR3RvbLbL9TmFCkeBgypZORu4dRYnQNFvbWuFfIoQN1m-n80UlFO8_26qIk

[2] see http://dot.gov.in/actrules/telecom-regulatory-authority-indiatrai-act-1997

Gender and Internet: Cyber law magazine for women News Update for July 21-31, 2019

Court releases man accused of dating underage girl, on the ground that the accused was intellectually disabled, due to his disability he was attracted to internet dating sites and the concerned dating site clearly mentioned that no one below the age of 19 can be the member of the said site. The court also considered that the accused stopped communicating with the woman understanding that she may be under 14.
https://www.irishtimes.com/news/crime-and-law/man-released-without-charge-after-sting-in-cork-1.3970574

45 year old mom sentenced to 15 years prison sentence for allegedly trafficking her female children on internet
https://www.sunstar.com.ph/article/1816574

Man arrested by police for allegedly paying families to encourage children including girls to act in sexually explicit manner in front of cameras and sharing the contents with third parties for more child abuse. The man was also accused of destroying I-pad in an attempt to destroy evidences.
https://www.dailymail.co.uk/news/article-7300753/Monmouth-businessman-south-Wales-Jonathan-Kay-paid-families-Philippines-sex-abuse-children.html

Indian man gets arrested for allegedly accessing wife’s Facebook profile and posting derogatory obscene contents to vent out anger over bitter ending of the relationship with wife.
https://www.indiatoday.in/crime/story/hyderabad-man-who-posted-obscene-pictures-on-wife-s-facebook-arrested-1575546-2019-07-31

Gender and Internet: Cyber law magazine for women News Update for July 1-20, 2019

Concerns regarding privacy breach by Russian FaceAging App rises
https://www.forbes.com/sites/thomasbrewster/2019/07/17/faceapp-is-the-russian-face-aging-app-a-danger-to-your-privacy/#1f5fd4462755

Devastating impact of Revenge porn on victim women and girls acknowledged again
https://www.grimsbytelegraph.co.uk/news/grimsby-news/devastating-impact-revenge-porn-files-3073566

Photo mining of women leads to balckmailing and extortion of women. Suspects arrested in Pakistan
https://www.samaa.tv/news/2019/07/islamabad-blackmailers-admit-to-involvement-in-child-pornography-fia/

Jeddah Court awards three days jail sentence to Saudi Woman for sending insulting Whatsapp communication to ex-husband
https://stepfeed.com/saudi-woman-gets-three-days-in-jail-over-profane-texts-to-ex-husband-4850

Selling intimate images of own wife is considered violative of law. SriLankan swimming instructor arrested for allegedly cooercing his Filipina wife to perform sexual activities for uploading the images and then selling them for unethical gain.
https://www.pna.gov.ph/articles/1074960

Philipines introduces Safe Spaces Act or Republic Act No 11313 to penalise misogynistic slurs, sexual harassment in public places, workplaces and online spaces.
Minimum sentence is fine and 12 hours community services with Gender sensitivity seminar
https://www.rappler.com/nation/235481-new-law-punishes-wolf-whistling-catcalling-online-sexual-harassment

Court struggles to settle online harassment cases involving emogis
https://edition.cnn.com/2019/07/08/tech/emoji-law/index.html?fbclid=IwAR3KP3pDDfrSbcnRYEyNPnPZN8S9MJZ6CPLLxMbV1OvSoq6bBfo6hXnSu_E

Facebook defends and says does not operate website to have friends, infringe privacy
https://arstechnica.com/tech-policy/2019/07/facebook-denies-allegations-that-you-make-friends-on-facebook/?fbclid=IwAR2gBe-S5rP4prF57zODikgKshn5gbJbew7UnJDibLFP7oxiCx3BJ-_mJJU

Gender and Internet: Cyber law magazine for women news update for June 1-30, 2019

Imminent threat to data security as Women and men may be duped by digital boy/girl friends
https://www.timesnownews.com/the-buzz/article/digital-boyfriend-man-creates-chatbot-to-chat-with-girlfriend-while-he-is-at-work/435623?fbclid=IwAR0PK_u_wUSPrS9NLNFIcdTn69VAFoWumtKeWvjyWesguSVJMJT5iGx45v0

Facebook privacy principles are questioned by courts again
https://www.nbcnews.com/tech/tech-news/facebook-lawyer-says-there-no-privacy-hinting-challenges-zuckerberg-s-n1012666?fbclid=IwAR0ReEC2tuE7j0CQenqKb9bJS_gyJjeady8_WAU_b3gzmuXxBZPI3uahcSk

Privacy policies of Google are questioned in European courts
https://www.euractiv.com/section/data-protection/news/google-faces-privacy-complaints-in-european-countries/?fbclid=IwAR0yoMv0skOilc1ELpdG1mTuXwKq0YVuLTWu2SkychFdAo-CKe01-BhkdEo

Hyderabad Conwoman dupes NRI bridegrooms
https://www.deccanchronicle.com/nation/crime/130619/hyderabad-conwoman-held-for-cheating-nri-grooms.html

Celebrity impostered for the purpose of sextortion targeting women
https://www.freepressjournal.in/entertainment/ransom-for-obscene-photos-armaan-maliks-impostor-arrested-for-extorting-money-from-women

Gender and Internet: Cyber law magazine for women news update for May 27th-31st 2019

Women are being targeted by social media scams impersonating soldeirs
https://www.dvidshub.net/news/324108/cid-warns-army-community-about-social-media-impersonation-soldier-accounts

Celebrity photo leaks : Women celebrities fight for legal rights while they remain soft targets of porn consumers
https://www.popdust.com/iggy-azalea-nude-photos-2638329621.html

Philipine court imposes 21 years imprisonment sentence on woman online trafficker
https://ph.news.yahoo.com/online-trafficker-cordova-gets-21-105700722.html

Gender and Internet: Cyber law magazine for women news update for May 20- 26th, 2019

Women PUBG players are heavily targeted by sexist bullies and gamers
https://thelogicalindian.com/my-story/women-pubg-players-india/?fbclid=IwAR0yawT9fNvRM5LBXTEKLisEBuwju-MNGshqZDcgBIMBWNCyn_KuB2ygkhU

Cyber sex trafficking victimises several women and girls in South East Asia inlcuding China, Korea etc
https://www.businessinsider.in/thousands-of-north-korean-women-are-being-forced-into-sexual-slavery-in-china-rights-group-says/articleshow/69427275.cms

PORN as key words may attract searchers to hackers in UK
https://www.thesun.co.uk/tech/9122972/uk-porn-block-hackers-warning/

Gender and Internet: Cyber law magazine for women Weekly news update for May 13- 19th, 2019

Women UN diplomats are also being targeted by predators online
https://www.passblue.com/2019/05/14/the-case-of-harassing-a-un-diplomat-via-1000s-of-text-messages/

Peivacy of women are being infringed in the name of escort services on social media
http://www.newindianexpress.com/cities/hyderabad/2019/may/15/fraud-escort-services-now-on-social-media-1977097.html

Live streaming and harassment of women gets noted by criminal justice machinery in South east Asia
https://www.scmp.com/news/asia/southeast-asia/article/3010610/southeast-asias-fight-against-paedophiles-moves-live

Mamata Banerjee, Priyanka Chopra and Aishwarya Rai : What bonds them together and why?

On 14-05-2019 the Supreme Court of India created one more example of broadening the freedom of speech when it ordered for the immediate release of Priaynka  Sharma, a BJP activist. Sharma had allegedly posted a meme of Mamta Banerjee which contained morphed  picture of Mamata Banerjee on Priayanka Chopra’s image that  was taken in Met Gala, 2019. Chopra was heavily trolled for her attire and make-up and several people started created memes with Chopra’s picture.  The Supreme Court on an appeal by the brother of Sharma ordered for an immediate release of Sharma (who was arrested by the West Bengal police) emphasizing the fact that she should apologies to Banerjee because it has hurt her. The court also mentioned that freedom of speech cannot be unfettered when it infringes other’s right.[1]  As per the news reports, she was however released after 24 hours.

This is not the first time in India that someone got arrested for ‘posting’ images/comments etc  on social media which apparently questions/defames/teases political personalities including members of the ruling government  party. After the coming into effect of the amended version of  Information technology Act, 2000 (amended in 2008), S.66A (which prescribed punishment for offensive, annoying etc. speech) has been over and again used by the police to arrest individuals who had posted comments which apparently questioned/ridiculed/defamed/teased political personalities. Before S.66A could have been properly interpreted, [2] the Supreme Court felt that the provision was being grossly misused for the ill drafting and in Shreya Singhal vs Union of India, the apex court ruled it unconstitutional.  In the recent Mamata Banerjee meme case, Supreme court stuck to its earlier understanding that no arbitrary arrest may be made for posting contents on social media targeting particular political personalities (including those in the ruling government parties) because this hampers freedom of speech.  Let me also state here that Banerjee has sister -politician who had been ‘victims’ of memes : she is none other than German chancellor Angela Merkel whose  latest memes appeared with Narendra Modi  when the BJP official website got hacked.  There is rarely any information available whether Merkel had made the police arrest the individuals who had been creating or sharing the memes including the morphed images of Merkel.  

My concern here however does not cover the repetition of the act of Mamata Banerjee government in arresting individuals targeting political personalities including herself.  I look at the issue from two perspectives here: (i) morphing the image of a woman and thereby creating/distributing/sharing the same as a non-consensual image (and not nonconsensual pornography); (ii) who should be ideally liable and under which law, and whether this issue attracts any legal liablity or not.  As the reports and the  image in question (which is still available when we search with key words such Mamata Banerjee meme ) suggests , it was not one, but two women were targeted : Priyanka Chopra, the original person in the image, who was heavily trolled because of her Met Gala, 2019  attire  and Mamata Banerjee, whose  face was morphed with the picture of Priyanka Chopra . Priyanka Chopra has not yet filed any police complaint for trolling; neither she has filed any complaint for morphing her picture.  It was not the same case for Banerjee:  she made it sure that the individual who shared the image should get arrested  under several provisions of Information Technology Act, 2000 (amended in 2008) including S.500 of the Indian Penal Code which prescribes punishment for defamation. The news reports however did not mention about the specific provisions of IT Act under which she was arrested. Noticeably, neither Information Technology Act, nor Indian Penal Code recognizes any offence of’ ‘morphing’. The term does not find any mention in any law. Further, the existing laws neither specifically focuses attention for creation of  morphed image  of women for  damaging her reputation. However, cutting and pasting  of face is holistically addressed under several laws including Indecent Representation of women prevention Act (especially when the content is used to show case women in an indecent manner), S.509 of the IPC (which prescribes punishment for word, gesture, or any act made to insult the modesty of a woman), Ss66D( Punishment for cheating by personation by using computer resource) 66E Punishment for violation of privacy) etc, which may be coupled with Ss.. 67 (Punishment for publishing or transmitting obscene material in electronic form) or 67A ( Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form), (this is especially when the image or related text suggests sexual offences ) or S.354 C IPC (which prescribes punishment for voyeurism targeting women). A minute scrutiny of these provisions may suggest that they may loosely  skirt around the concept of anti-defamation law as well especially when the reputation of the targeted victim is at stake due to the content  created/transmitted .

In this political memes targeting women (and ridiculing them), one more celebrity woman Aishwarya Rai now joins with  Mamata Banerjee and Priyanka Chopra. Rai was featured in a meme created and shared  by another actor from the film industry who, the media reports suggest, had an emotional bondage with Aishwarya Rai before she got married to her present husband Abhishek Bacchan. Rai’s meme showcases not one , but three  photos with texts which had been the center of debate and ‘amusement’ for many. The first photo shows Rai with Salman Khan, a prominent actor of Bollywood who had a relationship with Rai many years back when she was a debutant in Bollywood. She reportedly came out of the relationship because of physical abuses and harassment. This photo has a caption which reads ‘opinion poll’. The next is with Vivek Oberoi, who has allegedly created the meme. This has a caption which reads ‘exit poll’ and the last in the line is Rai’s family photo with her husband and daughter, which reads ‘result’. Noticeably, this meme attracted attention of many because this centered around a celebrity woman actor who is supposed to be one of world’s most beautiful women. She has been trolled many times earlier. But this is probably the first time that she, her husband  and her minor daughter are pulled in for political meme. Oberoi was slammed by many of his fellow Bollywood women actors who considered this as disgraceful, classless, disgusting etc.[3] While accepting the fact that Rai is a favorite subject for trolls for many years, what no one understood in this was, Rai’s daughter does not deserve this as a child. Even though as a celebrity child, she and her mother  had been trolled; could anyone understand how her right to privacy and basic child rights have been violated ? That’s the curse of being the daughter of a celebrity mother which follows all children of all women celebrities including women actors, politicians, sports persons etc.

As such, both Mamata Bannerjee , Priayanka  Chopra and Aishwarya Rai could have availed any of these laws mentioned above if they were not public figures and if the photographs that had been the major issue here, had been their personal  photographs or it would have been created specifically for sexual gratification which happens to most of the women actors.[4]

Then in that case, if the photographs were their personal properties, could they have pursued the police for arrest?    We have to turn our attention to chapter IV of the Copyright Act, 1957 for this : three sub clauses of S.17 attract my attention here which are as follows:

17. First owner of copyright.— Subject to the provisions of this Act, the author of a work shall be the first

owner of the copyright therein:

Provided that—

(a) in the case of a literary, dramatic or artistic work made by the author in the course of his

employment by the proprietor of a newspaper, magazine or similar periodical under a contract of

service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar

periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first

owner of the copyright in the work in so far as the copyright relates to the publication of the work

in any newspaper, magazine or similar periodical, or to the reproduction of the work for the

purpose of its being so published, but in all other respects the author shall be the first owner of the

copyright in the work;

 (b) subject to the provisions of clause (a), in the case of a photograph taken, or a painting or portrait

drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of

any person, such person shall, in the absence of any agreement to the contrary, be the first owner of

the copyright therein;

(c) in the case of a work made in the course of the author’s employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;

Neither Priyanka Chopra, nor Mamata Banerjee claimed that the photographs in question were their personal photographs which they ‘owned’ as per Copyright Act. The photographs were then properties of different persons or agencies who probably had captured both the women with consent.  Given this fact, neither (especially Banerjee) may proceed to complaint for arresting unless it has harmed her reputation or caused her financial loss or caused grave threat. Here, we must note that the Supreme Court has very narrowly touched upon the private sentiment of  Banerjee when it stated that such production and sharing of photograph may have infringed her right (not any specific right, but understandably it was largely right to reputation under Right to Life with dignity).   But what the court failed to note here was the liability of the website where it was published and shared. Websites like Facebook however may not count this as impersonation (again we have to go back to the understanding as who is ‘owner’ of the photograph) unless the image has been used to grossly defame the person whose photo is involved. The websites would neither recognize this as offensive if seen from the perspective of US laws of Freedom of speech which is extremely broad. This has been the major concern for many women victims of morphing, revenge porn and nonconsensual porn throughout the world.  In India the due diligence clause under S. 79 of the Information Technology Act (exemptions from liability of intermediary in certain cases) had been a major savvier for  US based web companies like Facebook or Twitter when it comes to liability of websites for offences including generating /continuing the harassment of women for nonconsensual photographs.   There is however one more solution from EU : Article 13 of the EU directives on Copyright in the single market[5] which makes the websites liable for illegal hosting of contents if they do not acquire license from the right holders of such contents. This means that the third party liability in offensive and illegal content sharing becomes more stringent as per the EU copyright Law. But in India such laws are not yet implemented or executed.

What we see from the above discussion is, Supreme Court has yet again broadened the meaning of freedom of speech, but failed to provide guidelines which may have strengthened rights of women who may be victimized by way of morphing in general. The court was in a hurry to undo the wrong of a political persona and the police who may have acted under her direction. But failed to create a lasting (and impressive) interpretation of  laws which could have saved millions of women victims of nonconsensual  images.

  • This blog was earlier published in Halder.Debarati (2019)Mamata Banerjee, Priyanka Chopra and Aishwariya Rai  : What bonds them together and why. Published in  http://debaraticyberspace.blogspot.com

[1] Singh V.P. (2019) Mamta Banerjee Meme: What For Did The SC Ask Priyanka Sharma To Apologise?

https://www.livelaw.in/columns/mamta-banerjee-meme-what-for-did-the-sc-ask-priyanka-sharma-to-apologise-145069 . Published on May 15, 2019

[2] See Mamata Banerjee meme: SC grants bail to BJP worker Priyanka Sharma, asks her to apologise after release. Published in https://www.indiatoday.in/elections/lok-sabha-2019/story/mamata-banerjee-meme-bjp-worker-bail-west-bengal-priyanka-supreme-court-1524467-2019-05-14   on May 14, 2019.

[3] See ET online (2019)Vivek Oberoi tweet Aishwarya Rai’s meme; Sonam Kapoor, Jwala Gutta lash out at actor

Published @//economictimes.indiatimes.com/articleshow/69413084.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst on May 21, 2019. Accessed on May 21, 2019

[4] Halder D., & Jaishankar K. (2016) Celebrities and Cyber Crimes: An

Analysis of the Victimization of Female Film Stars on the Internet. Temida

– The journal on victimization, human rights and gender. 19(3-4), 355-372.

ISSN: 14506637

[5] See Art 13 in the DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on copyright in the Digital Single Market @ https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016PC0593