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
  

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[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