Understanding non-consensual pornography: How to recognise,defeat online sexual violence

This article was first published on First Post here and is republished here with the permission of the author.

Recently, Kannada actor Sruthi Hariharan had lodged a complaint with the police, alleging that her photographs had been morphed and published online. Sruthi alleged that the said pictures were inappropriate and had been uploaded through fake Facebook accounts created in her name.

Around the same time, it was reported that the Twitter account of popular RJ-playback singer, Suchitra Karthik, was hacked again and sexually explicit photographs of Kollywood actors, including Dhanush, had been leaked online; Suchitra had garnered attention on social media in March 2017 on account of a similar incident (the #Suchileaks controversy).

The act of modifying photographs of a person (often with the purpose of portraying inappropriate imagery) and publishing it without their consent online is known as 'morphing'. Morphing is one of the many forms of non-consensual pornography, an internet crime faced not only by celebrities but by many other men and women online.

Non-consensual pornographic incidents are increasingly being committed through the internet and social media, and highlight the need for stringent laws to address this crime.

Incidents of non-consensual pornography in India

Non-consensual pornography can take many forms, such as morphing, revenge porn, rape videos and voyeurism. The National Crimes Bureau data states that as of July 2014, the number of cases under the category 'transmission of obscene content in electronic form' had witnessed a 104.2 percent increase from the previous year in India.

Among the various forms of non-consensual pornography, 'revenge porn' is arguably the most common and unique. Revenge porn refers to sexually explicit images/videos of a person uploaded online (usually by a former partner) without the permission of that person, in an act of 'revenge'.

In cases of revenge porn, the perpetrator is generally someone whom the victim was emotionally (and often physically) intimate with in the past. Further, while pornography involving morphing, voyeurism (spying on a person when they are naked or engaged in sexual activity) and rape videos (filming a person while committing sexual assault on that person) fall clearly within our understanding of crime (due to the lack of consent on the part of the victim to be portrayed in a sexual manner), revenge porn is particularly problematic because the sexually explicit images/videos are often shared by the victim with the perpetrator knowingly.

Until recently, crimes involving revenge porn were lesser known in India, while legislations banning revenge porn existed in several other countries, such as Canada, the United States and the United Kingdom as early as 2013/2014.

Non-consensual pornographic incidents, especially involving revenge porn, are increasingly being reported in India. Revenge porn incidents typically involve sharing of intimate (often sexually explicit) photographs/videos by a person (with their partner) while in a relationship under the belief that their partner would keep the photographs private.

When the relationship ends on a bitter note, the partner with whom the intimate photographs were shared makes them public, out of spite and in order to cause embarrassment. It is not uncommon for people (especially in the younger demographic) to share revealing photographs with their partners on WhatsApp or other socail mediums online, and this makes them particularly vulnerable to revenge porn incidents, should the relationship go astray in the future.

An obstacle to reporting of revenge porn cases in India is 'victim-blaming' or the possibility of the victim being blamed for sharing intimate photographs in the first place. This also makes it difficult for the victim to find emotional support in their family and friends when faced with revenge porn incidents.

This year, on International Women’s Day, a short film ‘Naked’ starring Kalki Koechlin was released online which explored themes such as cyber-bullying and non-consensual pornography. While one generally understands non-consensual pornography to be a crime against women, it must be recognised that such crimes could conceivably be committed against men as well (with the perpetrator being a female).

The problem with non-consensual pornography is that the solution (namely, take-down of the pornographic material in question), is not easy.

Even where the police succeed in taking down material from a particular online source, these images may resurface on a different website. In certain cases, the perpetrator can also use the sexually explicit content to extort the victim.

Laws against non-consensual pornography in India

Certain provisions in the Indian Penal Code (IPC) can be resorted to by victims of non-consensual pornography, however, these provisions fall short of addressing the complexity of issues involved in such cases.

Further, there is no provision in the IPC which is specifically aimed at punishing non-consensual pornography which takes place online. Section 354B punishes a man who assaults a woman with the intent to disrobe her or compels her to be naked.

While this provision can be used by victims of rape videos, this provision would not aid a victim of revenge porn, since the act of 'disrobing' is often voluntary/consensual in revenge porn cases. Section 354C punishes voyeurism and where sexually explicit images/videos of a woman are taken without her knowledge and circulated online, she can file a case under this section.

Victims of non-consensual pornography (particularly morphing) can also consider filing a case under section 499 of IPC for criminal defamation.

Section 66E of the Information Technology (IT) Act punishes the transmission of images depicting the private areas of a person. Under the IT Act, "private area means the naked or undergarment clad genitals, pubic area, buttocks or female breast". This provision is gender-neutral and while it does not expressly refer to 'revenge porn', it would cover cases of revenge porn.

Section 67A of the IT Act, which punishes publication or transmission of "material containing sexually explicit act, etc. in electronic form" can also be effective in fighting cases of non-consensual pornography.

Social media policies against non-consensual pornography

Internet websites including Facebook, Twitter, Google and Reddit have policies banning revenge porn. However, while internet users have welcomed such policies, their concern is that the social media guidelines seek to remove revenge porn only 'after' it has already been uploaded, and that there should be social media safeguards to filter such content 'before' it is uploaded online.

In April 2017, Facebook took the initiative to prevent the re-posting of revenge porn by cataloguing images/videos which had reported as revenge porn on Facebook in the past.

Interestingly, one of the biggest weapons against revenge porn online is not anti-revenge porn policies but copyright law policies, for removal of a person’s sexually explicit images. For instance, where the images/videos are selfies, the victims would own copyright over that material (being the owner of those images/videos). In cases where the material is uploaded as revenge porn, the victim can then report it as a copyright law violation (distribution of copyrighted content without the owner’s consent).

Incidents of non-consensual pornography in India highlight privacy concerns on the internet, and the dangers of sharing personal photographs/videos on social media and WhatsApp. The first step towards tackling these crimes is awareness among internet users.

Hyderabad police is, in fact, contemplating awareness campaigns such as educational videos which could be played in film theatres and public places. As awareness about these issues is increasing online, internet users have evolved a unique solution to tackle revenge porn, namely, a prenuptial social media agreement.

Couples are entering into prenuptial agreements with social media clauses to prohibit the sharing of their photographs/videos by their partner, should they end their relationship in the future. Any breach of the social media clause would be a breach of contract, and this might also entitle the aggrieved party to 'damages' (monetary compensation).

Given that incidents of non-consensual pornography are only expected to rise in the future, India must also contemplate categorising revenge porn and morphing as independent offences. WhatsApp too should have guidelines on revenge porn, since it is the most popular medium for exchange of personal photographs/videos. Precautionary measures taken by internet users to protect their privacy would also go a long way in preventing such crimes.