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Online Gender Harassment: Legal Framework Analysis on Revenge Porn and Sextortion

Introduction
 
The internet has provided us a new medium to express ourselves and to document every detail of our personal life without thinking of the consequences. We do not realize that everything that is digitized is truly not private and is subjected to abuse. The country’s legal system is still in its infancy stage when it comes to the offenses and crimes that are stemming out of the internet world. This can be seen in the gaps still prevalent in The Information Technology (Amendment) Act, 2008.
 
There has been an increase in cybercrimes relating to Revenge Porn and Sextortion. Women are the most targeted victims in cybercrimes due to the lack of recognition of some cyber offenses and social stigma.
 
This article discusses and evaluates the current legal framework and shares concerns expressed on Revenge Porn and Sextortion laws. 
 
Legal Framework and Limitations
 
Sextortion and Revenge Porn both do not have any legal definitions assigned to the name, however, there are provisions in the Information Technology (Amendment) Act, 2008 and the Indian Penal Code, 1860 that possibly cover such offenses. Our legal machinery is insufficiently equipped to deal with such cases and prevent them in the future.
 
Sextortion
Sextortion is a form of sexual exploitation through coercion in a non-physical form. For example, an employee receiving a promotion after receiving a sexual favor. The non-recognition of Sextortion by authorities is predominantly because it does not fit into one category, as it comes under the purview of both cyber and criminal laws such as extortion, identity theft, and voyeurism. When the law is not focused it leaves space for misinterpretation and manipulation. In the end, the crime is treated leniently. For example, in the OP Jindal case, 3 male students threatened a female student to release her nude pictures if she did not comply with their sexual demands. The Punjab and Haryana High Court held that the victim’s statement was “misadventure stemming from a promiscuous attitude and voyeuristic mind”. 
 
The IT (Amendment) Act, 2008 does not have any provisions to help victims of sextortion. Section 383 of the Indian Penal Code, discusses about extortion. This legislation is used when action against the perpetrator of any kind of sextortion.
 
Under extortion, the gravity of the threat is penalized and not the sexual demands. In cases where it discusses the leakage of personal data the punishment prescribed is only for fear to commit injury (Section 385). Similarly, authorities may use other legislation to prosecute what the accused was threatening the victim with. 
 
This legislation is lenient in convicting the accused as they are prosecuting the threat and not the resultant sexual demands. In effect, it escapes being penalized under Section 375 “consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.” The primary reason for these loopholes is because the laws are being used when penalizing sextortion was not meant to extend to it. This allows prejudice guided by social stigma in the prosecution of these cases, that occurs through victim profiling.
 
Section 108 (1)(i)(a) of the Criminal Procedure Code, is a good preventive measure for sextortion in cases in which the threat is relating to the circulation of obscene matter. It empowers the victim to have the accused detained by the magistrate without any direct evidence.
 
Jammu and Kashmir is the first state where the Penal Code has a separate provision to provide for the offense of sextortion. Section 354E of the Ranbir Penal Code defines sextortion as “whoever in a position of authority, fiduciary relationship or public servant uses a physical or non-physical form of coercion to demand sexual favors from any woman.” Similarly, The Criminal Law (Amendment)Bill, 2019 seeks to expand Section 376C to cover positions of authority, fiduciary relationships, and public servants. If this Bill is passed it will help bring a definition to sextortion so it can be prosecuted without evasion.
 
Revenge Porn
Revenge Porn is blackmailing and distribution of sexually explicit images or videos without one’s consent where the individuals shared an intimate relationship. 
It has been observed that on occasions police are disinclined to register revenge porn offenses as there is no defined law. However, lawyers and researchers are reluctant to press for a separate law to regulate revenge pornography. This is because of the overshadowing existence of Section 66E which prescribes the punishment for violation of privacy and Section 354C which prescribes punishment for voyeurism. Section 354C, describes voyeurism only extends to intimate pictures that were taken without the victim’s consent. Section 66E fills the gaps of the former as it extends into taking the consent of the victim for transmission of the image/video. This means the law can be interpreted to differentiate consent on the 2 levels of commission and transmission. Despite this, police normally file a case under Sections 67 and 67A of the IT Act. These Sections can be used to control a woman’s sexuality. The victim can be booked alongside the perpetrator if she sent the explicit picture/video tot he perpetrator. Some go on to argue, that if the victim did not engage in filming these pictures or videos, they would not have existed. The lack of definition in the law leaves room for an interpretation prejudiced with the social stigma. When the police are the first person who is approached when the victim wants to seek redressal, the law to be applied should be precise and clear. This present uncertainty leads to the distrust of the victims in the legal system.
 
We still need to acknowledge the progress made in the Indian legal system. In 2018, a Bengal judgment was considered the first ‘revenge porn’ conviction. The nude videos transmitted had been shot by the girl herself on her phone which the convicted had access to. He was sentenced to 5 years in jail time and Rs.9000 in fine. We must appreciate the strength the victim had to take a stand, and the judiciary for interpreting the law with justice, equity and good conscience.
 
There are still some additions that need to be made to the IT Act, to help improve the regulation concerning Revenge Porn. The IT Act does not have a law that regulates the removal of obscene material posted without their consent. In the age that data protection is important, there should be ways to help remove or de-link obscene material posted.  
 
Underreporting of Offences
 
Sextortion and Revenge Porn collectively are under-reported. A 2010 report shows, in Revenge Porn: 35% have reported, 46.7%have not reported and 18.3% were unaware of the fact that they were victimized. A culture of silence caused by victim shaming in the criminal justice system and society at large, forbid women from taking a stand. Having a defined law for these offenses would, in turn, bring recognition to these offenses. This would contribute to reducing victimization. Furthermore, there need to be provisions in the procedure in which these crimes are handled. There are no provisions to ensure that the women’s victim complaints are heard by a female officer. This provision only exists in the case of producing evidence. A safe reporting system can be introduced by having trained qualified female counselors, to help the victims deal with the trauma along with, offering legal aid and counselling.
 
Conclusion
On reflection of the legal provisions, one may note that the lack of definition leaves loopholes in legal discourse. Our legislation should guarantee the fundamental rights written in the Indian Constitution, with context to the current and changing society. The patriarchal society, in turn, silences victims. Recognition and criminalization will help the society and authorities understand that such behavior is unacceptable. When victims are confident in the legal system then, they will take a stand, instead of suffering in silence.

ABOUT THE AUTHOR

 

 

Ria Kari is a first year student at NALSAR University of Law, Hyderabad

 

 

 

 

 

 

In-content Picture Credits: mid-day.com

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