2.1 Non-Consensual Intimate Image Distribution

Whether or not an intimate image was captured consensually, if the distribution of that image was without the knowledge or consent of the targeted woman, it constitutes an infringement of her privacy, dignity, and bodily and sexual autonomy. Therefore, it is the violation of these rights that needs to be redressed in a case involving NCIID. In reality though, it is the dissemination of obscene content that is treated as the primary issue in most NCIID cases, implying that the harm is the exposure of the image in question to the public, rather than the violation of the rights of the concerned woman.

Another important consideration in adjudicating a case of NCIID is that the woman not be shamed or considered at fault for consensually sharing her intimate image with someone in the first instance. Otherwise, it could have the effect of curtailing harmless and consensual forms of sexual expression. For instance, in Mohammad Nasar v. State of Andhra Pradesh (2020),⁷Mohammad Nasar v. State of Andhra Pradesh, Crl. P. No.3125, judgment dated 24 August 2020, Andhra Pradesh High Court. a case of NCIID, while denying anticipatory bail to the accused, the court made the unwarranted observation that “no prudent woman would post her nude photographs in social media”. Courts should desist from treating arguments relating to the character of the woman as mitigating factors,⁸Chauhan, S. S. (2021). Cyber Violence against Women and Girls (CVAWG), The Algorithms of the Online-Offline Continuum of Gender Discrimination. International Journal of Humanities and Social Sciences, 10 (2), 87. https://dx.doi.org/10.2139/ssrn.3953292. especially given the legislative mandate under Section 53A of the Indian Evidence Act, 1872, which stipulates that the evidence of the character of the victim or her previous sexual experiences are irrelevant in the prosecution of sexual offenses.

Another consideration relates to how the violation is framed under law, and consequently, in public discourse. Previously, NCIID was commonly referred to as revenge porn and subsequently as Image-Based Sexual Abuse (IBSA). Even though revenge porn is still in use, many commentators have noted that the term revenge porn is problematic for a few reasons.⁹Maddocks, S. (2019). "Revenge Porn": 5 Important Reasons Why We Should Not Call it by that Name, para 5. GenderIT.Org. https://www.genderit.org/articles/5-important-reasons-why-we-should-not-call-it-revenge-porn Firstly, the use of the word revenge feeds into the victim-blaming narrative described above and defines the conduct (of the victim) from the perpetrator’s perspective. Secondly, it likens the offense to pornography, which is a fundamental misrecognition of what the victim experiences.¹⁰Maddocks, S. (2019). "Revenge Porn": 5 Important Reasons Why We Should Not Call it by that Name, para 5. GenderIT.Org. https://www.genderit.org/articles/5-important-reasons-why-we-should-not-call-it-revenge-porn

Section 354C of the Indian Penal Code (IPC), 1860, introduced by the Criminal Law Amendment Act, 2013, is commonly invoked in NCIID cases. The Section outlines the punishment for the offense of voyeurism, which is defined as the act of capturing or disseminating the image of a woman engaging in a private act, in circumstances where she would usually have the expectation of not being observed. This Section defines a private act to include an “act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy and where the victim’s genitals, posterior or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is not of a kind ordinarily done in public”. Explanation 2 to the Section further clarifies that the act of non-consensually disseminating an image of a woman, even if the woman consented to its initial capture, is punishable. Thus, this Section covers instances of NCIID regardless of whether the initial capture, of the image was consensual or not.

Further, Sections 354 (outraging the modesty of a woman) and 509 (insulting the modesty of a woman) of the IPC are also invoked by courts in cases of NCIID. However, these Sections contain references to a “woman’s modesty”, a Victorian-era reference from British rule which has been present in Indian law since its inception in 1860.¹¹Wright, B., & Wing-Cheong, C. (2016). Codification, Macaulay and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law Reform. Routledge. https://www.routledge.com/Codification-Macaulay-and-the-Indian-Penal-Code-The-Legacies-and-Modern/Wright-Chan/p/book/9781138255890 Courts often equate a woman’s modesty with patriarchal assumptions about “womanly propriety of behavior, scrupulous chastity of thought, speech and conduct, reserve or sense of shame”,¹²As defined in the Oxford English Dictionary (1933 Ed); upheld in State of Punjab v Major Singh, AIR 1967 SC 6. which is not desirable. This is a protectionist approach that negates a woman’s agency and focuses on her body rather than the violation of her right to privacy, dignity, and autonomy. In contrast, even though Section 509 is about the offense of outraging modesty, it also contains a direct reference to intrusion into a woman’s privacy, as part of the definition of the offense. Courts could rely on this leg of the definition in cases of NCIID.

Another legislative provision which gets invoked in NCIID cases is Section 66E of the Information Technology (IT) Act, 2000 (IT Act), which punishes the violation of a person’s privacy through non-consensual capture or transmission of an image of the person’s private areas. However, the Section’s focus is narrow. It limits itself to images of private areas, which it defines as naked or undergarment-clad genitals, pubic area, buttocks, or female breasts. When we contrast this with the definition of private act under Section 354C, we see that Section 66E leaves out situations in which the private image of a woman not involving exposed or underwear-clad private parts may be captured and disseminated.

In addition, if the non-consensually distributed image is sexually explicit, then it will attract punishment under Section 67A of the IT Act which penalizes the “publication or transmission of any material which contains sexually explicit act or conduct in electronic form”.

Often, the harm caused by NCIID is misrecognized as a crime of obscenity. As noted earlier, such legal provisions do not address the rights violations suffered by the targeted woman but tend to reinforce a protectionist and moralistic stance towards women’s sexual expression and autonomy. Therefore, provisions such as Section 292 (obscenity) of the IPC and Section 67 (lascivious or lewd) of the IT Act should ideally not be applied in cases involving NCIID. Finally, Sections 503 and 506 (criminal intimidation), and Section 383 (extortion) of the IPC can be invoked in cases of NCIID which involve blackmail (also known as criminal intimidation under the law) and extortion.

Since NCIID is not explicitly defined as an offense under Indian laws, but rather is a constituent of other offenses, courts in India have invoked different penal provisions in dealing with such cases. In this section, we discuss two court judgments on NCIID, one that satisfactorily upheld a woman’s fundamental right to equality, privacy, and dignity, and another that misrecognized the harm caused by the offense and fell into the patriarchal trap of blaming the victim.

2.1.4.1 Vikas Garg and Ors v. State Of Haryana (2017)¹³Vikas Garg and Ors v. State Of Haryana, CWP No. 5910 of 2016, judgment dated 13 September 2017, Punjab and Haryana High Court.

This case involved the commission of a range of offenses, among which the threat of dissemination of nude images played a central role. It is not entirely clear from the facts of the case, as narrated in the judgment, whether the intimate images were consensually shared in the first instance, but we refer to the case to highlight the presence of harmful gender stereotypes in the judgment of the Punjab and Haryana High Court, which not only misrecognized the crime but also completely defeated the ends of justice.

The case involved students of Jindal Global University. The victim stated that upon receiving nude pictures from one of the accused, she was coaxed into sending back nude photographs of her own. These pictures then became the basis of a long-drawn blackmail of sexual, emotional, and physical harassment. The accused then threatened to make her nude photographs public, to the university and her parents, unless she had sex with him and his friends. As such, the victim was coerced into having sex with the accused. A trial court found all three accused guilty under Sections 376D, 376(2)(n), 376, 292, 120B, and 506 of the IPC, and under Section 67 of the IT Act, and sentenced them to various terms of imprisonment.

Subsequently, a petition to suspend the sentence of the accused and grant them bail was decided by the Punjab and Haryana High Court in September 2017.¹⁴Vikas Garg and Ors v. State Of Haryana, CWP No. 5910 of 2016, judgment dated 13 September 2017, Punjab and Haryana High Court. Its judgment provides us with important signposts of what not to do in cases involving NCIID. The High Court made wholly unwarranted remarks about the character of the woman, describing her conduct as “promiscuous”, and saying that she indulged in “casual sex”, “adventurism”, and “experimentation in sexual encounters”.¹⁵Vikas Garg and Ors v. State Of Haryana, CWP No. 5910 of 2016, judgment dated 13 September 2017, Punjab and Haryana High Court, at para 20, 25. The judgment also repeatedly mentioned the woman’s use of drugs, cigarettes, and alcohol, and the fact that condoms were found in her hostel room, suggesting that these pieces of information have a bearing on the offenses committed.¹⁶Vikas Garg and Ors v. State Of Haryana, CWP No. 5910 of 2016, judgment dated 13 September 2017, Punjab and Haryana High Court, at paras 14-15. The judgment used these as justifications to suspend the sentences of the defendants and grant them bail.¹⁷Vikas Garg and Ors v. State Of Haryana, CWP No. 5910 of 2016, judgment dated 13 September 2017, Punjab and Haryana High Court, at para 26-31. The court showed undue sympathy for the accused on account of the “promiscuous” and “perverse streak” of the victim,¹⁸Vikas Garg and Ors v. State Of Haryana, CWP No. 5910 of 2016, judgment dated 13 September 2017, Punjab and Haryana High Court, at para 25-27. suggesting that she is responsible for what happened to her.

The case was then brought to the Supreme Court of India by a special leave petition in November 2017, which stayed the grant of bail.¹⁹A.k., A. (2017). SC Stays Bail Granted to Former Jindal Students in Rape Case. Bar and Bench. https://www.barandbench.com/news/sc-bail-jindal-students-rape Finally, in its judgment dated 30 September 2022, the Punjab and Haryana High Court affirmed the judgment of the trial court, finding all but one accused guilty of charges under Sections 376D, 376(2)(n), Section 292 r/w Section 34 of the IPC, and Section 67 of IT Act. ²⁰Karan and Others v. State of Haryana, CRA-D-653-DB-2017 (O&M), judgment dated 30 September 2022, Punjab and Haryana High Court.

2.1.4.2 State of West Bengal v. Animesh Boxi (2018)²¹State of West Bengal v. Animesh Boxi, C.R.M. No. 11806, judgment dated 3 January, 2018, The Judicial Magistrate, 1st Class, Tamluk, Purba Medinipur

This case, too, involved the commission of a range of gendered offenses, including doxxing and NCIID. We refer to this judgment as a positive example of correctly recognizing the nature of the offense.

The accused in the case, Animesh Boxi, posted personal photographs of the victim, along with her name and her father’s name, on Pornhub, without her permission. He was subsequently charged under Sections 354A (sexual harassment), 354C (voyeurism), 354D (stalking), and 509 (outraging the modesty of a woman) of the IPC, and Sections 66C (identity theft), 66E (violation of privacy), and 67 and 67A (transmitting obscene material online) of the IT Act.

In March 2018, the Judicial Magistrate in Tamluk, Medinipur in West Bengal, found the accused guilty of all charges. The court rejected the accused’s defense that since his acts did not physically injure the victim, he could not be held guilty under the charged Sections, which fall under the chapter of ‘Of Offenses Affecting the Human Body’ of IPC.²²Indian Penal Code, 1860, Chapter XVI. Instead, the court held that the victim’s reputation had been injured, which was sufficient for the case to fall under the ambit of the term injury as laid down in Section 44 of the IPC. Section 44 defines the term injury as any harm illegally caused to any person, in body, mind, reputation, or property. The court also found Boxi guilty of publishing private images online in violation of Sections 66E, 67, and 67A of the IT Act, and committing identity theft under Section 66C of the same Act, as he had hacked into the victim’s phone and taken the pictures secretly.

This case demonstrates how a judgment can advance a rights-based approach through creative interpretation of the law. Rather than viewing the case through the stereotypical tropes of womanhood, or making moral judgments about the victim for taking the photographs in the first instance, the judgment correctly placed the rights of the woman front and center and emphasized the non-consensual distribution of intimate images as the foremost consideration. Further, in assessing the harm caused by NCIID, the court was sensitive to the dangers of virality in the virtual world. It noted that the pictures and videos have the potential to cause harm beyond geography and time due to the affordances of cyberspace, where the victim would be repeatedly subjected to “virtual rape”.

In South Korea, the Nth Room incident highlights the seriousness of the growing problem of NCIID.²³Lee, E. (2022). The Nth Rooms and the Ungovernable Digital Bodies. Bot Populi. https://botpopuli.net/the-nth-rooms-and-the-ungovernable-digital-bodies The incident involved teenage girls being forced to upload explicit, and sometimes, violent videos of themselves on chat rooms such as Telegram. The videos were accessed by at least 260,000 users.²⁴de Souza, N. (2020). The Nth Room Case and Modern Slavery in the Digital Space. The Interpreter. https://www.lowyinstitute.org/the-interpreter/nth-room-case-and-modern-slavery-digital-space. The main accused Cho Joo-bin was sentenced to prison for 40 years in November 2020. The case triggered major legislative changes in South Korea. Five key amendments were made to the Act on Special Cases Concerning the Punishment of Sexual Crimes,²⁵The 2011 Act On Special Cases Concerning The Punishment Of Sexual Crimes. (South Korea). including raising the age of statutory or negligent rape to 16 from 13; omitting the application of statute of limitations for statutory rape and child sexual exploitation; expanding prohibited acts to include possession in addition to distribution, sale, and exhibition of illegal sexual videos; and subjecting those who coerced victims to be filmed in sexual or sexualized videos to increased imprisonment and monetary penalties.²⁶Lee, E. (2022). The Nth Rooms and the Ungovernable Digital Bodies. Bot Populi. https://botpopuli.net/the-nth-rooms-and-the-ungovernable-digital-bodies

Like South Korea, jurisdictions across the globe have adopted different legal strategies in dealing with the problem of NCIID. These include the enactment of specific legislations, as in Canada,²⁷The Intimate Image Protection Act, 2016. (Canada). or the application of general laws that target aspects of NCIID, as in India (as discussed above).²⁸Neris, N., Ruiz, J. P., & Valente, M.G. (2018). Fighting the Dissemination of Non-Consensual Intimate Images: A Comparative Analysis. Internet Lab. http://www.internetlab.org.br/wp-content/uploads/2018/11/Fighting_the_Dissemination_of_Non.pdf

Section 11 of the  Intimate Image Protection Act, 2018 enacted by province of Manitoba of Canada defines the Tort of Non-Consensual Distribution of Intimate Images as the “distribution of an intimate image of another person knowing that the person depicted in the image did not consent to the distribution, or being reckless as to whether or not that person consented to the distribution”.²⁹The Intimate Images Protection Act, 2016. (Manitoba, Canada). Importantly, the Section provides that an action may be brought without proof of damage, thus affirming that the violation of the victim’s right to privacy and bodily integrity, in the very act of non-consensual distribution, is sufficient proof of harm. Section 12 of the Act also provides that the victim would not lose their expectation of privacy in respect of the image even if they consensually provided the image to another person in the first instance. These considerations, which affirm the right to privacy and bodily integrity, should serve as important guideposts for any treatment of NCIID in the law.