2.3 Digital Voyeurism

The non-consensual viewing or capturing of a woman in circumstances where she expects not to be observed by others, or at least not to be recorded, infringes on her fundamental right to privacy, which, as the Supreme Court noted in the Puttaswamy case, comprises autonomy of body as well as mind.⁵K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. The Court observed that the "privacy of the body entitled an individual to the integrity of the physical aspects of personhood. ⁶K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

When voyeurism is approached from the angle of privacy, it becomes worth asking when or under what circumstances a woman has a reasonable expectation of privacy. It is indisputable that a woman engaging in a private act within the confines of her private space has a reasonable and legitimate expectation not to be observed or recorded. But the answer becomes more complicated when the woman is in a public space. Acts like upskirting and downblousing often happen in public spaces and when a woman is dressed, but would still constitute voyeurism as the woman does not expect others to view or capture images from under her dress. This follows from the position that the reasonable expectation of privacy is not with respect to the place itself, but with respect to the relevant circumstance. Further, while one cannot expect not to be observed in a public space, a case can be made for a reasonable expectation to not be recorded, unless necessary, in the interest of law enforcement, freedom of expression, free press, etc., which require contextual determination.

As feminist critiques have warned, one needs to be wary of patriarchal notions being reinforced in the determination of whether a woman has a reasonable expectation of privacy in a given circumstance. The tendency to use modesty as a factor in deciding the circumstances in which a woman may expect privacy can erroneously blame the woman herself.⁷Allen, A. L. (1991). How Privacy Got its Gender. University of Pennsylvania Carey Law School. https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2309&context=faculty_scholarship A patriarchal reading may deem a woman’s presence in certain spaces as a sign of immodesty, which, in turn, could be used as an excuse to nullify her legitimate expectation of privacy. Because of dissatisfaction with the privacy approach, some scholars argue that the non-consensual sharing of images, including voyeurism, has to be grounded in a bodily integrity framework. Bodily integrity is an important aspect of the right to privacy and helps to foreground the actual harm suffered by a woman who is subjected to voyeurism.⁸Bhandari, V., & Kovacs, A. (2021). What’s Sex Got to Do with It? Mapping the Impact of Questions of Gender and Sexuality on the Evolution of the Digital Rights Landscape in India. Internet Democracy Project. https://internetdemocracy.in/reports/whats-sex-got-to-do-with-it-mapping-the-impact-of-questions-of-gender-and-sexuality-on-the-evolution-of-the-digital-rights-landscape-in-india In other words, voyeurism and the dissemination of voyeuristic content are perceived as forcible ownership and passing around of a woman’s body. Therefore, more than a violation of privacy, such acts constitute “a bodily violation and a loss of self-determination”.⁹Bhandari, V., & Kovacs, A. (2021). What’s Sex Got to Do with It? Mapping the Impact of Questions of Gender and Sexuality on the Evolution of the Digital Rights Landscape in India. Internet Democracy Project. https://internetdemocracy.in/reports/whats-sex-got-to-do-with-it-mapping-the-impact-of-questions-of-gender-and-sexuality-on-the-evolution-of-the-digital-rights-landscape-in-india

Further, laws on voyeurism tend to limit the offense to viewing, capturing, or disseminating images of the exposed private parts of a woman, as will be discussed below. Adopting a bodily integrity framework instead will mean that the non-consensual capture or dissemination of a woman’s fully clothed image for a sexualized purpose will be covered under the offense of voyeurism as well.

Section 354C of the Indian Penal Code (IPC), which was added by way of the Criminal Law Amendment Act, 2013, defines the offense of voyeurism as watching or capturing the image of a woman engaging in a private act, in circumstances where she would expect to not be observed, either by the perpetrator or by any other person at the behest of the perpetrator. Dissemination of such images is also made an offense.

A private act is defined as “an act carried out in a place which 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 is doing a sexual act that is not of a kind ordinarily done in public”.

Another useful provision, particularly in the online context, is Section 66E of the Information Technology (IT) Act, 2000 (IT Act) which penalizes the non-consensual capture, publication, and transmission of the image of the private area of a person under circumstances that violate the privacy of that person, intentionally or knowingly. While Section 354C is a gender-specific provision that targets voyeurism against women, Section 66E is gender-neutral. Both Sections are grounded in an understanding of the non-consensual nature of the act and the intrusion of privacy it entails. However, these Sections, emphasize the exposure of private parts of the female body as opposed to the expectation of a woman that, irrespective of her exposure, she will be free from observation and recording in a given circumstance. Thus, as a consequence, these Sections pay limited attention to bodily integrity.

Also applicable in cases of voyeurism is Section 509 of the IPC, which penalizes intrusion into a woman’s privacy. However, as cautioned earlier, under this Section, the determination of a woman’s privacy expectation may be guided by the court’s notion of womanly modesty. This is particularly concerning in light of judicial observations¹⁰Naraharisetty, R. (2022). How the Law's Fixation on Women's Modesty Upholds Rape Culture. The Swaddle. https://theswaddle.com/how-the-laws-fixation-on-womens-modesty-upholds-rape-culture/ view the essence of a woman’s modesty as her sex ¹¹State of West Bengal v. Animesh Boxi @ Ani Boxi, Case No. GR: 1587/17, order dated 7 March 2018, Court of Judicial Magistrate, at para 22. and use the modesty framework to pass remarks about what is considered appropriate womanly behavior and conduct, thereby failing to give remedy to those who do not conform to this.

Since cases of voyeurism can also involve the dissemination of a captured private image of a woman, the courts and the police tend to invoke and apply provisions that penalize the publication of obscene and sexually explicit materials. However, these Sections tend to attach moral opprobrium to any sexual content, sexualize female bodies,¹²Bhandari, V., & Kovacs, A. (2021). What’s Sex Got to Do with It? Mapping the Impact of Questions of Gender and Sexuality on the Evolution of the Digital Rights Landscape in India. Internet Democracy Project. https://internetdemocracy.in/reports/whats-sex-got-to-do-with-it-mapping-the-impact-of-questions-of-gender-and-sexuality-on-the-evolution-of-the-digital-rights-landscape-in-india and work on an impulse to protect society from sex/sexuality instead of addressing the real harm caused to the victim, i.e., the violation of their bodily integrity and consent.¹³Bhandari, V., & Kovacs, A. (2021). What’s Sex Got to Do with It? Mapping the Impact of Questions of Gender and Sexuality on the Evolution of the Digital Rights Landscape in India. Internet Democracy Project. https://internetdemocracy.in/reports/whats-sex-got-to-do-with-it-mapping-the-impact-of-questions-of-gender-and-sexuality-on-the-evolution-of-the-digital-rights-landscape-in-india

2.3.4.1 State of West Bengal v. Animesh Boxi (2018)¹⁴State of West Bengal v. Animesh Boxi @ Ani Boxi, Case No. GR: 1587/17, order dated 7 March 2018, Court of Judicial Magistrate, at para 122.

The court, in this case, took a gender-sensitive approach to the offense of voyeurism, emphasizing the bodily integrity of the woman. The accused in the case got hold of nude photos and videos of the victim from her mobile phone without her consent, viewed the same on his phone, and uploaded them on a pornographic website. The court held that this act of viewing and disseminating images of private acts of the woman, which were reasonably secured from viewing by others, constituted voyeurism under Section 354 of the IPC. It also convicted the accused under Section 66E of the IT Act as the pictures of the woman’s private parts were transmitted and published in the virtual world. In invoking these Sections, the court recognized that the victim’s bodily integrity had been harmed by the voyeuristic activity of the accused. At the same time, it refrained from passing any judgment on the victim for having such private and nude photos on her phone.

Additionally, the court also convicted the accused under Section 509 of the IPC. But this was based not on the privacy intrusion resulting from the accused’s act, but on the court’s observation that the complainant’s modesty had been insulted by the uploading of her nude videos in the virtual world. Despite its good intentions, it is concerning to note that the court based its finding on the concept of modesty, which feeds into the shame-honor narrative associated with a woman’s sexuality and body:

“...The essence of a woman’s modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, awake or sleeping the woman possesses modesty capable of being outraged.”¹⁵State of West Bengal v. Animesh Boxi @ Ani Boxi, Case No. GR: 1587/17, order dated 7 March 2018, Court of Judicial Magistrate. para. 122.

Further, the Court also upheld charges under Sections 67 and 67A of the IT Act, which invokes the archaic notions of obscenity and does nothing to address the harms to bodily integrity and privacy, and other rights violations suffered by the complainant.

2.3.4.2 State by Mahadevapura Police Station Bengaluru v. Gowtham Ganesh @ Gowtham (2021)¹⁶State by Mahadevapura Police Station Bengaluru v. Gowtham Ganesh @ Gowtham, (2021) C.C.No.3776/2019, judgment dated 7 April 2021, Bangalore District Court

The accused in the case allegedly photographed the complainant who was standing in a queue to buy a cinema ticket. The police filed a charge sheet under Section 354C of the IPC and Section 66E of the IT Act. Subsequently, the court found that there was no evidence or witness to prove that the accused had taken photos of the complainant on his phone. The court went on to observe that even if there was evidence, the act of the accused would not amount to voyeurism under the concerned Sections. It noted that at the time of the incident, the victim was not engaging in a private act in circumstances where she would expect to not be observed either by the perpetrator or any other person.

As the law stands now, voyeurism can be committed only in situations where a person can reasonably expect not to be observed. It does not extend to situations where, though a person may be observed, there is a reasonable expectation not to be recorded or captured. While a person cannot reasonably expect not to be observed in a public space, the right to bodily integrity includes a reasonable expectation to not be recorded, even in a public space. But this needs to be balanced with other public considerations such as in the interest of law enforcement, freedom of expression, free press, etc. Given these competing considerations, in situations akin to this case, the court may be required to engage in a creative and contextual interpretation of the law to protect the privacy and bodily integrity of a woman from capture of her photo even in a public place and its possible dissemination. This assumes importance in cases of upskirting and downblousing which usually happen in public places. Unfortunately, the court in this case did not undertake such a creative interpretation of the law which could have provided redress to the victim.

Many jurisdictions have enacted specific laws to deal with voyeurism, either through specific statutes or provisions within general criminal statutes. For instance, while the US¹⁷Video Voyeurism Prevention Act, 2004. (United States). and the Philippines¹⁸Anti-Photo and Video Voyeurism Act, 2009. (Philippines). have specific gender-neutral legislation to deal with voyeuristic content, countries like Canada¹⁹Criminal Code (R.S.C., 1985, c. C-46), Section 162. (Canada). and the United Kingdom²⁰Sexual Offences Act, 2003, Section 67, 67A and 68. (United Kingdom) have sections that penalize voyeurism within a general criminal statute or within statutes dealing with sexual offenses. Most of these laws define voyeurism in terms that are similar to the Indian law, i.e., capturing an image of a person engaged in a private activity or of their private parts in circumstances where they expect privacy. However, it is worth mentioning the UK's definition of voyeurism, which is quite elaborate and spans across three Sections. What makes the UK statute unique is that it penalizes not only the observation, recording, and dissemination of voyeuristic content, but also the mere operation of an equipment to enable the perpetrator or others to engage in voyeuristic activity.²¹Sexual Offences Act, 2003, Section 67(2). (United Kingdom). Further, the law does not limit the object of voyeurism to sexual gratification and notes that causing humiliation, alarm, or distress to the victim could also be the object of voyeurism.²² Sexual Offences Act, 2003, Section 67A(2B)(3)(b) (United Kingdom). This aptly recognizes the injury to the mind and reputation of the victim stemming from voyeuristic content.

Under Canada’s Criminal Code, the voyeurism provision is not limited to the capture of private acts or private parts of a person but also extends to images that are taken in circumstances in which a person has a reasonable expectation of privacy, with no requirement that the image depicts nudity or sexual activity.²³Criminal Code (R.S.C., 1985, c. C-46), Section 162(1). (Canada). ‘Although nudity is not required, it may be an aggravating factor in sentencing.’; R v. Pan, (2012) ABPC 203, judgment dated 29 June 2001, Supreme Court of Canada. However, as compared to the UK law, the law in Canada defines voyeurism in a restricted manner as an act committed for sexual purposes or sexual gratification.²⁴Criminal Code (R.S.C., 1985, c. C-46), Section 162(1). (Canada); Also see, R v. Pan, (2012) ABPC 203, judgment dated 29 June 2001, Supreme Court of Canada. The Court observed: "Although nudity is not required, it may be an aggravating factor in sentencing."

Notably, the Philippines statute that deals with voyeurism, namely, the Anti-Photo and Video Voyeurism Act of 2009, describes it as an offense that violates the honor, dignity, and integrity of a person subjected to voyeurism.²⁵Anti-Photo and Video Voyeurism Act, 2009, Section 2. (Philippines). This captures the essence of the offense of voyeurism as not only a violation of privacy, but also an act that has implications for the integrity and self-determination of the victim.