Following the viral exposure of her intimate film in 2020, a 16-year-old Gujarati girl committed suicide. Two years later, in a different incident, a man in Tamil Nadu was taken into custody by the police for online publishing naked pictures of a female.
Three elements link these stories despite their differences in time and place. First, the partners of these women shared or leaked the pictures; second, the pictures were taken with the women’s consent while they were dating these guys; and third, the pictures were leaked with the intention of getting even with the partners.
As a subtype of distributing non-consensual intimate images (NCII), these events frequently fall under the category of revenge pornography. It is a term used to describe “an intimate image or video that is initially shared within the context of a private relationship but is later publicly disclosed, usually on the internet, without the consent of the individual featured in the explicit graphic.”
What The Courts And The Government Have Said Over The Past Two Years :
Government and judicial authorities have been working together in the past two years to develop a successful approach to address the problem of retaliation pornography. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021) were enacted on February 25, 2021, by the Ministry of Electronics and Information Technology, using the authority granted to it by the Information Technology(IT) Act, 2000.
The Rules effectively set forth the standards for intermediaries’ level of due diligence as well as the steps that a victim of retaliation pornography must take in order to have any content removed from any social media platform. By the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2022 (2022 Amendment Rules), the IT Rules, 2021 have further been modified.
There are two distinguishing characteristics in the procedure outlined under the Rules. First off, it is easy to comprehend and apply. The Rules require intermediaries to select a “grievance officer” in India, specifically identifying the person to be contacted in the event of a crime. Additionally, Rule 3(2)(a) of the IT Rules, 2021 mandates that an intermediary post the identity of the grievance officer, their contact information, and the process by which a complaint may be submitted to said grievance officer.
By including a web form on their website through which a complaint may be submitted, platforms like Instagram, Facebook, and Google have conformed with this Rule. These forms are typically written in bullet form, and the victim of revenge pornography is likely to tick boxes like “I want to report content showing me in nudity/partial nudity or in a sexual act.”
Second, a deadline for resolving the complaint is specified in the Rules. The deadline serves two purposes: first, it prevents the victim from being at the mercy of the intermediary while waiting for a reply; and, second, it moves towards ensuring the grievance officer is held accountable for how complaints are handled.
The Rules Establish The Following General Timeframe:
- complaint acknowledged within 24 hours by the grievance officer.
- Removal of content after 24 hours if a prima facie case has been made.
- Resolution of the issue – To be finished as soon as feasible and within 72 hours.
Along with government initiatives, Indian courts have played a role in ensuring that these Rules are followed. The directives and suggestions made by the Delhi High Court in Mrs. X versus Union of India and Ors. in April 2023 are a recent, notable example.
In that case, the court mandated, among other things, that the grievance officers be made more sensitive to sexual content that was obtained without consent and in violation of an individual’s privacy, that NCII be liberally interpreted to cover this type of content, that the complainant be given access to a status tracker on the online portal for reporting cybercrime, that the reporting mechanism be prominently displayed, and that the rules’ deadlines be strictly adhered to. The court also recommended setting up a helpline that is fully operational for reporting NCII content.
The Need For Reform :
It is cliché to say that a solid legal framework serves as the cornerstone for the implementation of legislation. Images are frequently taken with the victim’s permission and within the boundaries of a private relationship for the purposes of crimes like revenge pornography, but they are afterwards shared without the victim’s permission.
Consensual image-taking frequently exposes victims to greater danger of victimisation, secondary victimisation, and societal humiliation. The IT Rules, 2021 may be a success in terms of speed and simplicity, but they have neglected to address issues of accessibility, accountability, and transparency, all of which are crucial for an effective system. The 2022 Amendment Rules have largely addressed these accountability and accessibility issues, but they still need to be improved.
Absence Of Any Impartial Monitoring Mechanism :
A prominent social media intermediary itself must designate a “chief compliance officer,” who must be “key managerial personnel or a senior employee of the intermediary,” in accordance with Rule 4(1)(a) of the IT Rules, 2021, in order to guarantee compliance with the Act and Rules.
Additionally, by introducing Rule 3A, the 2022 Amendment Rules enable the creation of a “grievance appellate committee” (GAC). Any person who feels wronged by a grievance officer’s decision may choose to appeal to the GAC. The GAC should make every effort to adjudicate appeals within 30 days while implementing an online dispute resolution process. The GAC, which was established in February 2023, is said to as “a faceless dispute resolution mechanism that makes digital platforms accountable to the digital nagriks (citizens).”
The Harmful Digital Communications Act, 2015 (HDCA, 2015) of New Zealand serves as a model for any legislation intending to address the procedural aspects of material deletion, even if the criminalization of revenge porn has been thoroughly addressed in other countries as well. In addition to being straightforward and unambiguous, this law includes clauses that guarantee stakeholder responsibility and the propriety of the process.
It is clear that there are some substantial disparities between the HDCA and the features of the supervision process under Indian law. First off, any individual, organisation, or department may serve as the authorised agency under the New Zealand Act, which is responsible for collecting, accessing, and looking into complaints regarding harmful digital communications.
To fulfil the Act’s goals, the licenced agency also has a working connection with the web host. Second, the authorised agency may file a complaint on the complainant’s behalf with an internet host against a specific piece of content and may work with the complainant to resolve the problem.
It is impossible to overstate the importance of having an impartial institution to handle complaints or make sure that intermediaries are following the law. A system must have stricter accountability rules in order to be effective.
Additionally, although while an appellate authority is important, it is insufficient given that ongoing supervision is more effective in cases of crimes like revenge pornography. Given the rapidity of data flow on the internet, the necessity of a 30-day window for the resolution of an appeal as specified by the Rules may negatively affect the rights and interests of the victims in cases when a grievance officer refuses to remove the information.
In Subhranshu Rout alias Gugul against State of Odisha, the Orissa High Court addressed a complaint of revenge pornography and took the problem of data transmission speed into account. When comparing information in the public domain to toothpaste, the court provided an unusual analogy: “[I]nformation in the public domain is like toothpaste, once it is out of the tube one can’t get it back in and once the information is in the public domain it will never go away.”
Ambiguity In The Definitions Of “Appropriateness” And “Accessibility” :
A large social media intermediary must develop a suitable process for the reception of complaints that allows the complainant to follow the progress of the complaint, according to Rule 4(6) of the IT Rules, 2021.
Similar to this, the 2022 Amendment Rules provide that the “intermediary shall take all reasonable measures to ensure accessibility of its users with reasonable expectations of due diligence, privacy, and transparency.” But because appropriateness and responsibility are not defined in the Rules, there is some subjectivity involved in interpreting these concepts.
For instance, Google’s web form on the existing system requires the complainant to “provide the uniform resource locators (URLs), explain in detail why the content on these URLs is unlawful by citing specific legal provisions, quote the exact content from each URL, describe the picture or video that is unlawful, provide instructions on how to locate content on the URL, and steps to reproduce the violation.”
It is clear from a casual reading of these standards that a complaint must also be knowledgeable about law in addition to technological and digital skills.
Digital literacy in India is heavily impacted by the gender gap and urban-rural divide. For example, as of 2019, just 8.5 percent of rural women and 30.1 percent of metropolitan women could access the internet. According to reports, the Asia-Pacific region’s largest gender disparity in digital usage exists in India.
Technicalities cannot limit a crime like revenge pornography, which might impact a person’s basic rights. It is important that the words are clearly defined in order to reduce this subjectivity since victims’ adoption of procedural rights is reliant on the system’s accessibility and their confidence in it.
The government’s revision of Rule 3(1)(a) of the IT Rules, 2021 in 2022 shows that this is not wholly unusual for the government to do in order to improve accessibility.
This Rule requires the intermediary to make the Rules and regulations, privacy policy, and user agreement available on its website, mobile applications, or both. The 2022 Amendment Rules made it clear that the same must be done in English or any other language included in the Indian Constitution’s Eighth Schedule.
The accessibility of the system and user awareness are increased by allowing publishing of the regulations and agreements in regional languages. In order to guarantee that the mechanism is accessible and that the method is acceptable given the makeup of all population segments, changes to the current technique must be made. These changes must set forth the absolute minimum principles.
Here, too, there is a clear contradiction to Section 25(2) of the HDCA of 2015 in New Zealand. According to the Section, an online content host is not entitled to the immunity from any legal or civil liability for the content they post if they do not make a mechanism that is simple to use and “enables a user to contact the host about specific content in the manner provided in that Section.”
This clause essentially emphasises the main criteria by which accessibility is evaluated, i.e., whether an intermediary’s chosen methods successfully enable a person to get in touch with them. By include such a clause, accessibility may be defined broadly rather than being limited to a certain set of elements.
Because it does not evenly enable all the population segments to contact the intermediary, a web form that demands both technical and legal expertise as a precondition is likely to fail when evaluated using these criteria.
Requires A Change To Proactive Content Deletion :
The term “proactive content deletion” (PCD) refers to technological measures to assist victims who suspect they may have been the target of revenge pornography as well as to reduce the number of links to the same incidence.
One such project is StopNCII.org, which was started by the UK’s revenge pornography helpline in collaboration with business partners including Facebook and Instagram. Each image or video is given a distinct hash value according to an algorithm that is used. The participating businesses that independently restrict the material are subsequently given access to this hash.
In the Mrs. X case, the Delhi High Court made the suggestion that PCD be included. The court also suggested using a similar strategy in which a special hash value is assigned to stop data from resurfacing. They said, “The search engine cannot insist on requiring the specific URLs from the victim for the content that has already been ordered to be taken down.”
The court also recommended, as a long-term solution, that the government create a trustworthy third-party encrypted platform for registering links to NCII information so that a cryptographic hash may be provided and the content is automatically recognised and deleted.
The victim no longer experiences as much shame, pain, or secondary victimisation as a result of the same data coming to light because of proactive content deletion, which signals a move towards a victim-centric strategy. Thus, the victim’s dignity is preserved and their right to their fundamental liberties is not constantly violated.
Two Fundamental Demands :
Post-facto material deletion, which is now practised in India, is linked by two factors. First, the victim needs to be made aware of her situation and given control. The victim will be aware of their legal rights thanks to empowerment. The stage at which the victim decides to seek aid, i.e., before the occurrence or after the occurrence of the crime, is also taken into account when determining the victim’s capacity to decide and pick an alternative to the standard police-based remedy.
Second, the intermediary’s and other authorities’ tact and reliability. These assist the victim in making a determination about the attitude of the authorities handling the situation and if a beneficial reaction is probable. Most crucially, they also influence whether the victim decides to file a police report or handle the situation privately.
The need to halt victim-blaming in situations of revenge pornography, which not only discourages reporting of these crimes but also lessens the culpability of the relevant officials, is the final important thread uniting these two ideas.
