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Non-consensual intimate images: Tech companies need to own up, make the online space safe for women

Jun 07, 2024 08:00 AM IST

Stemming the proliferation of non-consensual intimate images is undoubtedly a mammoth task that will require cooperation among several stakeholders.

Microsoft and Google’s recent move to approach the Delhi High Court seeking a review against the court’s previous order directing the intermediaries to remove non-consensual intimate images (NCII) proactively has surprisingly flown under the radar.

(FILES) This photo taken on February 12, 2023 in Brussels shows reflexions on a smartphone screen of logos of online platforms google, facebook, linkedin, Amazon, Apple store and Tiktok (Photo by Kenzo TRIBOUILLARD / AFP)(AFP) PREMIUM
(FILES) This photo taken on February 12, 2023 in Brussels shows reflexions on a smartphone screen of logos of online platforms google, facebook, linkedin, Amazon, Apple store and Tiktok (Photo by Kenzo TRIBOUILLARD / AFP)(AFP)

The tech giants have sought a review of a sensitive and victim-centric order that also ostensibly expanded the jurisprudence on the online privacy of women by stating that they do not possess the requisite technology to detect and remove NCII content without specific URLs automatically and that this direction exceeds existing law and technology.

This incident highlights the limits of the criminal justice system to address this increasingly common crime effectively, and how a lack of a proper legal framework on such content and pushback from tech companies are harming women’s safety and privacy on the internet.

Dissemination of NCII is a form of online gender-based violence (OGBV) that has come to plague courts in recent years. It is often referred to in the context of ‘revenge porn’, where the perpetrators upload sexually explicit photos or videos of their former partners on the internet, typically on pornographic websites.

In the case in question, Mrs. X v. Union of India and Ors. (2023), the accused repeatedly uploaded sexually explicit photos that had been taken against the petitioner’s will on the internet. The petitioner’s complaints to the intermediaries remained unresolved, leading her to approach the Delhi HC seeking the removal of the NCII material. The search engines were directed to block the URLs exhibiting the NCII content, but the material was consistently reproduced and re-uploaded.

In this context, the single-judge bench of Delhi HC rightly observed that it was indefensible that a victim was forced to repeatedly approach the courts each time the NCII content was reproduced online. Relying on the landmark judgement of Justice K.S. Puttaswamy (Retd) v. Union of India wherein the Supreme Court recognised the right to privacy as a fundamental right, the HC noted that the right to privacy included the right to control their existence on the internet, which is a crucial aspect for understanding OGBV at large.

While there is no specific law against this violation, several provisions of the Indian Penal Code, 1860 (IPC) (sections 292, 354C, 499, 509) and the Information and Technology Act, 2000 (IT Act) (sections 66E, 67A) are applicable to the dissemination of NCII.

Section 66E of the IT Act criminalises the intentional capture, publishing, or transmission of an image of a person’s private area without their consent. Further, rule 3(2)(b) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules) provides for the grievance redressal mechanism for an intermediary upon receipt of a complaint but fails to acknowledge the aspect of lack of consent.

Further, the Delhi HC also took cognisance of the victim’s right to be forgotten. The right to be forgotten, as the name suggests, allows for the erasure of a person’s information/personal data from the internet if such information is published without consent or is violative of their privacy.

Courts have begun recognising the importance of the right to be forgotten in the context of sexual violence. The Orissa HC in Subhranshu Rout v. State of Odisha (2020) denied bail to a rape accused, who had uploaded a video of the victim on Facebook, by noting the victim’s right to privacy and stressed the right to be forgotten to be recognised in such matters.

The Kerala HC in Vysakh K.G. v. Union of India & Anr. And Other Connected Cases (2022) where parties claimed that their right to be forgotten was being infringed observed that Google cannot evade liability as it is not a “mere passive conduit”. The IT Rules under rule 3(1)(b) also specify that intermediaries must take “reasonable efforts” to not publish inter alia obscene, pornographic, content harmful to a child, which is similarly iterated by the Delhi HC in Mrs. X.

Access to the digital world has led to the perpetuation of new forms of violence. Stemming the proliferation of NCII is undoubtedly a mammoth task that will require multi-stakeholder willpower and cooperation. Tech companies are among the primary stakeholders in making the internet a safer place. Given their profit-oriented, algorithmically powered, engagement-based models, they must acknowledge their accountability and take measures accordingly.

The catastrophic ramifications that NCII can have on a victim’s life in a patriarchal society should not be forgotten. The judiciary and any prospective legislation do not further contribute to the harm suffered by victims. NGO IT for Change, in its 2023 report ‘The Judiciary's Tryst with Online Gender-Based Violence’ rightly notes that any legislation on the subject must be rooted in a rights-based framework, and courts must not rely on paternalistic notions of modesty, honour or morality while adjudicating OGBV matters.

Avanti Deshpande is a Delhi-based lawyer. Her interests include human rights law and gender-based violence.

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