[Part 2] Image-Based Abuse: A Practical Legal Guide to Control The Spread of Content in India

This guide offers practical suggestions for victim-survivors of image-based abuse, especially those living in the global majority world, to remove the violative content while safeguarding their privacy and identity online. It may also be useful for those who support or accompany victim-survivors. This guide contains two parts. Access Part 1 here.

Image-based abuse (IBA) remains a gendered form of violence exacerbated by unaccountable online platforms, and under-responsive law enforcement failing to serve the interests of the survivors. The previous part of this guide elucidated on technical remedies that are available to victim-survivors of image-based abuse. This part highlights the various legal remedies that victim-survivors can utilise to protect themselves as well as seek justice against their perpetrators. This guide focuses on the legal framework currently operational in India, since variations exist between the specific legal remedies available in different jurisdictions. However, this can be utilised as a prism to understand the different options available to victim-survivors to build their case, as is exemplified by the mention of similar laws in other jurisdictions.

Major laws directly addressing IBA 

The Government of India does not release specific data that encompasses the whole spectrum of IBA. However, the flagship Crime in India Report released by the National Crime Records Bureau – a government agency responsible for collecting crime data in the country, gives a rough idea of the prevalence of reported cases related to image based abuse. Cases specifically registered under Sections 66E, 67 and 67A of the Information Technology Act, 2000 (IT Act) that regulates cybercrimes and e-commerce, are useful to understand the landscape of recorded cases related to IBA. The provisions under the IT Act are the specific legal instruments most useful to seek justice for IBA cases. 

Section 66E of the IT Act criminalises the violation of privacy, which includes the intentional capture, publication and transmission of the image of a private area of any person, where each of these elements are defined in such a way that it criminalises only images that are of the visible depiction of “private parts” which are defined as “the naked or undergarment clad genitals, public area, buttocks or female breast . 

Section 67 of the IT Act criminalises the publication or transmission of obscene material in electronic form, and Section 67A specifically addresses material containing sexually explicit acts and criminalises the publication and transmission of such content. 

In addition to the provisions under the IT Act, Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 could be invoked to identify the originator of IBA content. However, identifying the originator of content under these provisions forces backdoors to end-to-end encryption, which can further endanger privacy protections that many technology service providers offer their users. This is a double-edged sword since such backdoors can enable unscrupulous actors to get access to private content that can then easily be weaponised as IBA, especially when AI-based tools can exacerbate such harms quickly. 

Other provisions, such as Section 77 of the Bharatiya Nyaya Sanhita (BNS) – the official criminal code of India – that criminalises the non-consensual capture and sharing of intimate images, may also be evoked for a stronger case, in instances the victim-survivors are women. 

The Crime in India Report 2022 highlights that 6,896 and 1,931 cases were registered under Section 67 and 67A respectively. The report also highlights the motive identified behind these cases, helping to make a connection to the potential gendered nature of the crime. Of all the cybercrimes reported in India in 2022, the motive behind 3,434 is recorded as sexual exploitation while 857 records personal revenge as the motive for the incident. 

As of December 2022, there were 5,815 cases pending under Section 67, and 3,836 cases pending under 67A, depicting the inaccessibility of the legal system for the victim-survivors, that further leaves emotional and financial toll on them. In addition, when an investigation does take place, nearly half of the complaints filed under the two sections do not lead to any charges filed against the perpetrator. When coupled with the large pendency of cases, this can make the process to access justice a tedious task for victim-survivors. 

It is critical to understand that the law does not distinguish between sexually explicit content or seemingly obscene content that is captured without the consent of a person, and content that a person captures and publishes themselves, As a result, it  criminalises self-expression. Hence, the data on cases related to publication and sharing of obscene material and sexually explicit material should be viewed from the prism of potential overcriminalisation as well, especially in times of online virtual spaces being used for sexual expression and as workplaces for sex workers. The IT Act is framed as gender-neutral making it a useful legal instrument for all people, and not only women victim-survivors which is often the case.

Filing a complaint

• Online Cyber Crime Reporting portal

In India, the National Cyber Crime Reporting Portal, run by the Indian Cyber Crime Coordination Centre (I4C), provides a direct online portal to register complaints against women and children related crime. It could be reported and tracked with the details of the complainant, or anonymously. Following the precautions listed in Part 1 to prevent identifiable information from being recorded, any person can use the portal to report cybercrimes against women and children, including instances of IBA.

• Complaint via National Commission for Women

India’s National Commission for Women also operates an alternate forum for women victim-survivors to raise complaints of violence against perpetrators in place of a police complaint, both online or in person. The Commission then checks for the relevance of the complaint with their mandate, and once approved, expedites the case to the police while monitoring the process throughout, or involves other commissions and/or authorities as necessary.  Victim-survivors should be cognizant of the process of the  National Commission for Women, where it does not take anonymous or pseudonymous complaints. The aggrieved party will have to register the complaint with their full information in order for the case to be considered.

• Through a third party

Complaints, and consequently First Information Reports (FIRs), can also be registered with the help of an NGO, a legal services team or an advocate who specialises in protecting victim rights. The provisions mentioned above can be used by the victim-survivor to take this route. 

In all these cases, it is essential to keep backups of the evidence that proves the incident of image-based abuse, even when the instinctive response might be to try and wipe out such content from the internet. It is also necessary to acknowledge that this route might not be the easiest for a victim-survivor to navigate, as India’s legal systems and communities organised around them can be notoriously gender-insensitive.

Copyright infringement complaints

Indian Copyright Act can be particularly useful in cases where the content is shot or created by the victim-survivor. The premise of a copyright infringement complaint is that the site or service publishing and/or distributing the images is infringing copyright by posting the images without the express permission of the content owner. Thus, they can be sued for it and potentially have to pay damages and/or compensation to the copyright owner. Many porn sites offer the option to report content for copyright violations. 

(NOTE: The following links contain NSFW content.)

For example, PornHub has a “copyright infringement” option on its Content Removal request form available at https://www.pornhub.org/content-removal. Xhamster also has a similar option. To file a report by going to https://xhamster.com/info/contact?subject=abuse, and then “Subject” > Report violation of our rules/Content removal > “Type of request”: Copyright infringement/DMCA notice and takedown.

This option is useful when the content is not likely to be taken down under a report of non-consensual imagery. For example, images that are privacy-violating but do not contain nudity or sexually explicit elements, or content posted in comments, profile photos or bio, or direct messages. These requests are taken seriously by the platform as they can be sued for copyright infringement if they do not take the flagged content down.

If the IBA site does not have a reporting system for copyright infringement, the victim-survivor can use the provisions under the Copyright Act to send them a legal notice to cease-and-desist from further infringement by taking down the images. This would be covered under S.51, read with Sections 38 and 38-A of the Act.

In case it is not possible or desirable to directly contact the IBA site or service, or in the case of poor response, the victim-survivor may file an FIR for copyright infringement under S.51, and the penal provisions under S.63, of the Indian Copyright Act. 

Right to be forgotten

The right to be forgotten (RTBF) is a legal concept that allows individuals to request the removal of personal information from internet searches and other directories under certain conditions. This right aims to enable individuals to control their digital footprint and mitigate the long-term impacts of past actions and incidents on their online reputation.

 In India, S. 12 of the Digital Data Protection Act, 2023 recognises the right to erasure, under which the data can be requested to be erased by initiating a process with the data fiduciary - the entity that holds such data, like a technology company or a government authority. However, while the law has been passed in August 2023, the procedure for enforcing it  has not been established. For the right to erasure to be exercised under the Act, the Data Protection Authority will lay down the specific manner in which the erasure can be requested. 

The right to erasure solidified over years of jurisprudential development, and entrenched by the General Data Protection Regulation in the European Union. It also encompasses a right to delisting, which enables victims of IBA to request search engines to delist links that lead to personal data. In EU and the UK, web based platforms have processes in place to process such requests, as can be accessed on Bing and Google. Similar compliance processes are available in South Korea and Australia. Egypt also has a framework similar to India, but has not laid out the procedure for enforcement of the right to erasure. These are policy responses that are useful to victim-survivors, and could be replicated with further contextualisation in India, once the rules under the DPDP Act, 2023 are enforced.  

Manoeuvring the legal system

Previous empirical research suggests that cyberviolence against women is grossly underreported in India, with only 1/3rd cases reaching law enforcement agencies (LEAs). Many victims have also reported LEAs to be insensitive to the cases of online violence against women, and the judicial system has barely been scratching the surface of proactive jurisprudence that can be protective of victim-survivors. The Crime in India report reveals that conviction rates for cases under sections 67 and 67A IT Act are around 40%. It highlights a critical gap in access to the law enforcement mechanism and paints a grimmer picture than the number shared in the Crime in India report. Gender sensitivity training and increased capacities can positively impact these realities to create a more victim-centred legal framework. Victim-survivors of IBA must be cautious of these flaws in the system while approaching the court of law to access justice. 

There are immediate legal steps that victim-survivors can take to protect their safety, reputation and interests. However, there is a pressing need to advocate for better protections that focus on systemic changes instead of putting the onus of prevention against IBA on the victim-survivor. 

The National Commission for Women had initiated such a process through a proposal in 2022 to include image based sexual abuse into the criminal law framework in India. Such steps are welcome, and necessary for feminist policymaking as a norm in digital policymaking to ensure that virtual spaces are created and maintained as equitable and fair for all, centering the experiences of the most vulnerable. 

Legal frameworks should acknowledge the inherent power differential and the patriarchal motivation to use IBA as a tool for gendered violence. They must move towards a compliance model where the poor performance of platforms to counter IBA also becomes a cause of action for stricter corporate compliance mandates, as is the case of data protection and national security. It is time to stop relegating harmful acts against a considerable chunk of humanity as unimportant, and acknowledge that digital technology facilitates acceleration of the spread of gendered forms of violence. Both time and technological ability are crucial parts of the puzzle, and regulatory frameworks should step up to ensure safe and active participation of all on the internet. 

The author would like to thank Rohini Lakshané for her inputs.