Voyeurism In India: How To Combat

Now the main focus of the article is on the issues in the legal doctrine of reasonable expectation of privacy and the current framework of law with the solutions to make some level of regulation in cyberspace. It also discusses the role of intermediaries and lesson from the west regarding possible changes.

Evolution of Doctrine of Reasonable Expectation of Privacy

The doctrine of reasonable expectation of privacy of any victims decides the liability of the accused of the offences related to voyeurism in physical as well as in cyberspace. But under what circumstances the privacy expectation of a victim is reasonable or unreasonable, this question was answered by Justice Huscroft and Justice Carter in the cases of R v Jarvis and Gill v. Hearst Publishing Company, in their dissent opinion. They explained the distinction between viewable in public and viewable by reproduction, by observing that when a couple did the sexual act or kissing in public in front of a tiny section of peoples, it does not mean that they consented to be observed by millions of peoples reading defendant's magazine. As if a woman breastfeeding her child in the public. The expectation not to be viewed in public is unreasonable but she has a reasonable expectation of privacy that she will not be recorded visually in a surreptitious way for the sexual purpose. The test of reasonable expectation was further explained in Katz v. United States that reasonable expectation of privacy is based on the subjective belief possesses by an individual and whether society accepts that belief as reasonable. As in public an expectation of privacy not to have your face photographed is lesser than an expectation of not to have your genitals photographed. Similarly, the expectation is not to be looked at in public but specifically, it requires the expectation of privacy not to be recorded in public. When a person goes outside, he/she expects reasonable expectation to be watched by others but he/she does not expect to be photographed. This doctrine has been recognized by jurisdictions across the world including Indian jurisdiction. As in the State of West Bengal v Animesh Boxi, which is considered as the first-ever case where a man was sentenced to 5 years of imprisonment for uploading private pictures and videos of his former girlfriend, without her consent, on the internet. The court stated that the accused had demanded sexual favours from the girl and captured images in such circumstances where she has a reasonable expectation of not being observed.

Issues with the Current Framework

According to the report of the National Commission for Women, only 144 complaints of voyeurism were registered in the year 2020, but the reality is far more. The reason behind this is the situation which is now being changed in the world of technology. Access to a mobile phone with a high-speed internet connection makes it easy for the voyeur to commit such offences without making close proximity with the victim, and also saves him from being caught. The main issue here is the absence of reasonable expectation to the victim about being noticed because of no direct interaction with the voyeur who used record tools and uploaded the photo in cyberspace. It reduces the possibility of such offences being reported, subject to grave injustice and violation of human dignity. As now these record-keeping and record-making tools are one of the important factors which affect the reasonableness of that person for being observed but up to what extent is impossible to define, therefore reduces the efficacy of doctrine of reasonable expectation of privacy, violates person's right to reputation and right to digital identity.

Secondly, due to the involvement of intermediaries, the offence of cyber voyeurism emerges rapidly. The term "intermediary" defined under Section 2(w) of IT Act, as any person who on behalf of another person receives, stores or transmits any particular electronic records provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines which includes all the porn websites, social media platforms such as Facebook, Instagram, YouTube. These intermediaries provide a platform for the voyeurs to upload the objectionable image of the victim. Due to which the image is being recorded, comes within the reach of others, can be multiplied or published, it can even be a tool for blackmail and makes the person more vulnerable.

The main issue arises while imposing liability on these intermediaries. As Section 79 of the said Act grants safe harbour immunity to Intermediaries which means an intermediary is exempted from liability if any third party uploaded any objectionable image on its website as long as that intermediary does not initiate the transmission, select or modify the image contained in the transmission or if intermediaries do not have active knowledge of the transmission." In Shreya Singhal v Union of India, the SC explained the meaning of active knowledge and held that the authorities such as courts and government agencies are much better than online platforms to decide the illegality of any activity or content. Court also explained that the 'active knowledge' based on which liability imposed on intermediaries, means when these intermediaries received take-down notice from the authorities and even after if they will not remove the electronic records or content, liability imposed on them. Here the interpretation of active knowledge is problematic. Because in the cases of cyber voyeurism, takedown notice from authorities to remove that image is a long process as on the internet any image disseminates in seconds and the internet will never forget because once the image disseminates, even if it might be erased from all the websites but then also it will be saved somewhere in the storage of any electronic tools handled by any other person. It means that once the image is posted on the internet, the victim's reputation could be harmed millions of times.

Possible Solutions and Lessons from The West

A certain level of modifications in the laws may be one of the answers to these issues. As the Information Technology Act, 2008 creates absolute/strict liability on the intermediaries when the content contains child pornography or those content that can induce minors for sexual acts. Limiting absolute liability only to child pornography and providing safe harbour protection for other sexual acts is not viable because safe harbour liability raises practical issues where the intermediaries failed to fulfil their obligations with respect to cyber voyeurism. So, to increase the ambit of the provision to cover all forms of sexual content under strict liability would be effective for minimizing the cases of cyber voyeurism. If in case, imposing strict liability on intermediaries weaken the internet because it creates fear on intermediaries that they may be liable if the content is objectionable while posting it online. So, the other way to deal with the problem is to use filtering technology which would be a more efficacious remedy for sexually explicit material rather than then imposing strict liability provisions. There are better options such as filtering systems and various friendly software. The United Kingdom has developed PERKEO which analyses the content of computers suspected of containing pornographic content. Germany is also leading the campaign for an internet code of conduct to provide international regulation on the materials disseminated over the internet.

Secondly, the interpretation of active knowledge given in the Shreya Singhal case should not be applied in the cases of cyber voyeurism. It would be more effective if the courts can use the doctrine of "non-lawyer without further examination" while dealing with cyber voyeurism, which is applicable in the Austrian Court to examine the liability of intermediaries for the objectionable content. Here, if the illegality was obvious or prima facie, it would be considered as "non-lawyer without further examination". Hence, in the case of cyber voyeurism, uploading private acts of a person is prima facie illegal, creates the liability of Intermediaries. Moreover, it is also found from various surveys and experiences of the users, that the intermediaries are not responding to the complaints of the users, mostly in the cases where the complaint is not in English. Therefore, to deal with such issues, strict guidelines are required for intermediaries based on which they perform their work.

Further, the offence of cyber voyeurism should be punishable as a non-bailable offence, to avoid the possibility of tampering or destroying the evidence from the cyber world, which the accused can easily do after releasing from bail, by sitting at any place. And for the proper investigation of cyber voyeurism, the power of investigation should be given to police inspectors of lower ranking. It will make the investigation process fast which improves law enforcement because more police officers will be available.

Though India has come a long way, there is an immediate need for the State to deal with the issues of cyber voyeurism which undermines the autonomy of victim and leaves in the state of emotional trauma by harming their reputation.