Can Copyright be used as a tool to curb Revenge Porn?

by | Aug 18, 2020 | Criminal Law, Gender Issues, Justice | 0 comments

The Menace of Revenge Porn

            Revenge is a kind of wild justice, which the more a man’s nature runs to, the more ought law to weed it out.[1]

Revenge pornography ensues when an ex-partner publishes private sexual images or videos of their former partner public, post break-up.[2] The rationale behind this act is to humiliate the ex in front of her family, friends and possibly a current or potential employer.  The origin of the concept of revenge porn can be traced back to the 1980’s when an employee at Hustler, a monthly pornographic magazine, came up with an idea to start a contest called Beaver Hunt which published reader-submitted images of naked women.[3] The pictures were often accompanied by details about the woman, her hobbies, her sexual fantasies, and occasionally her name. Some of the photos were stolen while somewhere submitted by former partners of different women.[4] Hunter Moore, a US entrepreneur came up with a website called ‘IsAnyoneUp’ in 2010, which allowed individuals to post nude pictures or videos of other individuals anonymously and those content mainly included the images and videos of former partners of the anonymous uploaders.[5] Exclusive websites containing revenge porn has flourished since then. In 2012, IsAnyoneUp run by Hunter Moore was taken down. In 2013 another website named MyEx came up which allowed individuals to upload naked pictures of former partners along with their name and other details. This website made money by blackmailing the individuals who featured on the website and extorted money in exchange for reputation [6]. Revenge porn continues to feature in the Cyber Space and different countries have tried different mechanisms to control this evil which violates privacy and causes irreparable mental injury to the victims. This article to examines whether Copyright laws can be effective in combating revenge porn.

Revenge porn is fundamentally different from mainstream industrial porn. While being in an intimate relationship, a partner would share sexually explicit images or videos with his or her partner upon a reasonable expectation that it would stay between them. Such a transmission to a partner would have been initially consensual but he/she would have never wanted a third party to view such an image or video. Revenge porn also includes images taken without a victim’s knowledge, pictures of a victim’s face rearranged on a sexually explicit body image and hacked images.[7] Paris Hilton was one of the earliest and famous victims of revenge porn.[8] She revealed the leak as the most excruciating thing she ever went through in her life because the leak was not done by some random person, but her boyfriend Rick Salomon, whom she loved and trusted.[9] Kim Kardashian is another celebrity who is also allegedly a victim of revenge porn.[10] While it’s unfortunate that many celebrities were a prey to such acts, these celebrities had access to legal mechanisms to come out of the trouble and get compensated for what they suffered. But when it happens to a common individual with no knowledge of any legal countermeasures that lie ahead, such an individual would possibly contemplate ending the life. In a country like India, the leak of a nude picture or video of a woman into a public domain would be something that the society would find intolerable and offensive.

Despite the government ban on access to pornographic content through internet in the country, India remains a major consumer of pornographic content online.[11] An internet user is a click away from accessing porn content online, which can include videos, images, magazines, etc. Unlike many other countries, India doesn’t have a mainstream commercial porn industry as such even though until a decade ago, the softcore porn industry was very much active.[12] Hence, most of the pornographic content uploaded to different porn websites under the tags ‘desi’, ‘Indian’ etc. contains a huge amount of ‘revenge porn’ which includes naked content shot by individuals themselves as well as those private videos leaked during a phone service performed at local service centers. Incidents of revenge porn hardly make headlines and only a few have been reported.[13] In 2016, Al Jazeera reported [14] that rape videos were available for sale at a price of 200 INR (3 USD) at different shops.

In India, a victim of revenge porn not often comes out to testify against the perpetrator. It happened for the first time in State of West Bengal v. Animesh Boxi[15] The accused, Animesh Box was in a relationship with the victim for 3 years before the event that happened in July 2017. Over the passage of the relationship, Boxi necessitated intimate photographs from the victim and purportedly hacked into her phone to get his hands on them. After that he started blackmailing her, saying that he would upload the photographs and videotapes onto the internet if she declined to spend time with or go out with him. After a few days, the victim’s brother found the unclothed pictures and videos on a porn site called Pornhub with the video which had the victim’s name as the title. Boxi was charged under sections 354A (Sexual Harassment), 354C(Voyeurism), 354D (stalking) and 509 (Criminal Intimidation) of the Indian Penal Code, 1860 and sections 66C (Identity theft), 66E (Violation of privacy) and 67/67A (Transmitting obscene material through electronic mode) of the Information Technology Act 2000.[16]

            In India at present, there are numerous provisions to combat revenge porn. Section 354C of the Indian Penal Code penalises any man who watches or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectancy of not being observed either by the perpetrator or by any other person at the directive of the perpetrator or disseminates such image. If the victim consents to the capture of the images or any act, but not to their dissemination to third persons and where such image or act is distributed, such dissemination shall be considered an offense.[17] Section 66E of the Information Technology Act provides for punishment of any individual who purposefully or knowingly captures, publishes or transmits the image of a private area of any individual without his or her consent, under settings infringing the privacy of that person, Section 67 and 67A of the Information technology punishes publication and transmission of obscene and sexually explicit content online. These penal provisions definitely can help the victim in getting the perpetrator punished. But the problem doesn’t end there. Once an individual upload something to the internet, it’s there to stay. It’s nearly impossible to control the journey of the content once it is uploaded. If the private sexual content stays on internet, the victim would still be at the risk of getting her reputation lowered amongst more people. Can Copyright law help in fighting the menace of revenge porn more effectively?  

Copyright as a Tool to Fight Revenge Porn

Hunter Moore, the creator of the revenge porn website called IsAnyoneUp during an interview with Bob Garfield who is a journalist and host of the radio programme On the Media from WNYC, came up with a very unwise explanation with regards to the Copyright ownership of the content uploaded into his website. Moore said:

When you take a picture of yourself in the mirror, it was intended for somebody else, so actually, the person you sent the picture to actually owns that picture because it was intended as a gift. So, whatever the – that person does with the picture, you don’t even own the nude picture of yourself anymore [18]

It is pellucid that Moore was ill-advised regarding the concept of authorship in Copyright. Moore was misguided to the extent that he believed that the uploaders held the intellectual property rights in the contents that were uploaded into the webspace.

In revenge porn, most of the pictures or videos sent by the victim to their partner are the ones shot by themselves. In the Indian scenario, the authorship of photograph vests in the person taking the photograph [19] and the authorship of a cinematograph film vests in the producer [20]. Producer in regard to a cinematograph film is a person who takes the initiative and responsibility for making the work.[21] According to the Copyright Act; a photograph is a work produced by any process analogous to photography [22] and a cinematograph film is defined as any work of visual recording.[23] A selfie photograph or a selfie video taken by an individual satisfies the requirement to be qualified as a photograph or a cinematograph film under the Act. From the above-mentioned provisions, it can be concluded that a revenge porn victim is the author of a photograph or visual recording, if its shot by the victim.

There could be instances where a video wouldn’t be entirely shot by the victim, but by the partner too. Should the copyright claim entirely vest with the person who clacked the shutter? Is there a case for joint authorship? Copyright Act defines the work of joint authorship as a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors.[24] This provision certainly makes a case for joint authorship in revenge porn. The male partner would have started recording the video of the couple engaging in a private act, but the female partner too would have equally contributed by adjusting angles, by agreeing to pose in a particular position, etc. There is no doubt that such a work in its entirety is a result of collaboration of both the partners and they’d have a claim for joint authorship in such a work.

Section 17 of the Copyright Act, 1957 says that the author of a work shall be the first owner of the copyright. The Copyright owner of a work exclusively has the right to communicate his/her work to the public. When the victim of revenge porn transmits her private images or videos through email or any other electronic means, she does it consensually upon the reasonable anticipation that her partner would be the only person who will be viewing it. When the partner disseminates it to a third party without the author’s express permission to do so, there arises a Copyright infringement. The private contents are mostly uploaded into websites that host revenge porn as well as mainstream industrial porn. Are these hosts liable for the content they host and do they have a duty of care to analyse the contents that are uploaded unlawfully into their webspace?

Liability of an intermediary

The act of uploading content onto the internet without the express permission of the owner of the work constitutes Copyright infringement under the Copyright Act.[25] Such infringing content is uploaded into different websites that host such third-party information presuming insulation from any liability due to safe harbour provisions like Section 79 of the Information Technology Act. These intermediaries believe that they are protected from any liability for hosting third party information uploaded by any individual anonymously or otherwise.

The Information Technology Act defines intermediary as any person who on behalf of another person receives, stores or transmits that record or 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, online payment sites, online-auction sites, online-market places and cyber cafes.[26] Section 79 of the Information Technology Act says that intermediary shall not be liable for any third party information, data, or communication link made accessible or hosted by him. But the Act also says that it shall not restrict any person from exercising any right conferred under the Copyright Act, 1957.[27] The Intermediaries Guidelines Rules require the intermediaries to observe due diligence to make sure that they don’t host contents that infringe any patent, trademark, copyright or other proprietary rights.[28] In My Space Inc. v. Super Cassettes Industries Ltd.[29], the court said that Section 79(3) read together with Rule 3(4) of the Rules posit an intermediary on receiving “actual knowledge” or upon obtaining knowledge from the affected person in writing or through email to act within 36 hours of receiving such information disable access to such information.

Rule 75 of the Copyright Rules, 2013 says that the owner of a copyright may give a complaint in writing under Section 52(1)(c), to a person who has facilitated transient or incidental storage of work for providing electronic links, access or integration to restrain from such storage of work. The written complaint shall include the description of the work with adequate information to identify the work, the details establishing that the complainant is the owner or exclusive licensee of copyright in the work, the details establishing that the copy of the work which is the subject matter of transient or incidental storage is an infringing copy of the matter of transient or incidental storage is an infringing copy of the work owned by the complainant and that the allegedly infringing act is not covered under section 52 or any other act that is allowed by the Act, the details of the location where transient or incidental storage of the work is taking place the details of the person, if known, who is responsible for uploading the work infringing the copyright of the complainant and an undertaking that the complainant shall file an infringement suit in the competent court against the person responsible for uploading the infringing copy and produce the orders of the competent court having jurisdiction, within a period of twenty-one days from the receipt of the notice.[30]

On receiving of the written complaint, the person accountable for the storage of the copy, if satisfied from the particulars in the complaint that the copy of the work is an infringed copy, within 36 hours, take actions to withhold from enabling such access for a period of 21 days from the day on which the complaint was received or until he is served with an order from the competent court preventing him from allowing such access, whichever is earlier.[31]

Practicability of Takedowns

Cyberspace is a virtual world that is completely dissimilar from the real world we live in. In the real world, it’s tough to maintain anonymity for a long time. But in the virtual world, anyone can masquerade as someone else and can stitch up as many as personalities incognito. Therefore, everything that belongs to the virtual world is always looked upon with caution. This is a real issue when it comes to finding identities of websites that host infringing content. Unfortunately, many of those virtual identities are forged or misrepresented and it becomes practically impossible at times to send a takedown notice to any of these hosts. They keep popping up with different identities to add to the misery of law enforcement agencies. So, it’s a very problematic task to send notices to these intermediaries who store revenge porn unless they have a trackable identity. In such cases, John Doe[32] orders can be an option that can be explored. But in that case too, there is a practicality issue. An individual wouldn’t be gutsy enough to move to a court to obtain such an order against a list of websites which has displayed his/her nudity. Individuals might have the inherent fear that such attempts to suppress private information might hit them back through the Streisand effect.[33] So in all likelihood, a victim would choose to remain silent rather than trying to claim intellectual property rights over the nude content.

There would always be a question of whether intermediaries can adopt mechanisms to restrict the diffusion of protected content on their platform. Information Technology [Intermediaries Guidelines (Amendment) Rules], 2018 came up with a proposal for intermediaries to install technology-based automated tools or proper mechanisms, with apposite controls, for proactively detecting and eliminating or deactivating public access to illegal material or content on their platforms. Online video-sharing platform YouTube uses a copyright management tool called Content ID[34]. This digital fingerprinting system developed by Google allows the Copyright owners to identify whether anyone has infringed their content. Any content uploaded to YouTube is scanned against a database of files that have been submitted to YouTube by content owners.[35] This has been an effective tool for curbing piracy. But such a tool wouldn’t be practical with regards to commercial porn sites. There are 2 major issues. Firstly, to maintain a digital fingerprinting system to monitor copyright infringement, it requires financial investment. A commercial porn website would be fine with infringing content as long as no one puts a lawful claim over it.[36] Secondly, these commercial porn websites would be required to maintain a database to make sure that no one uploads an infringing content, which was already claimed and taken down. These things are easier said than done. No victim would want their video to be stored in the database of a commercial porn website.

Conclusion

Revenge porn is an evil that fundamentally destroys human lives and it should be seen differently from consensual porn where the performers display their nudity consensually, Revenge porn doesn’t bring any good to the society. It’s important to explore all accessible methods to counter revenge porn. Copyright is not the ultimate solution to impede the transmission of revenge porn. But it is definitely a tool that can be used effectively along with the penal provisions that exist under different statutes. From the point of view of a revenge porn victim, the halt in the dissemination of the private video is more important than putting the offender behind bars. Punishment would mean nothing if the video keeps popping up all over the internet. Strong enforcement of copyright law would at least deter a few from uploading non-consensual nude videos next time around. It’s also important that the intermediaries feel the heat, if they provide a space to host such unlawful content. It’s true that these takedown procedures aren’t easy at times it’s almost unfeasible too. But there is no harm in exploring the solutions offered by Copyright law as long as there are no other effective solutions to battle this social evil.


Preferred Citation: Sajan, J., “Can Copyright be used as a tool to curb Revenge Porn?”, The Law Culture (2020)

*This Article was ranked #2 in the Legal Arena Article Writing Competition organised by The Law Culture.

[1] “The Essays, or Counsels, Civil and Moral, of Francis Bacon, Lord Verulam, Viscount St. Albans” (1890), Notes and Queries 400

[2] Aislinn O’Connell, ‘Image Rights and Image Wrongs: Image-Based Sexual Abuse and Online Takedown’ (2019) 15 Journal of Intellectual Property Law & Practice 55 <https://doi.org/10.1093/jiplp/jpz150>.

[3] Levendowski A, “Our Best Weapon Against Revenge Porn: Copyright Law?” (The AtlanticFebruary 4, 2014) <https://www.theatlantic.com/technology/archive/2014/02/our-best-weapon-against-revenge-porn-copyright-law/283564/>

[4] Ibid

[5] Danny Gold, ‘The Man Who Makes Money Publishing Your Nude Pics’ (The Awl, 2020) <https://www.theawl.com/2011/11/the-man-who-makes-money-publishing-your-nude-pics/>

[6] Julie Bort, ‘Inside the Sleazy World of Reputation Management, Where People Pay to Control What You See on The Internet’ (Business Insider, 2020) <https://www.businessinsider.in/tech/Inside-The-Sleazy-World-Of-Reputation-Management-Where-People-Pay-To-Control-What-You-See-On-The-Internet/articleshow/27922189.cms>

[7] Brooke Gladstone, ‘Why One Mom’s Investigation Might Actually Stop Revenge Porn | On The Media | WNYC Studios’ (WNYC Studios, 2020) <https://www.wnycstudios.org/podcasts/otm/segments/why-one-moms-investigation-might-actually-stop-revenge-porn>

[8] BANG Showbiz, ‘Paris Hilton Lost Faith in Men After Sex Tape Was Leaked by Her Ex-Boyfriend’ (CTV News Channel, 2020) <https://www.ctvnews.ca/ctv-news-channel/paris-hilton-lost-faith-in-men-after-sex-tape-was-leaked-by-her-ex-boyfriend-1.1349681>

[9] Ibid

[10] Lolita Mang, ‘Revenge Porn: The Era of Leave Me and I’Ll Out You’ (Numéro Magazine, 2020) <https://www.numero.com/en/culture/revenge-porn-sex-education-kim-kardashian-ray-j-sextape-numero-magazine>

[11] Aslam S, “Pornhub Release List of Countries That Watch Most Porn, Shocking Entry at No. 3”

(SocioON December 14, 2018) <https://blog.socioon.com/pornhub-release-list-of-countries-that-watch-most-porn/>

[12] GlobalPost, “Inside India’s Softcore Porn Industry” (Salon, September 7, 2011) <https://www.salon.com/2011/09/07/india_softcore_porn/>

[13] TNN, “Separated Husband Posts Intimate Pictures: Ahmedabad News – Times of India” (The Times of India) <https://timesofindia.indiatimes.com/city/ahmedabad/separated-husband-posts-intimate-pictures/articleshow/59568022.cms>

[14] Ashraf A, “A Dark Trade: Rape Videos for Sale in India” (Human Rights | Al Jazeera, October 31, 2016) <https://www.aljazeera.com/indepth/features/2016/10/dark-trade-rape-videos-sale-india-161023124250022.html>

[15] C.R.M. No. 11806 of 2017

[16] “State of West Bengal v. Boxi” (Global Freedom of Expression November 24, 2014)

<https://globalfreedomofexpression.columbia.edu/cases/state-of-west-bengal-v-boxi/>

[17] Indian Penal Code, 1860, s.354C, Explanation 2

[18] Bob Garfield, ‘Revenge Porn’s Latest Frontier | On The Media | WNYC Studios’ (WNYC Studios, 2020) <https://www.wnycstudios.org/podcasts/otm/segments/173718-revenge-porns-latest-frontier>

[19] Copyright Act, 1957, s.2(d)(iv)

[20] Ibid, s.2(d)(v)

[21] Ibid, s.2(uu)

[22] Ibid, s.2(s)

[23] Ibid, s.2(f)

[24] Ibid, s.2(z)

[25] Copyright Act, 1957, s.51

[26] Information Technology Act, 2000, s.2(1)(w)

[27] Ibid, s.81

[28] The Information Technology (Intermediaries Guidelines) Rules, 2011, Rule 3(d)

[29] FAO(OS) 540/2011, C.M. APPL.20174/2011, 13919 & 17996/2015

[30] The Copyright Rules, 2013, Rule 75(2)

[31] Ibid, Rule 75(3)

[32] Nikieta Aggarwal, ‘What Are John Doe Orders and In Which Situations They Are Granted’ (iPleaders, 2020) <https://blog.ipleaders.in/john-doe-orders/>

[33] The Economist, ‘What Is the Streisand Effect?’ (The Economist, 2020) <https://www.economist.com/the-economist-explains/2013/04/15/what-is-the-streisand-effect>

[34] ‘How Content ID Works – YouTube Help’ (Support.google.com, 2020) <https://support.google.com/youtube/answer/2797370?hl=en>

[35] Ibid

[36] FTND Team, “6 Cases of Non-consensual Porn and Rape Tapes Pornhub Doesn’t Want Consumers to Know About” (Fight the New Drug, June 12, 2020) <https://fightthenewdrug.org/pornhub-reportedly-profits-from-nonconsensual-videos/>

This article won the Second Prize in the Legal Arena Article Writing Competition organised by The Law Culture. 

Joyson Sajan

Joyson Sajan

Author Profile

Joyson is a 2nd year LLM (IPR) – PhD (Integrated) student at Inter-University Centre for Intellectual Property Rights Studies, CUSAT.

His areas of interest include Intellectual Property Rights, Constitutional Law and Human Rights.

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