Facebook launches new tool to tackle ‘revenge porn’: Here’s what can be done

By Asheeta Regidi

Facebook on Wednesday announced that is launching tools to prevent the upload and reupload of ‘revenge porn’. This refers to the upload of any private or intimate photographs, or even fake images, of a person without their consent. This is usually used as a means of revenge by former partners, jilted lovers, and the like. Facebook has now provided the ability to specifically report such images, and uses tools similar to PhotoDNA to prevent the reupload or sharing of such images.

While this is a welcome move towards tackling revenge porn, more needs to be done. Changes are needed in not only encouraging victims to take action, but also speeding up judicial processes in cases of online publication. Additionally, imposing more responsibility on social media companies should be considered.

Get a court order for removal of the image within 36 hours
The first step is to have the images removed from Facebook. Normally, under Indian laws, to have an intermediary like Facebook remove such illegal content, the request must be accompanied by a court order or an official government request (As per Section 79 of the Information Technology Act, 2000 and the Shreya Singhal judgment of 2015).

While Facebook has not committed to a time frame for the removal of the image in its blogpost, it can be assumed that action will be taken quickly even without a court order. Despite this, if a victim wants the image removed within the statutory time frame of 36 hours, it is best to get the court order. This draws attention to the need for speeding up judicial processes, particularly where online crimes are concerned.

Suing the perpetrator
Usually, the emotional distress, combined with societal censure, of the victim is so great, that most don’t take action. Taking action is crucial not only to punish the perpetrators but also to deter future incidents of revenge porn.

Revenge porn in multiple forms is covered by Indian laws:

• Images taken with victim’s consent: It makes no difference if the image was captured with the victim’s consent. If the publication was without consent, it is punishable. Uploads, reuploads and sharing are punishable under Section 66E of the IT Act, 2000 and Section 354 of the Indian Penal Code, 1860. First time offenders are punishable with 3 years imprisonment and 2 lakhs fine.
• Images without consent: For images captured without consent, the mere capture is punishable. Both capture and publication are punishable under Section 66E of the IT Act and Section 354 of the IPC with 3 years and a fine.
• Sexually explicit images: If the image is sexually explicit, it attracts a bigger punishment of 5 years and Rs 10 lakhs under Section 67A of the IT Act.
• Children’s images: Publication of sexually explicit images of children, i.e., anyone under the age of 18, is punishable under Section 67B of the IT Act with 5 years and Rs 10 lakhs. This is also punishable under Section 11 of the Protection of Children from Sexual Offences Act, 2012, which applies to an image of even a part of the child’s body.
• Fake/ photoshopped images: Fake or photoshopped images, such as images where a real person’s face is superimposed over another picture, are also punishable under these sections.

Action may also lie for defamation under Section 500 of the IPC, and for criminal intimidation under Section 503 of the IPC, such as when the images are published to tarnish the reputation of the victim, or where the victim is threatened by the perpetrator.

Blocking revenge porn websites
Today, any image uploaded online can be reshared and republished in multiple sites within minutes. Dedicated revenge porn websites can also be found. While more progress in technology is needed to effectively tackle this, action can be taken against websites where such images are found.

Google gives people the ability to prevent the revenge porn images for turning up on a Google search of their name. This is relevant particularly when the revenge porn is accompanied with the victim’s name. This alone is not enough, since the website itself remains. The website can be blocked under Section 69A of the IT Act, where any person can approach a Nodal Officer for this purpose.

Image: Reuters

Do lawsuits trigger action by social media companies?
Another issue with tackling revenge porn is whether more responsibility can be imposed on intermediaries like Facebook and YouTube. Such a case is pending against YouTube before the Supreme Court of India.

The question arises whether lawsuits trigger quicker action by social media companies. For example, a few months ago, as per a report in The Guardian, Facebook was sued in the UK by a minor for failing to prevent the reupload of revenge porn under UK’s Data Protection Act, 1998. Facebook reportedly attempted to have the case dismissed, but the judge refused. This refusal led to fears that this case would open up floodgates of litigation against Facebook from other revenge porn victims.

This perhaps has served as the trigger for Facebook’s move to tackle revenge porn using technology. A similar situation was seen before YouTube’s Content ID system was launched, where a 1 billion dollar copyright infringement suit against YouTube (which YouTube won) triggered fears of further suits.

Imposing greater responsibility on intermediaries?
It is true that requiring social media companies to police content not only imposes a huge burden on them, but can also result in unwarranted internet censorship. At the same time, the fact that these companies are making hundreds of million in revenues from the people using their sites, they should have greater responsibility towards the content hosted on their site. This is more so when these sites are becoming a hub for illegal activity.

While absolutely liability at this stage may be unfair, certainly a duty of care and liability for negligence should be imposed. Technological innovations like PhotoDNA and YouTube ID show that greater responsibility on the part of the social media companies is certainly possible.

The author is a lawyer with a specialisation in cyber laws and has co-authored books on the subject

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