Guest Post: Copyright – shield or sword against “revenge porn”

With the ever-increasing pervasiveness of technology into our lives, the law is often left lagging behind in terms of how it can deal with resultant issues. In this post, Sadhvi Sood, a 3rd year student from NUJS, examines whether copyright law can deal with one such issue – ‘revenge porn’.

Copyright – shield or sword against “revenge porn”

The recent phenomenon of “revenge porn” over the internet is representative of the conundrum that can be created when technological developments are exploited by some to settle scores with their former partners. Distribution of all forms of intimate and sexually explicit content on a public medium, along with victim’s personal details, in order to humiliate one’s former partner/spouse is usually defined as “revenge porn” (see history here). For instance, when intimate “selfies”, taken as a part of today’s courting ritual, are shared on the public domain after one’s relationship turns sour, they can be categorised as “revenge porn”. Not only does such sharing result in an absolute violation of privacy of the individual whose picture or audio-visual clip is shared, it also causes perpetual repercussions on her (the most common targets being women) life.

Recognizing the gravity of this offence and the immediate need to curb it, Israel explicitly criminalized “revenge porn” recently in January, 2014. However, in many jurisdictions, including USA where instances of “revenge porn” have astronomically increased, despite existing remedies available to the victim, achieving an effective legal solution has become insurmountable. Interestingly, with consent, (or rather the lack of it), being the major component of “revenge porn”, there have been recent debates as to how intellectual property can be a powerful and an alternative tool for the victim to combat this problem. But, again, there are two sides to this story. I have tried to highlight only few of the aspects of this story.

Even though more than 80% of “revenge porn” photos are “selfies”, thus implying that the victim is the “author” (at least “joint authors”, in the cases of video clips), many have averred against using copyright law. The foremost argument is that recurrent usage of copyright law as a shield will be tantamount to an undesirable deviation from the specific contours of copyright law, which is meant to protect “artistic” work. Some blogs and articles (for instance, see here) have gone ahead to suggest that such a usage could also lead to a situation where copyright law is exploited and misused. Their contention is that the number of copyright takedown requests received by various ISPs and websites is already humongous and usage of copyright law to deter “revenge porn” would only intensify the problem of such a “takedown process”. Another pertinent, yet similar, concern which has been raised is that there exists a plethora of other effective remedies in the laws relating to privacy, cyber-squatting, tort, etc, and that the need to enter into the domain of intellectual property law does not arise.

On the flipside, some scholars have staunchly supported the idea of using copyright as a shield. First, they contend that there are certain inherent defects in the overall concept of privacy law vis-à-vis “revenge porn”. While the Indian societal structure may not be flexible enough to ingest this thought, the increase in intimate, sexual social interactions via internet has necessitated that we realize its importance and the need to protect, if not encourage, such interactions. Now, when privacy law primarily and solely focuses on the harms flowing from unauthorized sharing, it can be argued that it indirectly discourages one from even taking a sexually explicit “selfie” and sharing it with one’s partner. On the other hand, arguably, copyright law will not prevent one from taking this “selfie” or even sharing it with the partner (thus, espousing the concept of freedom of expressing one’s sexuality), but will only prevent the recipient of the image or audio-visual clip from illegitimately sharing it with the rest of the world. Secondly, websites have to comply with takedown requests under the §512 Digital Millennium Copyright Act (USA) or they may run the risk of facing liability under the Copyright Act. Thus, the process of sending out a request claiming copyright infringement becomes much easier and victim-friendly when compared to the tedious process of hiring a prosecutor and justifying the criminal case slapped on the party accused of the criminal offences under cyber or privacy laws (some of the other inherent problems are available here and here).

In 2004, the infamous DPS MMS sex scandal, involving illegal distribution and even bidding of the concerned clip on an internationally reputed website ‘ebay’, had caused a furore among Indians, especially the protective Indian parents who were suddenly sceptical of their offspring’s interaction with technology and the internet. More importantly, just like the concerns being raised over inadequacies of existing legal structures to counter “revenge porn”, the DPS scandal had also underlined the inefficiencies inherent in the Information Technology Act, 2000. Though it is incorrect to equate DPS scandal with the recent phenomenon of “revenge porn”, I have compared the two only to point out that when technology and human emotions interact to cause troubles, at times, the existing legal remedies may not be the most powerful weapon. And, the victims may look for other non-conventional alternatives to seek immediate relief, because till the time the new amendments or new statutes are brought into effect, the victim’s reputation is already corroded beyond repair.

Copyright law ensures that the victims of this ghastly act are provided with a quick response and relief, thus serving the function of a shield. Having said that, however, I am not completely convinced if it can be an effective sword also. First, when the jilted partner substantially edits the photo and then uploads it, will he not become the owner of the copyright citing the fact that he has expended labour and effort? Second, since the “revenge porn” websites are umpteen, even if one website complies with victim’s takedown request, what is the guarantee that the photo or the clip will not appear on other websites? Won’t copyright law cease to be either sword or shield is such cases? Nonetheless, copyright law may prove to be a “gambit worth trying”.