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Neeraj Aarora: AICWA, LLB, PGD (Cyber & DLTA), CFE (USA)

The arrest of famous store room owner at Ghaziabad for allegedly planting secret camera to make clippings of the female customer while using the trial room has shown adverse impact upon our concept of privacy. The peeping cameras are becoming technologically advanced, tiny and easily available at cheaper prices. They can be planted secretly with ease and its pervasive application has contributed to the growing fascination for younger generation obsession with voyeurism. The Ghaziabad incident is not an unprecedented act and various newspapers have reported similar incidents of surreptitiously concealed peeping toms prying into locker rooms, changing rooms of malls, swimming pools in prurient attempts to film unsuspecting victims while in various state of undress.  The said newspaper reports are alarming being a very invasive and intimidating crime which also poses a fundamental challenge to individual privacy.

What is Video Voyeurism?    

A new phenomenon of video voyeurism also known as “cyber peeping” has emerged in recent times where images of private area of subject mostly females are captured without her knowledge and then transmitted widely without her consent thus violating privacy rights. Video Voyeurism is the act of secretly or discreetly photographing certain parts of the body mostly unclothed without the person's consent. Video voyeurism typically refers to “up-skirt” or “down-blouse” images taken of women without their consent. We have seen the rise in the cases of video voyeurism, where the victims have been clicked without ever knowing that they have been clicked revealing their private parts. The phenomenal growth of the internet and its user, mostly of the younger age has given rise to this up-skirt and down-blouse photography which one can view easily at host of video voyeurism websites. The voyeurs who are psychopath to satisfy their lust see surreptitious video surveillance as a form of high-tech hunting and take pride in showcasing their talent in various video voyeurism Web sites which has mushroomed at the World Wide Web and mostly go free taking shelter under the current gap in the law. The Acts of video voyeurism are not only an invasion of a person's privacy, but are also a serious threat to the liberties of a free society as we know and also against our high moral & cultural values or ethos. These criminal activities undermine the most basic levels of privacy to which every citizen is entitled.

Do we have law to deal with menace of Video Voyeurism?

Realizing the ever growing menace of the Video Voyeurism, the USA, passed federal legislation known as the Video Voyeurism Prevention Act of 2004, which prohibits knowingly capturing an image of private area of an individual by video tape, photograph, film, or any means or broadcast without that individual’s consent and under circumstances in which the individual has a reasonable expectation of privacy. (See relevant Section 1801 of Video Voyeurism Prevention Act of 2004) Thus the said law, make it a crime to secretly record or distribute images of people in places where they have a reasonable expectation of privacy, such as bathrooms, dressing rooms, locker rooms, hotel rooms and mall etc. The law defines a "private area" as the naked or undergarment clad genitals, pubic area, buttocks, or female breast of an individual. The law however makes an exception and does not apply to people engaged in lawful law enforcement or intelligence activities.

In India also, we have seen increasing incidents of video voyeurism due to advance technology that has made today's hidden cameras tiny, sleek and adapted for WiFi connections to make transfer of the captured film or movie clip to the web easier and faster. Internet is a product of US Technology, so issues relating to Internet are heavily flavoured by US Constitutional and Legal doctrines. The legislature was aware of this problem and there was no stringent law to specifically deal with the menace of video voyeurism which was rampant due to modern technology. The amendment proposed to the IT Act, inserted a new Section 66E which specifically addresses video voyeurism which is inspired by the Video Voyeurism Prevention Act of 2004 of US. The wordings of proposed Section 66E which makes this sort of “cyber peeping” a felony is as under:

“66E  Punishment for violation of privacy”

Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with  imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both

Explanation.- For the purposes of this section--

(a) “transmit” means to electronically send a visual image with the intent that it be viewed by a person or persons;

(b) “capture”, with respect to an image, means to videotape, photograph, film or record by any means;

(c) “private area” means the naked or undergarment clad genitals, pubic area, buttocks or female breast;

(d) “publishes” means reproduction in the printed or electronic form and making it available for public;

(e) “under circumstances violating privacy” means circumstances in which a person can have a reasonable expectation that--

(i)  he or she could disrobe in privacy, without being concerned that an image of his private area was being captured; or

(ii) any part of his or her private area would not be visible to the public, regardless of whether that person is in a public or private place.

Why the Ghaziabad Police have invoked the Indian Penal Code and not the aforesaid provision of IT Amendment Act?

In the reported cases of similar nature the police have invoked Section 294 IPC (obscene acts) and Section 509 IPC (insult to modesty of Women) both of which are bailable as per the 1st Schedule to the Code of Criminal Procedure, 1973. The 1st Schedule to the Cr.P.C. categorizes the offences as Cognizable/non cognizable or Bailable/non-bailable. The IT Amendment Act has yet not been notified by the Government and therefore, the offender cannot be booked under newly inserted Section 66E of the IT Amendment, in view of the clear mandate of Article20 (1) of the Constitution of India which says that,  “No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence….”. However, it would be pertinent to mention here that aforesaid Section 66E is bailable offence as per the scheme of the yet to be notified Act and if it would have been invoked had the amendment act been notified, would not have much difference for it would not have any deterrent effect on the offender as he can walk out freely, the offence being bailable.

Nevertheless, the police should have invoked the provisions of Section 67 IT Act, 2000 (which deals with publication or transmission of obscene information in electronic form) which is stringent penal provision of the IT Act, 2000 as the same is cognizable and non-bailable offence and attracts imprisonment of upto five years and fine upto one lakh rupees in case of first conviction. However, it has been seen that the police in similar cases including the present one have not resorted to Section 67 IT Act, 2000 for the reasons best known to them only. The provisions of Section 67 IT Act, 2000 is clearly attracted as there has been publication or transmission of clippings of female client in various state of undress and same has been transmitted, generated or received stored in electronic/computer equipment which is magnetic, optical or similar device. Thus, the offence is complete in view of Section 67 IT Act read with Section 2 (r) IT Act(defines “Electronic Form”). The provision of Section 67 IT Act, 2000 and Section 2 (r) IT Act is reproduced below:

67. Publishing of information which is obscene in electronic form.

Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees.

Section 2 (r)  "electronic form" with reference to information means any information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device.

Thus, not invoking the provisions of Section 67 IT Act, 2000 which has a deterrent effect on the offenders as well as which would deter the prospective offenders to commit the crime, in a way amounts to shielding the criminal from the criminal process of law and would encourage them to commit the crime with impunity without any fear of law as they know that they can walk out freely, in view of bailable sections slapped on them by the police.

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