Privacy, Data Protection and Retention
Data Protection Commissioner v. Facebook (Schrems II)
Closed Mixed Outcome
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The Judicial Magistrate for the Tamluk District Court in West Bengal (India) found Animesh Boxi guilty of uploading intimate photos and videos of his former girlfriend on pornography websites and sentenced him to 5 years imprisonment along with a fine of Rs. 9,000. Boxi, a final-year engineering student, had been charged under various provisions of the Indian Penal Code (IPC) and the Information Technology Act, 2000. The Court reasoned that Boxi had demanded sexual favours from the victim, captured images of her in circumstances where she would not have expected to have been observed, transmitted these images and stalked her thoroughly online. It said that the lack of physical injury to the victim was irrelevant because injury to reputation fell within the ambit of ‘injury’ as laid down in Section 44 of the IPC.
The case is of historic significance as it is the first conviction in a ‘revenge porn’ case in India and the harsh punishment sends out a strong message to perpetrators of revenge pornography.
The accused, Animesh Boxi (alias Animesh Bokshi alias Animesh Bakshi) was in a relationship with the victim (her name was not disclosed to protect her identity) for three years prior to the incident that occurred in July 2017. Over the course of the relationship, Boxi demanded intimate photos from the victim and allegedly “hacked into her phone” [p. 94] to get his hands on them. He then started blackmailing her, saying that he would upload the photos and videos online if she refused to spend time with or “go for outings with” him [p. 20]. A few days later, the victim’s brother discovered the nude pictures and videos on a porn site (PornHub) with the video which gave the victim’s name and also identified her father.
Boxi was charged under sections 354A (Sexual Harassment), 354C (Voyeurism), 354D (Stalking) and 509 (Criminal Intimidation) of the Indian Penal Code, 1860 (“IPC”) and sections 66C (Identity theft), 66E (Violation of privacy) and 67/67A (Transmitting obscene material online) of the Information Technology Act 2000 (“IT Act”).
Judge Gautam Nag conducted the trial and held that the accused person guilty of the charges.
The main issue before the Court was whether the prosecution was able to prove beyond reasonable doubt that Boxi was guilty of non-consensually uploading intimate images and videos of the victim online. The prosecution relied upon electronic evidence and witness testimonies. The electronic evidence included, inter alia, Boxi’s mobile number which was listed as the registration number of the PornHub account through which the video was uploaded; the IP address indicating that the SIM card through which the video was uploaded was registered in Boxi’s name; and the email and porn website’s user accounts in Boxi’s name through which the video was uploaded. The defense took various points on the prosecution’s procedural shortcomings such as delays in filing the list of articles and documents seized, charges being framed under incorrect provisions and the defective examination of witnesses, among others.
With regard to the charges of sexual harassment, voyeurism, stalking and criminal intimidation under sections 354 and 509 of the IPC , the Court said that Boxi had demanded sexual favours from the victim, captured images of her in circumstances where she would not have expected to have been observed and stalked her thoroughly online. The Court rejected Boxi’s defense that sexual harassment, voyeurism and stalking had not caused the victim any physical injury. It said that injury to the victim’s reputation was sufficient because it fell within the ambit of ‘injury’ as laid down in Section 44 of the IPC.
The Court also found Boxi guilty of transmitting private images online contrary to Section 66E, Section 67 and 67A of the IT Act as well as identity theft under Section 66C as he had hacked into the victim’s phone and taken the pictures secretly.
Accordingly, the Court found Boxi guilty of all the the offences as charged and sentenced him to five years imprisonment along with a fine of Rs. 9,000. It also ordered that the victim be paid compensation under the state’s Victim Compensation Scheme.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although the ruling is in line with laws in several other countries and states that have legislated against revenge porn finding restrictions necessary and legitimate (UK [Criminal Justice and Courts Act (2015) s 33(5)], Canada [Protecting Canadians From Online Crime Act, 2014], Scotland[Abusive Behaviour and Sexual Harm (Scotland) Act 2016], Israel [2014 amendment to the Prevention of Sexual Harassment Law, 5758-1998], certain states in Australia [Crimes Amendment (Intimate Images) Act 2017 (New South Wales)] and in the USA [The New Jersey Code Of Criminal Justice, NJ Rev Stat § 2C:14-9 (2015)] have imposed criminal sanctions for sharing revenge porn), other jurisdictions have upheld the view that freedom of expression prevails in such cases.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The case is of historic significance as it is the first conviction in a ‘revenge porn’ case in India. Although the case does not have precedential value since it was decided by a lower court, the harsh punishment imposed on the accused person sends out a strong message to perpetrators of revenge pornography. Before imposing the sentence the judge spoke in detail about the reasoning behind the sentence. The judge wrote that deterrence should be one of the prime considerations in this case and an inadequate sentence would do more harm to the justice system, as it would undermine public confidence in the seriousness of the issue. The judge coined the phrase ‘virtual rape’ and stated that since the video was hosted on a website available worldwide, the victim suffered virtual rape every time someone saw the video.
Let us know if you notice errors or if the case analysis needs revision.