Hi-Tech Peeping Toms- A Man with Tiny Digicam had ‘wrong click’

NEERAJ AARORA, AICWA, LLB, PGD (Cyber Law), CFE (USA)

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A new phenomenon of video voyeurism also known as “cyber peeping” has emerged in recent times where images of private area of an individual are captured without his knowledge and then transmitted widely without his 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.

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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 . 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. The relevant section 1801 of ‘‘Video Voyeurism Prevention Act of 2004’’ states:

Ҥ 1801. Video voyeurism

(a) Whoever, in the special maritime and territorial jurisdiction of the United States, has the intent to capture an image of a private area of an individual without their consent, and knowingly does so under circumstances in which the individual has a reasonable expectation of privacy, shall be fined under this title or imprisoned not more than one year, or both.

(b) In this section—

(1) the term ‘capture’, with respect to an image, means to videotape, photograph, film, record by any means, or broadcast;

(2) the term ‘broadcast’ means to electronically transmit a visual image with the intent that it be viewed by a person or persons;

(3) the term ‘a private area of the individual’ means the naked or undergarment clad genitals, pubic area, buttocks, or female breast of that individual;

(4) the term ‘female breast’ means any portion of the female breast below the top of the areola; and

(5) the term ‘under circumstances in which that individual has a reasonable expectation of privacy’ means—

(A) circumstances in which a reasonable person would believe that he or she could disrobe in privacy, without being concerned that an image of a private area of the individual was being captured; or

(B) circumstances in which a reasonable person would believe that a private area of the individual would not be visible to the public, regardless of whether that person is in a public or private place.

(c) This section does not prohibit any lawful law enforcement, correctional, or intelligence activity.”

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India followed the US Legislation in proposed amendment to IT Act, 2000

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)Â 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.

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This provision will protect against voyeurs who destroy personal privacy and dignity by secretly videotaping or photographing unsuspecting individuals. This new provision, with its stringent punishment, will no longer allow these crimes to fall through the cracks of our legal system. Law enforcement will now have the ability to swiftly provide justice to the victims of Video Voyeurism and book those found guilty of these heinous acts. This is crucial provision to protect individuals from violations of the privacy they have every right to expect. Hopefully, it will not only to punish offenders but also would deter anyone contemplating these crimes.

10 comments

  • Really a well thought step taken by the legislators keeping in mind the need of the hour. But, whether the act is bailable or non bailable.

  • Good article giving latest amendment in IT Act.

  • Gaurav Ajmani /

    Good article Neeraj….i remember reading this case in India few years back where the landlord had put hidden cameras in the bathroom of the house lent to five college going girls. One of the girls discovered the camera while bathing and the landlord was arrested.

    wonder if he was convicted

    • The case has been registered probably 1-2 years back and most probably the trial would be still going on. have to wait for conviction.

  • The definition of private area needs to be expanded .
    It apepars that the private area covers only the private physical parts of the body .
    Area should include premises of house, office etc
    Private may cover the premises where right to enter , visit are restricted for the user of the are only ,
    Suppose a women is sleeping in her house in fully dressed clothes .
    Her Video is taken discreetly .
    Will it not be violation of her privacy rights.

    • The meaning of private area as defined under Section 66E pertains to the human anatomy and the wordings has been imported from the US legislation namely; ‘‘Video Voyeurism Prevention Act of 2004’ (See relevant section 1801 of the said Act) which is on similar lines, like private area covers naked or undergarment clad genitals, pubic area, buttocks, or female breast. The idea is to prevent non-consensual photography or video recording of persons in a state of undress or nudity or semi nudity revealing some of her private parts like breast, buttock, pubic area as defined under Section 66E etc. The Section is broadly worded and prohibits the recording by any means or disseminating images of an individual’s “private areas” under circumstances violating the privacy of that person, regardless of whether the individual is in a private or public location. Thus, both public area and private area is covered.

      If any one makes a video clip of a woman who is sleeping in her house fully dressed (which is not obscene) without her consent and knowledge, he intrudes upon the privacy of such woman insulting or outraging her modesty which is punishable under Section 509 IPC. Here, Section 66E would not be attracted as he has not filmed her private parts as mentioned in Section 66 E which includes naked or undergarment clad genitals, pubic area, buttocks or female breast. In India we do not have privacy law similar to those found in western countries particularly USA, however Section 509 IPC is an exception which recognizes right of the privacy of a woman if it has been intruded with an intention to insult the modesty of any woman. The woman must not only be protected from physical aggressions made in the course of outraging her modesty, but she should also be shielded from various other acts which do not involve even a touch. Legislature was quite aware that a woman’s modesty can be insulted or outraged in various ways. Therefore, when one without the permission of woman makes her video film discreetly when she is sleeping in cool comfort of her house, he intrudes upon the privacy of woman and insults her modesty even if the act is committed without the knowledge of woman and the act is squarely covered within the mischief of Section 509 IPC.

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