Prying eyes on privacy through peeping toms

In an age of modern & revolutionized communication electronic equipments, the privacy of an individual is under siege. The video surveillance equipment has become smaller, more portable, more easily concealed and more accessible to the general public; its clandestine application has contributed to today’s cultural fascination with voyeurism. This advance video surveillance equipment has had a profound adverse impact upon our concept of privacy as we know it. The India is not untouched by the adverse impact of these peeping toms and the newspapers were flooded with various unsavory stories (even from small towns) of surreptitiously concealed video cameras prying into bedrooms, bathrooms, malls, changing rooms, washroom, swimming pool in prurient attempt to film unsuspecting victims while in various states of undress. There has been an unprecedented increase in incidents involving the surreptitious video tapping of the private parts of unwilling females even in public places like Lady’s washroom in Call Centre’s or BPOs where one can reasonable expect his or her privacy. The BPOs are prone to these voyeuristic acts as females constitute the major work force in this sector and most of them work in night shifts.

A male employee of a call center at Pitampura, Rohini, Delhi was detained by the police, on the suspicion that he placed a spy camera pen in the female washroom of the call centre with the intent to click the female workers in various states of undress. Although the offending act of this male employee may appear as ridiculous or laughable at the first instance, it is in fact a very invasive and intimidating crime particularly in our society where the females or ladies are respected or worshipped. Many of innocent victims mostly women, ladies or even minor girls have unwittingly become the object of video voyeurism websites whose privacy have been surreptitiously invaded using the high gadget peeping toms installed in the washrooms. It is the general human tendency particularly females who take great precautions that to ensure that either certain bodily actions or specific body parts remain guarded from public view whether they are situated at public place or private place.

The Law to deal with Voyeuristic Conduct:

While in many other countries, there are now a variety of statutes to deal with voyeuristic conduct in place that seeks to protect these inviolable rights, India is not legging behind to check this new form of felony due to the advancement in the technology, the legislature introduced Section 66E vide the Information Technology Amendment Act, 2008 which came into force on 27 October, 2009. The Section recognizes the right of privacy as inviolable and makes the felony punishable with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both. The section recognizes the natural human desire of privacy. It deserves respect and particularly in our society and cultural ethos & values as we know, it deserves legal protection too.

With flagrant disregard, the video voyeur blatantly defies this legitimate desire for privacy by utilizing technology to observe, record, and often to disseminate images of the very acts and body parts that were never intended or reasonably assumed to be open to public inspection. In effect, the video voyeur disrobes the victim without knowledge or consent and in so doing, strips the victim of both privacy and dignity. The Section 66E IT Act, 2000 recognizes the right to protect the human body from unreasonable and obscene intrusion by surreptitious video technology and adequately protects the individual privacy from the crime of video voyeurism which destroys personal privacy and dignity by secretly videotaping or photographing unsuspecting individuals. 

Section 66E Information Technology Act, 2000:

“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, public 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.”

Transmit, capture or publish the image: The section says that whoever with willful intention (read mens-rea) captures, publishes or transmits the image of private area of any person without his/her consent under circumstances violating the privacy of that person, shall be punished with imprisonment or fine as prescribed. The wordings of the section suggests that even the act of capturing by a digital or non digital camera of images of private parts of an individual without his or her consent would be covered under this section. It is not necessary that publication of the images should take place only through an electronic medium as is the case in Section 67 IT Act, 2000. The publication covers electronic & print medium both. However, the electronic transmission of objectionable images is also covered under this section.

Meaning of “under circumstances violating privacy”: The most significant expression used in the section is “under circumstances violating privacy” which means that circumstances under which a person can have reasonable expectation that he can change in privacy without being concerned that his or her private images may be surreptitiously clicked or any part of his or her private area would be visible whether he or she is in a public place or private place. Thus, the section rejects formalistic distinctions regarding space and prohibits patently unreasonable invasions of privacy wherever they occur. The clause (e) of Section 66E explaining the expression “under circumstances violating privacy” recognizes that even a person can have reasonable expectation of privacy in public places say office. Though a person has more privacy in the cool comfort of his home but it does not mean that anyone can disrobe of her privacy in the public place, say by hiding camera in office and surreptitiously clicking her objectionable photo without her consent.

Invasion of privacy may be in Public or Private space:  The wordings recognizes that criminal law must break free from fallacious distinctions between public and private space and must specifically recognize an individual’s legitimate expectation of privacy even in the public space. After all Video Voyeurism is not limited to window peeping. Modern electronics have transformed the deviant, usually solitary, act of peeping into a booming and perverse online-industry, built specifically upon the exploitation of non-consensual pornography.

The blatant invasion of privacy is not limited to private place alone; it can be anywhere even in public places like lady washroom in the BPO, thanks to the advance technology. The legislature was well aware of the fact that the failure on their part to include public place where one can have legitimate expectation of privacy would tacitly grant the video voyeur a license to act with impunity, and leaves victims with little or no recourse.

Thus, the wording clearly suggests that the surface of the body is itself, a private space. The ability to determine when, to what degree, to whom, and under what circumstances the body is exposed, is among the most fundamental aspects of the right to privacy and deeply tied to the concept of human dignity. Therefore, in response to the crime of video voyeurism, the legislature rejected the fallacious notions of any difference between private place where persons can have reasonable expectation of privacy and public place where he cannot. Instead, the legislature recognized a limited, but fundamentally reasonable, expectation of privacy that is sensitive to an individual’s desire to control exposure to both intimate acts and intimate body parts regardless of setting. 

In other words, the Section 66E protects individual privacy in both enclosed and public settings. It does not rely on the vague test of the reasonable expectations of the victim, and instead focuses directly on the unreasonable and offensive nature of the conduct committed by the video voyeur. “Private area” means the naked or undergarment clad genitals, pubic area, buttocks or female breast.

Section of IT Act dealing with Video Voyeurism based on US Federal Law: The section is deeply influenced and based on Section 1801 of ‘‘Video Voyeurism Prevention Act of 2004’’ a Federal Law of USA dealing with the felonious act of video voyeurism. The section has been introduced in the Information Technology Act, 2000 by IT Amendment Act, 2008 in view of the dramatic advances in the field of video technology aiding covert clicking of photos without the subject even have a hint about it. The insertion of the said section is a specific attempt to prohibit voyeuristic conduct and by corollary, to protect individual privacy.

Legal Provisions do not have deterrent effect:

The police have arrested the culprit under Section 509 Indian Penal Code and not invoked the provisions of the Information Technology Act, 2000, may be they may not be aware of the applicability of the provisions of the IT Act to the offending act. Nevertheless, the very offending act attracts the provisions of the Section 509 IPC as the intention of the accused was to cause insult to the modesty of a woman which has been done by intruding upon the privacy of such woman. As stated above, even the capturing of image of private area is sufficient to constitute an offence under Section 66E, and it is not necessary that the transmission or publication is necessary to complete the offence. Further, the pen drive has been seized by the police and if the images stored in the pen drive has been further transmitted by the accused, then it would also attract the offence under Section 67 IT Act which makes punishment for publishing or transmitting of material containing sexually explicit act in electronic form.

However, the offences under both Section 509 IPC, Section 66E & 67 IT Act though cognizable is bailable and in view of the increased incidents of gross intrusion of privacy of woman at work place by use of peeping cameras, it is imperative on the legislature to make the offence non-bailable and also enhance the punishment. The offence is not simple as it seems to be. It is a very serious offence having deep adverse ramifications. Let’s take the example of this case, what if, accused person transmits or post the obscene images on internet. It would definitely cause irreparable damage to the reputation of the victim girl or her family and would spoil her life. So, the legislature, categorize the offence as non-bailable offence in view of the seriousness of the offence.

Neeraj Aarora

(Advocate)