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Argument Advanced
Issue 4: Whether Petitioner is liable to get compensation for the violation of Right
to Privacy because of the defaults of Respondents?
4.1 Liability to pay compensation
The petitioner is liable to get compensation for the violation of right to privacy
because of the defaults of respondents in immediately take down the Videos and prevent
further spread of the same and safeguarding of privacy of Petitioner No. 1 and prevent public
access of any information which threatens the security of Sindhia and public order.
The Information Technology Act, 2000 provide for punishment for violation of
privacy. Here, Respondent No. 1 has violated the privacy of Petitioner No. 1 by knowingly
transmitting a video of private area of Petitioner No. 1 without her consent. Under this
section the respondent is liable to pay a fine. Without the consent this type of transmission or
publication is criminal in nature. The respondent had a fiduciary duty to take down the
content which was sexually explicit or instigated the communal violence in the state of
Broomland.
4.2 Liability under Information Technology, 2000
“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.” 1
The rape video was uploaded on the platform of respondent, which went viral and
incited massive riots and violence between Sindhus and Jeruslams. The petitioners expressed
her angst and repeatedly pleaded with respondent to remove the content and prevent further
circulation of the same. In response they elucidated that they do not initiate any transmission
through their platform nor do they select the recipient of such transmission or modify any
information contained in the transmission and denied any action on their part. It clearly
shows that the respondent intentionally and knowingly published and transmitted a content
which showed the private area of the petitioner without her consent with full understanding
that it amounts to violation of privacy of the petitioner.
“ 67 Punishment for publishing or transmitting obscene material in electronic form. -Whoever publishes or transmits or causes to be published or transmitted 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 three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.” 2
In the case of Suhas Katti v. State of Tamil Nadu,^3 it was held-
“The accused was found guilty of offences under Section 469, 509 IPC and 67 of IT Act 2000 and convicted to undergo RI for 2 years under 469 IPC and to pay fine of Rs.500/-and for the offence u/s 509 IPC sentenced to undergo 1 year simple imprisonment and to pay fine of Rs.500/- and for the offence
(^1) The Information Technology Act, 2000 (Act 21 of 2000), s. 66E. (^2) The Information Technology Act, 2000 (Act 21 of 2000), s. 67. (^3) CC. No. 4680 of 2004.
“228A. Disclosure of identity of the victim of certain offences etc.— (1) Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under section 376, section 376A, section 376B, section 376C or section 376D^6 is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. (2) Nothing in sub-section (1) extends to any printing or publication of the name or any matter which may make known the identity of the victim if such printing or publication is— (a) by or under the order in writing of the officer-in-charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation; or (b) by, or with the authorisation in writing of, the victim; or (c) where the victim is dead or minor or of unsound mind, by, or with the authorisation in writing of, the next of kin of the victim: Provided that no such authorisation shall be given by the next of kin to anybody other than the chairman or the secretary, by whatever name called, of any recognised welfare institution or organisation. Explanation.—For the purposes of this sub- section, “recognised welfare institution or organisation” means a social welfare institution or organisation recognised in this behalf by the Central or State Government. (3) Whoever prints or publishes any matter in relation to any proceeding before a court with respect to an offence referred to in sub-section (1) without the previous permission of such Court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. Explanation.—the printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section.” 7
As per the facts it can be deduced that the respondents has also failed to conceal the
identity of the victim of rape which is a criminal offence. The respondent no. 1 can be held
liable for disclosing the identity of victim not just by allowing the video to circulate but also
denying the repeated requests from both the petitioners. The Apex Court was of the opinion
in Nipun Saxena v_. Union of India,_^8
(^6) Indian Penal Code, 1860 (Act 45 of 1860), s. 365. (^7) Indian Penal Code, 1860 (Act 45 of 1860), s. 228A. (^8) (2019) 2 SCC 703.
“The identity of adult victims of rape and children who are victims of sexual abuse should be protected so that they are not subjected to unnecessary ridicule, social ostracization and harassment and issues relating to non-disclosure of the name and identity of a victim falling within the purview of the POCSO (Protection of Children from Sexual Offences) Act,
- The Court also said, victim of a sexual offence, especially a victim of rape, is treated worse than the perpetrator of the crime."
Therefore, it is humbly submitted before this Hon’ble court that this court must
provide with compensation to the Petitioner for the violation of Right to Privacy due to the
defaults on part of the Respondents.
