The Bombay High Court temporarily stayed criminal proceedings against a photographer charged with voyeurism and privacy violations for uploading pictures of a client to image-sharing sites, that were later uploaded to “objectionable websites” by unknown actors. In their November 30th order, a Division Bench of Justices N.R. Borkar and Prakash D. Naik clarified that the case surrounded “whether Section 354(c) [voyeurism] and other offences invoked in this proceedings are attracted against the Petitioner.”
However, once you scratch beneath the surface, this case surrounding the non-consensual dissemination of intimate images, involves multiple questions of copyright too. For example, does the ‘victim’ have the right to restrict the photographer from releasing photographs he took online?
Tell me more about this case?: The photographer had initially “clicked” pictures of the dancer with her consent in September 2019, which he uploaded to websites like Pinterest, Pixabay, and Digital Studio. Once uploaded, unknown persons went on the upload the photographs to “objectionable websites”.
The dancer’s counsel submitted that these pictures were initially uploaded to the three image-sharing websites without her permission. That they were later shared on objectionable websites also caused her mental trauma, which she claimed “was on account of the act committed by the Petitioner”.
The photographer’s counsel argued that there was no evidence indicating that he “was instrumental in uploading the photographs on the objectionable website”. What’s more, the dancer had also uploaded her photographs to Pinterest too.
The photographer subsequently moved the Bombay High Court, challenging the proceedings lodged against him at the Girgaon Magistrate 18th Court, arising out of an FIR filed in 2021 by the Mumbai Police. He was charged under:
- The Indian Penal Code, 1860 (IPC): Section 354 (c), which criminalises voyeurism, or when “any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image”; and Section 500, which details punishments for defamation.
- The Information and Technology Act, 2000 (IT Act): Section 66E which punishes privacy violations, such as when a person “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”.
How does copyright come in?: The spanner in the works here lies over whether the dancer had the right to restrict the photographer from releasing the photograph online. This comes back to a central question: who actually owns the copyright over the images, given that both the dancer and the photographer uploaded the pictures online to image-sharing sites?
We spoke to copyright lawyer Rahul Ajatshatru for answers—and he had this to say:
MediaNama: Did the dancer have the right to restrict the photographer from releasing the photograph online at all?
Rahul Ajatshatru: A person can always revise the terms of consent and also restrict the usage at the time of the photograph or thereafter. Consent is generally procured in commercial shoots and most of the contracts have the usage and term period very clearly defined.
MediaNama: Who actually owns the copyright over the images, given that both the dancer and the photographer uploaded the pictures online to image-sharing sites?
Rahul Ajatshatru: [Hypothetically] The photographer owns the right over the photograph, as he is the composer of the shot/author of the picture. [The] Dancer has no inherent right to use the photograph.
MediaNama: The photographer released the images on Pixabay, a repository of royalty-free stock images and media that any user can download for free. Is there any liability then on the photographer?
Rahul Ajatshatru: Being the owner of the copyright in the photograph, the photographer can usually publish it in the manner he deems fit, and can do it for free or for money. It is only when the usage is objectionable, that the person so photographed can ask the photographer to take it down.
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