On 14-05-2019 the Supreme Court of India created one
more example of broadening the freedom of speech when it ordered for the
immediate release of Priaynka Sharma, a BJP
activist. Sharma had allegedly posted a meme of Mamta Banerjee which contained
morphed picture of Mamata Banerjee on
Priayanka Chopra’s image that was taken
in Met Gala, 2019. Chopra was heavily trolled for her attire and make-up and
several people started created memes with Chopra’s picture. The Supreme Court on an appeal by the brother
of Sharma ordered for an immediate release of Sharma (who was arrested by the
West Bengal police) emphasizing the fact that she should apologies to Banerjee
because it has hurt her. The court also mentioned that freedom of speech cannot
be unfettered when it infringes other’s right.[1]
As per the news reports, she was however
released after 24 hours.
This is not the first time in India that someone got
arrested for ‘posting’ images/comments etc on social media which apparently
questions/defames/teases political personalities including members of the
ruling government party. After the
coming into effect of the amended version of
Information technology Act, 2000 (amended in 2008), S.66A (which prescribed
punishment for offensive, annoying etc. speech) has been over and again used by
the police to arrest individuals who had posted comments which apparently
questioned/ridiculed/defamed/teased political personalities. Before S.66A could
have been properly interpreted, [2]
the Supreme Court felt that the provision was being grossly misused for the ill
drafting and in Shreya Singhal vs Union of India, the apex court ruled it
unconstitutional. In the recent Mamata
Banerjee meme case, Supreme court stuck to its earlier understanding that no
arbitrary arrest may be made for posting contents on social media targeting
particular political personalities (including those in the ruling government
parties) because this hampers freedom of speech. Let me also state here that Banerjee has
sister -politician who had been ‘victims’ of memes : she is none other than
German chancellor Angela Merkel whose
latest memes appeared with Narendra Modi
when the BJP official website got hacked. There is rarely any information available
whether Merkel had made the police arrest the individuals who had been creating
or sharing the memes including the morphed images of Merkel.
My concern here however does not cover the repetition
of the act of Mamata Banerjee government in arresting individuals targeting
political personalities including herself.
I look at the issue from two perspectives here: (i) morphing the image
of a woman and thereby creating/distributing/sharing the same as a
non-consensual image (and not nonconsensual pornography); (ii) who should be
ideally liable and under which law, and whether this issue attracts any legal
liablity or not. As the reports and
the image in question (which is still
available when we search with key words such Mamata Banerjee meme ) suggests , it was not one, but two women
were targeted : Priyanka Chopra, the original person in the image, who was
heavily trolled because of her Met Gala, 2019
attire and Mamata Banerjee,
whose face was morphed with the picture
of Priyanka Chopra . Priyanka Chopra has not yet filed any police complaint for
trolling; neither she has filed any complaint for morphing her picture. It was not the same case for Banerjee: she made it sure that the individual who
shared the image should get arrested
under several provisions of Information Technology Act, 2000 (amended in
2008) including S.500 of the Indian Penal Code which prescribes punishment for
defamation. The news reports however did not mention about the specific
provisions of IT Act under which she was arrested. Noticeably, neither
Information Technology Act, nor Indian Penal Code recognizes any offence of’ ‘morphing’. The term does not find any
mention in any law. Further, the existing laws neither specifically focuses
attention for creation of morphed image of women for
damaging her reputation. However,
cutting and pasting of face is
holistically addressed under several laws including Indecent Representation of
women prevention Act (especially when the content is used to show case women in
an indecent manner), S.509 of the IPC (which prescribes punishment for word,
gesture, or any act made to insult the modesty of a woman), Ss66D( Punishment
for cheating by personation by using computer resource) 66E Punishment for
violation of privacy) etc, which may be coupled with Ss..
67 (Punishment for publishing or
transmitting obscene material in electronic form) or 67A ( Punishment for
publishing or transmitting of material containing sexually explicit act, etc.,
in electronic form), (this is especially when the image or related text
suggests sexual offences ) or S.354 C IPC (which prescribes punishment for
voyeurism targeting women). A minute scrutiny of these provisions may suggest
that they may loosely skirt around the
concept of anti-defamation law as well especially when the reputation of the
targeted victim is at stake due to the content
created/transmitted .
In this political memes targeting women (and
ridiculing them), one more celebrity woman Aishwarya Rai now joins with Mamata Banerjee and Priyanka Chopra. Rai was
featured in a meme created and shared by
another actor from the film industry who, the media reports suggest, had an
emotional bondage with Aishwarya Rai before she got married to her present
husband Abhishek Bacchan. Rai’s meme showcases not one , but three photos with texts which had been the center of
debate and ‘amusement’ for many. The first photo shows Rai with Salman Khan, a
prominent actor of Bollywood who had a relationship with Rai many years back
when she was a debutant in Bollywood. She reportedly came out of the
relationship because of physical abuses and harassment. This photo has a
caption which reads ‘opinion poll’. The next is with Vivek Oberoi, who has
allegedly created the meme. This has a caption which reads ‘exit poll’ and the
last in the line is Rai’s family photo with her husband and daughter, which
reads ‘result’. Noticeably, this meme attracted attention of many because this centered
around a celebrity woman actor who is supposed to be one of world’s most
beautiful women. She has been trolled many times earlier. But this is probably
the first time that she, her husband and
her minor daughter are pulled in for political meme. Oberoi was slammed by many
of his fellow Bollywood women actors who considered this as disgraceful,
classless, disgusting etc.[3]
While accepting the fact that Rai is a favorite subject for trolls for many
years, what no one understood in this was, Rai’s daughter does not deserve this
as a child. Even though as a celebrity child, she and her mother had been trolled; could anyone understand how
her right to privacy and basic child rights have been violated ? That’s the
curse of being the daughter of a celebrity mother which follows all children of
all women celebrities including women actors, politicians, sports persons etc.
As such, both Mamata Bannerjee , Priayanka Chopra and Aishwarya Rai could have availed
any of these laws mentioned above if they were not public figures and if
the photographs that had been the major issue here, had been their
personal photographs or it would have
been created specifically for sexual gratification which happens to most of the
women actors.[4]
Then in that case, if the photographs were their personal
properties, could they have pursued the police for arrest? We have to turn our attention to chapter IV of
the Copyright Act, 1957 for this : three sub clauses of S.17 attract my
attention here which are as follows:
17. First owner of copyright.— Subject to the
provisions of this Act, the author of a work shall be the first
owner of the copyright therein:
Provided that—
(a) in the case of a literary, dramatic or artistic
work made by the author in the course of his
employment by the proprietor of a newspaper, magazine
or similar periodical under a contract of
service or apprenticeship, for the purpose of
publication in a newspaper, magazine or similar
periodical, the said proprietor shall, in the absence
of any agreement to the contrary, be the first
owner of the copyright in the work in so far as the
copyright relates to the publication of the work
in any newspaper, magazine or similar periodical, or
to the reproduction of the work for the
purpose of its being so published, but in all other
respects the author shall be the first owner of the
copyright in the work;
(b) subject to the provisions of clause (a), in the
case of a photograph taken, or a painting or portrait
drawn, or an engraving or a cinematograph film made,
for valuable consideration at the instance of
any person, such person shall, in the absence of any
agreement to the contrary, be the first owner of
the copyright therein;
(c) in the case of a work made in the course of the
author’s employment under a contract of service or apprenticeship, to which
clause (a) or clause (b) does not apply, the employer shall, in the absence of
any agreement to the contrary, be the first owner of the copyright therein;
Neither Priyanka
Chopra, nor Mamata Banerjee claimed that the photographs in question were their
personal photographs which they ‘owned’ as per Copyright Act. The photographs
were then properties of different persons or agencies who probably had captured
both the women with consent. Given this
fact, neither (especially Banerjee) may proceed to complaint for arresting
unless it has harmed her reputation or caused her financial loss or caused
grave threat. Here, we must note that the Supreme Court has very narrowly
touched upon the private sentiment of
Banerjee when it stated that such production and sharing of photograph
may have infringed her right (not any specific right, but understandably it was
largely right to reputation under Right to Life with dignity). But what the court failed to note here was
the liability of the website where it was published and shared. Websites like
Facebook however may not count this as impersonation (again we have to go back
to the understanding as who is ‘owner’ of the photograph) unless the image has been
used to grossly defame the person whose photo is involved. The websites would
neither recognize this as offensive if seen from the perspective of US laws of
Freedom of speech which is extremely broad. This has been the major concern for
many women victims of morphing, revenge porn and nonconsensual porn throughout
the world. In India the due diligence
clause under S. 79 of the Information Technology Act (exemptions from liability
of intermediary in certain cases) had been a major savvier for US based web companies like Facebook or
Twitter when it comes to liability of websites for offences including
generating /continuing the harassment of women for nonconsensual photographs. There is however one more solution from EU :
Article 13 of the EU directives on Copyright in the single market[5]
which makes the websites liable for illegal hosting of contents if they do not
acquire license from the right holders of such contents. This means that the
third party liability in offensive and illegal content sharing becomes more
stringent as per the EU copyright Law. But in India such laws are not yet
implemented or executed.
What we see from
the above discussion is, Supreme Court has yet again broadened the meaning of
freedom of speech, but failed to provide guidelines which may have strengthened
rights of women who may be victimized by way of morphing in general. The court
was in a hurry to undo the wrong of a political persona and the police who may
have acted under her direction. But failed to create a lasting (and impressive)
interpretation of laws which could have
saved millions of women victims of nonconsensual images.
*Please note : Please do not violate the copyright of this blog. If you need to share/use this blog for your writeup/project/story, please cite it as Halder.Debarati (2019)Mamata Banerjee, Priyanka Chopra and Aishwariya
Rai : What bonds them together and why. Published in http://debaraticyberspace.blogspot.com
[1] Singh V.P. (2019) Mamta Banerjee
Meme: What For Did The SC Ask Priyanka Sharma To Apologise?
https://www.livelaw.in/columns/mamta-banerjee-meme-what-for-did-the-sc-ask-priyanka-sharma-to-apologise-145069 . Published on May 15, 2019
[2] See
Mamata Banerjee meme: SC grants bail to BJP worker Priyanka Sharma, asks her to
apologise after release. Published in https://www.indiatoday.in/elections/lok-sabha-2019/story/mamata-banerjee-meme-bjp-worker-bail-west-bengal-priyanka-supreme-court-1524467-2019-05-14 on May 14, 2019.
[3] See ET online (2019)Vivek Oberoi
tweet Aishwarya Rai's meme; Sonam Kapoor, Jwala Gutta lash out at actor
Published
@//economictimes.indiatimes.com/articleshow/69413084.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
on May 21, 2019. Accessed on May 21, 2019
[4]
Halder D., & Jaishankar K. (2016) Celebrities and Cyber Crimes: An
Analysis of the Victimization of Female Film Stars on
the Internet. Temida
- The journal on victimization, human rights and
gender. 19(3-4), 355-372.
ISSN: 14506637
[5] See
Art 13 in the DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on copyright in the Digital Single Market @ https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016PC0593
