- What happens when sexual images of individuals are distributed without their consent?
This matter of either threatening to share or sharing personal images, whether they have been acquired consensually or otherwise, has been a longstanding issue with the advent of social media and digital image sharing. Sri Lanka, as is usual when it comes to updating its laws and policies to suit the present day, has been lagging behind in this regard with there being very little protection for crimes of this nature.
The police
What would happen if the aforementioned incident were to take place in Sri Lanka? Sri Lanka Police ASP Fredrick U.K. Wootler shared that there were certain avenues available for a person under the threat of having their personal images leaked or for someone who has already experienced such a leak.
According to Wootler, it is vital that the victim takes steps to inform the Police and file a formal Police complaint, following which the Police will direct the victim to the Cyber Unit at the Criminal Investigation Department (CID). “The CID will take swift action to prevent further dissemination of the images and track down the responsible parties,” said Wootler.
Another option Wootler outlined is to report the incident to the Sri Lanka Computer Emergency Readiness Team (Sri Lanka CERT) at the BMICH. He asserted that there had been many instances where these divisions had been incredibly resourceful and effective in preventing cybercrimes of this nature.
Wootler also highlighted the importance of being careful: “These divisions and trained officers are there for the public to rely on, but the best deterrent to becoming a victim of this type of crime is to be careful who you trust online.”
He added: “You have to be careful about who you share intimate information with and if you are being harassed, despite taking measures to stop them, having blocked them and such, then you must inform the Police.”
The law
Attorney-at-Law Harshana Nanayakkara shared that in the instance of an incident similar to the aforementioned taking place in Sri Lanka, a Sri Lankan would likely be charged under the Obscene Publications Act. He noted that in addition to this particular Act, other laws that would come into play would be Penal Code provisions under extortion (whether it be for money or something else) and indecent assault which at present is referred to as sexual assault. The rest of the offences will largely depend on a number of variables and circumstances.
For example, Nanayakkara explained, if the victim is a child, then it will also be a crime under Section 286 A of the Penal Code (obscene publication, exhibition relating to children).
Nanayakkara also emphasised the importance of “exercising caution” when sharing intimate images with another person. However, he did note that it was not up to the authorities to criticise how a person carried out their personal affairs. In a personal capacity, however, he shared that he would like to ask young girls and all young people online to take care and not to trust so easily.
Is the Obscene Publications Bill enough?
As we were reaching out to experts to provide context for this article, we came across multiple instances of colleagues, friends, and various other persons on the internet claiming that they were under threat of having their personal information, particularly intimate images originally shared on the basis of trust, being leaked to the public.
While it may be the instinct of some to advise them to ‘exercise caution,’ the digital landscape has changed in such a way that sharing personal images of this nature, lewd or not, with your loved ones is now commonplace.
Sharing his thoughts on this matter, Attorney-at-Law Thishya Weragoda said that how one chooses to entertain an intimate relationship is a matter of personal concern. “I find an issue with this term ‘revenge porn’,” Weragoda said, adding: “Even the term ‘obscene publication’: How is it something obscene if my wife sends me naked pictures of herself? It is not porn. So how can we refer to it as something obscene?”
Referring to current laws that govern crimes of this nature and the Obscene Publications Act, Weragoda asserted that the law was lacking. “We are in need of a different legal regime,” he said. “If you take certain laws in America, in the state of Texas there are laws addressing recording devices in dressing rooms or bathrooms and in Japan there are laws addressing voyeuristic persons having cameras that record upskirt videos. These are just a few examples of laws specially addressing pressing matters at hand.”
Drawing attention to the new draft of the Obscene Publications Act (introduced in 2020), Weragoda shared that the new amendments to the Act focused on child pornography, something that the Act already had provisions addressing, making the new proposed amendments redundant.
Citing laws addressing non-consensual pornography laws in other countries, notably the US, and how simply and directly they had been drafted so that they referred effectively to the distribution of sexual and pornographic images of individuals without their consent, he said that while these were not perfect, we could and should take cues from these laws when drafting our own.
The distribution of sexual and pornographic images of individuals without their consent has been an issue that the world has found itself increasingly grappling with in recent years thanks to social media and youth culture. While Sri Lanka is certainly not behind in adopting these cultures, the laws that need to come with it and the surrounding protections that must be enacted in the face of new challenges are yet to take effect. This doesn’t leave victims entirely unprotected, but it renders the path to justice a little more convoluted. With Sri Lanka now properly in the digital age thanks to the pandemic, this needs to be rectified.