Thursday, 6 October, 2022
E-paper

Catching up with Snapchat: The Pornography Control Act, 2012

Saquib Rahman

Catching up with Snapchat: The 
Pornography Control Act, 2012

With fare share of criticisms, enactment of the Pornography Control Act, 2012 was acknowledged to have been a much needed law, in order to stop the voluntary dissemination of photos and videos of persons in compromising positions – victims most commonly being teenaged women.

The app

Although social media platforms such as Facebook are popular enough for most, if not all readers to relate, it is perhaps wise to provide with an idea of Snapchat, an app that contains much younger and city based users.

Discussing various features of the app are not of relevance, except that the readers should be aware that the app users have a list of friends, with whom they can share photos or short videos in a chat thread, that would only be visible for the number of seconds (10 being the maximum) the sender intends. For instance if I am sent a photo, I would be given the option to open the photo. Once I do, the photo would only appear on my phone for the set number of seconds and disappear. Considering the chances of missing out on the content, the app allows the photo or the video to be viewed a second time. Both the receiver and the sender then fail to see what has been shared, as if nothing happened! A friend of mine had an interesting comment to make about Snapchat – “it’s almost like a one night stand.”

Snapchat’s USP

It goes without saying that the unique selling proposition is the fact that, not only photos or videos, but also the chat history disappears the moment one would close the particular window. Although at various occasions, the founders of the app declined to buy the idea that the app is a big hit because of adults, specially couples sexting (send someone sexually explicit photographs or messages via mobile phone) each other, the existence of Snapchat has certainly been more comforting in this case, than using any other media that have messages and texts on record. Also, it is notable that, if the receiver takes a screenshot, the app notifies the sender at once.

Pornography

Although one may rightfully argue that all private snaps containing photos or videos, shared within a couple do not amount to pornography, it is important to note that the Pornography Control Act’s definition of pornography includes nude or half nude video and still pictures. Furthermore, it also defines as pornography, any material that is likely to increase sexual sensation or desires. If not the portion of definition mentioned in the former, the latter is certainly subjective. Meaning, what one person perceives as ‘too hot to handle’, another may not.

The problem

Now, for the sake of understanding, if we consider a hypothetical scenario where snaps on Snapchat are being sent for the purpose of sexting, the recipient with a malicious intention (for the purpose of black mailing or due to some kind of grievance or revenge) may take a screenshot of the photo and complain against the sender. According to the Pornography Control Act 2012, the sender may easily be subject to Section 8(1) of the Act that mentions a punishment of a maximum of 8 years along with a fine of up to Taka 200,000/-, just for capturing the image or video. Again, according to Section 8(3), for disseminating such material using the internet and the cell phone, the sender may receive up to 5 years of imprisonment and a maximum fine that is same as the previous section.

In case of Snapchat, it would be impossible for the sender to prove that he/ she had received similar or even more compromising pictures of the recipient. Thus, the law can easily be misused to harass someone. Also, it would be irrelevant to the court, whether the sender had received a notification of the screenshot or not.

Right of privacy

The sender above may argue that his or her intention was not to have distributed the photo in public or that it has been sent with mutual consent between two adults. He/ she can also try to establish that making a complaint with regards to the snaps sent privately is a violation to his right of privacy. Apart from the argument being a little far-fetched, the other hindrance is that the Constitution of the Bangladesh does not explicitly mention the right of privacy as a fundamental right, although through cases, judges have interpreted such as a subset of the right of life and liberty, right to property and the right to protection of home. Let alone trying to develop an argument there, what if the receiver would counter argue that privacy would only amount when both of the parties would have consent to such exchange of texts (and that he/ she had no such intention nor had been a part of such type of correspondence with the sender)? Proving the receivers’ intentions and/ or past actions would not be possible, given the disappearance of all previous correspondences.

To end with

It is commendable that the Pornography Control Act of 2012 contains detailed description of how the investigation of the crime (non-bailable according to the law) is to be conducted by the Inspector/ Sub-inspector of police and the fact that it mentions punishments for all possible parties that may be involved with the creation and dissemination of pornography. However, although the Act states imprisonment of 2 years alongside a fine of Taka 200,000/- for those who intend to harass someone by misusing this Act, then again, Snapchat’s USP would even make it impossible to prove one’s malicious intent to harass another.

 

The writer practices law in Dhaka Court and is a faculty of law at North South University.