Section 66E of the Information Technology Act, 2000 and Corresponding Provisions in the Bharatiya Nyaya Sanhita, 2023

Introduction

Privacy in the digital era faces serious threats from hidden cameras, “upskirting,” revenge porn, and even AI-generated deepfakes. India’s Information Technology (Amendment) Act, 2008 introduced Section 66E to address digital violations of bodily privacy.

At the same time, the Bharatiya Nyaya Sanhita, 2023 (BNS)—India’s new criminal code replacing the IPC—contains provisions on voyeurism, sexual harassment, and modesty outrages. Together, these provisions create a complementary framework: the IT Act targets technology-driven privacy violations, while the BNS provides general criminal law remedies.

Section 66E of the IT Act, 2000

Section 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:

• “transmit” means electronically send a visual image with the intent that it be viewed by a person or persons;
• “capture”, with respect to an image, means to videotape, photograph, film or record by any means;
• “private area” means the naked or undergarment clad genitals, pubic area, buttocks or female breast;
• “publishes” means reproduction in the printed or electronic form and making it available to others;
• “under circumstances violating privacy” means circumstances in which a person can have a reasonable expectation that—
  1. he or she could disrobe in privacy, without being concerned that an image of his or her private area was being captured; or
  2. 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.

Punishment: Up to 3 years’ imprisonment, or fine up to ₹2,00,000, or both.

 Illustrative Scenarios and Case Studies

The application of Section 66E becomes clearer when examined through real-world illustrations. Each scenario demonstrates how courts may analyze the essential ingredients—intent/knowledge, act, subject matter, lack of consent, and circumstances violating privacy.

1. Hidden Camera in a Changing Room

      Facts: The owner or employee of a clothing store installs a hidden camera in the trial room, capturing images of customers while they change.

Analysis:

1. Intent/Knowledge – Installing a hidden camera implies deliberate intent to capture images.
2. Act – Captures images of customers.
3. Subject Matter – Naked or undergarment-clad private areas.
4. Lack of Consent – No consent from customers.
5. Circumstances Violating Privacy – Trial rooms create the highest expectation of privacy.

Result: A clear violation of Section 66E IT Act. If the material is further published or transmitted, those acts are also punishable.

BNS Overlap: Section 77 (Voyeurism) equally applies since this involves capturing a woman in a private act.

2. Scenario 8.5.2: Upskirting in Public

Facts: A man secretly takes photographs/videos up a woman’s skirt in a mall or on an escalator.

Analysis:

1. Intent/Knowledge – Surreptitious act proves intent.
2. Act – Captures images.
3. Subject Matter – Undergarment-clad genitals, buttocks, pubic area
4. Lack of Consent – Victim is unaware.
5. Circumstances Violating Privacy – Despite being in public, bodily privacy remains intact.

Result: Punishable under Section 66E IT Act.

BNS Overlap: Section 77 (Voyeurism), with enhanced punishment for repeat offenders.

3. Revenge Porn – Non-Consensual Publication

Facts: Partners consensually record intimate images during a relationship. After breakup, one partner publishes them online without consent.

Analysis:

1. Intent/Knowledge – Publishing/transmitting is intentional.
2. Act – Publishes/transmits images.
3. Subject Matter – Private areas of victim.
4. Lack of Consent – Consent was only for private use, not publication.
5. Circumstances Violating Privacy – Breach of trust, harassment, reputational harm.

Result: Offence under Section 66E IT Act.

Additional Laws: Section 67/67A IT Act (obscenity/sexually explicit content), BNS Section 356 (Defamation), or Section 74 (Sexual harassment).

4. Morphing and Publication of Fake Nude Images

Facts: A person uses software to morph a victim’s face onto a nude body and circulates it online.

Analysis

1. Intent/Knowledge – Creating and publishing shows malice.
2. Act – Publishes a morphed image.
3. Subject Matter – Private areas falsely attributed to victim.
4. Lack of Consent – Victim did not permit likeness to be used.
5. Circumstances Violating Privacy – Violation of dignity, reputation, and bodily integrity.

Result: Section 66E applicability is arguable (since it specifies “image of a private area”), but courts may interpret broadly.

Additional Laws: Defamation (BNS 356), Obscenity (Section 67 IT Act), Criminal Intimidation if threats involved.

5. Hacked Webcam Feed

Facts: A hacker remotely accesses a victim’s webcam and captures images in the bedroom, then publishes them online.

Analysis:

1. Intent/Knowledge – Hacking + publishing is intentional.
2. Act – Captures and publishes.
3. Subject Matter – Private areas.
4. Lack of Consent – Unauthorized access = no consent.
5. Circumstances Violating Privacy – A bedroom is the most private of spaces.

Result: Clear Section 66E offence, combined with Section 66 (hacking) and Section 43 (civil damages) under the IT Act.

 Judicial Interpretation of Section 66E

Since Section 66E was inserted in 2008, its judicial exposition is still developing, but the principles from Justice K.S. Puttaswamy (2017) on privacy as a fundamental right under Article 21 guide its application.

1. Supreme Court – Puttaswamy Case

• Though not interpreting 66E directly, the Court recognized privacy as intrinsic to life and liberty, including bodily privacy.
• The phrase “circumstances violating the privacy of that person” in Section 66E must be read consistently with this ruling.

2. High Court Approaches

• In Subhranshu Rout @ Gugul v. State of Odisha (2020) – involving publication of obscene images – the Orissa HC refused bail, stressing the serious harm to victim dignity and privacy.
• In quashing petitions, High Courts ask:
  • Does the image depict a private area?
  • Was consent absent?
  • Were the circumstances such that reasonable privacy existed?

3. Trends

• Consent is central: Courts distinguish between capture consent and publication consent.
• Growing recognition of revenge porn: Though not named in statute, courts treat it as a violation of Section 66E.
• Digital space as private space: Courts recognize that privacy extends online.

Challenges in Enforcement

1. Proving Lack of Consent
   • Hidden cameras or upskirting imply lack of consent.
   • In revenge porn, consent to capture ≠ consent to publish.
2. Defining “Circumstances Violating Privacy”
   • Clear in bedrooms, bathrooms, trial rooms.
   • Ambiguous in semi-public spaces (beaches, public pools).
3. Digital Evidence & Anonymity
   • VPNs, encrypted apps, and anonymous accounts hinder identification.
4. Jurisdictional Issues
   • Content hosted abroad complicates prosecution.
5. Victim Reluctance
   • Stigma deters reporting; fear of re-victimization worsens under-reporting.
6. Technological Challenges
   • Deepfakes: Grey area under 66E since no “real private area” is captured.
   • Spyware: Remote webcam access poses investigative hurdles.
7. Intermediary Liability (Sec 79 IT Act & IT Rules, 2021)
   • Platforms must remove content upon court/authority notice.
   • Their cooperation is vital to limit dissemination.

 Relevant Provisions of the Bharatiya Nyaya Sanhita, 2023

While Section 66E covers technology-related privacy violations, the BNS has broader provisions that criminalize voyeurism, sexual harassment, and outraging modesty.

Section 77 – Voyeurism

Section 77, Bhartiya Nyaya Sanhita 2023:

Voyeurism – Whoever 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 shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year but which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine.

Explanation: For the purposes of this section, “private act” includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy, and where the victim’s genitals, posterior, or breasts are exposed or covered only in underwear, or the victim is using a lavatory, or the victim is doing a sexual act not of a kind ordinarily done in public.

Section 74 – Sexual Harassment

Section 74, BNS:

Sexual Harassment – A man committing any of the following acts—

1. physical contact and advances involving unwelcome and explicit sexual overtures; or
2. a demand or request for sexual favours; or
3. showing pornography against the will of a woman; or
4. making sexually coloured remarks, shall be guilty of the offence of sexual harassment.

Punishment: Imprisonment up to 3 years, or fine, or both.

Section 75 – Punishment for Sexual Harassment with Physical Contact

Section 75, BNS:

Whoever, while committing sexual harassment under Section 74, commits the offence of making physical contact with a woman and advances involving unwelcome and explicit sexual overtures shall be punished with rigorous imprisonment which may extend to three years, or with fine, or with both.

Comparative Analysis – IT Act vs BNS

Judicial Perspective

• Courts apply Puttaswamy (2017) to read these provisions in harmony with the fundamental right to privacy.
• In Subhranshu Rout v. State of Odisha (2020), bail was denied in a Section 66E + voyeurism case, showing courts take digital privacy violations seriously.
• Courts distinguish between consent to capture and consent to publish/transmit.

Conclusion

Section 66E of the IT Act and Sections 74, 75, and 77 of the BNS form a comprehensive privacy-protection framework.

• Section 66E focuses on the digital sphere, penalizing the capture, transmission, and publication of intimate images.
• BNS provisions cover broader physical-world acts of voyeurism and harassment, but with emphasis on women as victims.

When read together, these laws ensure that both technology-driven and traditional voyeuristic practices are criminalized, thus strengthening protection of bodily privacy under Article 21 of the Constitution.