Legality of targeted recording of women in public places

With the rapid advancement in technology all over the world, it has become much easier and efficient to capture photos and record videos. However, this seemingly amazing phenomenon has its drawbacks as well. This 'blessing of modern science' has made it easier for people to capture or record videos of women as means to blackmail, extort, harass, annoy or fulfill their vile sexual gratifications. This type of harassment is on the rise not just in our country but all over the world.   

The first thing to understand regarding this is whether taking photos of others in public places should be criminalised. This is a legal question which has divided even the scholars. Some scholars argue that people have no rational right to privacy in public places. Others argue that just because someone is in the public sphere does not mean he/she has given up all rights of privacy. In fact, article 17 of the International Covenant on Civil and Political Rights says that no one shall be subjected to arbitrary or unlawful interference with his/her privacy. Many countries have tried to make laws prohibiting taking photos or recording videos without consent, specially of women. For example, in India, under section 354C of its Penal Code, it is an offence to take photos of or even watch a woman in circumstances where she would usually have the expectation of not being observed. Moreover, section 354D of the Indian Penal Code prohibits stalking of any kind, whether done in person or online. Even in Germany, section 201a of the German Criminal Code prohibits the transmission of any photo to any third party which is of such nature as to significantly damage the reputation of the person depicted.   

However, it is unfortunate that the laws of Bangladesh on the matter are quite vague. The Constitution of Bangladesh does not deal with privacy in the public sphere. However, right to privacy may fall within the ambit of right to life and liberty under article 32 of the Constitution. In the landmark case of Puttaswamy v Union of India (2017) 10 SCC 1, it was held that right to privacy is an integral part of article 21 of the Indian Constitution, which is similar to article 32 of the Constitution of Bangladesh. In this case, Justice Chandrachud famously said, 'privacy was not surrendered entirely when an individual is in the public sphere'.    

As for statutory laws in Bangladesh is concerned, firstly, section 509 of the Penal Code, 1860 comes into play, which deals with outraging a woman's modesty. However, as this entire phenomenon is very novel and unique, there has not been sufficient judicial development regarding this. Most pertinent to the issue in hand is section 26 of the Digital Security Act, 2018 that prohibits unauthorised collection, use, etc. of identity information of anyone. Moreover, this section along with section 29 of the same Act deals with the problem of spreading such photos or videos online with mal-intention. While transmitting these photos or videos sometimes they are even distorted and converted into pornography to further annoy, harass, or extort the victims. In case of such scenarios, section 4 of the Pornography Regulation Act, 2012 and section 29 of the Digital Security Act, 2018 are relevant to mention. Even though there are certain statutory provisions regarding this issue, no law addresses this problem specifically. As a result, we see that victims of this type of sexual assault are confused about their rights and do not usually seek legal assistance after facing such incident.   

It is of great importance to mention here that in BNWLA v Bangladesh (2009) 21 BLD 415 the High Court Division of the Supreme Court of Bangladesh gave directives in the form of an eleven-point guideline to protect the women and children from sexual harassment filling the legislative vacuum in the nature of law. In these directives, the Court suggested a detailed definition of sexual harassment that included all other existing definitions of non-contact sexually connoting offences. It also incorporated the modern means of erotic insults against the women that are prevalent in our present age of information technology.    

However, as we know any such law that specifically addressed all such issues is yet to be enacted in Bangladesh. It is high time that clear penal provisions regarding taking photos or recording women without consent were made and this problem is resolved conclusively.   

The writer is an Intern, Law Desk, The Daily Star.