Guest Post: Interpreting the Reasonable Expectation of Privacy Standard for Voyeurism

(This is a guest post by Paras Khetan)

Voyeurism is defined as the non-consensual observation of someone who would expect secrecy and has some sexual element linked to it. It involves a violation of one’s sexual autonomy and is therefore criminalized under S.354C of the Indian Penal Code, 1860 (‘IPC’) and S.66E of the Information Technology Act, 2000 (‘IT Act’). The Justice Verma Committee Report, which recommended the inclusion of the IPC provision, highlighted the negative impact of voyeurism on female children’s right to education and their freedom of expression and movement. Due to increasing instances of voyeurism, as indicated by the NCRB statistics, it becomes pertinent to define the scope of this offence.

Previously in another blog post, an analysis of the definition of ‘private act’ under S.354C of IPC was undertaken. This post is, in its analysis, limited to the interpretation of the ‘reasonable expectation of privacy’ standard under S.354C of IPC. It would not engage with S.66E of the IT Act due to the presence of sufficient clarity in the provision with regards to the meaning of ‘reasonable expectation of privacy’. The analysis would be primarily done through case laws from foreign jurisprudence (primarily the UK and Canada because of similar voyeurism provisions in these countries) due to a lack of evolved jurisprudence on the same in India. There is an absence of any case engaging in the interpretation of the ‘reasonable expectation of privacy’ standard in India. Nonetheless, the piece tries to locate the foreign case laws within Indian case law.

‘Reasonable Expectation of Privacy’ Standard

The interpretation of the ‘reasonable expectation of privacy’ standard has been a point of controversy across jurisdictions. This standard has been used in K.S. Puttaswamy v Union of India (Privacy-9J.) while considering the inherent right to privacy under Article 21 of the Indian Constitution. The Supreme Court pointed out that this standard has both subjective and objective elements to it. The subjective element is whether the individual has exhibited an actual expectation of privacy and the objective element is whether the individual’s subjective expectation of privacy is one that society would recognize as reasonable. This elaboration on the standard would help in interpreting the same.

The scope of this standard has been narrowed by judicial pronouncements through an ‘assumption of risk’ test. However, later the courts have emphasized on an important factor which allows an expansive understanding of the standard.

A. ‘Assumption of Risk’ Test

The ‘assumption of risk’ test has its genesis in Katz v United States. Justice Harlan, in his concurring opinion, points out that a person’s house would be considered a place where he expects privacy. However, the objects and activities that he exposes to the ‘plain view’ of outsiders will not be protected because he does not intend to keep them to himself. This implies that the person would not have any expectation of privacy for he has assumed the risk. This is a useful factor in construing ‘reasonable expectation of privacy’. It is also covered by the subjective and objective elements of the Puttaswamy test as the individual has neither exhibited any actual expectation of privacy nor it would be considered reasonable by society. This reasoning is used to limit one’s reasonable expectation of privacy to non-public places.

An important case that analyses the scope of the ‘assumption of risk’ test is R v Wong of the Canadian Supreme Court. It highlights that there exists a crucial distinction between the degrees of risk that you have exposed yourself to. There exists a difference between the risk that someone might observe one’s private activities as opposed to the risk that someone might make a permanent video record of the same. Therefore, even if one has assumed the risk of violating one’s privacy, it does not necessarily imply that you forgo the right to be protected from the creation of a permanent record of your private act.

A similar proposition has been accepted by UK courts as well. This position evolved in response to the limiting of the offence of voyeurism to private places. In R v Bassett, the court held that while construing whether something creates a reasonable expectation of privacy, it is the nature of the observance that is relevant. 

This interpretation of the ‘reasonable expectation of privacy’ standard is a powerful interpretation and is the settled position of law in the UK and Canada. It is also in consonance with Puttaswamy where it was held that the reasonable expectation of privacy may vary from the private to the public arena and that it cannot be done away with merely because the individual is in a public place. The potency of this interpretation would become clearer with the application of this test in the next section.

B. Application of the Test

Bassett used this logic to hold that a person taking a shower in the general space of a changing room beside a public swimming pool would have a reasonable expectation of privacy from being spied on by someone from outside the changing room. However, a person would not have any reasonable expectation of privacy from casual observance by others in the changing room. The Court also relied on the marathon runners’ case in Swyers [(2007) EWCA Crime 204] where it was held that the marathon runners urinating behind a hedge would have a reasonable expectation of privacy from being watched by a person who is loitering there for a sufficient period of time and closely observing them. However, they would not have any reasonable expectation of privacy from casual and unintended encounters. The emphasis in these cases has been on the nature of observance – deliberate as opposed to casual observance.

This interpretation has been used to include the act of secretly filming sexual intercourse with another person where the accused was also a participant in the sexual intercourse. In R v Richards, the court, relying on Bassett, held that the victim had a reasonable expectation of privacy from being secretly recorded by the other participant in the sexual activity. In a similar case (R v Trinchi, 145 OR 3d 721), the court held that the capturing of an image of one partner by the other during a live-video stream where both were naked amounted to a violation of the reasonable expectation of privacy of the partner. The court emphasised on the crucial distinction between mere observance and creation of a permanent record through recording. These cases indicate that this interpretation of the standard also applies to private places and would help in tackling instances of revenge porn.

However, in R v Lebenfish (2014 OJ No 1261) this distinction between observation and recording was held to be ineffective in applying to cases where the use of a recording device is very ubiquitous (like a nude beach). This provides a useful exception to the distinction between observation and recording and brings further clarity on the application of the ‘reasonable expectation of privacy’ standard.

In R v Jarvis, the court held that the recording of students’ breasts in the classroom, at an angle such that the breasts would ordinarily not be visible to other students, would amount to a violation of their reasonable expectation of privacy. The court reasoned that the word “circumstances” as used in the provision was indicative of the legislative intent to not confine voyeurism to private places only. The Court also laid down nine factors that would be relevant in construing whether the circumstances gave rise to a reasonable expectation of privacy. These include the location of the person, the nature of the observance, and the relationship of the persons.

Therefore, the above analysis indicates that the initial “assumption of risks” test has been severely diluted to extend the reasonable expectation of privacy standard to public places. The emphasis on the nature of the observance (including the distinction between observing and recording) as an important factor in construing the circumstances in which a reasonable expectation of privacy may arise has allowed a consistent and sound interpretation of the standard.

Conclusion

This piece has analysed the foreign jurisprudence on the interpretation of the reasonable expectation of privacy standard and how the same can be transposed in Indian law using Puttaswamy. The wide range of applications (as enumerated above) of interpreting the standard, with an emphasis on the nature of observance, can be used to tackle many instances of voyeurism that may arise, especially due to the growing instances of revenge porn in India. However, it is important to create sufficient awareness of the voyeurism offence and its harms for it may pose a barrier to its effective utilisation.