Sexually explicit content has seemingly become a bigger problem than one could have imagined it to be. Over the years, the entire dynamic between sexual content and the audience has drastically changed owing to multiple reasons, both personal and authoritative. Addiction has a primary role to play in the upsurge of demand for pornography. Debarring age groups and social statuses stands the efficacy towards explicit content. With technological advancements and easy access, cyberspace is crawling with pornographic content.
MEANING
Cyber pornography entails all forms of circulation, production and designing of explicit pornographic content, in the cyber realm. Easy accessibility and too many options have resulted in individuals perceiving pornographic content as something regular and in proximity to reality. The access has gone a bit too far, now that individuals can even upload content they wish to. Content that is not filtered, censored or approved in any way.[1] There are too many issues arising from this kind of behavior; the most common one is, the collateral damage done to the lives of different individuals directly or indirectly related to such content.
LEGAL FRAMEWORK
There are several laws to regulate Cyber pornography in India, like the Information Technology Act, 2000, IPC, Indecent Representation of Women’s Act and Young Person’s (Harmful Publication) Act. The provisions related to it under these Acts are discussed below.
INFORMATION AND TECHNOLOGY ACT, 2000
Majorly, Cyber pornography is banned in many countries but legalised in some countries. It is neither banned nor legalized under the I.T. Act, 2000. The I.T. Act prohibits the production and distribution of cyber pornography. However, it does not prohibit the viewing or downloading of pornographic content if it is not child pornography.
Section 67[2] deals with publishing obscene information in electronic form. The punishment for offence of publishing, creating, exchanging, downloading or browsing any electronic depiction of child in obscene or sexually explicit manner is imprisonment for five years and a fine of Rs 10 lakh.
EXCEPTIONS
Section 67A of the Act is an exception to section 67. It does not apply to any book, pamphlet, paper, writing, drawing, painting, representation or figure in electronic form which is used for religious purposes or is in the interest of science, literature, art or learning. It does not explicitly define pornography or make it an offence and does not mention child pornography. Section 67B lays down punishment for involving sexually explicit electronic or online contents that depict children. It is also illegal to induce children in sexual acts or into online relationships.
INDIAN PENAL CODE, 1860
Section 292 of I.P.C. deals with prohibition of sale of obscene material. (i) Section 292(1) explains what all to be considered “obscene” and Section 292(2) explains the punishment for sale, distribution, etc. of obscene materials that includes any lascivious or prurient or any part of the material that has the tendency to corrupt or degrade the people.
(ii) Section 292(2) describes that a person who:
(a) Sells, distributes, hires, publicly exhibits or puts into circulation any obscene material.
(b) Imports or exports any obscene material or knows that such material will be used for sale, distribution or circulation.
(c) Is involvement or receiving profit in the course of the business which he has knowledge or reason to trust that such obscene objects are for aforesaid purposes?
Any person who offers to do or attempts to do any act which is prohibited under the section, on a primary conviction, such a person shall be convicted of either simple or rigorous imprisonment that may extend till 2 years along with a fine that may extend to ₹2,000. On the subsequent conviction or person, such a person shall be convicted imprisonment that extend upto 5 years along with a fine that extends to ₹5,000.
Section 293[3] deals with the punishment of a person who sells, hires or distributes any obscene object to any individual who is below the age of 20 years. It states that on the initial conviction, a person’s conviction may extend upto 3 years along with the fine extending upto ₹2,000 and on subsequent conviction, with imprisonment extending upto 7 years along with the fine which may extend to ₹5,000.
INDECENT REPRESENTATION OF WOMEN’S ACT, 1986
This Act was enacted for the prohibition of representation of any women or part of her body in an indecent manner. So that such representation will not injure the public morality or morals.
CHILD PORNOGRAPHY
There is absolute silence regarding a lot of aspects of cyber pornography. The entire human-trafficking dynamic is a hush affair, and even if it is talked about sometimes, no viable actions are taken. Apart from women, children have always been soft targets in the cyberporn realm. The primary reason being that children are gullible, and can be easily manipulated or forced into being part of something inappropriate as this. Paedophilia is as real as it gets, and these child pornographic videos are grotesque proof of it.[4] The number of cases of sexual crimes against children has risen alarmingly.
The sheer gut-wrenching intent behind the demand for these videos is shocking and sick at the same time. Over the past 5-6 years, too many children have fallen prey to this, and the authorities have been alarmed only a few times. Here also, the perpetrator has mostly been somebody in close proximity to the child or who has access to them.[5] With underage individuals, the problem becomes more complicated when seen in the legal context. Their statements often cannot be considered viable, and they are obviously not equipped to stand in a court of law or any authoritative institution to fight for themselves.
The Act[6] also criminalizes online child pornography in the following circumstances:
- By Publishing or transmission of any material depicting children in explicit sexual act or conduct by using any computer resource and communication device.
- By depicting any children in an obscene or sexually explicit manner.
- By inducing a child’s online relationship with one or more children for any sexually explicit act, or in any case that may offend a reasonable adult on the computer resource.
- By facilitating child abuse online.
- By recording their own abuse or of others that includes sexually explicit acts with others.
Sexology (the scientific study of human sexuality or sexual behavior) is not prohibited under this section. Similarly, suppose a photograph of a child, is used to tell about the anatomy of a child. In that case, it will not constitute an offence under this section.
POCSO ACT, 2012[7]
It was especially enacted to prevent the children from any sexual offences. This Act protects children from sexual assault, sexual harassment, and pornography. It protects the interests and well-being of the children. Any person who has not attained the age of 18 years is a child will fall under this Act. It is gender-neutral.
The laws relating to Cyber Pornography under the POCSO Act are discussed in the following:
(i)Section 13, defines the “offence of child pornography”. It states that whoever, uses children in any form of media for sexual gratification shall be held guilty for the offence of child pornography.
(ii)Section 14 deals with the punishment for using children for pornographic purposes.
(iii)Section 15 states, that if any person stores pornography that involves children, then he shall be convicted for imprisonment which may extend to 5 years or fine or both.
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JUDGEMENTS
- Avinash Bajaj v. State of Delhi[8]
FACTS: An obscene video titled “D.S.P. Girls having fun” was uploaded by a user (Ravi Raj, a student of I.I.T. Kharagpur) on the website bazee.com. An FIR was also lodged against the defendant(bazee.com) for uploading obscene material. The Managing Director of bazee.com, Avinash Bajaj was arrested by the police under Section 67 of the I.T. Act. When Ravi Raj (the user who uploaded the M.M.S.) absconded, Avinash Bajaj filed a petition, seeking the quashing of criminal proceedings. The MD of bazee.com was released on bail subject to furnishing of two securities in the sum of ₹1,00,000.
- State of T.N v. Dr L. Parekh [9]
The defendant was a reputed medical practitioner who had contributed more than 120 research papers; all of them were published in a reputed medical journal. The accused was arrested and sentenced to life imprisonment for online obscenity. The accused filed a w.p to give him all the facilities as a “special class prisoner”. The court dismissed the w.p of the accused and denied any special class treatment to the accused.
- State of Tamil Nadu v. Suhas Katti [10]
The accused was interested in marrying the victim, but the victim married another person. The marriage of the victim could not last long and ended up in divorce. The accused again started to contact the victim, but the victim refused to have any contact with the accused. The accused then started sending obscene emails to the victim. The court found the accused guilty u/s 67 of the I.T. Act, 2000, and therefore, the accused was convicted for rigorous imprisonment of 2 years along with a fine of ₹4,000[11].
- City of Youngstown v. DeLoreto[12]
Held: Pornography is the portrayal of erotic behavior designed to cause sexual excitement. It comprises of words, acts, or representations that are deliberated to stimulate sex feelings independently for the presence of another loved and chosen person. It’s divorced from reality in its sole purpose to stimulate an erotic response.
SUGGESTIONS
- Sex education should be made part of higher education syllabus and people need to organize sex education conferences and seminars at school, work place and other forums forwardness.
- The use of top-level domains may be an effective way to control pornography in the Cyber world. TLD is the identifier that comes after “dot” in an Internet address.
- The Legislative needs to form a separate law/statute for the prohibition of pornography.
- The use of a credit card to verify the age of the viewer. The operators can ask for a credit card number to verify that the viewer is not a minor.
- The parental control of what minor can access on the internet. This method involves the use of software which restricts the websites that contain certain keywords. Parents can use such software to screen out certain websites.
- Digital Certificates resides in the hard drive of the users; it provides all the details about the user, including his age. Therefore, if a user will enter a website, then the website will automatically check the information of the user and permit only the users who are above the age of 18 years.
CONCLUSION
The presence of the internet has increased the menace of cyber pornography. Even if, there are various provisions which prohibit the publication and circulation of cyber pornography, viewing of cyber pornography is not illegal unless it is child pornography. Getting access to sexual content has never been the actual issue, to say in a matter-of-factly way; the wrong people( underage individuals) who don’t have a developed sense of sexual implications must not get their hands on it.
This appalling cyberspace fiasco cannot be curbed unless empathy, ideas of consent, and sensibility are intricately imbued in individuals from the very beginning.
REFERENCES
[1] Peter, J. and P. Valkenburg. “Adolescents and Pornography: A Review of 20 Years of Research.” The Journal of Sex Research 53 (2016): 509 – 531.
[2] The Information Technology Act, 2000.
[3] The Indian Penal Code, 1860.
[4] Dr. Amita Verma, “Cyber pornography in India and its implication on cyber café operators”, Computer Law & Security Review, Volume 28, Issue 1, February 2012, Pages 69-76.
[5] Fathin, R. et al. “Misperception and Attitude of Society against Pornography.” (2018).
[6] The Information and Technology Act,2000, s.67B.
[7] POCSO (The Protection of Children from Sexual Offences) Act, 2012.
[8] 2005 (79) DRJ 576.
[9] Writ Petition No. 7313/2002.
[10] Writ Petition No. 4680 of 2004
[11] The Information Technology Act, 2000.
[12] (USA , 1969.).
BY POULOMI BARIK | KIIT SCHOOL OF LAW