Legal Provisions to counter Cyber Pornography

Editor’s Note: This post highlights the key provisions in the Indian IT Act, 2000 to counter cyber pornography. This post also highlights the most recent steps taken by the Government of India, on the directions of the Supreme Court, in order to counter cybercrime.

World Bank and the International Centre for Missing & Exploited Children ‘s Joint Report titled  Protecting Children from Cybercrime, 2015 observed –

  • The technological innovations simultaneously have allowed violence to be committed by, with, and through the use of ICTs, including violence against children.
  • Violence against children committed through the use of ICTs is more difficult to detect and address than traditional forms of violence against children.

A holistic approach to fight cybercrime against children is required to address the multi-dimensional threat that cybercrime poses and it must include-

  1. adopting policies and legislation,
  2. raising awareness,
  3. building capacity, and
  4. providing technical assistance.

Legal Framework vis-a-vis Cyber Pornography under Information Technology Act, 2000

Information Technology Act, 2000 provides for punishment in the following cases :

(a) Section 67 – Punishment for publishing or transmitting obscene material in electronic form –

Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.

(b) Section 67A – Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form-

Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.

(c) Section 67B – Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form –

Whoever,

  • publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in a sexually explicit act or conduct; or
  • creates text or digital images, collects, seeks, browses, downloads, advertises, promotes,
    exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or
  • cultivates, entices or induces children to an online relationship with one or more children for and on a sexually explicit act, or in a manner that may offend a reasonable adult on the computer resource; or
  • facilitates abusing children online, or
  • records in any electronic form own abuse or that of others pertaining to sexually explicit act with children,

shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.

Exception under above provisions-

Proviso to Section 67B provides that Sections 67, 67A and 67B would not extend to any book,
pamphlet, paper, writing, drawing, painting representation or figure in electronic form –

  •  the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting representation or figure is the interest of science, literature, art or learning or other objects of general concern; or
  • which is kept or used for bona fide heritage or religious purposes.

An ongoing case:

In Re: Prajwala Letter dated 18.02.2015 (Videos of Sexual Violence and Recommendations) [SMW (Crl.) No. 3/2015]

This case originated from a letter dated February 18, 2015, addressed to the Chief Justice of India by Prajwala, an NGO based in Hyderabad. The letter highlighted the issue of massive circulation of two videos of sexual violence over the internet and internet-based messaging platforms. The NGO also made six recommendations in the letter.

The Supreme Court while observing that the issue is of great public importance, took cognizance of the matter and registered a suo moto criminal writ petition issuing notices to the concerned State Governments (State of UP, West Bengal, Odisha, NCT of Delhi), the Union of India (Ministry of Home Affairs and Ministry of Communications and Information Technology), and the Director of CBI. (Click here to view the first order dated 27.02.2015) The Court also sought information as to who uploaded the videos on the internet.

Steps Taken by the Government:

  • Subsequently, the CBI registered eight regular cases and one preliminary enquiry and investigation on March 12, 2015, in view of the nine video clips received by it.
  • Photographs of the culprits were shared with the Director General of Police of all States, the National Crime Records Bureau, the  State Crime Records Bureau, CBI Home Page, Doordarshan and National/Regional Dailies.
  • CBI announced a reward of Rs.1,00,000/- for providing information leading to the identification/apprehension of each suspect.
  • For identifying the person or persons who have uploaded the video clips, the matter was referred to the Computer Emergency Response Team – India and necessary steps were taken to nominate a nodal officer in this regard. “Google” had also been requested to assist in the identification of the persons who have uploaded the video clips. (See order dated March 20, 2015, here)
  • Some suspects had been identified by the police in the State of UP and case had been registered against them. Some other suspects were also identified and necessary steps were being taken to apprehend them. CBI stated that in one case the offense appeared to have been committed outside India and the accused had perhaps been sentenced to imprisonment.

As an outcome of this case, a Committee was set up by the Ministry of Home Affairs to look into the issues relating to cyber crimes and suggest a Road Map for effectively tackling cyber crimes in the country and giving suitable recommendations on all facets of cybercrime. The committee recommended two schemes viz. (i) Scheme for setting up Indian Cyber Crime Coordination Centre (I4C); (ii) Scheme for setting up Cyber Crime Prevention against Women and Children (CCPWC) Unit. (See order dated November 21, 2016, here)

  • Publishing of a National Sex Offenders List. Including the data based on the Crime and Criminal Tracking Network System (CCTNS) in the National Sex Offenders List.
  • Setting up of the Investigative Units For Crime Against Women (IUCAW) is to strengthen the existing infrastructure for tackling heinous crimes against women and in lieu of a central coordinating mechanism.

The committee worked on the possibility of ensuring that objectionable videos pertaining to child pornography, gang rape and rape are not made available to the general public. The Committee had representations from the Ministry of Electronics and Information Technology, Ministry of Home Affairs, Facebook (Ireland), Yahoo India, Microsoft, WhatsApp, along with the counsel for the petitioner and the Amicus Curiae). (See order dated March 22, 2017, here)

  • The Government of India gave approval to a body called the Cyber Crime Prevention Against Women and Children (CCPWC) and also approved the budget for it.

CCPWC may may address cases relating to preparation, transmission and circulation of videos depicting rape/gang rape as also videos of sexual violence of unknown women and children in the electronic media. It may have the power to take cognizance of cases suo moto or on the basis of a complaint made by an aggrieved person. CCPWC may also come to be known as Central Institution Mechnism.

The Committee submitted its report to the Court on May 8, 2017, which has not been made public in view of objections from the participating members. The Committee also mooted some proposals and recommendations. There are two categories of such recommendations. The first category is where there is a consensus among all the participants and the second category is where there is no consensus among the participants.

These proposals and recommendations may be viewed from the Order dated October 23, 2017, here. The Court had directed the Government to implement the recommendations on which there is consensus at the earliest and to submit a status report on the implementations of these recommendations.

  • Online cybercrime reporting portal has been developed with access name as www.cyberpolice.gov.in. The portal is undergoing security audit and has been deployed in the staging environment for testing and trial. It will be operational very soon. (See order dated January 08, 2018 here)

Key features of the Cyber Crime Portal

  • The portal will facilitate making complaints by citizens with regard to issues pertaining to child sexual abuse, child pornography, and rape/gang rape videos.
  • Anonymous reporting of child pornography/rape/gang rape content and online registration of cyber complaints which will be forwarded to the concerned State/UT police authorities for appropriate action.
  • Providing a status update of complaints to registered complainants, portal access to other stakeholders willing to register for providing inputs on child pornography/rape/gang rape content and maintaining hashtag of obscene content.

It is hoped that countries across the globe adopt stringent policies to regulate cyber pornography, especially involving children. Owing to the nature of ICTs, uniform policies alone would be able to bring change.

The post has been co-authored by Siddhant Sharma and Bhumika Sharma.

Image from here

L&P Editorial Team

The Law & Practice Blog's editorial team.

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