Cyber Breach of Privacy and Child Obscenity

Avinash Kumar Babu

Abstract

With the advent of multi channel television all over the world, and fast spreading internet network, the privacy of an ordinary person is increasingly under threat. Breach of privacy is the kind of cyber tort which affects a common man. Cyber stalking may be a direct “corollary” to violation of privacy laws on the internet. There are several situations one may countenance when one deals with privacy laws on the internet. Following may be the key areas of concern when one comes across privacy related issues; Interception via wire tapping the phone line on the senders end, E-mailing may, thus, be conveniently intercepted in such a manner; Disclosure of essential data while registering on to a particular domain such as a chatting site, where precautions and registration policies for the surfer are not conveniently out lined. Cyber obscenity and child pornography are the major outcome of cyber breach of privacy. One of the major side effects of cyber revolution is spread of obscenity. Cyber space offers a very high potential scope for pornography, and makes children and women vulnerable to trafficking. Though, India has no specific legislation to tackle this problem, the general criminal law, Information Technology Act 2008 and the recently enacted Protection of children from sexual offences Act, 2012 deals with this issue. Due to technical advancement, jurisdictional problems and difficulty in identifying criminals, it is almost impossible to enforce the regulatory mechanism to curb cyber obscenity or cyber porn. Cyber defamation is also the result of expansiveness of Internet. Though IT Amendment Act, 2008 makes punishable to publish or transmit child obscenity inducing children to online relationship for and on sexuality explicit act, facilitating abusing children online etc, but still if suffers with various defects. Focus of this paper shall be to examine how cyber advancement is violating privacy of an individual and how effectively present legislative mechanism deal with this.

Introduction

Right to Privacy has assumed much importance with the emergence of internet, bio-banks, business process outsourcing, knowledge process out sourcing, development of software industries, enactment of antiterrorist laws, deterioration of the law and order situation, rising levels of crime rates which accounts for rampant privacy invasions. Despite its legal guarantee as basic human rights, it is invaded incessantly by the individuals, institutions and state as well. The ‘internet’ has penetrated into every sphere of human activity. It is intricately and inextricably connected with the day-to-day life of present day citizens. Modern mans’ life has been drastically effected by and all his transactions have become more internet –based and internet –dependent in this globalised environment. Personal information of individuals in this internet age is not just confined to four walls, or in our traditional desk, but is connected to the vast networked internet system. This is leading to privacy invasions for most of our day-to-day transactions. Our information including the basic information related to school/college, medical, financial online transactions are no more secure. Our personal information is tracked, stored and later mis-utilized in the manner we do not wish often without our knowledge or consent. The law enforcing authorities too, under the veil of combating terrorism are infringing the innocent individual’s Right to Privacy through their acts such as, phone tapping, surveillance of private lives and searches and captured without complying necessary legal formalities, so on and so forth.

With the blessings of Information and Communication Technology, the digital age acts as a profit to billions across the world. The entire world has become a global village. Internet has proved to be the greatest invention to humankind. However, the supernatural jurisdiction of internet has caused the major threat to the society in the form of cyber-crimes. One such cyber-crime is Cyber obscenity. The issue of cyber obscenity is a global one and is quite compound as it involves other issues like decency and morality. It is difficult to judge obscenity in separation using straitjacket principles. It needs a wider outlook for what is immoral for one country may not be immoral for another. Cyber obscenity though not having any pinpoint definition can be said to be an extension of physical obscenity which means any act over the cyber space which is offensive to modesty or decency.

Meaning of Cyber Obscenity

Obscenity is a legal term that may be used to refer to anything that offends a person’s morals. This may involve doing something that is obscene or lewd. Obscenity is commonly used in reference to pornography, though it pertains to much more. The term pornography is derived from the Greek words: Porne meaning prostitute and graphos meaning written. Taken together it means depiction of prostitutes or prostitution or a depiction (as in writing or painting of licentiousness or lewdness): portrayal of erotic behaviour designed to cause sexual excitement.

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The Encyclopedia of Ethics defines it as:

“The sexual explicit depiction of person in words or images created with the primary, proximate aim and reasonable hope of eliciting significant sexual arousal on the part of the consumer of such material”.

The Canadian dictionary of English word defines it as:

 “Sexually explicit material that sometimes equates sex with power and violence”.

 The Webster’s New World Dictionary defines it as:

“Writings, pictures, etc. intended primarily to arouse sexual desire”.

 According to Britannica, the word Pornography is:

“Pornography is presentation of sexual behaviour in books, pictures, statutes, motion pictures and other media that is intended to cause sexual excitement”.

Cyber obscenity or Cyber pornography generally, is the act of using cyber space to create, display, distribute, import, or publish pornography or obscene materials. Here under some cyber obscenities are discussed which violates the privacy right.

Legal Measures to Control Cyber Obscenity

In India, the legal provisions that synchronize obscenity are sections 292, 293 and 294 of the Indian Penal Code (IPC), sections 3 and 4 of the Indecent Representation of Women (Prohibition) Act and section 67 of the Information Technology Act. The IPC penalizes acts of sale, etc., of obscene books or objects to young persons and also performance of obscene acts, songs in or near public places to the annoyance of others. The Indecent Representation of Women Act prohibits advertisements containing indecent representation of women and the publication or sending by post of books, pamphlets or in any form containing indecent representation of women. The Information Technology Act (ITA) prohibits the communication of information which is obscene in nature and in electronic form. These provisions shall be dealt with in detail later. The problem that arises in defining obscenity is the result of failure on part of the above statutes to give a precise definition of obscenity so as to identify as to what may or may not constitute Cyber Obscenity. However, the word has been explained by courts in India.

In India, the Information Technology Act inspects obscene material in electronic form Section 67 of the Act reads thus:

“whoever publishes or transmits or causes to be published 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 carry or embodied in it, shall be punished on first conviction with imprisonment of either interpretation for a term which may extend to five years and with fine which may extend to one lac rupees and in the event of a second or subsequent conviction with imprisonment of either representation for a term which may extend to ten years and also with fine which may extend to two lac rupees”. 

On an analysis of the provision contained in Section 67 of the Information and Technology Act, we can deduce the following to be the essential to constitute the offence under the said section:

  1. Publication or transmission in the electronic form.
  2. Lascivious material appealing to prurient interests.
  3. Tendency to deprave and corrupt persons.
  4. Likely-audience
  5. To read, see or hear the matter carried in embodied electronic form.

The word ‘publish’ has not been defined under the Act. However, the Supreme Court held in the case of Bennett Coleman & Co. v. Union of Indiathat publish means “dissemination and circulation”. In an electronic form, publication or transmission of information includes dissemination, storage and circulation. Information is defined under section 2 (1) (v)as “information” includes data, text, images, sound, voice, codes, computer programs, software and data bases or micro film or computer generated micro fiche. So, the obscene material could be in any of these forms to attract the offence of section 67. This section advocates that the ‘obscene material in electronic form’ must be considered by itself and separately to find out whether it is so gross and its obscenity so decided that it is likely to deprave and corrupt those whose minds are open to influences of this sort and into whose hands the ‘obscene material in the electronic form’ is likely to fall. It is necessary to note that any offence related to obscenity in electronic form cannot be tried under section 292 of the IPC, as section 81 of the ITA states that the Act will have an overriding effect:

“The provisions of this Act shall have effect notwithstanding anything inconsistent there with contained in any other law for the time being in force.”

Therefore, as a thumb rule, offences related to ‘obscenity in electronic form’ should be tried under the provisions of section 67 only and any attempt to import provisions of section 292 of IPC would tantamount to disregard of legislative intent behind the Act and cause miscarriage of justice. Also, the punishment under section 67 of the ITA is more stringent than section 292 of the IPC. Section 67 is also criticized as it is very easy for a person to escape criminal charges just by proving his lack of knowledge of publication or transmission of obscene information in the electronic form.

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Though publication or transmission of obscene information may be illegal but mere possession or browsing or surfing through obscene content is not an illegal activity. The issues related to publication of obscene information in electronic form has to be looked at from the perspective of ‘extra-territorial’ jurisdiction and Internet technologies, keeping in view that ‘obscenity’ is no longer a local or static phenomenon. It is now global and dynamic in nature and thus needs strict interpretation of statute.

Judicial Attitude towards Cyber Obscenity

In Avnish Bajaj v. State (NCT of Delhi) which was decided on 29/05/2008, Delhi High Court while dealing with the question that whether the offenses under Sections 292 and 294 of IPC and Section 67 of IT Act were attracted in the case, held:

If any ―book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object is ―lascivious or appeals to the prurient interest or ―if taken as a whole is such as to tend to deprave or corrupt person, who are likely to read, see or hear the matter contained or embodied in it, then such object ―shall be deemed to be obscene. The law in this regard has been explained by the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra[1], C.T. Prim v. State[2]and Samaresh Bose v. Amal Mitra[3].”In the present case, there are two pieces of material that call for scrutiny. One is the video clip and the other the listing on the website baazee.com. It was not argued by learned counsel for the petitioner that the video clip in question did not even prima facie attract the definition of an obscene object within the meaning of Section 292 (1) IPC. Also, it is a matter of record that a separate case has been instituted before the Juvenile Justice Board against the child involved in the act. As will be noticed hereafter, the listing itself suggested that even according to the seller the clip answered the description “of child pornographic material”. Prima facie it appears that the listing itself answered the definition of obscenity since it contained words or writing that appealed to the prurient interest or if taken as a whole was such as to tend to deprave or corrupt person, who are likely to read, see or hear the matter contained or embodied in it. The listing contained explicit words that left a person in no doubt that what was sought to be sold was lascivious. The words “This video is of a girl of DPS RK PURAM which has been filmed by his boyfriend in very sexual explicit conditions” are a prominent feature of the listing which invited a potential buyer to purchase the obscene object which was the video clip by projecting it as child pornography since the reference is to school children. Despite the arguments to the contrary of the learned senior counsel for the petitioner, this Court did agree with their submissions that the listing itself was not even prima facie an obscene material or text.

The advertisement might itself have been inserted by the seller but the website facilitated the sale by carrying the listing which informed the potential buyer that such a video clip that is pornographic can be procured for a price. For instance, there could be a notice board in the premises of a club or association, on which is pasted a listing by one of the members offering for sale a pornographic film. It would not be open to the club/association to say that it in providing space on its notice board it is not by itself – making known that an obscene object can be procured from or through any person. Section 292(d) would be attracted in such a situation to fasten criminal liability on the club itself. If it is proved that a particular member was aware of the placing of such listing on the notice board such member would also be liable. Baazee.com here was using a public space in the form of a website that could be accessed by any Internet. The question for the purposes of Section 67 is whether the website caused the publishing of such obscene material. For this purpose, the chain of transactions is relevant. Once the interested buyer gets on to baazee.com and views the listing, he then opts to buy the said product and then makes payment. Only then the remaining part of the chain is complete and the product, which in this case is the video clip in electronic form, is then transmitted through an email attachment and then can get further transmitted from one person to another. The video clip sent as an email attachment can straightway be downloaded onto to the buyer‘s hard disc and numerous copies thereof can be made for further transmission. The publishing in this form is therefore instantaneous and can be repeated manifold. In fact in the present case, the transmission of the clip to eight buyers located in different parts of the country took place in a very short span of time. Therefore, it cannot be said that baazee.com in this case did not even prima facie cause the publication of the obscene material. The ultimate transmission of the video clip might be through the seller to the buyer but in a fully automated system that limb of the transaction cannot take place unless all the previous steps of registration with the website and making payment take place. It is a continuous chain. When five to six links of the chain are under the direct control of the website and it is only on completion of each step that the final two steps which result in the actual publication of the obscene material ensue, it cannot be said that the website did not even prima facie cause publication of the obscene material. To summarize this part of the discussion, this Court finds that a prima facie case for the offence under Section 292 IPC and Section 67 IT Act is made out as far as the owner of the website baazee.com, i.e. the company BIPL (renamed as EIPL) is concerned. The offence under Section294 IPC is not even prima facie attracted. The Court also held that the petitioner could not be held separately liable for the offence but that only the Company was liable.

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In another case of Dr. Prakash v. State of Tamil Nadu[4]; the petitioner of the case was detained under section 3 (1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Immoral Traffic Offenders and Slum Grabbers Act. The main grounds of detention were that he was indulging in offences under section 67 of the Information Technology Act, 2000, sections 4 and 6 of the Indecent Representation of Women (Prohibition) Act, 1986 and under section 27 of the Arms Act, 1969. The petitioner challenged his detention under Article 32 of the Constitution.

The petition was dismissed, as the Supreme Court did not find much merit in the plea that the delay of two days in furnishing translated copies of documents had caused any prejudice to the detenu. It held that the contents of the letter received from members of the public pro bono public, were not extraneous or irrelevant. This case highlights the importance of the courts exercising the interests of the contemporary society and particularly the influence of the ‘obscene material in electronic form’ on it while interpreting section 67. For this purpose, even the State Governments may have to apprehend perpetrators of ‘cyber obscenity’ by invoking local state legislations accordingly.

In Sambalpur Rape Case: The spine chilling incident happened on July 22, 2014 when the victim a minor girl hired an auto rickshaw along with her boyfriend to visit a place in Jamadarpali area of the city. After dropping them at Jamadarpali, auto rickshaw driver informed his friends. The driver, along with six of his friends overpowered the boyfriend and tied his limbs and raped the girl. Besides, one of the accused made a video clip of the act on the mobile phone. The afterwards, blackmailed the couple and extorted money from them. It was held that:Three years rigorous imprisonment and a fine of Rs 2 lakh under sec 67 of the IT act and sec 120 B of IPC. In case of failure to pay the fine, they will have to undergo additional six months of rigorous imprisonment the court ruled. The court said the fine amount if collected will be paid to the victim.

Conclusion

Obscenity is more of a social immoral than crime. It is a matter which cannot be solved in a day. It is not through legislation that we can check or restraint it. But only by the enactment of stern legislation for the cyber world can restrict its influence to some extent. In the duty we have studied various international conventions for the regulation of cyber obscenity. The enforcement of the principles laid down in these conventions by the participating countries will definitely lead to a decrease in these crimes. The national measures embraced by various countries like India, Australia, U.K., U.S.A, are efficient measures to curb cyber obscenity. Sec 67 of the IT Act of India and the Communication Decency Act of U.S.A. lays down some important provisions whose proper enforcement can really overcome the crime of cyber obscenity. The more odious aspect of cyber obscenity is child pornography which is to be checked on with most sincerity. India and U.K. have several compute for checking the crime of child pornography. It is not only the offenders who transmit or publish obscene materials to increase this crime, the public is also accountable because they search items in Internet to watch or hear. Therefore, if we want to restraint the crime we shall have to restrict our hands to entering these websites and will have to check ourselves not to provide any financial support indirectly.


[1] Ranjit D. Udeshi v. State of Maharashtra AIR 1965SC 881.

[2] C.T. Prim v. State AIR 1961 Cal 177.

[3] C.T. Prim v. State AIR 1986 SC 967.

[4] Dr. Prakash v. State of Tamil Nadu (2002) 7 SCC 759.