Cyber Pornography: A Torment in Society

Jannat Garg & Devansh Solanki

Abstract

This paper focuses on the issue that the growth of technology has a flip side to it, causing multiple problems in everyday life. The Internet has provided a medium for the facilitation of crimes like pornography. It examines the difference between Pornography and Obscenity, discussing various important aspects like what can be considered obscene and what not. It also establishes the difference between the two by stating factors like importance of culture and civilization which vary from one country to another, time, modernization etc. This paper also points out the various statistical tables which determine the percentage of increasing websites which exhibit pornographic material on the Internet today. Also, one of the major contentions is about the availability and accessibility of media to children who log on to such pornographic websites from their own houses in relative anonymity and also the occurrence of various serious offences which occur due to the Internet. The internet can be seen as multi-jurisdictional because of the ease with which a user can access a website anywhere in the world. There are various legal frameworks and laws in India through which cyber pornography can be combated like Section 67 of the IT Act, Section 292 of Indian Penal Code, Indecent Representation of Women’s Act, 1986 and Young Person (Harmful Publication) Act. It also discusses various landmark jurisdictions and various case laws which will further help in better understanding of the laws regarding cyber pornography. It also proposes a new technological approach for combating cyber pornography. With the help of existing laws and technological approach, there are various ways and methods through which there an end can be brought to this offence as it affects a huge population, especially the women and children. However, some developments have been made to liberalize the attitude towards obscenity and pornography.

Introduction

Keywords like ‘schoolgirls’, ‘teens’ and ‘desi girls’ are among the top searched, said analysts. Cyber security experts said that 35 to 40 per cent of content downloaded daily from India is pornography, accounting for several thousand terabytes.[1] Cybercrimes have become a profession and the demographic, as our typical cyber-criminal is changing rapidly. The most fundamental of all problems related to cybercrimes is the concept of the cyber world itself. There is an urgent need to ban the dissemination of indecent material to minors. One of the cyber-crimes is publication and circulation of pornographic sites on the internet.[2] Cyber pornography is, in simple words, defined as the act of using cyberspace to create, display, distribute, import, or publish pornography or obscene materials. With the advent of cyberspace, traditional pornographic content has now been largely replaced by online/digital pornographic content.[3] Cyber pornography is banned in many countries and legalized in some. In India, under the Information Technology Act, 2000[4], this is a grey area of the law where it is not prohibited, but not legalized either.

Defining pornography is a problematic venture, due to its individualistic nature. Originally, the term is referred to as literature expounding the dangers of prostitution. Today, it’s more about possibilities (fantasies, imagines) rather than realities of sex[5]. Pornography means any work of art or literature dealing with sex and sexual themes. Pornography is a Greek word which is derived from two words ‘Porne’ which means prostitute and ‘Graphein’ means to write.[6] The Canadian dictionary of English language defines it as “sexually explicit material that sometimes equates sex with power and violence.”[7] Further, Encyclopedia of ethics has defined it as “the sexually explicit depiction of persons, 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.” [8] Basically, pornography is a verbal or visual representation of sexual acts and it is a portrayal of people as sexual objects for pleasure of others or is intended to arouse sexual stimulation. Pornography is one such area of major conflict. It has been from the very inception hotly debated. [9]                       

Every second – $3,075.64 is being spent on pornography.
Every second – 28,258 internet users are viewing pornography.
Every second – 372 internet users are typing adult search terms into search engines.
Every 39 minutes: a new pornographic video is being created in the United States.

Are Obscenity and Pornography same?

It is essential that the term pornography and obscenity may be understood in their widest and different manner. ‘Pornography’ word has not been given legal connotation either in India or in other parts of the world.[10] Pornography is a non-legal term with a broader meaning. It derives from the Greek words for “harlot” and “writing,” and pertains to depictions of erotic and lewd behavior, including works with artistic or literary merit (by definition, obscenity lacks such merit). Obscenity is defined as anything that is disgusting to the senses.[11] There are some things that can be described as obscene to people but not pornographic such as war, sexual and physical child abuse, and poverty that have nothing to do with sexual arousal but are often viewed by many people as obscene.

Obscenity

The literal meaning of the term obscene is words, thoughts books, pictures etc. here, indecent especially means sexually; disgusting and offensive, unlike to corrupt[12] or the obscene is something that is foul, filthy, or impure, especially when exposed to public view. Obscenity on the Internet is not typically a crime. Internet-Web has given a medium to the assistance of violations like Pornography or Obscenity.[13] Digital Obscenity is the exchanging of sexually expressive materials within the internet. Despite the fact that the Indian Constitution ensures the freedom of speech and expression, it has been held that a law against obscenity is constitutional.[14] The Supreme Court of India has characterized obscene as “repulsive, offensive to modesty, filthy, indecent or lewd”.[15] It is extremely hard to affirm whether any pornographic material is illegal or not. One specific obscene material might be illegal in India however not in other nations. The test for pornography was first set out by the Regina v. Hicklin[16], in which it was stated as the tendency “to deprave and corrupt those whose minds are open to such immoral influence and into whose hands a publication of this sort may fall”.[17] Later, in 1973, the United States Supreme Court in a landmark judgment of Millar v. California[18], gave the basic guidelines. The three tests for determining whether a work is obscene or not are as following-

  1. That the average person, applying contemporary “community standards”, would find that the work, taken as a whole, appeals to the prurient interest.
  2. That the work depicts or describes, in a patently offensive way, sexual conduct, especially defined by state law or applicable law.
  3. Whether the work taken as a whole, lacks serious literary, artistic, political or scientific value.[19]
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In the case of Bobby Art International v. Om Pal Singh[20], which is also known as “Bandit Queen” case, in which the true story of Phoolan Devi was depicted, the Delhi High Court restrained the exhibition on the ground of obscenity but the Supreme Court allowed the appeal against the decision of the Delhi High Court and held that the story of the film is serious and of a sad woman and the transformation of a village-born female child to a dreaded dacoit.[21] The exhibition does not stimulate sexual arousal due to its context related with the story. There is a huge difference between obscenity and pornography as the latter denotes writings, pictures etc. intended to arouse sexual desire while the former may include writings etc. not intended to do so but which have that tendency. Both, of course, offend against public decency and morals but “pornography is obscenity in a more aggravated form.”[22]

Constitutional Validity- As per Article 19 (2) of the Indian Constitution[23], nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. Here, the word ‘public order’[24], ‘decency’[25] and ‘morality’[26] all are violated by the pornography as it contributes to the decline of virtue and morality which causes offense by its very presence. Justice Mishra emphasized that the there is no subjectivity in this.[27] He stated that obscenity is recognized and punishable by the law. Obscenity is linked to misogynism, perversion, sadism, and voyeurism. Pornography may or may not be obscene in some contexts, but in videos it will be obscene. These are the acts depicted in pornography which have a direct nexus with obscenity as a crime punishable under Section 292 of the Indian Penal Code.[28] In addition, Justice Singh added that “we should examine what is allowed in public spaces and private spaces”.[29] Anand added to this stating that “the State cannot interfere with what people consume in the privacy of their homes, also it is a violation of article 21 of the Indian Constitution.”[30]

Child Pornography

The Indian government recently proposed to amend the IT Act to ask companies to enable traceability of messages on platforms such as WhatsApp in order to stem the circulation of fake news and child pornography. WhatsApp said its end-to-end encryption policy does not allow for traceability.[31] Also, due to lack of sex education in India, cyber pornography is more prevalent as when individuals do not get any proper knowledge about sex, they get prompted towards pornographic material and in this exercise their mind gets contaminated due to the absurd material available on the internet which later results in various crimes. “Encryption is a wonderful invention to protect the privacy of individuals and their communications. It is neither sought nor required when persons share child pornography links on WhatsApp. Liability for such content will make WhatsApp and other intermediaries invest in HR and tech, which is currently, unfortunately, done only as a benefaction,”[32] Former WCD minister Maneka Gandhi has been raising concerns over child pornography and crimes like revenge porn and the need to put in place necessary checks, including changes in law.[33] Possession of child pornographic material for commercial use, viewing and storage of such material and their transmission and distribution may soon invite severe punishment, including a hefty fine and jail term extending up to five years. It will be treated as a non-bailable offence and, on second conviction, the accused may face a jail term of up to seven years. The proposed amendments to the Protection of Children from Sexual Offences Act also include penalties for not mandatorily reporting child pornography as also possession of pornographic pictures and videos on WhatsApp.[34] The internet is being highly used by its abusers to reach and abuse children sexually. The Internet is very fast becoming a household commodity in India. Its explosion has made children viable victims to the cybercrimes, as more children would be using the internet and thus, more are the chances of falling victims to the aggression of paedophiles.[35] Paedophiles lure children by distributing pornographic material, then they try to meet them for sex or to take their nude photographs including their engagement in sexual positions, and they start the actual exploitation of the children by offering them some money or falsely promising them good opportunities in life. They sexually exploit the children either by using them as sexual objects or by taking their compromising pictures in order to sell those over the internet as pornographic materials.[36]

Incidents in India

Many of the recent incidents forced the Malimath Committee to rethink about the law, and they have introduced an amendment to the act which punishes child pornography in itself.[37] These incidents are:

  1. One young Bengali model named Sonal Singh was arrested from Gujarat for distributing her pornographic images in chat rooms and internet on November 2005. She was a permanent resident of Srirampur, West Bengal.
  2. A Class XII student of Air Force Bal Bharati School, Delhi created a pornographic site as revenge on his classmates (girls) and posted pornographic images of his classmates and lady teachers on the internet. He was then suspended by the school and arrested by the Police under IPC and IT Act; though the Juvenile Court allowed his bail thereafter.[38]
  3. 1 out of 3 girls and 1 out of 5 boys will be sexually abused before they reach the age of 18- Most children and families do not report cases of abuse and exploitation because of stigma, fear, and lack of trust in the authorities. Social tolerance and lack of awareness also contribute to under – reporting.
  4. About 90% of the children who are victims of sexual abuse know their abuser- 1 in two is abused by a family member.
  5. 1 perpetrator out of 4 is under 18- Paedophilic offenders frequently start offending at an early age and often have a large number of victims. The younger the child victim, the more likely it is that the perpetrator is a juvenile.[39]
  6. People with a history of child sexual abuse have 7 times higher risk of suicide- Children who are sexually abused are at significantly greater risk for post-traumatic stress and other anxiety symptoms, depression and suicide attempts. These psychological problems can lead to significant disruptions in the normal development of a child and often have a lasting impact, leading to dysfunction and distress well into adulthood.[40]
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There are various ill-effects of cyber pornography, like it reinforces harmful gender stereotypes which contribute to young people forming unhealthy and sexist views of women and sex and condoning violence against women. Pornography consumption by young people also normalizes sexual violence which contributes to unrealistic understandings of sex and sexuality. Pornography consumption has also been associated with the practice of “sexting” and young women have reported being coerced or feeling pressured to share naked images of themselves online. For example, a recent Australian survey of 15-19-year-old girls revealed that 51% believed girls feel social pressure to share naked images of themselves online.[41]A related issue to consider is how pornography influences young people’s self-concept and body image.

Cyber Pornography Also Affects Social Behaviour

Pornography, as a visual misrepresentation of sexuality, distorts an individual’s concept of sexual relations by objectifying them, which, in turn, alters both sexual attitudes and behaviour.

Spectacular growth in the availability of sexually explicit material on the internet has created an unprecedented opportunity for individuals to have anonymous, cost-free, and unfettered access to an essential unlimited range of sexually explicit texts, still and moving images and audio materials, in a fashion never before imagined. Men, women, boys and girls can acquire sexually explicit content on the internet effortlessly and privately, as a direct expression of their sexual and personal characteristics and inclinations. One of the most unexpected uses of internet concerns the development of online relationships. Some writers define an online relationship, which is also called ‘cyber affair’[42], as a romantic or sexual relationship that is initiated via online contact and maintained predominantly through electronic conversations that occur through e-mail and in virtual communities such as chat rooms, interactive games, or newsgroups. Further to this, those in online relationships often turn to mutual erotic dialogue (often referred to as cybersex). In this instance, cybersex involves online users swapping text-based sexual fantasies with each other. These text-based interactions may be accompanied by masturbation.[43]

Effects the Mind, Body, and Soul

Effects The Mind

Pornography significantly distorts attitudes and perceptions about the nature of sexual intercourse. Men who habitually look at pornography have a higher tolerance for abnormal sexual behaviours, sexual aggression, promiscuity, and even rape. In addition, men begin to view women and even children as “sex objects,” commodities or instruments for their pleasure, not as persons with their own inherent dignity.

Effects The Body

The addictive aspect of pornography has a biological substrate, with dopamine hormone release acting as one of the mechanisms for forming the transmission pathway to pleasure centre of the brain. Also, the increased sexual permissiveness engendered by pornography increases the risk of contracting a sexually transmitted disease or of being an unwitting parent in an out-of- wedlock pregnancy. Pornography’s frequent depiction of intercourse without condoms is an invitation for the promiscuous to contract a sexually transmitted disease and to have multiple sex partners. Pornography also promotes sexual compulsiveness, which doubles the likelihood of being infected with a sexually transmitted disease.[44]

Effects The Heart

Pornography affects people’s emotional lives. Married men who are involved in pornography feel less satisfied with their marital sexual relations and less emotionally attached to their wives. Women married to men with a pornography addiction, report a feeling of betrayal, mistrust, and anger. Pornographic use may lead to infidelity and even divorce.[45]

Relation with Rape and Pornography

The uploading of rape videos is not pornography, any more than a man recording himself killing another man and uploading the video to the web does not amounts to pornography. The relationship between screen violence and social violence, and between pornography and rape, have been studied for decades, and at the end of all that research there isn’t a shred of evidence in favor of the proposition that fiction and fantasy engender violence. At best, researchers have found increased levels of aggression or misogyny in subjects who had just watched scenes of murder or sexual violence, but never have such laboratory results been reflected in any real-life situations. The most important fact backing this argument is that, even as porn has become ubiquitous, rape has become rarer in societies where data can be trusted. In countries like India where rape often goes unreported and crime statistics are questionable, it is impossible to know whether rapes are on the increase or decrease, though the police and media are convinced it is the former.

Pornography and even Hindi film dance numbers are being singled out as generators of rape. Moralistic cops and judges should pay more attention to data and less to their own prejudices. They might learn that the best way to reduce rape is to ensure perpetrators are punished. The way to do it is to register cases promptly, sympathize with accusers, investigate thoroughly, and try the accused fairly and quickly. The way not to do it is to fail for months to arrest perpetrators who have incriminated themselves on camera, and then blame Google and WhatsApp. [46]

Legislations and Laws in India

In L.I.C. of India v. Prof. M.D, Shah,[47] The Supreme Court of India held that freedom of Speech and Expression under Article 19 (1)(a) is very basic fundamental right of individuals which they acquire by virtue of birth as human beings. The Indian Judiciary adopted the Hicklin Testin several cases to maintain decency and morality.

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Section 67

Section 67A prohibits publication of information which is obscene in electronic form. It says that 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 the first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lac rupees and in the event of a 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 lac rupees.[48]

In Ranjit D Udeshi v. State of Maharashtra[49], the Court held that indecent or immoral publications are prohibited by Article 19 (2) of the Indian Constitution.[50] In the case of Mr. Jayesh S. Thakkar & Ors v. The State of Maharashtra[51], the Bombay High Court appointed a Committee to oversee issues pertaining to Cyber pornography and cybercrimes. The Committee, upon identifying key issues, made recommendations such as licensing of Cyber Café, introducing identity cards for cyber-café visitors etc.

Section 3 and 4 of the Indecent Representation of Women Act, 1986 also related to Pornography because this is an Act to prohibit indecent representation of women through advertisement or in publication writing, paintings, and figure or in any other manner and or matters connected therewith or incidents thereto. Section 4 talks about prohibition of publication or sending by post of books, pamphlets etc. containing indecent representation of women and to that effect would fall within ambit of this section.

Conclusion

It would be foolish to think that the internet can be free of all illegal materials. Part of what makes the Internet valuable is the vast amount of information that is available to us. Information that may have gone undiscovered or unnoticed stays pertinent on the web. Technological advancements are bringing to the world newly integrated messaging systems, more development of E-commerce, business television; high speed digital internet access, better GroupWare tools and the development of new multimedia technologies. All of these tools and advancements are, in part or solely, due to the Internet. With so much more to offer, why would we want to regulate the Internet and possibly stunt its growth? Why should the Internet be any different? There is a fear that if we begin to regulate the Internet, we will be destroying it at the same time. There are arguments that the Internet is inherently chaotic and that is what makes it what it is. But as the Internet grows and as does its technological wonder, so do all the bad things that come with it. Perverts are moving from the playground to the Internet and they are making their way into everyone’s lives. While the Internet Industry provides parents with filtering systems like Cyber Watch, Net nanny, and Cyber nanny, the only thing these systems have accomplished is helping people avert their eyes away from the real problem. What some people view as pornography, others view as quite normal. Nevertheless, there has to be some consensus of what is child pornography and we need to come up with a way to stop the exchange of such materials on the Internet. By holding the Internet providers responsible for the information, they allow their subscribers to exchange information free from illegal or illicit images. Holding ISP’s liable to laws, there will be a huge decrease of the availability of child pornography on the Internet.[52]


[1] Shashank Shekhar, Online child pornography, (23:19 GMT, 5 September 2017), https://www.dailymail.co.uk/indiahome/indianews/article-4855694/India-world-s-worse-rates-online-child- pornography.html.

[2] United Nations office on Drugs and Crimes, Comprehensive Study on cybercrimes, (November 19, 2019), https://www.unodc.org/documents/organized-crime/UNODC_CCPCJ_EG.4_2013/CYBERCRIME_STUDY_210213.pdf

[3] Ramanuj, Cyber Pornography Law in India- The Grey law decoded (March 5, 2015) https://blog.ipleaders.in/cyber-pornography-law-india/.

[4] Ibid.

[5] Osmo Kontula, The role of Pornography (2 June, 2008)
https://psykologtidsskriftet.no/fagessay/2008/06/role-pornography-media-and-sex-education?redirected=1.

[6] Microsoft Encarta Online Encyclopedia ,Pornography (November 19, 2019), http://encarta.msn.com.

[7] Easton & Susan, Pornography, Encyclopedia of Applied Ethics (1998).

[8] Van De Beer & Donald, Pornography, Encyclopedia of Ethics (1992).

[9] P.A.S.Pati, Pornography and Obscenity- An analysis, (November 19, 2019), http://www.naavi.org/pati/cyberobsceneity.html.

[10] Barua, Yogesh & P. Dayal Denzyl, Cyber Crimes, Notorious Aspects of the humans and the Net (2001).

[11] Holmes, Explain the difference between obscenity and pornography 154 (November 19, 2019),  https://www.coursehero.com/file/13178035/Explain-the-differences-between-obscenity-and pornography/.

[12] Supra n. 10.

[13] Supra n. 11.

[14] Ind. Const. art. 19 § 2, Cl.1.

[15] Ahmad Farooq, Cyber Law in India on Internet, (Allahabad Law Agency, 2005).

[16] Anubhav Pandey, Punishment for Publishing or Transmitting Obscene Material in Electronic Form, (November 19, 2019), https://blog.ipleaders.in/obscene-material/

[17] Regina v. Hicklin, 3 QB 360 (1868).

[18] Millar v. California, 413 US 15 (1973).

[19] Supra n. 9.

[20] Bobby Art International v. Om Pal Singh, AIR 1996 SC 1846.

[21] Ibid.

[22] Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 889

[23] Supra n. 14.

[24] Supra n. 19.

[25] Ibid.

[26] Ibid.

[27] Sarvjeet Singh, #Pornban, (March 1, 2016) https://www.medianama.com.

[28] Indian Penal Code, § 292.

[29] Supra n. 27.

[30] Ibid.

[31] Megha Mandavia, Child pornography in Indian WhatsApp groups Jan 08, 2019,
https://economictimes.indiatimes.com/tech/internet/probe-finds-child-pornography-in-indian-whatsapp-groups/articleshow/67430347.cms?from=mdr.

[32] Arghya Sengupta, Vidhi Centre for Legal Policy, (November 19, 2019), https://www.livemint.com/Leisure/nkLPCT9pz4n7fLD892gd9O/Vidhi-Centre-for-Legal-Policy–The-law-for-the-layman.html

[33] Pankaj Doval, Child porn possession, (Nov 24, 2018) https://timesofindia.indiatimes.com/india/5-year-jail-for- child-porn-possession-no-bail-for-accused/articleshow/66779090.cms.

[34] Supra n. 35.

[35] Agarwal, Computer Ethics, child sexual abuse, pornography & regulation of child pornography on the internet 11 (November 19, 2019).

[36] Akdeniz, Yaman, Computer Pornography,  (November 19, 2019) https://www.researchgate.net/publication/233122259_Computer_pornography_A_comparative_study_of_the_US_and_UK_obscenity_laws_and_child_pornography_laws_in_relation_to_the_internet.

[37] Saddam Hussian, The Law on Pornography in India (November 19, 2019), https://www.scribd.com/doc/189315468/The-Law-on-Pornography-in-India

[38] Ibid.

[39] Ibid.

[40] Ibid.

[41] Marripedia, Effects of Pornography, (November 19, 2019), http://www.marripedia.org/effects_of_pornography.

[42] Ibid

[43] Joinson, An implication of disinhibited behavior on the internet 43-60 (November 19, 2019), https://psycnet.apa.org/record/1998-06638-002.

[44] Ibid

[45] Ibid.

[46] Girish Shahane, Banning porn won’t reduce rape in India. Punishing rapists will (November 19, 2019), https://qz.com/india/525974/banning-porn-wont-reduce-rape-in-india-punishing-rapists-will/.

[47] L.I.C. of India v. Prof. M.D, Shah, AIR 1993 SC 171.

[48] Information Technology Act, § 67 (a).

[49] Supra n. 24.

[50] Ind. Const. art. 19, Cl. 2.

[51] Mr. Jayesh S. Thakkar and another v. The state of Maharashtra, 2001 Bom. H.C. Writ petition No. 1611.

[52] ECPAT International, Child abuse Images and Sexual Exploitation of Children Online (November 19, 2019)  https://www.ecpat.org/wp-content/uploads/2016/04/ICT.pdf.