Cyber Pornography And The Problems Associated With It

                                                                            Rajni Kheria & Neha Kheria

Abstract

With the advent of science and technology, we all have witnessed the multiplication of crimes in the world. With other crimes, pornography has also embedded its roots in the society. Therefore, what was initially created for titillation of aristocrats in the form of statutes or monuments in the caves, with the help of technology, is available in high definition video quality in our homes. Internet provides easy access to all kinds of pornography. Nowadays, you don’t even need to cross the street to get access to it. Unlock your smart phone, search for it and you are watching porn many a times without even paying for it. Pornography poses a serious challenge to the world at large.  To combat pornography, the government issued directions to internet service providers to ban pornographic sites containing not only child pornography but adult pornography as well. The step was condemned by several civil libertarians, who demanded regulation instead of ban on adult pornography. The whole episode made cyber pornography a burning issue and therefore demanded immediate redressal of the problem pertaining to legality of censoring pornographic sites, sufficiency and efficiency of laws dealing with it and how to determine the question of jurisdiction when pornography is transferred through electronic medium, which makes it very difficult to ascertain the place from where offence was committed. In this research paper, the author has endeavoured to examine the aforementioned issues pertaining to cyber pornography with special reference to jurisdiction in cyber space, and to provide solutions for the same.

Introduction

It is rightly said that advancement of science and technology is a boon as well as a bane, therefore where invention of the Internet has brought the entire world closer, dark net, cyber-crimes, issues related to our security and privacy, etc. are tearing us apart. The world has witnessed the extension of pornography with the growth of society. Paedophiles have also started misusing technology to serve their ulterior purposes.  Therefore, what was initially created for titillation of aristocrats in the form of statutes or monuments in the cave with the help of technology is available in high definition video quality in our homes now. The Internet provides easy accessibility to all kinds of pornography in many forms. Nowadays, you don’t even need to cross the street to get access to it. Unlock your smart phone, search for it and you are watching porn, many a times without even paying for it.

The Internet has turned the world into a global village, though our culture and standards of morality remain distinct. So what may be pornography for Indians may not be so for Americans. Also, if the pornography material is transferred through electronic medium, it makes it very difficult to ascertain the place from where the offence was committed, which court shall have jurisdiction and which country’s law shall be applicable for the purpose of trial.

Pornography poses a serious challenge to the world at large.  To combat pornography, the government issued directions to internet service providers to ban pornographic sites containing not only child pornography but adult pornography as well. The step was condemned by several civil libertarians, who demanded regulation instead of ban on adult pornography.

The whole episode made cyber pornography a burning issue and therefore demanded immediate redressal of the problem surrounding by it. In this research paper, the author has endeavoured to examine the various issues pertaining to cyber pornography with special reference to jurisdiction in cyber space, and to provide solutions for the same.

Cyber Pornography and Cyber Obscenity

Pornography is generally understood to mean any form of work dealing with sex and sexual themes. It is the sexually explicit depiction of the body with the aim of sexually arousing its viewers[1]. It is derived from the Greek word, pornegraphein, which means writing of harlots or depiction of acts of prostitutes. In this multi-cultural, multi-religious world, it is almost impossible to have a single definition of pornography which can be universally made applicable to all. Therefore, what may be porn for South Asian countries may not be so for the western world[2].

‘Pornography’ should not be confused with ‘obscenity’ which is derived from the Latin word ob meaning ‘to’ and the word caenum, which means ‘filth’. While pornography is considered to be an aggravated form of obscenity[3], obscenity is wider than pornography and it would be fallacious to restrict its sphere to sexual explicit matters[4].  Section 292 of the Indian Penal Code 1860[5] and Section 67 of the Information Technology (Amendment) Act, 2008[6] deal with the offence of obscenity and Cyber obscenity respectively.   Both the sections are a mere facelift of the famous Hicklin test[7], given by the Queen Bench, in which the court explained obscenity as something which has the “tendency to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall”. Section 67A of the Information Technology (Amendment) Act, 2008[8] makes publication and transmission of sexually explicit content through electronic medium punishable up to five years and with fine up to Rs. 10 lakhs on first conviction, and up to seven years and with fine up to Rs. 10 lakhs on subsequent conviction.

The definition of obscenity was revisited by U.S Supreme Court in Roth v. United States[9]. In this case, the court overruled the Hicklin Test and held that it is obscene if, to the average person applying community standard, the dominant theme of material as a whole appeals to prurient interest[10]. Thereafter came the judgment of Miller v. California[11], in which Chief Justice Burger gave a three pronged test to determine what obscenity is, so if the work taken as a whole is such that it is patently offensive, lacks any scientific, political, artistic or literary value, appeals to prurient interest even of an average prudent person, applying contemporary community standard, it can be termed as obscene. The test finds support and approval of Indian Courts as well and therefore it is a ‘community standard’ test which is employed in various judgments to ascertain content being obscene or not[12].

As compared to adult pornography, child pornography is considered to be a more heinous crime as it targets our children, the vulnerable section of our society. Child pornography is the portrayal of children below 18 engaged in sexual activities, including exhibiting their genitals. Section 67 B of the Information Technology (Amendment) Act, 2008[13] specifically punishes possessing, publishing, browsing, and transmission, etc. of child pornography with imprisonment which may extend to five years and fine which may extend to ten lakh rupees and in event of second or subsequent conviction with imprisonment which may extend up to seven years and fine which may extend to ten lakh rupees[14]

Section 66E of the Information Technology (Amendment) Act, 2008 punishes for capturing, publication or transmission of a private area of any person whether it was done with mala-fide intentions or with knowledge, which consequently resulted into infringing the privacy of that person[15].

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Problems Associated with Cyber Pornography

The efficiency of laws relating to cyber pornography is challenged on the ground of language employed in the section. Section 67 merely copies the words of section 292, which itself is based on the Hicklin Test of 1868. The test is more than one hundred and fifty years old. During these years, society has gone through tremendous change. The Indian Penal Code was enacted during British regime. It would have been better if the legislators paid heed to the current standard of decency and tolerance in Indian society. Words ‘obscenity’ and ‘sexually explicit’ are not distinctly defined and have been left at the subjective interpretation of the enforcement agency and court[16].

The next problem we have is of the jurisdiction. Jurisdiction means competency of the court to try and adjudicate any matter before it and to enforce its decision. While judgment pronounced in violation of territorial and pecuniary jurisdiction would hinder the execution, judgment pronounced in violation of subject matter jurisdiction would not be executed at all. Traditional principle of jurisdiction mandates a civil suit for movable property or tortuous act can be tried where the cause of action arose[17], or where all the defendants reside, carry on business or work for gain[18], or where one of the defendant resides, carries on business or works for gain and either consent of court or of other defendants have already been taken[19]. A criminal case in general can be tried in whose jurisdiction offence was committed or consequences have been ensued[20]. Cyber space is a borderless environment which can’t be confined to territorial boundary and therefore no country can claim exclusive jurisdiction over the offence committed involving an electronic medium.

Besides it, cyberspace provides anonymity which further complicates the matter and makes the investigation officer’s task more cumbersome. In absence of a uniform resource locator, the location of the offender remains untraceable and it becomes difficult to ascertain where the offence was committed and which country or within a country, which state or district or court shall have the right to investigate and to try the matter.

Prima facie reading of Section 67, 67A and Section 67B of the Information Technology Act suggests that the Act gives supervising authority to India to try and punish offenders of cyber obscenity, cyber pornography and child pornography in India, irrespective of where exactly the offence was committed, which is not true in light of the principle of sovereignty and Section 75 of the Information Technology Act, 2000, which provides that India can exercise extra territorial jurisdiction, if either computer, computer system or computer network was targeted in India. So if an Indian national browses the net and visits a pornographic site based on servers outside India, then the pornographic site can’t be held liable under the concerned provision in Information Technology Act.

Further the next challenge before the Indian courts is how to secure the presence of offenders of foreign nationality in India, especially in the absence of Mutual Legal Assistance treaty between India and country of the offender.              

 The next problem in the Information Technology Act is that it provides a much higher punishment for committing the same as provided it in its counterpart under section 292 of the Indian Penal Code, 1860. While Section 67 of the Information Technology Act provides punishment, which may extend to three years and fine up to five lakhs on first conviction, and punishment which may extend to five years and fine up to ten lakhs on second or subsequent conviction, on the other hand, Section 292 of the Indian Penal Code, 1860 provides punishment which may go up to two years and fine up to Rs. 2000 only.

The next problem of cyber pornography is the conflict between proponents and opponents of pornography. Recently in October 2018 and in 2015 when the government banned 832 and 857 pornographic sites respectively, the ban was condemned by various civil libertarians and other sects of the society. The main contention of the opponents of pornography is that they believe the easy availability of pornographic sites is responsible for sexual exploitation of women and increasing crime rate against women. They claim that pornographic sites are not out of reach of children and therefore would corrupt their minds. Consequently, the children may catch serious communicable diseases including HIV. While proponents on the hand claim that banning such sites would infringe upon our right to freedom of speech and expression, right to privacy and right to personal liberty under Article 19 (1) and 21 of the Constitution of India. They demand proof of relationship between women subordination, increasing crime rate against women and pornography.

The Way Forward

Plain reading of laws relating to cyber obscenity and cyber pornography leaves no doubt in mind that the provision is in immediate need of amendment. To avoid ambiguity and vagueness in the section, the definition of the cyber obscenity and cyber pornography should be reframed keeping in mind the contemporary community standard test, so that it can answer the need of modern society and can be brought into the line of latest judicial trends. It is no one’s argument that legislature would provide definition which can be made universally applicable. The idea is to reduce discretion and avoid inconsistency in the outcome of the cases. Therefore the legislature would be justified if instead of providing precise definition of cyber obscenity and cyber pornography, it provides broad guidelines to ascertain the same.

With regards to divergent punishments provided under the Indian Penal Code, 1860 under Section 292 and Information Technology (Amendment) Act, 2008 under Section 67, the rationale for providing higher punishment for cyber obscenity might be the easy and swift availability, publication and transmission over the internet. If the justification is this, then the legislature has intelligent differentia for providing same, otherwise the section accordingly be amended.

With regards to question of jurisdiction, two theories became popular. The first says that we must adhere to the traditional method of jurisdiction only and bringing existing domestic laws such as Indian Penal Code, 1860, Criminal Procedure Code, 1973, Civil Procedure Code, 1908, Indian Contract Act, 1872, Sale of Goods Act, 1930 in consonance with the Information Technology Act, 2000 would be sufficient to effectively deal with the solution. The second theory emphasizes on the need to bring into existence a new mechanism altogether, which shall be resorted to in case of commission of cyber-crimes.

Insight into the state of affairs substantiates the fact that had the traditional principle of jurisdiction been sufficient, we would not have been counting on the other available solution and we would not have to solve the conflict of jurisdiction altogether. While enacting the Information Technology Act 2000, the government did make amendments in the other associated Acts, including the Indian Evidence Act, 1872. The present complications are proof of the fact that changes brought in the associated Acts were not sufficient enough and therefore we require further amendments in the various Acts to deal with the situation. Recently we even witnessed the inclination on the part of the government to sign the Budapest Convention on Cyber Crime[21]. It is noteworthy that the Budapest Convention is the first international treaty which focuses on Cyber Crime[22]. The treaty came into force on July 1st 2004 to combat child pornography, online frauds, copyright infringement on internet etc. The aim of the treaty is to aid collection of electronic evidences, international police in conducting investigation. Many countries including UK and USA are signatories to it.

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The whole scenario indicates sufficiently that status quo would further complicate matters. In light of the fact that no country would accept supremacy of any other authority over it, the idea of introducing a new mechanism does not seem to be possible in the near future, therefore we are left with just one option and the option is to enter into more and more Mutual Legal Assistance treaties with other countries. In this way, signing the Budapest Convention appears to bear fruit in the near future, although the fear of enforcement agency cannot be altogether ignored but the solution lies in negotiating with countries appropriately in a manner that the concern of the enforcement agency is respected and handled politically. Signing the convention would also help the investigation agency to collect evidences which is impossible without the help and cooperation of investigation agencies in foreign country.

Further, the language of the provision which gives notion that India would be acting like a global supervisor could be corrected by inserting word “subject to Section 75 of the Act” or by adding explanation in the section itself or by reframing the section itself.   

With regards to ascertaining the jurisdiction of the court, when an offence is committed through electronic media, the cause of action/ effect of the act is ensued at many places, therefore in Maqbool Fida Hussain v. Raj Kumar Pandey,[23] it was held that the state must circumscribe the jurisdiction of the court as it would be unjust to ask the accused to run from pillar to post to get justice in his favor.

Similarly, to decide the question of jurisdiction in civil law cases, many tests such as purposeful availment[24], zippo scaling[25] and effect test[26], have been evolved by the court.  

With regards to the last issue on the conflict between proponents and opponents of porn, it can be said that no freedom bestowed on an individual was ever absolute. It is always restricted on grounds of sovereignty, friendly relations with foreign states, decency, morality, public order, reasonable restrictions, general public interest etc. Every article contains restrictions on grounds of which, the right could be curtailed. Right to speech under Article 19 (1) of the Constitution of India, 1950 is subject to decency and morality, though the standard of decency and morality is a question of fact.

Further, it needs to be clarified that constitutional morality should not be confused with popular morality, while freedom of speech can be restricted if it violates the former, popular morality gives no such right to the government, and therefore the court in Naz Foundation v. Govt. of NCT Delhi [27] held as follows:

“Para 79…… popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong. If there is any type of “morality” that can pass the test of compelling state interest, it must be “constitutional” morality and not public morality. This aspect of constitutional morality was strongly insisted upon by Dr. Ambedkar in the Constituent Assembly”.

“Para 86…… Moral indignation, howsoever strong, is not a valid basis for overriding individuals’ fundamental rights of dignity and privacy. In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view”.

Embargo to such an extent would ultimately end up extending the underground activities. Moreover, Cyber pornography is not the only medium to watch such content. Ban would encourage the paedophiles to find out new mediums of circulating the pornographic content. Moreover, the link between the existence of pornography and shooting up of offences against women has not been established yet.

Conclusion

There is no denial that almost the whole world condemns the circulation of Child pornography through any medium but with regards to adult pornography, we have mixed opinion of different sects. As the pornography is available in various forms, there is soft core pornography and there is hard core pornography. Majority of the countries including USA and UK censure obscenity but there is no uniform opinion in relation to pornography as the level of tolerance is different in different countries. Even our judiciary is divided on this issue[28]. The stand of judiciary as well as Centre has remained dubious but the clarity has to come from the legislature and judiciary only. Now to ban or not to ban such sites is to be decided by them, but one thing which stands true is there is an urgent need to amend the existing laws and to remove ambiguity so that the culprit does not go scot free.              


[1] Her Majesty’s Stationery Office, Report of the Committee on obscurity and film Censorship, London 103, (1979).

[2] Harish Chander, Cyber Law and IT Protection, (PHI Learning Pvt. Ltd, 2012).

[3] P.K. Somnath v. State of Kerala, 1990 CrLJ 542 (ker).

[4] Sukanda Haldar  v. State, A.I.R 1952 Cal 214.

[5] Indian Penal Code, 1860, Section 292

(1) For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or(where it comprises two or more distinct items) the effect of any one or its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

(2) whoever

(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or

(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or

(c ) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or

(d) advertises or makes known by any means whatsoever that any person engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or

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( e) offers or attempts to do any act which is an offence under this shall be punished on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand 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 five thousand rupees.

Exception- This section does not extend to-

  • Any book, pamphlet, paper, writing, drawing, painting, representation or figure-
  • 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 in the interest of science, literature, art or learning or other objects of general concern, or
  • Which is kept or used bona fide for religious purposes;
  • Any representation sculptured, engraved, painted or otherwise represented on or in-
  • Any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958), or

Any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose

[6] Section 67 of the Information Technology (Amendment) Act, 2008, No. 10, Acts of Parliament, 2009 (India).

“any person who 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”.

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

[8] Information Technology (Amendment) Act 2008, Section 67A, “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 for a term which may extend to five years and with a 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 a fine which may extend to ten lakh rupees”.

[9] Roth v. United States, 354 US 15 (1973).

[10] Id.

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

[12] Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289; S. Khushboo v. Kanniammal, (2010) 5 SCC 600; Aveek Sarkar v. State of West Bengal, (2014) 4 SCC 257.

[13] Information Technology (Amendment) Act 2008, Section 67B whoever

  • Publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in 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 online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or
  • Facilities abusing children online; or
  • Records 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:

Provided that provisions of section 67, section 67A and this Section does 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 in the interest of science, literature, art or learning or other objects of general concern; or
  • Which is kept or used for bonafide heritage or religious purposes

Explanation: for the purposes of this Section “children” means a person who has not completed the age of 18 years.

[14] Ibid.

[15] Information Technology Amendment Act, Section 66E

Punishment for violation of privacy.- Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both.

Explanation.-For the purposes of this section-

(a) “transmit” means to electronically send a visual image with the intent that it be viewed by a person or persons;

(b) “capture”, with respect to an image, means to videotape, photograph, film or record by any means;

(c) “Private area” means the naked or undergarment clad genitals, pubic area, buttocks or female breast;

(d) “publishes” means reproduction in the printed or electronic form and making it available for public;

(e) “under circumstances violating privacy” means circumstances in which a person can have a reasonable expectation that;-

(i) he or she could disrobe in privacy, without being concerned that an image of his private area was being captured; or

(ii) any part of his or her private area would not be visible to the public, regardless of whether that person is in a public or private place.

[16] Dr. Amita Verma, Cyber Crimes and Law, (Central Law Publications, Allahabad, 2009).

[17] Code of Civil Procedure, 1908, Section 20 (c)

[18] Code of Civil Procedure, 1908, Section 20(a).

[19] Code of Civil Procedure, 1908, Section 20(b).

[20] Criminal Procedure Code, 1973, Section 177 & 179.

[21] Convention on Cyber Crime, Budapest, 23. XI.2001.

[22] Council of Europe Office, Treaty Office, (November 20, 2019), http;//conventions.coe.int/Treaty/EN/Treaties/HTm/185.htm.

[23] Maqbool Fida Hussain v. Raj Kumar Pandey, 2008 Cri LJ 4107 (DEL).

[24] International Shoe Co. v. Washington, 326 U.S.340 (1945).

[25] Zippo Mfg. Co. v. Zippo Dot Com, Inc, 952 F. Supp. 119 (W.D.P. 1997).

[26] Calder v. Jones, 465 U.S 783 (1984).

[27] Naz Founation v. Govt. of NCT of Delhi, 166 DLT 277.

[28] Kamlesh Vaswani v. Union of India and Others, SC  2013.