Cyber Pornography: Legislation Behind the Taboo

Vaani Vishal

Topics Covered in this article

Abstract

Cyber pornography is a topic that is much rather discussed behind the closed doors of houses or on the binary blackness of the dark web. However, when we look into it, we realize it’s greater than the taboo it is known for. Even though it is regulated by certain provisions of the Information Technology Act and the Indian Penal Code, it is still tough to determine its extent and its length as it exceeds to the dark web. Child pornography, non-consensual pornography, up-skirting, etc are only some of the issues relating to the problem of cyber pornography in India, and its jurisdiction only extends so much. Due to the lack of proper cyber laws in India, it becomes difficult to keep a track of the cons of pornography. Neither of the two laws, Information Technology Act and Indian Penal Code, explicitly legalized cyber pornography, however, the browsing of the same has not been prohibited except for child pornography. This paper intends to explore the related themes of the parties involved, their respective liabilities, the convictions and punishments, the potential pornography holds for harm, and in the rise of new technology what things must be kept in mind when revising the cyber laws related to pornography.

Introduction

What is Cyberspace? According to Techopedia, “Cyberspace refers to the virtual computer world, and more specifically, is an electronic medium used to form a global computer network to facilitate online communication. It is a large computer network made up of many worldwide computer networks”[1] As time has passed, cyberspace has become more accessible to the people; due to the drastic change in the technology over the past decades. With the introduction of smart phones and other technological advancements, the internet service providers have been able to provide people with data access and information in one touch.

The word “pornography” comes from the Greek word “pornographos” which literally means writing about prostitutes. According to Oxford Dictionary, pornography is defined as, “The explicit description or exhibition of sexual subjects or activities in literature, paintings, films, etc., in a manner intended to stimulate erotic rather than aesthetic feelings; literature, etc. containing this.” Thus, we can say in simple words that pornography is any act or description of explicit content done with the intent of arousing sexual needs or desires of a person. Similarly, another type of pornography known around the world is Child Pornography. Child Pornography in when films or writings depict sexually explicit activities involving a minor; a minor is any human who is below the legal age of 18 years.

Pornography is different from Obscenity. While Pornography is an explicit description of sexual subjects, Obscenity is defined as “things that deprave or corrupt those whose minds are open to such immoral influence” as said in R. D. Udeshi v. State of Maharashtra.

Even though there has been a drastic increase in the demand of pornographic content with the advent of new technology that has emerged over the past years making such pornographic material available to people for free in just one click, pornography is still considered to be one of the biggest taboos in the 21st century; it is something that is talked about behind closed doors.  Pornographic content is now available in various forms such as videos, telephonic communications, pictures, films, books, etc.

The Current Situation in India

India is considered to be the 3rd largest consumer of pornographic content, after the USA and UK, and the 2nd largest consumer of internet after China. The percentage of people who watch pornographic videos has increased by over 120% in the past 5 years. 

One of the reasons for this surge in the viewing of pornographic content can be said to be the introduction of the unlimited internet access that the service providers have recently introduced. Service Providers like Reliance Jio, Airtel, Idea, etc. are providing customers with unlimited access to 4G internet services for very nominal rates.

India saw a recent ban on 827 pornography websites by the Indian Government. This ban came into being after the Uttarakhand High Court asked the Centre to impose such a ban after taking into consideration a case where a school girl was gang raped in a school in Dehradun by her schoolmates after they had seen pornographic clips. A notice was issued to all Internet Service Providers to ban use of pornographic websites. The bench of Acting Chief Justice Rajiv Sharma and Justice Manoj Tiwari said “Unlimited access to these pornographic sites is required to be blocked/ curbed to stop an adverse influence on the impressionable minds of children.”

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Before this a ban was initiated, the government blocked over 857 pornography sites in 2015 on the grounds that such content corrupts the minds of the people watching it and promotes sexual assault, but this ban was subsequently partially removed after many criticisms and debates that it was impractical. Following the harsh criticism that was received, the court decided to remove the ban on the pornographic sites that do not have Child Pornography in them.

In recent times, a new platform has come up for sharing pornographic content- “INSTAGRAM”. What is Instagram? Instagram is a free photo and video sharing app available on Apple iOS, Android and Windows Phone. People can upload photos or videos to their service and share them with their followers or with a select group of friends. They can also view, comment and like posts shared by their friends on Instagram. Anyone 13 and older can create an account by registering an email address and selecting a username.[2] Recently, people have started misusing this platform by making accounts where people post obscene content and further in the Instagram bio – description of the profile or the person whose account it is, writing the prices that the person will charge in exchange for sexual content such as video calls, pre-recorded videos, telephonic calls, messaging, etc. The payments for the same are usually made through Paytm or PhonePe beforehand.

Legislation: Behind the Taboo

Laws about Pornography, are there any? The simple answer to this question is no. There are no direct laws pertaining to pornography in India but, there are various provisions in the laws of the nation that are related to obscenity and pornography. Some basic laws that govern this taboo are the Indian Penal Code, 1860, The Constitution of India, The Information Technology Act, 2000 and The Protection of Children from Sexual Offences Act, 2012; herein referred to as the POCSO Act in cases pertaining to child pornography.  

In India, people are protected under Article 19 (1) (a) of the Constitution of India in relation to their right to freedom of speech and expression. This article talks about protection of certain rights regarding freedom of speech, etc – all citizens of India have a right to freedom of speech and expression.

Later on, the absolute nature of this article was made clear in the clause 2 of this article

 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.

Thus, we can say that the Constitution of India gives people the right to express themselves but also puts certain restrictions on them at the same time in order to maintain the decorum of the nation. In India, this freedom is subject to reasonable restrictions.

The Section that pertains to measures against pornography under the Information Technology Act, 2000 is Section 67. This section is modelled on Section 292 of the Indian Penal Code, 1860 and is considered to be the most serious legislative measure against pornography. This section says:

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 contained or embodied in it, 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 one lac rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lacs rupees.

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Under this Section, whoever publishes, transmits, or causes to be published or transmitted in electronic form, any material which contains content that is sexually explicit shall be punishable under this section. This section does not extend to any book, pamphlets, papers, writings, drawings, paintings, representation or figure in electronic form whose publication is done with the intention of a public good or when is it is used or kept for bona fide use for religious purposes.

Under the Indian Penal Code, 1860 Section 292, 293 and 294 provide for limitations and prohibitions of certain contents that are obscene with some exceptional cases, while Section 499, 500, 501 and 502 prohibits defamation with punishment except for certain exceptional cases

Section 292 of the Indian Penal Code, 1860 prohibits sale, distribution, publication, export, import, etc. of any obscene books, pamphlets, papers, writings, drawings, paintings, representations, etc with exceptions such as, when the same is done with a good intention for a public good and when the same has been depicted on monuments or  any other structure of historical importance. The prescribed punishment for violation of this section may extend to two years with a fine for a first time conviction and if convicted for the second time, imprisonment of five years along with fine.

Section 293 of the Indian Penal Code, 1860 talks about the prohibition of sale of obscene objects to young persons. In circumstances where this section is violated, a first-time violator is punishable with an imprisonment which may extend to three years along with fine and in case of second time violators, an imprisonment that may extend to a term of seven years along with fine.

Section 294 of the Indian Penal Code, 1860 talks about prohibition of obscene acts and songs to annoy others in or near any public place. The punishment for violation of the same may amount to imprisonment that may extend to a period of three months along with fine.

POCSO Act, 2012 was introduced keeping in mind the need for such laws due to an increase in the crimes taking place against children. The Sections of this Act that relate to pornography are Section 13, 14 and 15; these sections talk about use of children for pornographic purposes and the punishment thereafter.

Section 13 of the POCSO Act, 2012 says:

Use of child for pornographic purposes-

Whoever, uses a child in any form of media (including programme or advertisement telecast by television channels or internet or any other electronic form or printed form, whether or not such programme or advertisement is intended for personal use or for distribution), for the purposes of sexual gratification, which includes-

  1. representation of the sexual organs of a child;
  2. usage of a child engaged in real or simulated sexual acts (with or without penetration);
  3. the indecent or obscene representation of a child, shall be guilty of the offence of using a child for pornographic purposes.

This also includes usage of children or involving a child in any obscene or pornographic content like print, electronic, computer or any other technology for preparation, production, offering, transmitting, publishing, facilitation and distribution of the pornographic material.

Section 14 talks about the punishments for using a child for pornographic purposes. The punishment for using a child for pornographic purposes is:

  1. Whoever, uses a child or children for pornographic purposes shall be punished with imprisonment of either description which may extend to five years and shall also be liable to fine 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 be liable to fine.
  2. If the person using the child for pornographic purposes commits an offence referred to in section 3 (Penetrative Sexual Assault), by directly participating in pornographic acts, he shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.
  3. If the person using the child for pornographic purposes commits an offence referred to in section 5 (Aggravated Penetrative Sexual Assault), by directly participating in pornographic acts, he shall be punished with rigorous imprisonment for life and shall also be liable to fine,
  4. If the person using the child for pornographic purposes commits an offence referred to in section 7 (Sexual Assault), by directly participating in pornographic acts, he shall be punished with imprisonment of either description for a term which shall not be less than six years but which may extend to eight years, and shall also be liable to fine.
  5. If the person using the child for pornographic purposes commits an offence referred to in section 9 (Aggravated Sexual Assault), by directly participating in pornographic acts, he shall be punished with imprisonment of either description for a term which shall not be less than eight years but which may extend to ten years, and shall also be liable to fine.
  6. Section 15 of the POCSO Act, 2012 talks about Punishment for storage of pornographic material involving a child.  Any person, who in any form, stores pornographic material that involves a child shall be punishable by imprisonment extending up to three years or may be liable to pay fine or both.
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The Black Hole in the Indian Legislation

 The following is a brief summary of the rules relating to pornography in India:

  1. Watching porn at home is not illegal.
  2. Saving pornographic material on your personal laptop, smart phone or storage media is also not considered to be illegal.
  3. Distribution, sale, showcasing, publishing, sending pornographic or obscene content on private messages etc. is illegal.
  4. Sending porn videos, images, texts or anything depicting sexually explicit acts, unless done for educational purposes, to someone is also illegal.
  5. Whether Internet Service Providers are causing transmission of such porn into the country is a grey area but practically they will not be held responsible except for child pornography.
  6. Child Pornography, in any sense, watching, saving, sharing etc. is completely illegal.

Pornography is considered to be one of the biggest taboos in our country even though we are living in a society that is very open-minded and expressive about their thoughts. It is ironical how people shy away from talking about it openly and yet India is the 3rd largest consumer of pornography. India has a free pornography system, people do not have to pay for watching pornographic content and with the country having a population comprising mainly of youth who have access to the latest technology, makes it easier for people to access pornographic content. The laws relating to pornography are conflicting to one another – if sharing or distribution of pornography is considered to be illegal then even viewing it should be illegal because, it is only after people will watch it that they will further share or distribute it. On the other hand, if pornography is completely banned it may create sexual frustration because people watch it to release their sexual frustration. Thus, the recent ban that was imposed was a good decision but the Indian Legislature needs to bring about a change and introduce solid and direct rules that solely govern pornography laws so that no doubt remains in the minds of the people. There is a huge black hole that is not easy to fill up but a change needs to be brought about in the society as the consumption of pornography has increased drastically and with the way that things are going this demand will keep on increasing if not cured soon. Should Pornography be banned in India? Pornography can be said to be somewhat good for the society but only until there are limitations to it that do not allow people’s minds to get corrupted and do things that will cause damage and harm to others.


[1] Technopedia, Cyberspace, (November 18, 2019), https://www.techopedia.com/definition/2493/cyberspace

[2] Instagram, (November 18, 2019) https://help.instagram.com/424737657584573