Is Youth Addicted to Cyber Porn ?

Ambreen Irshad, Haneri

Abstract

Since time immemorial, it has been seen that human has conceived a notion of sex as procreation activity only. With the changing times and mentality of people, it has become more than just for procreation. In India due to lack of sexual education, Cyber porn has become one of the sources of sex education. Pornography involving videos, images of man and woman involved in sexual activities, is available on the Internet around the clock. Pornographers use the Internet’s ease of distribution to sell their material to sex addicts, youth and any interested party. India has one of the largest viewership of porn. It is most popular among the youth. It is becoming a menace. The Government is trying to control this menace by imposing a ban but it seems like it is not as effective as it was aimed to be. This paper seeks to explore the option of controlling the menace of pornography among youngster in India and also to evaluate the steps taken by the legislature and their lack of implementation, whether there can be legal recourse to control this problem of increasing viewership of pornography in India. Porn has been considered as a source of entertainment in many countries but sadly in India it is rather considered a source of knowledge about sex. Hence this paper will not only evaluate current scenario of pornography but also provide a solution.

Introduction

Cyber pornography is neither morally nor ethically nor legally considered to be right. The Indian society is based on a moral, spiritual and ethical foundation. The sexual conducts which are performed within the ambit of privacy are readily available in the public domain which has violated the fundamentals of our society. Our society tries to protect the sexuality of a person. But the question as to what exactly this morality means and constitutes and who sets the principle to determine it has been left unanswered. There is a very thin line difference between ‘nude’ and ‘naked’. Nude as the poses engraved in the walls of temples were considered sacred and not vulgar; but being ‘naked’ means being forced to undress. Science and Technology have an inherent feature to show little regard for the legislative and judicial effort at regulating human behaviour. Advancement in science and technology is forever engaged in the activity of expanding boundaries while law struggles to define and redefine boundaries to keep up with it, like a coin technology is which is two-faced one being positive and the other negative. The problem is multiplied manifold in an area like pornography, which has as its basis in certain ‘moral’ standard and uses controversial parameters like ‘indecency’ and ‘obscenity’. It is a well-recognized principle that the standard of morality cannot be similar for everyone. In the case of Abbas vs Union of India[1], the Supreme Court has observed that the standard of morality is not a uniform or rigid standard but varies according to different social groups or ages and also due to the number of historical, ethnic and social conditions. Viewing of pornographic content in India has increased to 75% between March 2016 and March 2017, following the decline in data rates with the entry of Reliance Jio. A lot of that increase came from smaller towns.[2] Since the advent of the Internet, it has been seen that it not only created various opportunities but its evil uses have also created many problems for legislatures, draftsman and magistrates.

It is true that there is no single authority that governs cyberspace[3] and there has been Paranoia about the all influencing nature of internet pornography[4]. Although it is not a fundamentally new form of criminal behaviour, what has however happened is that the distribution has been greatly facilitated by the cyberspace.

None of the situations as stated above are such where no law is applicable but rather there is a problem of establishing which law applies and then attempting to set it in motion efficiently. Authorities have faced difficulties in extending existing laws to cover such offences and there has consequently been a wave of upgrading of the law across the globe and meeting the new challenges. “There have been many studies showing that porn addiction can lead to sexual violence against women. In the largest interests of the public, the government might have undertaken this step. Net neutrality laws have been adopted. But there is no such thing as absolute neutrality and absolute non-interference. Reasonable restrictions can be placed if the government has concerns”, said A Sirajudeen, senior advocate in the Supreme Court.[5]

Extent of Addiction

Till date Indian government has banned 800 porn sites but still the porn is available easily in many forms such as hard disk, floppy disk, CDs, etc., from the availability of still pictures and images, full motion video clips with sound and complete movie. There seems to be a new trend of ‘live sex’ where people perform on and according to the request of the subscribers to the service[6]. In a study, 832 adults from the community completed self-report online questionnaires. Results showed that 51 percent of women and 90 percent of men reported viewing pornography through the Internet. Analyses showed that time spent on viewing cyber pornography is associated with sexual dissatisfaction through addiction and sexual performance problems. These patterns of associations held for both men and women.[7]

Also Read  Cyber Pornography and Legal Legislation

Tracing History of Indian Law Governing Obscenity

Section 292 to 294  i.e., the law on obscenity traces its origin back to British law and foundation from the famous case of Regina v. Hicklin[8]. The case evolved the following test: “the obscenity which is in question is whether of such a nature that it will deprave or corrupt the minds of those who are easy to be influenced i.e., the adults as the publication will ultimately go in their hands”. Lord CJ Cockburn in Hicklin[9]case was of the opinion that the obscenity would influence the soft minds as they are open to such immoral influences and it would suggest to the minds of young of the sexual thoughts or thoughts of a most impure and lewd character. This view of Lord CJ Cockburn acted as a precedent for United States anti-obscenity legislation and Comstock Law 1873, which further broadened the 1865 Mail Act by imposing fine and imprisonment to any person mailing or receiving “obscene”, “lewd”, or “lascivious” publications.

The U.S. Supreme Court in Miller v. California[10] laid down basic test for obscenity known as ‘Miller Test’:

  1. Whether the ordinary prudent man find the work taken, if community standards are applied to be  appealing to the prurient interest;
  2. Whether the work manifests sexual conduct, in a offensive way as  defined by the law of the land;
  3. Whether the work holds literary, artistic, religious, political or scientific value or not.

In Indian context, the judges of the Supreme Court were of the opinion that the view of Lord CJ Cockburn cannot be ignored. The Ranjit Udeshi v. State of Maharashtra[11]acclaimed the modified version of the Hicklin test for obscenity in India. It held: “that the test of obscenity to adopt in India is that obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech and expression and obscenity in treating sexing a manner appealing to the carnal side of human nature or having that tendency. The obscene matter in a book must be considered by itself and separately to find out whether it is 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 book is likely to fall. In this connection, the interests of our contemporary society and particularly the influence of the book on it must not be overlooked”[12]. The word “obscene” was interpreted as which is “offensive to modesty or decency, lewd, filthy and repulsive”. The constitutionality of section 292, IPC, 1860 was upheld by holding the view that it constitutes a reasonable restriction on the right of freedom and expression under article 19(2) of the Indian Constitution in the interest of decency and morality. 

Obscenity is not defined under any statute which either penalizes, prohibits, publishing, importing, mailing, exporting and selling such obscene material or matter. The Court is duty bound to examine whether the alleged obscene content contains obscene passages which is likely to attract the audience and deprave and corrupt those minds that are open to such sort of influences. While doing so one must not overlook the influence of social morality of our ultra-modern society[13].

Section 292 deals with the selling of the obscene books, etc.; whosoever sells, distributes or publicly exhibits or in any manner circulates, or imports or exports any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object which is in his/ her possession. On the plain reading of this section, it shows that knowledge of obscenity is not essential for constituting offence here. It provides punishment on first conviction with imprisonment of either description for a term which may extend to two years and fine to two thousand rupees, and in the subsequent conviction with imprisonment which may extend to five years and also fine which may extend to five thousand rupees. Unwelcomed physical contact, demand or request for sexual favours, showing pornography or making sexually coloured remarks constitutes grounds for sexual harassment and one who practices it shall be facing imprisonment which may range to three years or fine or both in first three cases and in fourth case imprisonment which may extend to 1 year or with fine or with both[14]. When any man who sees or captures the image of a woman engaging in private act, within her private space shall be punishable with imprisonment of not less than 1 year which may extend to 3 years and with fine and on second conviction imprisonment not less than 3 years which may extend to 7 years and with fine[15]. In a case where the victim consents to the capturing of such acts but not to transmission or dissemination to the third person and if it gets disseminated it amounts to an offence under this provision and attracts liability.

 If any person with an intent to induce a girl, who is a minor, to move from any place or to do any act, of which he has knowledge that the minor girl will be forced to perform illicit intercoursewith another person shall be punishable with imprisonment which may extend to ten years and fine for procuring a minor girl[16]. And if imports any girl of 21 years of age from outside India or from Jammu and Kashmir for the same will be punishable with 10 years imprisonment and fine on such importation of  the girl[17].

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Recent Development in Indian Law

With the advent of technology, as the society grows, the sexual needs of persons also grow and people are more involved in such sort of things and the obscene material which were till now restricted to books, has now made it’s space in cyber world also. The increased rate of such crimes awakened the legislature to make laws for curbing cyber pornography. The Parliament came up with the amendment in the Information Technology Act, 2000 in the year 2008 by inserting many provisions to decode this grey law. 

The Information Technology Act lays down certain provisions for criminalizing acts of obscenity, sexually explicit acts and child pornography through electronic forms. Pornography is a prevalent crime in India which the Information Technology Act, 2000 seeks to abolish from the Indian society. Anyone who publishes, transmits or is likely to cause or publish any material in electronic form which is of obscene nature or appeals to the prurient interest have a tendency to deprave and corrupt persons. The audience who are intended to read, see, hear such content available in electronic form shall be punishable with imprisonment up to 3 years and fine up to 5 lakh rupees for first time offender or subsequent conviction with imprisonment which may extend up to 5 years and also with fine which may extend to 10 lakh rupees[18]. This section will apply only when the obscenity which is in electronic forms is able to corrupt the minds of intended audiences. This section attracts punishment for publishing or transmitting obscenity in electronic form and the burden to prove that content which is alleged obscene is not obscene fall on audiences. The above section covers websites, graphics files, SMS, MMS, digital photographs etc. Section 67 along with section 67A does not apply to any book, pamphlet, paper, writing, drawing, painting, representation or figure in electronic form which is used for religious purposes or is in the interest of science, literature, art or learning. The other punitive provision is that it provides punishment for publishing or transmitting sexually explicit act or conduct. First time offender will face punishment of 5 years and fine which may extend to 10 lakh rupees and on second conviction, 7 years and fine which may extend to 10 lakh rupees. The Act also criminalizes online child pornography in the following circumstances[19]:

  1. Publication or transmission of any material depicting children in explicit sexual act or conduct by using any computer resource and communication device.
  2. Where user uses computer or communication resource for seeking or collecting or creating digital images or texts or downloading or promoting etc. any material in any electronic form depicting children in an obscene or indecent or sexually explicit manner.
  3. Cultivating, enticing or inducing children to online relationships with one or more children for and on a sexually explicit act or in a manner that may offend a reasonable adult on the computer resource.
  4. Facilitating abusing children online.
  5. Recording in any electronic form owns abuse or that of others pertaining to sexually explicit activities with children.

The Bazee Case

In the  landmark case of Avnish Bajaj v. State[20] popularly known as “Bazee.com case”, an IIT Kharagpur student named Ravi Raj placed on bazee.com a list offering an obscene MMS video clip for sale for rupees 125 per video with the username Alice-elec. Luckily bazee.com have a filter for posting questionable content. Despite that the listing never took place with the description, “Item 2787748- DPS Girl having fun!!! Full video + Bazee points.” Listed on 27th November 2004 and was deactivated around 10 am on 29th November 2004. Then an event took place where The Crime Branch of Delhi Police took cognizance of the matter and registered an FIR. Chargesheet was filed against Ravi Raj, Avnish Bajaj and the owner of the website, Sharat Digumarti.

The petitioner contended three issues, namely:

  1. There was no intervention of the website as the transmission of the MMS clip was directly between the buyer and seller. The sellers after receiving confirmation from the buyer sent the clip to the buyer through an email attachment. They accepted that the website is responsible for the listing placed on the website only and does not becomes the subject matter of section 292/294 of Indian Penal Code, 1860 or section 67 of IT Act, 2000.
  2. The website removed the objectionable content the moment they received such information of obscene content be listed on their website.
  3. Section 67 of IT Act, 2000 plainly covers only the publication of obscene material and not the transmission of such material.

The State in reply to the above said contentions said:

  1. Section 292 Indian Penal Code, 1860 (IPC) includes not only obvious acts but also illegal omissions within sections 32, 35 AND 36, IPC.
  2. The failure to have the requisite filter in a system demand serious consequences and a website cannot escape from such legal consequences.
  3. The website did not do anything to stop the transaction of illegal content when the payment was made to the seller.

The Delhi High Court observed that a prima facie case was made out under section 292, IPC in regard to section 67 of IT Act, 2000 read with section 85 of IT Act, 2000 against the listing and the video clip. The appropriate filters which were requisite for detecting such pornographic content were not available which in a way imputed a risk on a website of having sufficient knowledge about such posting and listing of content. However, the SC, in 2012[21], overturned this previous judgment while holding that, vicarious liability cannot be extend  to Avnish Bajaj and hence he could not be held guilty under the IT Act.

Also Read  Maintenance for Wife and Children Section 125 of the Code of Criminal Procedure

In another case, students teased a fellow classmate for having pockmarked face. The agitated student created a website and used pictures of his fellow classmates and teachers in pornographic content. This case was registered under section 67 of IT Act, 2000 and Police picked the concerned student and kept him in a juvenile home.[22]

The Regulation[23] states that whenever information which is depicting children in explicit sexual acts is published or transmitted by the intermediary’s device by the third party without his consent or knowledge, the intermediary will not be liable for punishment. The Regulation states that the intermediary shall observe due diligence while discharging his duties. The intermediary shall publish the rules and regulations for access/usage of intermediary’s computer resource by any person.  Such rules and regulations must inform the users of computer resource not to host, display, upload, modify, publish, transmit, update or share any information that is excessively harmful, harassing, irreverent, pornographic, paedophilic, gambling or otherwise unlawful in any manner whatsoever; or harms the minor in any way.

Conclusion

Cyber pornography is neither morally nor legally considered to be right. The Indian society is based on moral, spiritual and ethical foundations. The sexual conducts which is performed within the ambit of privacy is readily available in the public domain which has violated the fundamentals of our society. Our society tries to protect the sexuality of a person. But the question as to what exactly this morality means and constitutes and who sets the principle to determine it, has been left unanswered. There is a very thin line of difference between ‘nude’ and ‘naked’. Nude as the poses engraved in the walls of temples were considered sacred and not vulgar, but being ‘naked’ means being forced to undress. The earlier society was way more liberal when it came to sexual education and wellbeing of a person in a society. But with time the society has become more rigid and stubborn in their approach. This could be due to lack of knowledge, lack of intimacy, increasing crime rate, huge gender gaps, liquor addiction and generation gap, etc. Cyber pornography has proven to be a menace to across the world.  It triggers the thoughts of sexual nature in unhealthy manner in young generation. This could be easily curbed by providing appropriate sexual education to young minds. Pornographic content tend to influence the minds of young generation in a manner which is unhealthy and not desirable by society as whole. Under various legislation certain provisions has been provided to protect the children, women from the impact of pornography and immoral content. The Indian Government by the year 2018 has banned 800 porn sites. Provisions laid down in legislation relating to cyber porn are punitive in nature.  People aren’t at liberty to learn and explore sexuality and due to lack of knowledge and access to information from appropriate sources, they fall prey to information from immoral and illegal sources.

The authors suggest the following:

  1. Legislature needs to form a separate statute for the prohibition of pornography. 
  2. Organizing sex education conferences and seminars at school, workspace and other forums.
  3. Sex education should be made part of higher education syllabus.

[1] Abbas vs Union of India AIR 1971 SC 481.

[2] Rachel Chitra, Govt plays Net nanny, bans 800 porn sites, Times of India, December 27, 2018.

[3] This term is coined by WILLIAM Gibson in his science classic- ‘Neuromancer’. The concept was later clarified in the landmark judgement ACLU v. Reno, 929 F. Supp.831

[4] Hereinafter, referred to as ‘cyberporn’.

[5] supra note at 2.

[6] Australia is facing this problem. Such shows remains lega;l because there seems to be loophole in censorship laws. Live video ‘streaming’ of sexual act over the net to several users- is not mentioned in law regulating cyberporn.

[7] Blais-Lecours, Vaillancourt-Morel MP, Sabourin S, Godbout N,  Cyberpornography: Time Use, Perceived Addiction, Sexual Functioning, and Sexual Satisfaction, Cyberpsychology, Behavior, and Social Networking (November 19, 2019), https://www.ncbi.nlm.nih.gov/pubmed/27831753.

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

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

[10] Miller v. California 413 US 15 (973)

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

[12] Vakul Sharma, Information Technology law and practice 190, (3rd ed., universal law publishing co., 2012).

[13]  Chandrakant Kalyandas Kakodkar v. State of Maharashtra, AIR 1970 SC 1390

[14] Section 354A, Indian Penal Code, 1860

[15] Section 354C, Indian Penal Code, 1860

[16] Section 366A, Indian Penal Code, 1860

[17] Section 366B,Indian Penal Code, 1860

[18]The Information Technology Act, 2000, Section 67.

[19] The Information Technology Act, 2000, Sec 67B.

[20] Avnish Bajaj v. State (2005) 3 CompLJ 364 Del.

[21] Criminal Appeal No. 1222 of 2016

[22] Air Force Bal Bharti School, Delhi case (2001)

[23] Information Technology (Intermediary Guidelines) Rules 2011