Cyber Pornography: Position in India
From Advocatespedia, The Law Encyclopedia
There is no exact definition of pornography or obscenity. Pornography may be defined as to publish, create, display, distribute, import pornography or obscene materials.
As the era is changing, technologies are becoming advance and along with the technologies crime is also becoming advance. In this internet era, internet is boon as well as bane for some people. Every coin have two faces and we have to accept both advantages and disadvantages of any technology. As the advancement in technology is touching clouds the creation of crime is walking side by side. Cyber pornography is legalized in some and banned in many countries. In India, under Information Technology Act 2000, neither this act is prohibited nor legalized pornography. Previously, it was considered as an act but now such act is considered to be commodity of the biggest money making industries which has women as their main subject matter. According to statistics, there are more than 4.2 million pornographic websites. Around 72 million visit porn sites annually and $3, 075, 64 are spent on pornography every second. There are number of formats of cyber pornography available on the Internet. In the form of Image files, Video files, texts, erotic stories & audio formats.1 When it comes to India, accessibility of internet has made it much easier.
Representation of a sexual nature have existed since prehistoric times, as seen in the venus figurines and rock art. A large number of artifacts had been discovered from ancient Mesopotamia depicting explicit heterosexual sex. They’re literally carved in stone in the form of erotic motifs on the lower walls of the 13th Century Sun Temple at Konark in the east Indian state of Orissa. Nudity is prominent in the paintings and sculptures of heavenly maidens at Maharashtra’s Buddhist rock-cut monastic caves, Ajanta (2nd Century BCE) and Ellora (5th to 10th Centuries). India's most graphic example of erotic temple art However, the best-preserved and most graphic example of erotic temple art can be found in the small town of Khajuraho in the central Indian state of Madhya Pradesh. Its elegantly carved Hindu temples were declared a Unesco World Heritage site in 1986. Built by the Chandela dynasty between 950 and 1050, only 22 of the 85 original temples remain.2 Starting around 1987 was the boom in BBSs. This was not an internet connection but a direct dialup between the customer and BBS site. Rusty and Eddies was one of the first. Connection was via a terminal program that allowed file downloads. Stolen software and images rich in skin tones were popular. Another precursor was USENET which travelled over the uucp protocol. The original uucp connections were within ATT and started in 1976, expanded outside the company in 1979, and were commercialized in 1987. Also happening on 1987 was the establishment of the alt.* hierarchy, and the among those groups were alt.binaries.pictures. Usenet messages were strictly ascii, and to meet the message size constraints images were broken into multiple messages. Users had to edit the pieces together and then run them through a decoding program to produce an image file.
INDIAN LAWS ON PORNOGRAPHY
Under Section 67 of the Information Technology Act, 2000 makes the following acts punishable with imprisonment upto 3 years and fine upto 5 lakhs:
1. Publication- which would include uploading on a website, whats app group or any other digital portal where third parties can have access to such content.
2. Transmission- this includes sending obscene photos or images to any person via email, messaging, whats app or any other form of digital media.
3. Causing to be published or transmitted- this is a very wide terminology which would end up making the intermediary portal liable, using which the offender has published or transmitted such obscene content. The Intermediary Guidelines under the Information Technology Act put an onus on the Intermediary/Service Provider to exercise due diligence to ensure their portal is not being misused. Section 67A of the Information Technology Act makes publication, transmission and causing to be transmitted and published in electronic form any material containing sexually explicit act or conduct , punishable with imprisonment upto 5 years and fine upto 10 lakhs. Where the content contains children engaging with one another or with adults in sexually explicit acts. Browsing or downloading Child pornography online is also a punishable offence under the Information Technology Act. The creation of child pornography is also punishable under the Act. World over online child pornography is illegal. One of the biggest publicized catches of child pornography perpetrators was launched in May 2002 and called Operation Ore.
Butler v. state of Michigan
352 U.S. 380 (1957)
In this case, the Court rejected the principle that adult material must be restricted because it might harm minors. Striking down a Michigan statute outlawing printed material that contained obscene language "tending to the corruption of the morals of youth," Justice Felix Frankfurter noted that the sweep of the restriction was far too broad: "The State insists that, by thus quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare.” Justice Frankfurter held that the law violated the due process clause of the 14th Amendment because it "reduce the adult population of Michigan to reading only what is fit for children."This decision repudiated the earlier, longstanding test for obscenity. Based on British common law, the "Hicklin principle" declared obscene any material that tended to "deprave or corrupt those whose minds are open to such immoral influences, " including children.
Ginsberg v. state of N.Y.
390 U.S. 629 (1968)
Ginsberg established that a state can enact more stringent obscenity standards for the sale of sexually explicit material to children than to adults. The case concerned New York's "Smut Peddling Law," which criminalized the sale to children under 17 of material deemed by the state to be "harmful to minors." Sam Ginsberg, the owner of a luncheonette in Long Island, N.Y., had been convicted under the law for selling two "girlie" magazines to a 16-year-old boy. Ginsberg challenged the law on the grounds that it created a more restrictive standard for children than for adults, thus violating minors' First Amendment right to read. The Court upheld the statute. They found that although the magazines would not be considered obscene for adults, it was permissible for New York to prohibit their sale to minors.3
In a very recent case, a 21 year old Engineering student was arrested for sending obscene pictures by whatsapp to a woman. In the infamous Bazee.com case, the CEO Avinash Bajaj was arrested for an advertisement by a user to sell the DPS sex scandal video. The video was not uploaded on the portal, despite that Avinash was arrested under Section 67 of the Information Technology Act.4 It was subsequent to this case that the Intermediary guidelines were passed in 2011 whereby an Intermediary’s liability would be absolved if they exercised due diligence to ensure obscene content is not displayed on their portal. Lt. Col. Jagmohon Balbir Singh was arrested by cyber cell of crime branch police on the charge of uploading sexually explicit images and clips of children on child pornography websites. He was charged under section 67B (punishment for publishing or transmitting of material depicting children in sexually explicit act, etc. In electronic form) of Information Technology Act. It was German police who was first spotted the activity from Mumbai on a server located in the US. They sent a report to the Interpol, which in turn forwarded to the CBI Delhi, and subsequently to the Mumbai Crime Branch and the cyber cell tracked the server activity to the internet protocol(IP) addressof Lt. Col Singh.