Child Pornography In Digital Age And The Law In India – Analysis

Children being weak, gentle and meek should be protected from the world of criminals, shady people, and negative people and so on. They being the most voiceless and defenceless group, require special attention for protection of their human rights. It is indeed the duty of the society at large, including the legal and judicial authorities, to protect those who are helpless to protect themselves, and this is especially true for children. But, at times, these vulnerable kids fall prey to the predators of child abuse, child trafficking, child pornography, begging etc. They find themselves entangled in the world of disgrace, inhumanity and disrespectfulness from which they hardly escape or look for a shine of hope. With the introduction of the modern information technology they get entrapped into new modes of crime especially child abuse, child labour and child pornography. The present paper will critically discuss the problem of child pornography in the digital world and the international and national measures to curb this problem.

1. Introduction

Children in the contemporary era are exposed to the most high tech globalized world which influences them and take those children to the new heights of intellect, modernity and maturity. Their mental as well as their social development starts to form from a very young age. They are exposed to every kind of good and bad  through social media, television, radio, etc. The present information technology resources contain extremely worthy and knowledgeable material, but at the same time it also contains very dangerous and contiguous material.

Since a child has a feeble and vulnerable mind, sometimes it is difficult for the child to restrain from the negativities of the modern information technology and social media. They easily get attracted to the bliss of knowing things from an early age, to be social with different people and making friends. They get acquainted with a lot of people whom they don’t know or barely know. They enter into the adult chat rooms and because of the growing age they enjoy the ecstasy of chatting with an adult or virtually connecting with them. They hardly know the person on the other side of the chat room.

Many times, children these days are befriended with people who are very shady or who seek the social media and internet to pursue their own ulterior motives. There are drug rackets, prostitution rackets, porn sites, hackers etc. on the internet. Often the young kids come into contact with particularly criminal minded people who with their cheesy talks lures such kids to act as per their whims and fancies. The world of internet and social media appeals the child a lot and because of his/her young mind he/she does not give a second thought on the dark side of that world.

Sometimes they are lured or sometimes because of a certain weak point they are blackmailed or many times their loneliness, working schedule of parents, neglect by parents and an unruly exposure to the internet makes such children easily accessible to the perpetrators of child abuse, child trafficking, child pornography and other kinds of crime against children.

There are various forms of child abuse among which child pornography is directly related to the contemporary digital age. Child pornography is material “that visually depicts sexual conduct below a specified age”. It is not only paedophiles who indulge in such heinous and abhorrent nature of crimes. The porn industry has become very lucrative these days. It runs across the globe in a highly organized manner. It is a multimillion dollar industry and young kids become the most unfortunate victims of this dark world.

There are videos uploaded on the internet which depict young girls in school uniform performing sexual acts or there are online games or video games where there are levels in which young kids are abused. Sometimes an enraged or spurned boyfriend or girlfriend immediately turns to the internet and social media to take revenge from the counterpart. At times, there are even advertisements for safe sex or use of condoms which depict young girls and boys.
Peer pressure is also a cause of child pornography. Young children and their friends involve in sextexting which means the practice of sending and receiving sexual images on a mobile phone. They upload explicit and obscene photos, messages and videos in their peer group which is ultimately and easily accessible to the perpetrators of child pornography because of the cyberspace. Young kids also upload obscene pictures of their friends so as to bully them. As a result, the victims of such abuse sometimes commit suicide.

Children today know much more than their age. Be it the in metro cities or the rural area, they can access the internet and social media through their phones. They come in contact with people who seek young children so as to lure them to the porn and trafficking industry. Their young minds and developing hormones lead them to the high curiosity levels where sometimes they get trapped in the clutches of child traffickers, child pornographers, drug peddlers and other sorts of organized crimes.

2. Meaning And Definition Of Child Pornography

Child pornography is any kind of representation of sexually explicit or obscene images of a minor under 18 years old. The Oxford Dictionary defines Pornography as “printed or visual material containing explicit description or display of sexual organs or activity intended to stimulate sexual excitement”. Further, the Law Lexicon defines Pornography as “material that depicts erotic behaviour and is intended to cause sexual excitement.”

As per the Article 9 of the Cyber Crime Convention, 2001, child pornography includes: “pornographic material that visually depicts: a minor engaged in sexually explicit conduct and a person appearing to be a minor engaged in sexually explicit conduct.” Article 9 of the Convention also provides for the punishment for child pornography. It runs as under:

“whoever commits intentionally and without right the following conduct producing child pornography for the purpose of its distribution through a computer system; offering or making available child pornography through a computer system; Distributing or transmitting child pornography through computer system; producing child pornography through a computer system; possessing child pornography in a computer system or on a computer data storage medium.”

3. Child Pornography And International Law

Internationally, child abuse and exploitation is a grave problem and probably one of the most heinous types of child sexual abuse. It may involve something less than a rape. Like exposing him/ her to pornography, voyeurism and exhibitionism. Through the medium of the internet it is very easy to transfer the pictures or videos globally. Most children involved in child pornography have not been abducted or physically forced. Sometimes the children know the pornographers, and their actions are coerced through grooming and other pressures.

The viewers of child pornography on the Internet are innumerable and belong to all kinds of background. There can be constant victimization through child pornography which means that the victimization never ends. The images placed on the internet can never be fully erased or recovered. They continue to be passed from person to person indefinitely. Many users of child pornography amass large collections.

The complaints lodged in child pornography cases are rather very few because of the people’s unease and unawareness about this medium and the lack of evidence which can be gathered by them. Obscenity impairs the moral and ethical development of the young. Parents are deprived of the right to bring up their children in an untainted, unpolluted, healthy and morally upright environment. Child pornography objectifies and degrades children. Producers of child pornography and obscenity try to avoid prosecution by distributing their material across national borders.

In almost all the countries there are provisions regarding obscenity and pornography. There are international conventions on the protection of children from various crimes and for providing them basic amenities of life. The United Nations Convention on the Rights of the Child, 1989 is the first internationally legally binding document concerning child rights. It includes protection of children from sexual exploitation. Article 34 of the Convention provides:
States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

(a) The inducement or coercion of a child to engage in any unlawful sexual activity;
(b) The exploitative use of children in prostitution or other unlawful sexual practices;
(c) The exploitative use of children in pornographic performances and materials.

Also important is Article 39, which requires States to provide recovery and reintegration in an environment that fosters the health, self-respect and dignity of child victims of sexual exploitation. On May 25, 2000, the General Assembly of the United Nations adopted the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography. This protocol has been in force since January 18, 2002.

The Optional Protocol criminalizes specific acts relating to the sale of children, child prostitution and child pornography, including attempt and complicity. It lays down minimum standards for protecting child victims in criminal justice processes and recognizes the right of victims to seek compensation. It encourages strengthening of international cooperation and assistance and the adoption of extra-territorial legislation, but it does not provide for exemption from the dual criminality principle.

There are concerns that the Optional Protocol does not protect children from victimization in criminal processes once they have been recognized as having had their rights violated. Because the Optional Protocol applies to specific forms of sexual exploitation, it is important to bear in mind that Article 34 of the CRC gives children the right to protection from all forms of sexual exploitation and abuse and that all exploited children have these rights recognized by the CRC. This includes the right to recovery and reintegration in the light of Article 39.
Article 2 of the Optional Protocol defines child pornography as “any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes.” Article 3 of the Optional Protocol requires States Parties to criminalize “producing, distributing, disseminating, importing, exporting, offering, selling or possessing for the above purposes child pornography as defined in Article 2.” Pornography can, among other forms, be represented in live performances, photographs, motion pictures, video recordings and the recording or broadcasting of digital images.

The Committee is particularly concerned about the widespread distribution and accessibility of child pornography through the Internet. It has strongly and consistently recommended that States Parties and the international community should urgently tackle the issue. Specific recommendations have been made regarding adoption of legislation on the obligations of Internet service providers in relation to child pornography. Interpreted strictly, Article 3(1) (c) of the Optional Protocol obliges States Parties to punish the possession of child pornography only when this possession is “for the above purposes” – producing, distributing, disseminating, importing, exporting, offering or selling. The Committee on the Rights of the Child has nevertheless encouraged countries to prohibit simple possession.

The United Nations Commission on Human Rights Programme of Action for the Prevention of the Sale of Children, Child Prostitution and Child Pornography reinforces the United Nations Convention on the Rights of the Child and international efforts to punish those who exploit children for pornographic purposes.

4. India’s Legislature And Judicial Measonrs On Information Technology And Child Pornography

New communication systems and digital technology have made dramatic changes in the way we live and the means to transact our daily business. Businessmen are increasingly using computers to create, transmit and store information in electronic form instead of traditional paper documents. Electronic commerce eliminates need for paper based transactions.

At present many legal provisions assume the existence of paper based records and documents which should bear signatures. The Law of Evidence is traditionally based upon paper-based records and oral testimony. Hence, to facilitate e-commerce, the need for legal changes has become an urgent necessity.

The Government of India realized the need for introducing a new law and for making suitable amendments to the existing laws to facilitate e-commerce and give legal recognition to electronic records and digital signatures. Cyber laws are contained in the Information Technology Act, 2000. This Act aims to provide the legal infrastructure for e-commerce in India and would have a major impact for e-businesses and the new economy in India. The Information Technology Act, 2000 also aims to provide the legal framework under which legal sanctity is accorded to all electronic records and other activities carried out by electronic means.

The Act states that unless otherwise agreed, an acceptance of contract may be expressed by electronic means of communication and the same shall have legal validity and enforceability.

The Information Technology Bill, 2008 has been passed both the houses of Parliament in December, 2008 and was signed by the President of India on February 5, 2009 and became the Amendment Act. The Amendment Act aims to make revolutionary changes in the existing Indian cyber law framework, including incorporation of Electronic Signature i.e. enable authentication of electronic records by any electronic signature technique. There are insertions of new express provisions to bring more cyber offences within the purview of the Information Technology Act, 2000. There are various provisions in the new amendment relating to data protection and privacy as well a provision to curb terrorism using the electronic and digital medium. The Amendment incorporated Sections 67 A to 67 C to the parent Act. The sections are regarding publishing or transmitting material in electronic form containing sexually explicit act, Child pornography and obligation of intermediary to preserve and retain such information as may be specified by central government.

i. Amendment in Section 67: Section 67 of the old Act is amended to increase the term of imprisonment for publishing or transmitting obscene material in electronic form to three years from five years and increase the fine thereof from Indian Rupees 100,000 to 500,000. A host of new sections have been inserted as Sections 67 A to 67C. While Sections 67 A and B insert penal provisions in respect of offenses of publishing or transmitting of material containing sexually explicit act and child pornography in electronic form, Section 67C deals with the obligation of an intermediary to preserve and retain such information as may be specified for such duration and in such manner and format as the central government may prescribe.

Section 67A adds an offence of publishing material containing sexually explicit conduct punishable with imprisonment for a term that may extend to 5 years with fine up to ten lakhs. This provision was essential to curb MMS attacks and video voyeurism.

Child Pornography has been exclusively dealt with under Section 67B of the Information Technology Act, 2008. Depicting children engaged in sexually explicit act, creating text or digital images or advertising or promoting such material depicting children in obscene or indecent manner etc. or facilitating abusing children online or inducing children to online relationship with one or more children etc. come under this Section. ‘Children’ means persons who have not completed 18 years of age, for the purpose of this Section. Punishment for the first conviction is imprisonment for a maximum of five years and fine of ten lakh rupees and in the event of subsequent conviction with Imprisonment of seven years and fine of ten lakh rupees.

Bonafide heritage material being printed or distributed for the purpose of education or literature etc. are specifically excluded from the coverage of this Section, to ensure that printing and distribution of ancient epics or heritage material or pure academic books on education and medicine are not unduly affected. But screening video graphs and photographs of illegal activities through Internet all come under this category, making pornographic video or MMS clippings or distributing such clippings through mobile or other forms of communication through the Internet fall under this category.

Section 67C fixes the responsibility to intermediaries that they shall preserve and retain such information as may be specified for such duration and in such manner as the Central Government may prescribe. Non-compliance is an offence with imprisonment up to three years or fine.

The Indian Penal Code, 1860 Section 293 also specifies, in clear terms, the law against Sale etc. of obscene objects to minors. As per the IPC, whosoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years any such obscene object, as is referred to in IPC Section 292, or offers of attempts so to do, shall be punished with imprisonment for a term which may extend to three years, and which 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 seven years, and also with fine which may extend to five thousand rupees. It also states that it is a cognizable offence and the Magistrate is empowered to try any such case. For the purposes of sub-section (2), Section 292 IPC, 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 of its items, is, if taken as a whole, 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 with imprisonment, for the first instance, 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.

The Bombay High Court Committee on Protecting Children from Online Pornography, suggested following recommendations in their Report on Protecting Children from Online Pornography:

• Blocking of sites;
• Preventing minors from accessing unsuitable material from Cyber Cafes;
• Preventing the publication or propagation of pornography from Cyber Cafes.

The Protection of Child from Sexual Abuses Act, 2012 also provides for punishment regarding child pornography. Chapter 3 of the Act is titled Using Child for Pornographic Purposes and Punishment in which Section 13 to 15 provides for punishment for using a child for pornographic purposes and punishment for storage of pornographic material involving a child.

In Court on its own motion v. State of Punjab, it was held, “We would like to mention that recently, the Parliament has enacted the ‘Protection of Children from Sexual Offences Act, 2012’. This is an Act to protect children from offences of sexual assault, sexual harassment and pornography. It becomes necessary to have effective implementation of this enactment as well. Under the Act, the National Commission and State Commissions have been made the designated authorities to monitor the implementation. Rules, 2012 have also been framed under this Act and Rule-6 prescribes for such monitoring with specific functions assigned to National Commission and State Commissions. Needless to mention, National Commission as well as State Commissions shall start discharging their functions under this Act in a meaningful manner.”

In Avinash Bajaj v. State (N.C.T. of Delhi) “the law in our country is not adequate to meet the challenge of regulating the use of the internet to prevent dissemination of pornographic material. It may be useful to look at the legislative response in other common law jurisdictions. In the United States, there have been three legislations that have dealt with censorship of pornographic material on the internet: the Communications Decency Act (CDA), which was enacted as a part of the Telecommunications Act of 1996, the Child Online Protection Act 1998 (COPA) and the Children Internet Protection Act 2003 (CIPA). The CDA sought to prohibit the use of an interactive computer service to send or display in any manner to those under the age of 18, any communication that depicts or displays sexual or excretory activities in a manner that is patently offensive.

In the United Kingdom, the Obscene Publications Act, 1959 was amended by the Criminal Justice and Public Order Act of 1994 (CJPOA) to deal with the specific problem of internet pornography by extending the Act to cover the transmission of electronically stored data. It makes service providers liable for material placed on the internet by a third party thus requiring them to monitor material for obscene matter. Further the Protection of Children Act, 1978 was amended by CJPOA, 1994 to include photographs in electronic data format. India may want to develop a different legislative model to regulate the use of the internet with a view to prohibiting its use for disseminating child pornographic materials. Nevertheless, the task deserves the utmost priority.”

In Kamlesh Vaswani v. Union of India, it was held that the websites showing child pornography, especially of children between 14 to 18 years should be strictly banned. The court stressed upon the seriousness, importance and urgency of the matter and directed that, all parties by the said order must take positive steps to try and contain the menace of child pornography. Further directions issued to the Secretary, DoT to file personal affidavit within one week on issue as to whether DoT or any other department of Government of India is competent to issue direction to call off sites showing pornography.

5. Conclusion

In the end, therefore, it can be said that the menace of child pornography must be stopped so as to protect the young kids from entering and being trapped into the world of voyeurism, trafficking, prostitution, in short, the filthy and dirty world.

There must be a check on their activities by the parents while using net. They must also be made aware of the pros and cons of the high tech modern world and social media. Lastly, I would like to conclude with the suggestions recently made by the Hon’ble Court in a decided matter:

1. Parents and family members should interact with children regularly creating awareness about safety and abuses including sexual abuses being inflicted on them and how to avoid and to raise alarm in case of any attempt to abuse.
2. The parents should interact regularly with the children so that if any abuse is made which can be found out even if the child does not voluntarily report.
3. School authorities should create awareness about the child abuses. If any behavioural change in the student is noted the same should be brought to the notice of the parents and enquire the child in a conducive atmosphere to find out any abuse has been inflicted.
4. Media should also play active role in educating and sensitising the society about child abuses and sex offences by giving required publicity about the existing laws against sexual offences especially child sexual offences.
5. People should be educated to note the behavioural changes of the children and find out the reasons for abuses to save the child from trauma which may be prolonged.
6. The investigating agencies should coordinate with NGOs, who are working for the welfare of children and prevention of child abuse by foreign nationals.
7. There should be efforts by all to revive the disintegrated joint family system for more benefits including safety of children.
8. Children should be taught to be careful with the strangers.

About the authors:
* Prof Nuzhat Parveen Khan, Professor, Faculty of Law, Jamia Millia Islamia, New Delhi and Nida Zainab Naqvi, Research Scholar, Faculty of Law, Jamia Millia Islamia, New Delhi