AN ASSIGNMENT ON

CHILD PORNOGRAPHY IN DIGITAL AGE & LAWS IN INDIA

SUBMITTED BY
SRIJAN SINHA

CLASS - B.COM.LL.B (HONS) 10TH SEMESTER,

FACULTY OF LAW,

Dr. SHAKUNTALA MISRA NATIONAL REHABILITATION

UNIVERSITY, LUCKNOW

UNDER THE GUIDANCE OF

Dr. VIJETA DUA TANDON

(ASSISTANT PROFESSOR)

FACULTY OF LAW

(Dr. SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY, LUCKNOW)

 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
sex texting 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.1

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.

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

1
Available at https://www.eurasiareview.com/03052017-child-pornography-in-digital-age-and-the-law-in-
india-analysis/ last visited 03\04\2019
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.”

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.

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.