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Pornography As Cyber Crime

Cyber crime is a very wide term which involves offences related to computers or the computer networks for the purpose of communication and to transfer the information to another person in a very short span of time.

The use of internet and computers are getting people more closure in the modern society for business and e-commerce purposes, hence we understand that there are much advantages for the use of computers and internet and our society cannot even function properly without them.

Cyber crime is defined as a crime in which a computer is the object of the crime (hacking, phishing, spamming) or is used as a tool to commit an offense (child pornography, hate crimes).

Cyber criminals may use computer technology to access personal information, business trade secrets or use the internet for exploitative or malicious purposes. Criminals can also use computers for communication and document or data storage. Criminals who perform these illegal activities are often referred to as hackers. Cyber crime may also be referred to as computer crime.

Internet gives the facility to the people to connect world wide i.e to communicate with any person irrespective of any place, time. the internet and the computers does not bound any person with the territorial limits and gives the access to any person in any of the jurisdiction. It enables the people to come up and share their new ideas, views and take knowledge about anything they wish to know.

The way in which people share their ideas, communicate, do online transactions is one of the big reason that internet will continue to contour the world.

These kind of freedom also enables the computer experts to indulge into other unlawful cyber criminal activities such as hacking, bugging, cheating, fraud, etc. With the regular use of internet in mold of websites and blogging, people engage themselves in chatting on the internet without knowing the other person.

There are many elements that have given birth to the sources concerning about the society where the Pornography has been the major issue in the society.

Porn today is more freely and widely available on Internet than ever before. Younger generation is therefore able to access it very easily and quickly than ever. This leads to the mentality of unemotional sex.

And all this is because we have grown up in a culture where parents feel embarrassed, they are not comfortable to have a healthy conversation about sex with their children. Well then it’s time to open up and come out of our comfort zone to talk about the most hush-hush topic i.e. Pornography.

According to City of Youngstown v. DeLoreto (USA , 1969) Pornography is the portrayal of erotic behavior designed to cause sexual excitement. It is words, acts, or representations that are calculated to stimulate sex feelings independent of the presence of another loved and chosen human being. It is divorced from reality in its sole purpose to stimulate erotic response.

It is preoccupied with and concentrates on sex organs for the purpose of sexual stimulation. It emphasizes them and focuses on them in varying ways calculated to incite sexual desire. The term Pornography refers to any work or art or form dealing with sex or sexual themes. It involves images , videos of both man and woman involved in sexual activities and is accessible on internet world wide.

Pornography has been defined as the sexual explicit depiction of persons, in words or images, created with the primary, proximate aim and reasonable hope, of eliciting significant sexual arousal on the part of the consumer of such material.

There has not been only a single definition of the law of the word pornography applied all over the world. The pornography or the pornographic material varies according to the vision and understanding of the people of different culture across the world and it has been a difficult task to define the material/content to be a pornographic content/material.

Basically pornography is nothing but marketing of man or woman sex, shown as object for those who get involved into sexual acts. Pornographers use the internet to sell their material to sex addicts and to the interested parties. Watching and keeping of these kind of materials is illegal in India. Nowadays pornography has become a kind of a business to the society as people indulge themselves to gain the economical benefits from them.

They even put the hidden cameras and violates the privacy of the society ex: hotels , paying guest , hostels , changing rooms in shopping complex etc. It has been a market for near about $1 trillion. Pornography has been in existence since the pre-historic time as it was seen in the painting or rock arts.

Therefore, with emerging of time, there was invention of photography which gave rise to pornography. The world's first law criminalizing pornography was the English Obscene Publications Act 1857.

The Act, applied to the United Kingdom and Ireland, and it made the sale of obscene material a statutory offence, giving the courts power to seize and destroy offending material. Pornographic film production commenced after the invention of the motion picture in 1895. Sexually explicit films opened producers and distributors to prosecution.

Pornography is the literature of an art which have the portrait of sexuality emphasizing upon emotions and feelings.

Pornography is of 2 types:

Soft core and Hardcore, where the pornography work is referred as the hardcore content and the soft core pornography consists of nudity or partial nudity in sexual situations. Perhaps, both the kinds of pornography involve nudity.

Child Pornography In India

Child pornography is an illegal act in India. Information Technology Act, 2000 & Indian Penal Code, 1860 gives protection against the child pornography. Child refers to the person who is below the age of 18 years. The Internet is being highly used by its abusers to reach and abuse children sexually, globally. The internet is becoming a household commodity in India. It’s explosion has made the children a viable victim to the cyber crime.

As more homes have access to internet, more children would be using the internet and more are the chances of falling victim to the aggression of pedophiles. The easy access to the pornographic contents readily and freely available over the internet lowers the inhibitions of the children.

Pedophiles lure the children by distributing pornographic material, then they try to meet them for sex or to take their nude photographs including their engagement in sexual positions. Sometimes Pedophiles contact children in the chat rooms posing as teenagers or a child of similar age, then they start becoming friendlier with them and win their confidence.

Then slowly pedophiles start sexual chat to help children shed their inhibitions about sex and then call them out for personal interaction. The Information Technology Act is set of rules to make it illegal to not only transmit or create child pornography in electronic form, but even to surf it The above section covers websites, graphics files, SMS, MMS, digital photographs etc..

The punishment for a first offence of publishing, creating, exchanging, downloading or browsing any electronic depiction of children in obscene or indecent or sexually explicit manner is imprisonment for 5years and a fine of Rs 10 lakh. Section 67 of the Information and technology Act deals with publishing obscene information in electronic form.

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. It is a generally that it does not specifically define pornography or make it an offence, and does not mention child pornography. Section 67B lays down the punishment for involving in sexual explicates electronic or online contents that depicts children’s. it is also illegal to induce children’s in sexual acts or into online relationships.

The Act also criminalizes online child pornography in the following circumstances:
a) Publication or transmission of any material depicting children in explicit sexual act or conduct by using any computer resource and communication device.
b) 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.
c) 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.
d) Facilitating abusing children online.
e) Recording in any electronic form owns abuse or that of others pertaining to sexually explicit activities with children.

Obscenity

has not been defined under any law/statute which penalizes, prohibits, publishing, importing, mailing, exporting and selling such obscene material or matter. The Court has the duty to examine whether the alleged obscene content contains obscene matter which is likely to attract the people and corrupt those minds who are open to such influences.

Section 292 deals with the selling of the obscene books, magazines etc. Whosoever sells, distributes or publicly exhibits or in any manner circulates, or imports or exports any obscene book, pamphlet, paper, drawing, art, painting, representation or figure or any other obscene object which is in his/ her possession.

This section, tells that the knowledge of obscenity is not essential for constitution of an offence. It provides punishment on first conviction with imprisonment of either description for a term which may extend to 2years and fine of 2,000 rupees, and in the subsequent conviction with imprisonment which may extend to 5 years and also fine which may extend to 5,000 rupees. Except the physical contact, demanding or requesting for sexual favors, showing pornography or making sexually colored remarks shall constitute grounds for sexual harassment and he/she shall be punish with imprisonment which may range from to 3years 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.

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.

If any person with intent to induces a girl, who is a minor (below 18 years of age), to move from any place or force her to do any act, of which he has knowledge that the minor girl will be forced to perform illicit intercourse with another person, shall be punishable with imprisonment which may extend to ten years and fine for procuring a minor girl. And if imports any girl of 21 years of age from outside the territory of India (now including Jammu & Kashmir) for the same will be punishable with 10years imprisonment and fine on such importation of girl.

In the landmark case of Avnish Bajaj v. State popularly known as Bazee.com case, an IIT Kharagpur student named Ravi Raj placed on bazee.com a listing 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 a.m on 29 th November 2004. Then an event took place where The Crime Branch of Delhi Police took cognizance of the matter and registered an FIR. Charge sheet was filed against Ravi Raj, Avnish Bajaj and the owner of the website, Sharat Digumarti.

The petitioner contended three issues, namely:
i. 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.

ii. The website removed the objectionable content the moment they received such information of obscene content be listed on their website.

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

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

Legality:
Coming to the legality prospectus of Pornography, our law does not stop us from watching pornography privately. All that the law prohibits its production , distribution , transmission, publication.

1. Section 67 of IT Act 2000

· Punishment for publishing or transmitting obscene material in electronic form
· Imprisonment for 3years or fine of 5,00,000.
· For subsequent conviction imprisonment for 5years and with 10,00,000 rupees fine

2. Section 293 of Indian Penal Code (IPC) 1860

· Sale, etc., of obscene objects to young person
· Imprisonment for 3years or Fine of 2,000 rupees
· For subsequent conviction imprisonment for 7years and also with 5,000.

Suggestions:
· Sex education should be made part of higher education syllabus.
· Organizing sex education conferences and seminars at school, work pace and other forums for awareness.
· Legislature needs to form a separate law/statute for the prohibition of pornography.


Conclusion
There are places were pornography is liberally permissible while in other countries there are restrictions, prohibitions on such acts. There are countries where the prostitution is legal but is also a source for earning foreign money by attracting tourists and thus it is promoted as a business in an industry. Whereas, in India, where prostitution is prohibited and is illegal under the eyes of the law. 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 trigger 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.

We in India follow the principle of dualism, which is to continue for cyber pornography. Rather due to the three-click access to cyber pornography from anywhere and its invisibility, the legislatures/lawmakers and the law enforcement agencies have no choice but to continue the existing dualism and contradiction for cyber pornography.

The problem around the globe is how to restrict the children’s from the cyber pornography and at the same time uphold the rights of adults to reach to such material. It is submitted that since the lawmakers struck down as unconstitutional, Governments all over the world can do very little to resolve. 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. In the present circumstances, the best solution to this problem is education and the role of parents who must assume responsibility of acting as teachers, friends and policeman to minor and adolescents as in many of the cases victims themselves do not have the knowledge of the ground they have been trapped into illegal acts.

Statute:
· Information Technology Act, 2000.
· The Indian Constitution.
· Indian Penal Code, 1860.

Regulation:
· Information Technology (Intermediary Guidelines) Rules 2011

Books Referred:
· Vakul Sharma Information Technology law and practice.
· Nandan Kamath, Law relating to computers Internet and E- commerce (2017).  

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