Yamya Pandey, Associate Editor, Lex Auxilium.Com
Kavya H., Associate Editor, Lex Auxilium.Com
Deyashini Mondal, Research Associate, Lex Auxilium.Com
One of the most alarming social evil prevailing in the society is child pornography. It has created a havoc in society as it possesses a great threat to morality and the future of children. The concerns regarding child sexual abuse and exploitation have been prevailing in the society in the past also. However, due to various factors, the gravity and impact of the offense of child pornography is increasing at an alarming rate.
The situation was never under control but in the times of this pandemic the condition has worsen. According to various media sources, about 95% increase was shown in the search for Child Pornography and child abusive contents that to just after two days when the nationwide lockdown was imposed. The right to live a dignified life has been enshrined in the Constitution of India and is equally applicable to children also. It is the duty of the State to protect the rights of children against exploitationand take strict possible measure to safeguard their dignity.
THE EXISTING LAWS
Child pornography is illegal and no country in the world has accepted such an offensive act to be legal. In this regard, the International conference on combating child pornography on the internet was held in Vienna in 1999. The optional protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, and The Council of Europe Convention on the protection of Children against sexual exploitation and sexual abuse also protects the rights of children against child pornography.
In India, Sections 292, 293 of the Indian Penal Code of 1860, and Section 67 (B) of the Information Technology Act of 2000 prohibits child pornography. The Protection of Children against Sexual Offences Act of 2012 also prohibits child pornography.
Section 292 of the Indian Penal Code prohibits the sale of obscene books and Section 293 punishes the sale of obscene objects to young persons below the age of 20 years.
In the case of New York v. Ferber, the Respondent was a store owner who sold material showing children under the age of 16 engaged in sexual activities. To which the court held that the prohibition on the sale and distribution of child pornography is constitutional even if the material is not obscene. Distribution of these materials is intrinsically related to child abuse. Advertising and selling these types of materials provide an economic motive to engage in illegal activity. The value of showing children engaged in sex is de minimis.
Further, Section 67 B of the Information Technology, 2000 prescribes punishment for publishing or transmitting of material depicting children in sexually explicit act in any electronic form. Imprisonment which may extend to five years and a fine of rupees ten lakhs in the first conviction and imprisonment which may extend to a term of seven years along with a fine up to rupees ten lakhs on second conviction is prescribed by the Act.
It is pertinent to note that both the legislations, that is, the Indian Penal Code of 1860 and the Information technology Act of 2000 have failed to define child pornography. However, this legal lacuna was occupied by the POCSO Act of 2012, wherein through Amendment of Section 2, under Section 2(a) child pornography has been defined. Under the Act, child pornography refers to “any visual depiction of sexually explicit conduct involving a child which includes a photograph, video, digital or computer-generated image distinguishable from an actual child, and image, created, adapter, or modified, but appear to depict a child”. Punishments for using children for pornographic purposes, storing child pornographic materialsetc. are also punishable under the Act.
However, even after enacting these legislations and imposing punishments, child pornography is still increasing and poses a great threat to the society. Recent data by the India Child Protection Fund reveals that there is a hike of 95 percent child pornographic content in March 2020.The statistics of highest number of reported cases was received from Maharashtra, where around 144 FIR’s were lodged during the time of the lockdown. The United Nations, the Europol, the ECPAT have also reported an increase in pornographic content. This has ironically posed the question of the relevancy of the existing legislation which strives to end child pornography.
IMPACT OF TECHNOLOGY
The concerns regarding sexual abuse of children and exploitation are a not newly evolved concept. In the early period, children were exploited through the production of abusive literature and drawings. Later with the development of photographic devices such as cameras, children were made susceptible to the exploitation. Child pornography has become more alarming after the development of information technology as pornographic images of children are being produced, collected, and even traded.
Everything has its pros and cons, so is the case with technology. The only shoulder for us to support at this difficult time of Covid-19 was the availability of internet. Some developed new hobbies through it, some just found this a medium to say connected with their loved ones but some tried to use this for quenching their unacceptable thirst. With the growing facets of technology, the much ignored issue of child pornography has crossed boundaries and is a serious issue not only nationally but at the international level as well. This kind of sensitive content is facilitated anonymously and privately among the users. The internet also allows users to store the child pornographic images and videos too. Moreover, a lot of images have been generated through morphing.
Through various sources such as websites, chat rooms, from peer to peer, e-groups, etc., the pornographic contents are being generated, produced, distributed, and downloaded. More than one million pornographic images of children are being generated through the World Wide Web. However, through fake identities and profiles of these perpetrators, it has also become difficult to trace the real identities of these offenders. Moreover, the exact statistics of the offenses and pornographic contents are still unreported. The result of these exploitations is nonetheless the children who mentally, physically, and socially suffer to a great extent. The main problem behind the increasing number of these exploitations is because there is no existing system for controlling and facilitating the activities on the internet. A recent data reported by the National Center for Missing and Exploited Children along with the National Crime Records Bureau reveals that in a short span of five months, more than twenty-five thousand cases on child pornography have been reported.
In the case of Kamlesh Vaswani v. Union Of India And Others, a writ petition was filed before the SC under Article 32 of the Constitution of India in public interest challenging Sections 66, 67, 69, 71, 72, 75, 79, 80 and 85 of the Information Technology Act 2000 (hereinafter referred to as the Act) as unconstitutional, as they are inefficient in tackling the rampant availability of pornographic material in India. The petitioner submitted that the porn industry has become a big profit-making machine. Advertisements of pornographic websites are often displayed without the permission of viewers. More importantly, the term ‘pornography’ has not been defined in any Statute. This leads to non-recognition of problems such as child pornography, virtual pornography, poser pornography, as well as crimes against women/girls/children that are mostly fuelled by pornography. The petitioner further submits that the respondents are to ensure the protection of all women/ children, and the prosecution/punishment of all offenders. Further, the petitioner suggested that in metropolitan cities (such as Delhi, Mumbai, Kolkata and Chennai), investigating officers should immediately inspect cyber cafes to determine whether porn videos are being made available. If yes, they should immediately be seized.
The vast arena of information technology has grown rapidly in the 21st century. Even though the benefits and merits of this era of information technology have been widely cherished, it equally poses a great threat to children in the form of child pornography and as a result, there is a need to protect the rights of the children. There is a high need to protect the rights of the children as the act of child pornography is detrimental to public morality and decency. The State has an effective role to play by enacting adequate laws for controlling the activities on the internet. As we are in the age of information technology, technology itself can be used to regulate the illegal act of child pornography through artificial intelligence. The pornographic contents need to be removed and browsers need to be filtered. Establishment of complaint sites and verifying the user’s real identity with the help of artificial intelligence proves to be effective. Through this method, the real perpetrators of the offense can be identified. Education also plays a crucial role and both parents and children must be given adequate information regarding these issues and the activities of the children has to be monitored. The offenders also illegally make transactions through the internet and these transactions need to be instantly blocked. Through these methods, the social evil of child pornography can be curbed and the rights of the children can be protected.
Maneka Gandhi v. Union of India, 1978 AIR 597 (India).
INDIA CONST. art. 23
Steven J. Grocki, Child pornography, The United States Department Of Justice(Jul. 28, 2020, 10:30 AM), https://www.justice.gov/criminal-ceos/child-pornography.
458 US 747 (1982)
Section 67B(e), The Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India).
Section 14, The Protection of Children from Sexual Offences Act, 2012, No. 32, Acts of Parliament, 2012 (India).
Section 15, The Protection of Children from Sexual Offences Act, 2012, No. 32, Acts of Parliament, 2012 (India).
Nishtha Gupta, Pornography gets a pandemic boost, India reports 95 per cent rise in viewing, India Today, (Jul. 28, 2020, 12:10 PM), indiatoday.in/news-analysis/story/pornography-gets-a-pandemic-boost-india-reports-95-per-cent-rise-in-viewing-1665940-2020-04-11.
Steven Malbyet. al., Study on The Effects Of New Information Technologies On The Abuse And Exploitation Of Children 26 (2015).
 Mohamed Thaver, US alert for India, Indian Express (Jul. 26, 2020, 10:40 AM), https://indianexpress.com/article/india/child-pornography-india-ncmec-us-report-6238603/.
2014 6 SCC 705
Richard Wortley& Stephen Smallbone, Child Pornography on the Internet, Arizona State University (Jul. 28, 2020, 09:50 AM), https://popcenter.asu.edu/content/child-pornography-internet-page-3.