An in-depth study on Cyber Pornography

Submitted in partial fulfillment of the course curriculum of Information Technology Law

Submitted to:
Mr. Amit Kashyap
Faculty of Law, GNLU
Submitted by:
Reg. Nos 10A014, 10A061, 10A076, 10B091,10B131 AND 10B133.

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TABLE OF CONTENTS
1. Cyber Pornography...Pg.3
2. Definition of pornography....Pg.5
3. Historical and Religious context of pornographyPg.7
4. New Technology Pornography..Pg.8
5. Child pornography..Pg.10
6. Cyber porn at Workplace....Pg.26
7. Global attempts...Pg. 28
8. Indian ScenarioPg.33
9. International instancesPg.44
10. Conclusion..Pg.47

CYBER CRIMES: THE BULGING DIMENSIONS

CYBER PORNOGRAPHY: INTRODUCTION
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The Internet was new and relatively unexplored territory until a few years ago. At first, it was
used primarily as an educational tool. The electronic revolution has made pornography more
accessible, bringing decadent and hard-to-get images into the house. The expansion of computer
databases on the Internet has provided the greatest access till date to sexually explicit images
accessed by both adults and children. Research has established that online pornography plays an
accessory role in negative social issues such as child abuse, violence against women, rape,
inequality, relationship and family breakdown, youth crime, promiscuity and sexually
transmitted diseases. Parents today have a legitimate concern about what their children will be
exposed to and the damage online pornography can do. Pornography on the internet is available
in different formats. These range from pictures and short animated movies, to sound files and
stories. Most of this kind of pornographic content is available through World Wide Web pages,
but sometimes they are also distributed through an older communication process, Usenet
newsgroups. The Internet also makes it possible to discuss sex, see live sex acts, and arrange
sexual activities1 from computer screens. There are also sex related discussions on the Internet
Relay Chat Channels where users in small groups or in private channels exchange messages and
files. But as with the Web and the Usenet, only a small fraction of the IRC channels are dedicated
to sex.
Society has consistently attempted to impose upon itself, moral standards that spell out the limits
within which the freedom of speech and expression could legitimately be exercised. Stepping
over that line constitutes stepping into the area of obscenity, which, in various legal systems, has
been clearly identified as being an exception to the exercise of the freedom of speech and
expression. It is the determination of where exactly this line should be drawn, that has vexed
courts and legislators alike for centuries. This has resulted in the evolution of a variety of tests, to
determine whether an artistic or literary work, is indeed obscene. However, while obscenity has
its many detractors who pose arguments on moral and societal grounds, the proponents of the
case against pornography base their stand on the harm caused by the creation and dissemination
1 Section 2 of the Sexual Offences (Conspiracy and Incitement) Act, 1996, which makes it an offence to
incite another person to commit certain sexual acts against children abroad. The scope of incitement for
the purpose of Section 2 extends to the use of Internet and any incitement will be deemed to take place in
the UK if the message is received in the UK.

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of pornographic material. In essence, there are three types of harm that could be directly
attributed to pornography. In the first place, there is the direct harm caused to the participants in
pornographic films and photographs, a fair proportion of who are coerced into the performance
of the act. There is also the harm that is caused by sex crimes that may not have been committed
but for the existence of pornographic materials. Finally, there is harm to the society, a harm that
is a lot less easily identifiable, as compared with the other two, but which nevertheless exists.
Cyber pornography is a difficult problem especially due to the difference in the acceptable limits
of morality in different countries. Some of the implications of cyber pornography on the Internet
are distinct from other cyber crimes as hacking, cyber frauds, implanting viruses and theft of
IPRs. Unlike the latter cybercrimes, which threaten the very credibility of the Internet, cyber
pornography promotes the use of the Internet. The reasons why cyber pornography has become
so big are:

The easy, free, efficient, convenient and anonymous accessibility to pornographic

material through Internet.

The anonymity of the cyber pornography industry, global accessibility, problems of
jurisdiction, different laws and standards of morality in different countries, which have
made a mockery of the laws and their enforcement.

The aforesaid reasons have led to the attractive profitability of the cyber porn industry and thus
its growth. The powers of the Internet and the pornography industry have fuelled each other.
Pornographic material in the pre-Internet area was not so freely and easily available. In a country
like India, porn material which earlier used to be hidden in the nook and corners of shady book
stalls on road side pavements, bus stands and railway stations, is now not more than three clicks
away from any place which has an Internet connection. The wide access of pornography to all,
including our children, coupled with the heights of depravity and the widespread involvement of
children in the sexual performance, have led to the heat and controversy over cyber pornography.

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PORNOGRAPHY DEFINITION AS PER CASE LAWS

I shall not today attempt further to define the kinds of material I understand to be embraced
within that shorthand description (obscenity), and perhaps I would never succeed in intelligibly
doing so. But I know it when I see it, and the motion picture involved in this case is not that was
the famous statement penned down by Justice Stewart Porter on his judgment delivered in the
case of Jacobellis v. Ohio2 expressing his difficulty in defining the term obscenity. The case
dealt with the question of whether the film exhibited and possessed by the manager of a motion
picture theatre would come within the purview of the term obscene or not.
The word pornography is not an easy word to define considering that different people might have
different interpretations of the same. When it comes to judging content, ones definition of
whats unacceptable, pornographic or even damaging might well be different from someone
elses. However, there do exist certain universally accepted definitions of this word. The Oxford
English Dictionary defines pornography as printed or visual material containing the explicit
description or display of sexual organs or activity, intended to stimulate sexual excitement. 3 The
Webster Dictionary defines pornography as the depiction of erotic behaviour (as in pictures or
writing) intended to cause sexual excitement and the production of such writing and pictures.4
In India, pornography is generally seen as an aggravated form of obscenity. 5 Obscenity has been
made punishable under IPC as well as IT Act, 2000. Obscene under the IT Act is defined as
follows any material in the electronic form, which is lascivious or appeals to the prurient
interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having
2 378 U.S. 184 (1964)

3 www.oxforddictionaries.com/definition/english/pornography

4 www.merriam-webster.com/dictionary/pornography

5 R.D Udeshi v. State of Maharashtra, AIR 1965 SCC 881

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regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.
The test of obscenity has been given in Sec. 292(1) of IPC which is based on an 1868 English
decision in the Hicklin Case6 where the test for obscenity was laid down by Cockburn, C.J. as
follows:
.the test of obscenity is this, whether the tendency of the matter charged as obscenity is to
deprave and corrupt those whose minds are open to such immoral influences, and into whose
hands a publication of this sort may fall. ... it is quite certain that it would suggest to the minds
of the young of either sex, or even to persons of more advanced years, thoughts of a most impure
and libidinous character.
An important case in the Indian context that defines obscenity would be R.D Udeshi v. State of
Maharashtra7, wherein obscenity was defined as things that deprave or corrupt those whose
minds are open to such immoral influences. It also stated that intention was not needed.
Obscenity as a legal term has been defined by the U.S Supreme Court in the case of Milller v.
California8. The Court in this case ruled that question before the court was whether the sale and
distribution of obscene material was protected under the First Amendment's guarantee
of Freedom of Speech. The Court further laid down the test for determination of obscene
material and set down three criteria 1. whether the average person would find that the work, taken as a whole, appeals to a lewd
curiosity
2. whether the work depicts or describes, in an offensive way, sexual conduct or excretory
functions, as specifically defined by applicable state law (the syllabus of the case
mentions only sexual conduct, but excretory functions are explicitly mentioned on page
25 of the majority opinion); and
6 R. V. Hicklin, (1868) LR 3 QB 360

7 AIR 1965 SCC 881

8 413 U.S. 15 (1973)

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3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific
value.
Hence, the material has to fulfil all three tests before it can be found obscene.

HISTORICAL AND RELIGIOUS CONTEXT

As far as history goes, pornography has been there in one form or the other since time
immemorial. Kamasutra was the first manual on love written somewhere in 300 A.D. and
contained explicit description of lovemaking and related subject. So if we go by definition, this
can be called as a pornographic work but till date this book is considered to be an authority on
the subject with numerous translations in various languages and by no stretch of imagination can
anyone call this as obscene or vulgar rather it is called a masterpiece on this sensitive subject. In
religious context also, the escapades of Lord Krishna with Gopis in Raaslila are revered in
Hindu mythology. In Hindi literature these escapades have been the subject matter of a number
of books and such literature is on course books as well. The statues in famous temples of
Khujraho depict the lovemaking scenes in explicit details and are places of not only art and
culture but of worship also. These are few examples, which go on to prove that love in its pure
form has not been a taboo in India. The paintings on the walls by the tribal societies hardly show
the tittilation caused by nudity, for nudity was natural to them. The statues of the Yakshi in
National Museum , the carved copulatory postures on the walls of Temples, presently preserved
in Konark of Orissa and Khajuraho in Central India are celebration of creation, or so the
intelligentsia seems to say. Though, the probability of them being temples accessible only to the
aristocracy for their titillation cannot be ruled out.
There is not much research material for middle age and does not come across articles in
newspapers, magazines and other publications about pornography of the middle ages onwards.
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One of the reasons for the paucity of research material is the need to maintain the mystique of
older generation being morally more upright, compared to the youth of that particular period and
successive generations. This also allows social scientists and commentators of contemporary of
socio-cultural scene to put on a holier than thou faade, helpful in keeping the younger
generation from going totally free, not to speak of raison-de-etre for the suppression of people in
general and through control of sex and sexuality in particular, in the name of morality.

NEW AGE TECHNOLOGY PORNOGRAPHY

Pornography has been something which has also evolved with the evolution of mankind and it
has never lagged behind, from the time of the cavemen to the new age where internet has helped
the phenomenon to grow.
Child pornography is a more serious concern because it shows children in various sexual
positions, activities that arouse sexual interest of the viewer, the children who are made to pose
are below the age of eighteen and they are forced into these rackets. According to reports, child
pornographic content has grown manifold times on the internet.
The advent stated in India from the mid eighties and nineties, earlier the pornographic material
available on net was limited, but first came the advent of the Cable Television connection which
converted every house into a movie hall. The serials were showcasing serials on a number of
issues and at the same time there was also content with semi- erotic content that was also making
it to the airwaves, this increased the demand for more explicit material and soon soft porn was
making its way into the holy precincts of a house. Around this time the computers started to be
used more rampantly, the computer with the help of internet was used to share jokes, articles and
drawing with jagged corners. Computers started being used share still images and soon jerky,
low quality video also started making their way to the world of exchange. Now the videos are
more lifelike, the pornographic content on the web is in different forms, ranging from animated
clips, video clips and stories. Usually this material is available on the web links but at times, it is
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available in other forms like older communication processes like, Usenet Newsgroups. The
computer also makes it possible to view live sex acts, have sex chats and arrange sexual
activities from computer screens. There are also Internet Relay Chat channels where people
discuss similar ideas and information.
There have been various ways in which such explicit material makes it way to the net. There was
a specific case of a Filipino who was operating from a Boracay resort in Kalibo, Aklan, he was
circulating such material online, when the authorities came to know that the material was being
transmitted from him, they rounded him up and took him into police custody but implicating in
such cases is very difficult because once something is online, it is very difficult to find out the
source. Thus due to lack of evidence that person had to let off.
Sometime back a Davie dentist was sentenced to a term of six years in prison because he was
trying to lure a minor into sexual interactions with him under the protection of the name
Rendezvous 777.
A person named John Messier, 28, in Miami, United States of America had a long, sexually
charged talk with an underage girl, but actually it was undercover US agent who was having
conversations with him, and he asked the person to meet him, and thus in that pretext he was
nabbed by the police.
There have been new ways in which the paedophiles have targeted their victims in this new age
of technology. Now-a-days such people take refuge of hidden identities on the internet, thus they
masquerade, there was a case where a Swiss couple who had been on the run because they had
been booked under a variety of such offences, were literally caught with their pants down in a
resort in Madh Island, Mumbai. The paedophiles target countries which are poor or where the
law and justice mechanism is laid back and thus they think they would not be nabbed. So a lot of
times it is seen that they target countries like India, nations in South Asia, etc. But that is not a
compulsory norm and such activities are carried in the developed world also.
Thus there are various ways in which pornography has manifested in the modern world,
especially in India. There was this specific case where a a school going, sixteen year old boy was
involved in making a site of pornographic content where he had purposely portrayed his
classmates in a bad light because of a past teasing incident. It is only when one of the parents of
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a girl who had been shown in a cheap light saw the material that was being circulated filed a
complaint, and then the boy was taken into police custody. The case talks about the new age
addiction of children to technology and how it can be harmful for them if their use is not
administered by an elder in the family.
There was another Indian case where a site had been operational since 1998, and the site had
such volatile content, the site looked like any normal porn site, but actually it was site through
which a variety of pornographic content of paedophile nature was not only being circulated but
also the site said it provided a variety of services like sex slave service in which the customer
could choose from between a black woman, a girl, a pregnant lady, etc. It was gross in nature and
the real sad part was that the site said if pornographic content was given to the site by a member,
then their membership fees could be waived off.
Thus, these have been some of the ways in which pornography has flourished in the modern
context.
CHILD PORNOGRAPHY
Another content-based criminal activity that has spread its tentacles in the Internet is the Child
pornography. There is lot of other activities based on obscene and sexual contents in the
Internet, these are not generally considered as criminal activities and are left to the discretion of
the Net user, though there are some jurisdictions in the world that make such activities also
criminal. For example, Section 67 of the Indian Information Technology Act, 2000, make
publishing and transmitting of any material which is lascivious or appears to the prurient interest
or tends to deprave and corrupt persons who are likely to see or hear the matter an offence
punishable under that Act. However, their impact is not considered threatening considering the
danger associated with child pornography. In fact, with the advent of the Internet the
paedophiles, who were functioning underground, have come out openly and spread their
activities through out the world. The implications of their activities and also the fact that they are
likely to entice the children frequenting Internet makes this type of crime more sinister.

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Paedophiles and child pornography is nothing unknown to the world. But the Internet has made it
easy for the paedophiles to organise and distribute the offensive materials throughout the world 9.
Also the easy access to unsuspecting children through Internet, to these lurking paedophiles,
makes them vulnerable of exploitation.

With more and more schools and homes being connected to the Internet the number of children
having access to the net is growing exponentially. One concern of course is that the Internet may
allow children unrestricted access to inappropriate materials. Such materials may contain
sexually explicit images or descriptions, advocate hate or bigotry, contain graphic violence, or
promote drug use or other illegal activities. Since it is easy to befriend a child in any chat room
over the net without disclosing the real identity and then to exploit him the Internet has become a
very dangerous place children. In the worst instances, children have become victims of physical
molestation and harassment by providing personal information about themselves over the
Internet and making contact with strangers. However, it is not advisable to keep them totally
away from the net because one of the greatest benefits of the Internet is the access it provides
children to things as educational materials, subject-matter experts, online friendships, and pen
pals. The only way out is proper parental supervision and effective prevention of the misuse of
Internet by paedophiles for their nefarious activities.
Many countries have attempted some level of legislative measures to combat this growing
menace. For example Section 67 of the Indian Information Technology Act provides that
Whoever publishes or transmits or causes to be published in the electronic form, any material
9Akdeniz, Yaman, Governance of Pornography and Child Pornography on the Global Internet: A Multi-Layered
Approach, in Law and the Internet: Regulating Cyberspace, edited by Lillian Edwards and Charlotte Wealde,
Oxford: Hart Publishing, 1997http://www.law.ed.ac.uk/internet.htm; Janet Stanley, Child abuse and the
Internet , http://www.aifs.org.au/nch/issues/ issues15.html; Joint Report by State of New Jersey Commission of
Investigation and Attorney General of New Jersey, Computer Crime :www.state.nj.us/sci; and Combating Internet
Crimes Against Children Recommendations of the online Child Exploitation and Victimization Focus Group, A
Report to the Office of Juvenile Justice and Delinquency Preven-tion Recommending a Five Year Plan of Priority
Actions for The Internet Crimes Against Children Task Force Program, Office of Juvenile Justice and Delinquency
Prevention, U.S. Department of Justice, The National Consortium for Justice Information and Statistics (January,
2001)

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which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave
and corrupt persons who are likely, having regard to all relevant circumstance, to read see or hear
the matter contained or embodied in it, shall be punished on first conviction with imprisonment
of either description for a term which may extend to five years and with fine which may extend
to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of
either description for a term which may extend to ten years and also with fine which may extend
to two lakh rupees.
However, this problem has now become a truly international one that cannot be combated by
isolated national efforts. Therefore, an effective and efficient international effort is necessary
towards rooting out this problem. Apart from the governmental level efforts there are also many
private

efforts

over

the

Internet

against

this

menace.

Activities

of

sites

like getnetwise.org, cyberangel.orgparenttech.org etc. are some of the examples of such efforts.
Also technological innovations such as blocking of the sites, filtering software, child
monitoring software for parents to monitor their children's activities over the net etc. can be
used.
CHILD PORNOGRAPHY: AN OVERVIEW
The Information Technology Act, 2000 has been amended by the Information Technology
Amendment Act, 2008 (Act 10 of 2009). Among the many amendments suggested, one is the
addition of section 67 B penalizing the publishing, transmitting, collecting, browsing,
advertising, etc of material containing sexually explicit content depicting children, causing
children to abuse children online, facilitating online abuse of children, as well as recording own
abuse or that of others upon children. Thus various sexual crimes against children over the
electronic media have been detailed, which shall be discussed within the scope of this article.
Generally, child pornography involves two types of children -real children and virtual children.
Real children would be children of flesh and blood, while virtual children are computer simulated images of children. Child pornography is of two types. One consists of pornographic
files containing images of abuse (both real and simulated) committed on children including
custom-made child pornographywhere sale is of images of child sexual abuse created in order for

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the child consumer. The second consists of real time transmission of images of children being
sexually abused through technologies like the webcam.
On the international front, in the war against child pornography, Article 34 of the United Nations
Convention on the Rights of the Child 1989 ("UNCRC") lays down that all signatories shall take
appropriate measures to prevent the exploitative use of children in pornographic performances
and materials. The subsequent Optional Protocol to the Convention on the Rights of the Child on
the Sale of Children, Child Prostitution and Child Pornography mandates international
obligations to pass specific laws against child pornography "punishable by appropriate penalties
that take into account their grave nature" as well as enables extradition, mutual assistance in
investigation, and seizure of property. The Optional Protocol further stated that member states of
the United Nations were "concerned about the growing availability of child pornography on the
Internet

and

other

evolving

technologies..."

This

Optional

Protocol

has

brought child pornography over the Internet, within the ambit of the UN Convention of Child
Rights. India is a signatory to this Optional Protocol.
DEFINING CHILD PORNOGRAPHY
To take a look into the definitions on child pornography that exist worldwide, Article 2 (c) of the
Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child
Prostitution and Child Pornography 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. Here both real and
virtual children are brought within the definition.
Article 9 (2) of the EU Convention on Cyber Crimes 2001 states that the term
child pornography shall include pornographic material that visually depicts:
(a) a minor engaged in sexually explicit conduct;
(b) a person appearing to be a minor engaged in sexually explicit conduct;
(c) realistic images representing a minor engaged in sexually explicit conduct.

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Here, however, a distinction between virtual and real children is not specifically brought about.
Article 20(2) of the Council of Europe Convention on the Protection of Children against Sexual
Exploitation and Abuse 2007(which has not yet entered into force) broadens the Cyber Crimes
Convention's definition of child pornography so as to include both real and simulated images of
sexually explicit conduct as well as depiction of a child's sexual organs for primarily sexual
purposes.
In the USA, the Child Pornography Prevention Act of 1996 defined child pornography as any
depictions, including any photograph, film, video, picture, or computer generated image or
picture, whether made or produced by electronic, mechanical, or other means, of sexually
explicit conduct, where:
(a) the production of such visual depiction involves the use of a minor engaging in sexually
explicit conduct
(b) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct
(c) such visual depiction has been created, adapted, or modified to appear that an identifiable
minor is engaging in sexually explicit conduct; or
(d) such visual depiction is advertised, promoted, presented, described, or distributed in such a
manner that conveys the impression that the material is or contains a visual depiction of a minor
engaging in sexually explicit conduct
However, such prohibitions on virtual child pornography were deemed to be unconstitutional on
the grounds that the restrictions on speech were not justified by a compelling government interest
(such as protecting real children).10
The Prosecutorial Remedies and Other Tools to end Exploitation of Children Today (PROTECT)
Act 2003 penalizes transport, producing, receiving, distributing of visual depictions of sexually
explicit conduct by minors. Section 2252A(a)(3)(B) prohibits offers to provide or requests to
obtain obscene material depicting actual or virtual children engaged in specified sexually explicit
10 Ashcroft v. Free Speech Coalition 535 U.S. 234 (2002)

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conduct, and any material depicting actual children engaged in sexually explicit conduct. From
this it can be seen that the PROTECT Act prohibits all kinds of obscene material depicting
virtual and real children, as well as all material depicting actual children engaged in sexually
explicit conduct. Thus while real children cannot be depicted in any kind of pornography, virtual
children can be depicted in indecent, but not obscene pornography. This is in accordance with the
judicial decisions evolved in the US whereby only hardcore sexually explicit material would
qualify as obscene material, which is prohibited, whereas all other kind of pornography would
only be indecent, and not obscene, and hence protected by the First Amendment's guarantee of
free speech.
This section of the PROTECT Act was struck down as being unconstitutional, overbroad and
vague, by the US Court of Appeals. On May 18th 2008, the U.S. Supreme Court upheld the
constitutionality of this Act.11The Court reasoned that this section only criminalizes offers to
provide, or requests to obtain, material that is illegal to possess, and such speech categorically
falls outside the First Amendment protection. The Court also found the statute not impermissibly
vague for Due Process purposes. The Court found that the statute adequately gives the public
notice of what is prohibited, namely pandering material that the speaker believes, or intends the
listener to believe, is child pornography. The Court said that what makes a statute impermissibly
vague is not the difficulty of proving a violation, but the indeterminacy of what is prohibited.
The Court said that while the defendant's state of mind may be a difficult factual question for the
government to prove, what is prohibited by the statute is not indeterminate. This is a welcome
turn in the attitude of the U.S. Supreme Court in regulating harmful content for children over the
net.
In the UK, Section 1 of the Protection of Children Act 1978 (as amended by the 1994 Act) makes
it an offence to take, make, permit to be taken; distribute or show; or possess with a view to their
being distributed or shown (by the defendant or others) any indecent photograph or indecent
pseudo-photograph of a child. According to the Criminal Justice and Immigration Act 2008, this

11 United States v. Williams (No. 06-694)

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prohibition will be extended to encompass "tracings" of photographs. In 2008, the government

announced further plans to criminalize all nonrealistic sexual images depicting under-18s.12
INTERNATIONAL INITIATIVES
In 2005 ECPAT (End Child Prostitution, Child Pornography and Trafficking of Children for
Sexual Purposes) produced as part of the UN Study on Violence Against Children a study titled
"Violence Against Children in Cyberspace". Here, the subject matter was children from Mexico,
Nepal, the Czech Republic, the Philippines, India and Moldova, all of whom had been implicated
in a range of sexually abusive activities which included the production of child pornography. It
was through this study that for the first time there was documented evidence that all children
were potentially vulnerable to harm through the new technologies and, not just those who had
access.13
In 2003 a global association of police enforcement agencies took shape in the form of the Virtual
Global Network (VGT). The aim of the VGT is to build an effective, international partnership of
law enforcement agencies that helps to protect children from online child abuse. The current
VGT members include (1)Australian Hi-Tech Crime Centre / Australian Federal Police (AFP)
(2)Royal Canadian Mounted Police (3)United Kingdom: Child Exploitation and Online
Protection Centre (CEOPC) (4)U.S. Immigration and Customs Enforcement (ICE)-an
investigative arm of the Department of Homeland security (5) The Italian Postal and
Communication Police Service (6)Interpol. The aim of the VGT is to combat child abuse by
raising awareness of the risks that children and young people face online and by providing tools
to help manage those risks. It also works with online providers to make it more difficult for child
sex abusers to misuse the Internet and by increasing the likelihood that those who go online to
commit child abuse will actually be caught. From 2006-2007 under the purview of the VGT,
Child Exploitation and Online Protection Centre (CEOPC) of UK led an international operation
into a UK-based paedophile ring in 2007, it smashed a global online child abuse network and
12 Graham J.Smith, Internet Law and Regulation 964-965 (London: Sweet and Maxwell, 2007)

13www.ecpat.net/EI/book.asp?id=42

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rescued 31 children from abuse or positions of harm. Two British nationals were convicted in
English courts for making, possessing and distributing indecent images and movies of children.14
Recently, in 2008, the European Commission pledged US$377,600 to create a pan-European
alert platform where people can report illegal material on websites. The alert platform will be set
up and run by Europol --the E.U. law enforcement agency and the Italian National Postal and
Communication Police. The European Financial Coalition (EFC) -led by Britain's Child
Exploitation and Online Protection Centre (CEOP) including Master Card, Microsoft, PayPal,
VISA Europe and the NGO Missing Children Europe -will work together in the fight against
child abuse images. The aim is for the platform to help investigators of online crime in E.U.
countries

share

information

about

all

cyber

crime,

especially

child

porn,

as child pornography accounts for over half of all offences committed online. In addition to
paying for the creation of the platform, the Commission will also make available funding for
those countries in the E.U. that will have to adapt their national reporting systems so that they
can inter-operate with the Europol platform, and for countries that don't have any such systems.
However, the drawback is that the alert platform would only be useful if authorities in the 27
member states use it.15

The International Centre for Missing and Exploited Children published a report in 2008 on
'Child Pornography: Model Legislation and Global Review'.7 This report analyses 187 Interpol
countries. The five criteria used in the test were:
Whether national legislation:
(1) exists with specific regard to child pornography;
(2) provides a definition of child pornography;
14 www.virtualglobaltaskforce.com

15 http://www.icmec.com/en_X1/English__5th_Edition_.pdf

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(3) criminalizes computer-facilitated offences;

(4) criminalizes possession of child pornography, regardless of the intent to distribute; and
(5) requires Internet Service Providers (ISPs) to report suspected child pornography to law
enforcement or to some other mandated agency.
It was found out through this study that only 29 countries of the 187 have legislation sufficient to
combat child pornography offences (5 Member Countries meet all of the criteria and 24 Member
Countries meet all but the last criteria, pertaining to ISP reporting); and 93 countries have no
legislation at all that specifically addresses child pornography.
The ICMEC study mandated that healthcare and social service professionals, teachers, law
enforcement officers, photo developers, IT professionals, ISPs, credit card companies, and banks
ought to report suspected child pornography to law enforcement or other agencies. This study
addressed the criminal liability of children involved in pornography. Criminal liability must
focus on the adult offender, who is responsible for the exploitation of the child, and on the crimes
he or she committed against that child. Penalties should be enhanced for repeat offenders,
organized crime participants, and other factors that may be considered upon sentencing-Sentencing provisions should also take into account aggravating factors and enhancements.
Assets must be forfeited, and convicted defendants should be subject to forfeiture provisions that
allow for the confiscation of property, proceeds, or assets that have resulted from child
pornographic activities. Confiscated funds could, in turn, be used to support programs for former
sexually exploited children, children at risk of being sexually exploited, and child victims who
are in need of special care.
The Rio de Janeiro Pact to Prevent and Stop Sexual Exploitation of Children and Adolescents
was formulated on November 25-28, 2008 at the World Congress III against the Sexual
Exploitation of Children and Adolescents at Brazil. With regard to child pornography/child abuse
images, the development of voluntary Codes of Conduct and other corporate social responsibility
mechanisms was stressed, as well as incentive provision to the private sector for research and
development of robust technologies. Countries are to commit to working more closely with
Interpol on a child abuse imagery database and establish a special children's desk for crimes
against children. A progress report on National Action Plans to the CRC is to go to the UN
18 | P a g e

General Assembly at next year's session. It has called for an abolition of double criminality
(where perpetrators cannot be tried unless there are relevant laws in both their home country and
the country where the crime was committed) in cases of sexual exploitation of children.16
CHILD PORNOGRAPHY REGULATION IN INDIA
Prior to the 2000 IT Act, came the first case of child pornography in India. The case involved a
person from Hyderabad who was working in an IT firm. The persons name was Arvind shyam
Jagadam, he was under the pretext of having a site which was supposed to have children cartoon
Characters of Pokemon was actually using the site to circulate things like videos of underage
girls and boys, mostly in the age bracket of 10-15, the site was so explicit that there were videos
like, Bitches on beach were uploaded under guise on this site.
Apart from that there was also the infamous Arjika case where the contents and video footage
was so explicit, three hours of sexual footage was released on the site whereby young, nubile,
under the age of eighteen children were shown in various sexual positions and apart from that
there was also filming of sexual orgy acts.
This was something that had been unheard of in Indian society earlier and thus the case was an
eye opener, the server from which the videos had been uploaded was Indian servers. All this had
been earlier swept under the carpet but now the threat of such content growing and
contaminating the cyber world was more than ever.
Lt Colonel, Jagmohan Balbir Singh was detained on May 6 from his South Mumbai house for
supposedly uploading explicit photographs and video clips of kids on the internet .The 42-yearold officer, who was in police custody till today, was granted bail by a local court on a personal
bond of Rs.Twenty-Five thousand, his lawyer Dilip Bagwe said. Meanwhile, Joint Police
Commissioner Himanshu Roy ruled out Singh's extradition to Germany."Police in Germany have
also registered a case against the accused for child pornography. They would close the case now
as Singh has been arrested here and he cannot be tried and punished twice for the same offence,"
16 The Rio de Janeiro Pact to Prevent and Stop Sexual Exploitation of Children and Adolescents, November 25-28,
2008 BY the World Congress III against the Sexual Exploitation of Children and Adolescents at Brazil

19 | P a g e

Roy said, adding "we will send them (German police) a detailed report related to the case."Last
year, German Police had come across obscene contents being uploaded on a child pornography
site from Mumbai and brought the issue before the Interpol, which alerted the CBI in Delhi in
March 2010.The CBI passed on the information to the Mumbai Police which nabbed the officer
and seized a computer and two hard disks from his house.
Singh, who is with the Army for 20 years, had "downloaded all child pornography material from
the internet. He himself was not involved in preparing them," Roy said. Earlier in the day, police
sought extension of Singh's custody in the court stating forensic report of the two hard disks
containing hundreds of obscene photographs and video clips seized from Singh's home were still
awaited. They said his credit card transaction and mobile phone billing details were also awaited
from the respective companies. However, the court granted him bail, saying the probe in the case
was over and asked Singh to present himself before the police every three days. Singh, who hails
from Punjab, was attached to the Army's supply and transport wing in Colaba, South Mumbai.
Lack of empirical data on child pornography is proving to be a hurdle to the allocation of
resources for training, law enforcement and understanding of how to conduct investigations into
such cases. The National Crime Records Bureau(NCRB) statistics do not provide any
information on child pornography cases. As a result, the gravity of this issue is not being
realised. As a result, the gravity of the issue is not being appreciated, According to Vidya Reddy
of Tulir- Centre for the Prevention and Healing of Child Sexual Abuse, a non-government
organisation, data collection should be done. A Study on Child Abuse(India) 2007, carried out
under the Ministry of Women and Child Development, also notes that there is a record of only
those crimes that can be registered under the IPC or other criminal acts. Corporal Punishment,
use of children for creation of pornography, exposure etc.are not reflected in NCRB data as they
are not offences under the IPC, said Ms. Reddy.
Asserting that there is a need for probe agencies to understand the changing profile of crime, Ms.
Reddy recounted several cases in which the investigating officers were not acquainted with the
use of technology and forensic investigation techniques. They avoided invoking provisions of
the Information Technology Act, she said, adding that the intersection of technology with sexual
violence has changed the very manner of sexual offences committed against children.

20 | P a g e

Police officers should be appropriately trained so that they are able to cope and handle the cases
of child abuse more accurately.
India is a signatory to several international instruments and declarations on the rights of children
to protection, security and dignity. The Indian Government had in 2005 also accepted two
Optional Protocols to the United Nations Convention on the Rights of the Child, addressing the
involvement of children in armed conflicts, sale of children, child pornography and prostitution.
However , we shall look into the detailed evolution of these regulations on account of such
incidents in India.
The ICMEC study report firstly questions whether India has a national legislation specific
to child pornography. The former position was that Section 292 of the IPC prohibited all material
that was deemed to be obscene. Under Section 292 (1), 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. Section 67B of the Information Technology
Amendment Act, 2008 (ITAA 2008) however, is a national legislation specific to electronic
transmission of material that can be deemed to be child pornography. It does not cover all kinds
of child pornography, but covers only electronic pornography. Under Section 292, possession of
pornography per se is an offence. Under Section 67B of the ITAA 2008, the word 'possession' is
not used per se. However, the word 'collecting' has been used, which implies possession.
Section 67B states as such 'Whoever,-(a) publishes or transmits or causes to be published or
transmitted material in any electronic form which depicts children engaged in sexually explicit
act or conduct; or (b) creates text or digital images, collects, seeks, browses, downloads,
advertises, promotes, exchanges or distributes material in any electronic form depicting children
in obscene or indecent or sexually explicit manner; or (c) cultivates, entices or induces children
to online relationship with one or more children for and on sexually explicit act or in a manner
that may offend a reasonable adult on the computer resource; or (d) facilitates abusing children
online; or (e) records in any electronic form own abuse or that of others pertaining to sexually
21 | P a g e

explicit act with children, shall be punished on first conviction with imprisonment of either
description for a term which may extend to five years and with fine which may extend to ten lakh
rupees and in the event of 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
ten lakh rupees: Provided that provisions of section 67, section 67A and this section do not
extend to any book, pamphlet, paper, writing, drawing, painting, representation or figure in
electronic form-(i) The publication of which is proved to be justified as being for the public good
on the ground that such book, pamphlet, paper writing drawing, painting, representation or figure
is in the interest of science, literature, art or learning or other objects of general concern; or (ii)
which is kept or used for bonafide heritage or religious purposes. Explanation-For the purposes
of this section children means a person who has not completed the age of 18 years.'
It can be seen that clauses (a) and (b) deal with child pornography by electronic means. Hence a
definition of child pornography in electronic form can be inferred from a clubbing of both
clauses to state.... "the publishing or transmitting or causing to be published or transmitted
material in any electronic form which depicts children engaged in sexually explicit act or
conduct; or creating text or digital images, collecting, seeking, browsing, downloading,
advertising, promoting, exchanging or distributing material in any electronic form depicting
children in obscene or indecent or sexually explicit manner........ shall be punished on first
conviction with imprisonment of either description for a term which may extend to five years
and with fine which may extend to ten lakh rupees and in the event of 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 ten lakh rupees:..........". However, what is meant by the
terms 'sexuallyexplicit', 'obscene' and 'indecent' has not been explained here. Given the fact that
there is no distinction between obscene and indecent material in India, it would have been better
to give a definition to the term 'sexually -explicit'. In the light of this, we could look into
2256 of the PROTECT Act 2003 of USA which defines the term 'sexuallyexplicit' as "actual or
simulated --1. sexual intercourse, which includes genital-genital, oral-genital, anal-genital or
oral-anal, whether between persons of the same or opposite sex; 2. bestiality 3. masturbation 4.
sadistic or masochistic abuse; or 5. lascivious exhibition of the genitals or pubic area of any
person".

22 | P a g e

Clauses (a) and (b) of Section 67B would refer to pornographic files containing images of abuse
committed on children. Custom-made child pornography where sale is of images of child sexual
abuse created to order for the child consumer would attract penalty under these clauses. The
other kind of child pornography involving real time transmission of images of children being
sexually abused through technologies like the webcam can come under the ambit of Section 67B.
There is no specific mention of real/virtual children in this section. Whether virtual children are
also included within this section will need to be clarified. Also, depictions involving a person
appearing to be a minor have not been criminalized. The explanation of the word 'children'
merely denotes a person under the age of eighteen years. Hence electronic child pornography of
people above 18 years of age who appear to be children need not come within the ambit of this
section. The ambiguity thus remains.
The term 'computer network' in the IT Act has been amended to include 'communication device',
which would mean 'cell phones, personal digital assistance or combination of both or any other
device used to communicate, send or transmit any text, video, audio or image'. 17So
communications over various types of information and communications technologies have been
included under the ambit of this section. In this connection, the action of the Sri Lankan
government in getting its agency, the National Child Protection Authority of Sri Lanka as well as
the mobile service provider --Dialog GSM to announce in October 2008 the signing of an MoU
to restrict access to websites which carry child sexual abuse content through mobile phones, is
highly commendable.18 With regard to the criminalization of computer-facilitated offences,
Sections 67, 67A and 67B of the ITAA 2008 criminalize the commission of computer -facilitated
offences regarding obscene, sexually -explicit material depicting children.
Whether

the

law

requires

Internet

Service

Providers

(ISPs)

to

report

suspected child pornography to law enforcement or to some other mandated agency is another
question. Under the IT Act 2000 there has been no kind of mechanism for filtering and reporting.
17 Sec. 2(ha) of the ITAA

18 http://www.dailymirror.lk/DM_BLOG/Sections/frmNewsDetailView.aspx?ARTID=28024

23 | P a g e

However, under a departmental notification, the Computer Emergency Response Team of India
(CERT-In) was constituted. The Department of Information Technology(DoT) vide this Gazette
Notification GSR 529 (E) dated 7 July 2003, said, "Websites promoting hate content, slander or
defamation of others, promoting gambling, promoting racism, violence and terrorism and other
such material, in addition to promoting pornography, including child pornography, and violent
sex can easily be blocked since all such websites may not claim constitutional right of free
speech. Blocking of such websites may be equated to balanced flow of information and not
censorship." However, this Gazette notification had no provision of informing the public, via
press releases or otherwise, as to which site is being blocked and why. Authorities like
intelligence agencies, the Home Secretary, Home Secretaries of the States had to first ask the
CERT-In to block a site. CERT-In would then forward 'genuine' requests to the DoT which would
further issue orders to ISPs. As per the Gazette notification, CERT-In will maintain utmost
secrecy about the matter.19 Many have argued that giving CERT-In this power through an
executive order violates constitutional jurisprudence holding that specific legislation must be
passed before the government can encroach on individual rights. The blocking mechanism
created under the Act provides for no review or appeal procedures, except in court, and is
permanent in nature. When CERT-In has issued orders to block specific websites, no
communication has been made to the public beforehand.20
However, under the ITAA 2008, as per Section 67C, an intermediary 21has to preserve and retain
information or else liability of up to three years imprisonment and fine shall accrue. Under
Section 70B (6), the CERT-In may call for information and give directions to any intermediaries
in order to carry out the functions relating to cyber security. Failure to comply with these

19 http://shivamvij.com/2006/10/06/the-discreet-charms-of-the-nanny-state/

20http://opennet.net/research/profiles/india

21Section 2(w), ITAA 2008.

24 | P a g e

directions shall incur imprisonment up to one year and fine up to one lakh rupees (Section
70B(7)).
This has a similarity to the British system, where the Internet Watch Foundation (IWF), a
national hotline, informs all British ISPs once undesirable content is located. The U.K. police
will be entitled to take action against any ISP, which does not remove the relevant content
requested by the IWF. However, in the USA, the Electronic Communication Transactional
Records Act. 1996 requires Internet providers to retain any record in their possession for 90 days
"upon the request of a governmental entity". Also, Internet providers are required to report
any child pornography sighting to the Cyber Tip Line at the National Centre for Missing and
Exploited Children, which in turn is charged with the duty of forwarding that report to the
appropriate police authority.
In India, there is a contractual undertaking by the ISP to take measures to prevent obscene
communications from being carried out in its network. As per the license agreement between the
DoT and the licensee for providing Internet services, the licensee undertakes to ensure that
objectionable, obscene, unauthorized or any other content, messages or communications
infringing copyright, intellectual property rights and international and domestic cyber laws, in
any form or inconsistent with the laws of India, are not carried in his network. The ISP agrees to
take all necessary measures to prevent it. The licensee is under an obligation to provide, without
delay, all the tracing facilities of the nuisance or malicious messages or communications
transported through his equipment and network, to authorised officers of Government of
India/State Government, when such information is required for investigations of crimes or in the
interest of national security. The provisions of the Information Technology (IT) Act 2000, as
modified from time to time, are to be complied with. Any damages arising out of default on the
part of licensee in this respect shall be sole responsibility of the licensee. 22 However, what
measures should be taken by the ISP is not specified in the contract.
Thus

in

India,

there

is

no

mandatory

requirement

that

the

ISP

report

any child pornography sighting to a governmental agency.As per section 77B, offences where
22 Schedule, Condition 3.6 "License Agreement for provision of Internet Services" at page 30
http://www.dot.gov.in/isp/internet-licence-dated 16-10-2007.pdf

25 | P a g e

imprisonment is above three years is cognizable and non-bailable. As Section 67B offences incur
imprisonment up to five years, it becomes cognizable and non-bailable. Also, as per section 77A,
the offence is non-compoundable, too. Section 66E of the ITAA criminalizes transmission of
images violating privacy of an individual. This can help protect transmission of images violating
the privacy of a child without its consent.
Awareness regarding filter technology and spy ware should be promoted by the government to
protect children from online sexual abuse. In this connection, incentives must be given to the
private sector for research and development of technologies suitable in the Indian context. A
comprehensive child safety policy in India regarding awareness programmes for schools, parents
and other caregivers should be formulated. Agreements restricting access to websites which carry
child sexual abuse content through mobile phones can also be entered into with Indian telecom
providers.
Jurisdictional problems, however, continue to deter law enforcement. Even within India,
considerable delay exists in getting sanction to investigate. In a 2007 case, intimation was given
to the Central Bureau of Investigation (CBI) regarding child pornography being uploaded in
India. It was traced to Bangalore. However, about three months were wasted in obtaining
permission from the Central Government to investigate the offence within the jurisdiction of the
State of Karnataka. Investigation is still going on with regard to this case. Procedures regarding
investigation and prosecution of cyber crimes should be made swift and transparent. The creation
of a National Cyber Police Force, which would have power to investigate cyber crimes all over
India, and coordinate with the state cyber police cells, as well as with international agencies like
the Virtual Global Network, could be one solution.
Nowadays, crimes that involve the use of mobile cameras to record abuse of minors are
increasing. The extension of the ambit of the Information Technology Act to include mobile
communications is a highly commendable move by the government. However, it is necessary
that the local police are aware of these provisions while registering such crimes. With regards to
this, there is a dire need to collect statistics data in India, which will provide information about
the risks that minors face online.

26 | P a g e

Mandatory reporting by social-service workers, healthcare practitioners, educators , law

enforcement officers, photo developers, IT professionals, ISPs, credit card companies and banks,
including intermediaries as defined by the ITAA, should be made a legal obligation

CYBER PORN AT WORKPLACE

The increasing awareness of the need for moral and ethical control over the use of the internet, to
access materials that are patently pornographic in nature, particularly where such access is
provided by corporate and other entities, is another issue that needs discussion. It is a matter of
growing concern among members of the corporate world, particularly those corporate entities
such as software companies that are actively connected to the internet for business purposes, to
ensure that employees do not utilize the facilities provided to them at their workplace to access
materials that in the opinion of the management constitute objectionable materials. Many
multinational corporations have strict ethical code. These ethical codes also, very often, form the
basis of termination of the employment of the employee. In essence any act of company that
restricts its employees from viewing a particular type of material would amount to censorship, a
curtailment of the freedom of speech and expression that if carried out by the State, through the
enactment of a legislation may only be for the specific purposes set out in Art19(2) of the
Constitution of India. Is it then permissible for corporate entities to curtail the access of its
employees to post or retrieve materials on the internet? Is it clear from a plain reading of the
constitution of India that the provision of Art 19(1)(a) states that the freedom of speech and
expression is available to all the citizens of India. Since the only restriction on the enjoyment of
that right can be made by the State through an appropriate legislation, the acts of State owned
corporations in restricting access to the internet without passing an appropriate law in that
regard, could be viewed as violating the fundamental rights of the individual citizens. Employees
of such corporate entities that have a predominantly government shareholding cannot be
prevented from exercising their freedom of speech and expression, without suitable legislation in
that regard.
A major New South Wales Government Agency recently investigated several employees for
allegedly using the internet to access pornographic material. These employees allegedly were
27 | P a g e

caught downloading and emailing pornography within the organization, some of it reportedly
depicting acts of bestiality.
This investigation has coincided with a project undertaken by New South Wales public sector to
develop a comprehensive set of guidelines to govern employees' access to the internet in all State
departments and agencies. The project has led to the development of a protocol for use of the
internet which attempts to prohibit "inappropriate" use of the internet, including accessing
pornography, while permitting limited personal use.
Many private sector employers, such as banks, have also put in place strict policies regulating
employee use of email for private purposes unrelated to their work. Email, like the telephone, has
become a common means of communication both between and within organisations. Like the
telephone, employees reasonably expect to be able to use their employers' communication
devices, on occasion, for personal purposes. But what purposes are lawful and legitimate when it
comes to new technology in the workplace like the internet?
Unfortunately, trying to find the answer to this question in the law is difficult. Our current laws
are intended for old technology, and tend to show their age when we attempt to apply them to
human activity in "cyberspace".
Whether or not a person has acted unlawfully in downloading or emailing explicit or "offensive"
material from the internet will depend on the application of a myriad of interlocking state and
federal censorship and criminal laws. Despite the uncertainties arising from outdated legislation,
it is important to appreciate the risk of infringing the law whenever the internet is used for
accessing pornography or offensive material. This risk increases when that material is
downloaded onto a particular computer or when it is "delivered" via email. Transforming cyberporn into a tangible "thing" and transmitting that material through cyberspace is conduct which is
more likely to fall within our current net of censorship and criminal offences.
The consequences for employees using the internet in this way in the workplace are potentially
serious. There are added considerations of sexual harassment and sexual discrimination in the
workplace. It is difficult to see why sexual harassment by e-mail would be treated by courts and
tribunals any differently to harassment by other means such as facsimile, telephone and sexually
explicit calendars or other publications.
28 | P a g e

In practice, the policies and guidelines set down in each individual workplace and which have
been agreed to by employers and employees will determine the extent of an employee's
contractual right to access the internet for personal purposes. That is why employers have rushed
to develop and implement guidelines for the use of email and the internet at work, breach of
which will, it is intended, justify some disciplinary action against offending employees, including
the ultimate sanction of dismissal.
This also highlights the importance of employees and their unions having a meaningful input into
the development of these guidelines. Employees and unions need to guard against draconian
guidelines that might, for example, seek to impose penalties for downloading unsolicited
material from the internet where an employee has no clue as to the content of that material23.
While sexually derogatory comments and acts directed towards women have repeatedly been
found to be a sufficient basis for a hostile work environment claim, 24 pornography depicting the
same degradation has been defended as protected expression. In Robinson v. Jacksonville
Shipyards, Inc.,25 the employer argued that the posting of demeaning and objectifying
photographs constituted protected "speech," and therefore prohibiting such material as a remedy
for a hostile work environment exceeded the court's authority.
GLOBAL ATTEMPTS AT REGULATING CYBER PORNOGRAPHY
The widespread availability of pornography on the internet in recent years has actually stirred up
a moral panic shared by the government, law enforcement bodies such as the police,
prosecutors and judges along with the media in general. There have been several attempts to
limit the amount of pornographic content on the internet by the governments and law
23
Cyber Porn in the Workplace, David Chin - Solicitor, Jones Staff & Co available at
http://workers.labor.net.au/10/d_review_legal.html

24
Hall v. Gus Constr. Co., 842 F.2d 1010
25
760 F.Supp. 1486 (1991)

29 | P a g e

enforcement agencies around the world. While the US government introduced the
Communications Decency Act 1996 (CDA), the UK police attempted to censor Usenet
discussion groups allegedly carrying child pornography in the summer of 1996. Both attempts
were criticized and the US Supreme Court struck down the CDA in June 1997.
There is no settled definition of pornography, either in any country, or in the multinational
environment of the internet, where cultural ,moral and legal variations all around the world make
it difficult to define pornographic content in a way acceptable to all. What is considered simply
sexually explicit but not obscene under the current UK legislation? There have been number of
attempts to regulate pornography on internet by various countries and this section will briefly
analyze the same.
USA
COMMUNICATIONS DECENCY ACT, 1996
America had passed the communications decency act (CDA),1996 (Title V of the
Telecommunication Act of 1996; 47 U.S.C S.223) was passed primarily to protect minors from
pornography. The CDA makes it a crime for anyone to knowingly transport obscene material for
sale or distribution either in foreign or interstate commerce or through the use of an interactive
computer service. The CDA has been the subject of criticism as being over burdensome and
overboard in its attempt at regulation. In particular, the CDA specified that it applied to material
available over an interactive computer service, which included the internet. However, in the US,
with its more liberal constitutional framework, speech, which is not obscene but merely indecent,
is protected by the first Amendment, which guarantees the Freedom of speech and expression.
The CDA provides for fines of up to five years for a first offence and up to ten years for each
subsequent offence. In ACLU v. Reno26, the Supreme Court declared parts of the CDA
unconstitutional, declaring the indecent materials directed at minors on the internet medium was
entitled to the same first amendment protection as afforded to other modes of communication.
The second of the two Federal Acts, the child online protection act of 1998 (COPA), was passed
as a substitute to the parts of the CDA that were declared unconstitutional.
26
929 F.Supp.831
30 | P a g e

US CHILD PORNOGRAPHY LAWS

There are primarily two child pornography statutes-The child pornography prevention act, 1996
and the Child online protection act, 1998. The former narrowly focused Act prohibits the use of
computer technology to knowingly produce child pornography, that is, depictions of sexually
explicit conduct involving or appearing to involve minors. The latter act is seen as an attempt by
the American legislature to offer material deemed to be harmful to minors to use bonafide
methods to establish the identity of visitors to their site.
CHILD PORNOGRAPHY PREVENTION ACT OF 1996 (CPPA), 18 USC. S 2256
For our purposes S 2256 is the most significant section of the child pornography act. It prohibits
and criminalizes the use of computer technology to knowingly produce child pornography that
contains both depictions of real children as well as virtual or fictitious children. Section 2256
degines child pornography as any depiction, including any photograph, film, video, picture or
computer or computer-generated images or picture, whether made or produced by electronic,
mechanical or other means, of sexually explicit conduct, where

The production of such visual depiction involves the use of a minor engaging in sexually

explicit conduct, whereSuch visual depiction is or appears to be, or a minor engaging in sexually explicit

conduct;
Such visual depiction has been created, adapted, or modified to appear that an identifiable

minor is engaging in sexually explicit conduct;

Such visual depiction is advertised, promoted, presented, described, or distributed in such
a manner that conveys the impression that the material is or contains a visual depiction of
a minor engaging in a sexually explicit conduct.

In US v. Hilton27, the court upheld the defendants conviction for possession of child
pornography, deciding child pornography was an unprotected category of expression
identified by its content and therefore, was allowed to be freely regulated. The decision did
not distinguish between images of real children and those that were ficticious or imaginery. A
27
167 f3d 61 (1st cir. 1999)
31 | P a g e

florida case, US v. Acheson28, reached a similar conclusion. However, in California, in the

case of Free Speech Coalition v. Reno29. Reno, the court reached an opposite conclusion. It
viewed the definition of child pornography under the CPPA as vague and too broad because it
applied to both real and fictitious depictions of children. Therefore, it held that the first
amendment prohibited congress from enacting a statute that makes its crime to create images
of fictitious children engaged in imaginary but explicit sexual conduct. Furthermore, the
court said that the CPPA represented a change in the original intent of congress in enacting
child pornography statutes. Originally, these statutes were aimed only at real children. The
CPPA shifted from defining child pornography in terms of the harm inflicted upon real
children to a determination that child pornography by itself was evil whether it involved real
children or not. This, the court concluded, violated the first amendment.
Protection of Children from sexual predators Act of 1998, Title 18 USSC S. 302:
The protection of children from sexual predators Act of 1998, expands liability to those who
attempt to use the internet for purposes of child pornography. This statute specifically targets
commercial pornographers and makes it a crime to knowingly make a communication for
commercial purposes harmful to minors (16 years and younger) or to use the internet for
purposes of engaging in sexual activities with minors.
U.K
It is the UK from which India has inherited its legal system and finally it is there that one
must turn the focus. The obscene publications acts 1959 and 1964 as amended by the
criminal justice and public order act, 1994 cover material that has the effect of depraving and
corrupting. An offence is committed if a person publishes an obscene article. 30Mere
28
No.98-3559(11th cir, Nov 12,1999)
29
No. 97-165536(9th Cir. Dec 17,1999)
30
Section 2, Obscene publications act, 1959
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possession is not enough but possession for publication for gain is punishable. Furthermore,
the Act has been recently amended to clarify the stand that publication includes transmitting
electronically stored data. Several issues concerning publication were broght to the notice of
the court in two cases concerning paedophilia.31 In Fellows and Arnold the two accused were
charges under the protection of Children Act, 1978, Obscene Publications Act,1959 and
CJPOA,1994 which first widened the definition of publication to include computer
transmission. Then question arises whether merely uploading obscene material to a site was
sufficient transmission for publication, as there had to be active retrieval by the other party as
well. The court looked into the activity prior to the offence and was satisfied that there was
sufficient activity for them to consider it as publication. Furthermore, the law recogonizes
photographs as publications32 stored on computers and even pseudo-photographs digitally
altered images especially used by paedophiles to merge the bodies of adults with the faces of
children.33 Finally, been amended by the criminal justice and public order act 1994. (CJPOA
1994) to deal with the specific problem of internet pornography. The following will
show,however, that there are difficulties with the application of existing national laws to a
medium such as the global internet which does not have any borders.
OBSCENE PUBLICATIONS ACT 1959 AND 1964
These two statutes constitute the major legislation to combat pornographic material of any
kind in the UK. Section (1) of the 1959 Act provides that an rticle shall be deemed to be
obscene of its effect of any one of its items is, if taken as a whole, such as to tend to deprave
and corrupt persons who are like it, having regard to all relevant circumstances, to read, see
or hear the matter contained or embodied in it. 34 Under Sec 2(1) of the Obscene Publications
Act, (OPA), it is an offence to publish an obscene article for publication for gain. Section
31
R.v. Fellows, R.v. Arnold (unreported decisions of the court of Appeal,27 September,1996)
32
Section 7(4) (b) of the protection of children act,1978
33
Section 7(7) of the protection of children act,1978
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1(3) of the 1959 Act makes it clear that the articles contemplated were such items as
computer disks; however most of the pornography on the internet is now transferred
electronically from one computer to another using telephone lines and modems rather than
via any tangible medium such as discs. This left a possible lacuna in section 1(3), OPA 1959,
but this has now been plugged by CJPOA 1994, which amended the meaning ofpublication
in that section, so that electronic transmission of pornographic material is now clearly
covered by the 1994 act. 35
SECTION 43 OF THE TELECOMMUNICATIONS ACT 1984
Section 43 of the 1984 Act makes it an offence to send by means of a public
telecommunications system, a message or other matter that is grossly offensive or of an
indecent, obscene or menacing character and is an offence with a maximum term of six
months. In addition to dealing with indecent, obscene or offensive telephone calls, the Act
also covers the transmission of obscene materials through the telephone systems by
electronic means. However when a telecommunications system from outside the UK is used
to send obscene messages in the UK, this provision is not attracted.
CHINA
Chinas laws on obscenity prohibit access to websites including playboy, penthouse, etc.
SINGAPORE
In Singapore, any website containing pornography material is banned, along with those
containing issues related to political criticisms, religions and race. Also note that unlike the
US, libraries and schools are held to higher standards of supervision regarding access to the
internet.
34
This legal definition of obscene is narrower than the ordinary meaning of obscene, which is filthy, lewd
or disgusting. See R. V. Anderson and others (1971) 3 AII ER 1152
35
Y. Akdeniz, Computer Pornography :A comparative study of the US and UK Obscenity laws and child
pornography law in relation to the internet. [1996] 10 International review of Law, Computers &
Technology 235.
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INDIAN LEGAL REGULATION WITH RESPECT TO CYBER PORNOGRAPHY

CONSTITUTION OF INDIA
The dusk of the 20th century witnessed the mergence most high-tech medium, which completely
metamorphosized the conception of Information Technology. With the growth of the IT, it was
strongly felt by the world community to bring in some legislation to regulate this high tech
medium. In India, the constitutional protection available to citizens, in respect of their speech
and expression in Art 19 (1) (a) of the constitution of India:
Protection of certain rights regarding freedom of speech, etc.-All citizens shall have a right to
freedom of speech and expression.
The absolute nature of this freedom has been later specifically curtailed in Art 19(2) :
Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law or prevent
the state from making any law, insofar as such law imposes reasonable restrictions on the
exercise of the right conferred by the said sub-clause in the interests of the sovereignty and
integrity of India, the security of the state, friendly relations with foreign states, public order,
decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
Thus it is clear that while the constitution of India enables citizens of the country to enjoy
freedom in their speech and expression, the state has been empowered to legislate in order to
reasonably curtail this freedom in a few specified circumstances. Mainly is the restriction in the
interests of decency and morality.
THE INFORMATION TECHNOLOGY ACT, 2000
In India, the Information Technology Act 2000 (IT Act 2000) addresses the specific issue of
obscenity on the internet. The IT Act 2000 not only extends throughout India but also has an

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extra-territorial jurisdiction. Section 67 deals with the penal offence of publishing obscene
information in an electronic form. Section 67 of the IT Act36 reads as follows:
"Whoever publishes or transmits or causes to be published or transmitted in the electronic form,
any material which is lascivious or appeals to the prurient interest or if its effect is 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 on first conviction
with imprisonment of either description for a term which may extend to three years and with fine
which may extend to five lakh rupees and in the event of second or subsequent conviction with
36
See http://www.vakilno1.com/bareacts/informationtechnologyact/s67.htm [Accessed November 21, 2013]:"Section
292 Indian Penal Code, 1860 Sale, etc., of obscene books, etc.
"For the purposes of sub-section (2), 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 person, who are likely, having regard to all relevant circumstances, to read, see or hear
the matter contained or embodied in it.
Whoeversells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of
sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book,
pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or
imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to
believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into
circulation, or takes part in or receives profits from any business in the course of which he knows or has reason to
believe that any such obscene objects are for any of the purposes aforesaid, made, produced, purchased, kept,
imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or
advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act
which is an offence under this section, or that any such obscene object can be procured from or through any person,
or offers or attempts to do any act which is an offence under this section, shall be punished on first conviction with
imprisonment 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.
Exception.This section does not extend to
any book, pamphlet, paper, writing, drawing, painting, representation or figure
the publication of which is proved to be justified as being for the public good on the ground that such book,
pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or
learning or other objects of general concern, or
which is kept or used bona fide for religious purposes;
any representation sculptured, engraved, painted or otherwise represented on or in
any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act,
1958 (24 of 1958), or any temple, or on any car used for the conveyance of idols, or kept or used for any religious
purpose.

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imprisonment of either description for a term which may extend to five years and also with fine
which may extend to ten lakh rupees."
The test laid down under s.67 of the IT Act 2000 to determine whether a material is obscene is
based upon the principle laid down under s.292 of the Indian Penal Code, 1860 (IPC), which
deals with the sale, hire, distribution, public exhibition, circulation, import, export, etc. of
anything obscene in nature.
Section 292(1) IPC lays down the following elements to determine whether or not a book or
pamphlet, paper or other document is deemed to be obscene:it is lascivious;it appeals to the
prurient interest; and it tends to deprave and corrupt persons who are likely to read, see or hear
the matter alleged to be obscene.
The IPC and the IT Act 2000 failed to define the words "obscene" or "porn". The Indian law
followed the common law in defining obscenity. The Supreme Court adopted the test applied in
the Hicklin case37 in R.D. Udeshi v State of Maharashtra.38 In Hicklin Cockburn C.J. laid down
the test of obscenity in these words:
"I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to
deprave and corrupt those whose minds are open to such immoral influences, and into whose
hands a publication of this sort may fall it is quite certain that it would suggest to the minds of
the young of either sex, or even to persons of more advanced years, thoughts of a most impure
and libidinous character." 39
37
R. v Hicklin (186768) L.R. 3 Q.B. 360.

38
R.D. Udeshi v State of Maharashtra [1965] A.I.R. S.C. 881. The appellant, a bookseller, sold a copy of the
unexpurgated edition of Lady Chatterleys Lover. He was convicted under s.292 Indian Penal Code. In his appeal to
the Supreme Court he contended that: (1) the section was void because it violated the freedom of speech and
expression guaranteed by art.19(1)(a) of the Constitution of India; (2) even if the section was valid, the book was not
obscene; and (3) it must be shown by the prosecution that he sold the book with the intention to corrupt the
purchaser, that is to say, that he knew that the book was obscene.

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The apex court further laid down in Udeshi v State of Maharashtra that:
"In judging a work, stress should not be laid upon a word here and a word there, or a passage
here and a passage there. Though the work as a whole must be considered, the obscene matter
must be considered by itself and separately to find out whether it is so gross and its obscenity so
decided that it is likely to deprave and corrupt those whose minds are open to influences of this
sort. In this connection the interests of contemporary society and particularly the influence of the
impugned book on it must not be overlooked. Where, obscenity and art are mixed, art must so
preponderate as to throw the obscenity into a shadow or the obscenity so trivial and insignificant
that it can have no effect and may be overlooked."
Section 292 IPC does not make the booksellers knowledge of obscenity an ingredient of the
offence, and the prosecution need not establish the booksellers knowledge. Absence of
knowledge may be taken as a mitigating factor but does not take the case out of the section. But
the prosecution must prove the ordinary mens rea in the second part of the guilty act and it must
be proved that the bookseller had actually sold or kept for sale the offending article. Such mens
rea may be established by circumstantial evidence. Section 292 does not make knowledge an
ingredient to be proved by the prosecution and it makes it a case of strict liability.
Further, in another case, CK Karodkar v State of Maharashtra40, the Supreme Court, reiterating
the ratio of the Udeshi case, held that the standards of obscenity would differ from country to
country depending on the standards of morals of contemporary society:"What is considered as a
piece of literature in France may be obscene in England and what is considered in both
countries as not harmful to public order and morals may be obscene in our country."

39
R. v Hicklin (186768) L.R. 3 Q.B. 360 at 371.

40
CK Karodkar v State of Maharashtra (1969) 2 SCC 687.

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However, to insist that the standard for writers should always be that an adolescent ought not to
be brought into contact with sex or that if they read any references to sex in what is written,
whether that is the dominant theme or not, they will be affected, would be to require authors to
write books only for adolescents and not for adults. In early English writings, authors wrote for
an audience of unmarried young women, but society has since changed to allow litterateurs and
artists to give expression to their ideas, emotions and objectives with full freedom while
respecting the standards of contemporary society to avoid their work falling within the definition
of being obscene. The standards of contemporary society in India are also fast changing. There
are now available to adults and adolescents a large variety of classics, novels, stories and other
written pieces whose content includes scenes of sex, love and romance. As observed in the
Udeshi case, if a reference to sex by itself is considered obscene, no books could be sold except
those that are purely religious.
In K.A Abbas v Union of India 41 of India, the question before Supreme Court was whether precensorship by itself offends the freedom of speech and expression under art.19(1)(a) and (2) of
the Constitution. Relying upon US judgments and English law, the court observed that
censorship of films including prior restraint is justified under the Indian Constitution. The court
also observed that it has been almost universally recognized that the treatment of motion pictures
must differ from the treatment of other forms of art and expression. This difference arises from
the instant appeal of the motion picture, its versatility, realism (often surrealism) and its coordination of the visual and aural senses. The art of the cameraperson, as evidenced by trick
photography, vista vision and three-dimensional representations, has made the cinema picture
more true to life than even the theatre or any other form of representative art. The motion picture
is able to stir up emotions more deeply than any other product of art. Its effect on children and
adolescents is particularly great since their immaturity makes them more willingly able than
mature men and women to suspend their disbelief. In the end, the apex court held that:
41
K.A Abbas v Union of India [1971] S.C.R. (2) 446. The petitioner made a documentary film called A Tale of Four
Cities, which attempted to portray the contrast between the life of the rich and the poor in the four principal cities of
the country. The film included certain shots of the red light district in Bombay. Although the petitioner applied to the
Board of Film Censors for a "U" certificate for unrestricted exhibition of the film, a certificate was granted for
exhibition restricted to adults.

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"But Parliament has not legislated enough, nor has the Central Government filled in the gap
neither has separated the artistic and the sociably valuable from that which is deliberately
indecent, obscene, horrifying or corrupting. They have not indicated the need of society and the
freedom of the individual. They have thought more of the depraved and less of the ordinary
moral man. In their desire to keep films from the abnormal, they have excluded the moral. They
have attempted to bring down the public motion picture to the level of home movies. It was for
this purpose that this Court was at pains to point out in Ranjit D. Udeshis case certain
considerations for the guidance of censorship of books. We think that those guides work as well
here."
The court has the duty to consider obscene matter by taking an overall view of the entire work
and by determining whether the obscene passages are likely to deprave and corrupt those readers
whose minds are open to such influences and, in doing so, the court must not overlook the
influence of the book on the social morality of Indian contemporary society.
In Maqbool Fida Husain v Raj Kumar Pandey,42the Delhi High Court observed that it was clear
that the Hicklin test had been applied to determine obscenity in England since its evolution. The
courts in the United States have given up the Hicklin test, but the Indian law on obscenity is
more or less based on it. In addition to this, the law on obscenity in India also panders to the test
of "lascivious and prurient interests" as taken from the American law. The court further
acknowledged the obscenity prevailing on the internet and said that:
"Section 67 is the first statutory provisions dealing with obscenity on the Internet. It must be
noted that the both under the Indian Penal Code, 1860 and the Information Technology Act,
2000 the test to determine obscenity is similar. Therefore, it is necessary to understand the broad
parameters of the law laid down by the courts in India, in order to determine obscenity."
The State of Tamil Nadu v Suhas Katti 43 is the first case of conviction under s.67 of the ITA
2000. The case related to the posting of obscene, defamatory and annoying messages about a
42
Maqbool Fida Husain v Raj Kumar Pandey [2008] Cri. L.J. 4107.

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divorced woman in a Yahoo message group. The accused also forwarded the emails to the victim
through a false email account opened by him in the name of victim. The fraudulent posting of the
message resulted in annoying phone calls to the woman in the belief that she was soliciting.
Based on the complaint made by the victim in February 2004, the police traced the accused to
Mumbai and arrested him within a few days. The accused was a known family friend of the
victim and had reportedly been interested in marrying her; however, she married another person,
but the marriage later ended in divorce, which had prompted the accused to start contacting her
once again. When she was reluctant to marry him, the accused started harassing her through the
internet.On March 24, 2004, a charge sheet was filed under s.67 of the IT Act 2000, and ss.469
and 509 IPC before the Hon. Additional Chief Metropolitan Magistrate Egmore by citing 18
witnesses and 34 documents and material objects. These were taken on file in C.C.
No.4680/2004. On the prosecution side, 12 witnesses were examined and entire documents were
exhibited. The defense counsel argued that some of the documentary evidence was not
sustainable under s.65B of the Indian Evidence Act. However, the court, on the basis of Naavis
expert witness and other evidence, including the statement of the cyber caf owners, determined
that the crime had been conclusively proved. The accused was found to be guilty of offences
under ss.469, 509 IPC and s.67 of IT Act 2000, and the accused was convicted and sentenced to
undergo rigorous imprisonment for two years under s.469 IPC and to pay a fine of Rs 500. For
the offence under s.509 IPC, the accused was sentenced to undergo one years simple
imprisonment and to pay a fine of Rs 500. For the offence under s.67 of IT Act 2000, the accused
was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs 4,000. All
the sentences were to be run concurrently.
On a preliminary reading of s.67, it appears to assume the role of a global supervisor and
regulator. The impression is that any person who sets up in a foreign country a sexually explicit
website that shows obscenity would also be liable according to this legislation. However, this is
not the case, and cyber pornography sites in foreign countries that merely publish pornographic
material would not be liable under s.67 because s.75 provides that the IT Act shall apply to an
43
"Chennai Cyber Crime Cell Gets its First Case in Record Time" (November 5, 2004), Naavi.org,
http://www.naavi.org/cl_editorial_04/suhas_katti_case.htm [Accessed November 21, 2013].

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offence or contravention committed outside India by any person if the act or conduct constituting
the offence involves a computer, computer system or computer network located in India.44
Therefore, if an Indian web surfer visits a pornographic website based in a country other than
India, the site is not considered to be liable under s.67 because it is the visitors act which
provides access to the website; that is, the website itself does not commit any offence. However,
where a website that is based in country other than India transmits lascivious material to a person
in India or advertises its services on a computer network in India, it would be liable under s.67 of
the IT Act. The essence is that the act or conduct constituting the offence must involve a
computer, computer system or computer network located in India. Thus search engines would
also not be liable under s.67 because they neither publish nor transmit any material, if due
diligence is exercised.45
The first Indian adult cyber pornography comic strip, named Savitabhabhi.com, was launched in
March 2008. It featured a married Indian womans sexual adventures. The comic strip quickly
acquired a cult following because of its humorous plot lines and the uniqueness of its Indian
setting. The comic strip received much press from Indian media (in Mint, a business paper from
the Hindustan Times in association with the Wall Street Journal, which was launched in 2007,
and Tehelka, a weekly magazine) and internationally (in The Telegraph and The Independent).
According to Alexa.com, Savitabhabhi is the 82nd most visited Indian website, attracting more
visitors than the website of the Bombay Stock Exchange. In February, when Mint interviewed the
anonymous creator of the comic strip, the site ranked 45th in India. 46N. Vijayashankar, a technolegal information security consultant, waged a sustained campaign against Savitabhabhi, filing
44
Vivek Sood, Cyber Law Simplified (Tata McGraw-Hill Education, 2001), p.83.

45
Ibid.
46
K.K. Sruthijith, "Govt. Bans Popular Toon Porn Site Savitabhabhi.com: Mounting Concern over Censorship" (June
25, 2009), Economic Digital Content, http://contentsutra.com/article/419-govt-bans-popular-toon-porn-sitesavitabhabhi.com-mounting-concern-over/ [Accessed November 21, 2013].

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complaints with the Governments Computer Emergency Response Team (CERT-IN) and with
the Director General of Police in Karnataka. The complainant emphasized that the cartoons are a
more participative medium than videos, which do not incur as much damage. When a child is
watching a cartoon, he imagines himself as the character, which can have a deeply corrupting
influence on youngsters. The Controller of Certifying Authorities (CCA), a government agency
under the Department of Information Technology, is entrusted under the IT Act to block certain
websites. N. Vijayaditya, of the CCA, said: "There were several complaints against the site. We
have taken action under the relevant sections of the IT Act and blocked the site."47
In another public interest litigation, Janhit Manch v Union of India,48the petitioner had
approached the Bombay Court, seeking relief to direct the respondents to make co-ordinated and
sustained efforts for a blanket ban on websites that, according to the petitioners, were displaying
material pertaining to sex and, in their opinion, were harmful to Indian youth in their formative
years. The Division Bench, after hearing the contentions made on either side, observed as
follows:
"By the present petition what the petitioner seeks is that this court which is a protector of free
speech to the citizens of this country should interfere and direct the respondents to make
coordinated and sustained efforts to close down the websites as afore stated. Once Parliament,
in its wisdom has enacted a law and has provided for the punishment for breach of that law any
citizen of this country including the Petitioner who is aggrieved against any action on the part of
any other person which may amount to an offence has a right to approach the appropriate forum
and lodge a complaint upon which the action can be taken if an offence is disclosed. Courts in
such matters, the guardian of the freedom of free speech, and more so a constitutional court
should not embark on an exercise to direct State Authorities to monitor websites. If such an
exercise is done, then a party aggrieved depending on the sensibilities of persons whose views
47
Ibid.
48
Janhit Manch v Union of India, PIL No.155 of 2009, disposed of on March 3, 2010.

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may differ on what is morally degrading or prurient will be sitting in judgment, even before the
aggrieved person can lead his evidence and a competent court decides the issue. The Legislature
having enacted the law a person aggrieved may file a complaint. We are not inclined to interfere
in the exercise of our extra-ordinary jurisdiction. If the petitioner comes across any website/s
which according to him publishes or transmits any act which amounts to offence under section
67 or 67A of the Information Technology Act, 2000, it is up to him to file a complaint "
.
The Information Technology (Amendment) Act 2008 made certain changes to s.67. The
amendment had decreased the punishment of imprisonment from five years to three years on first
conviction and in second or subsequent conviction from 10 years to 5 years but had increased the
fine from Rs 1 lakh to Rs 5 lakh on first conviction and in a second or subsequent conviction
from Rs 2 lakh to Rs 10 lakh. New s.67A introduced punishments for publishing or transmitting
material containing sexually explicit acts or sexually explicit conduct in electronic form. Against
ss.67 and 67A, the amendment provides protection to any publication that is justified as being in
the public interest for science, literature, art or learning, or other objects of general concern; or
that is kept or used for bona fide heritage or religious purposes Although India has existing
prohibitive and penal laws relating to obscene publications and their transmission in electronic
form, the real problem lies in the implementation of these provisions by the law enforcement
agencies.
New s.67B was introduced to specifically address the issue of child pornography. It includes
punishment for publishing or transmitting material depicting children in sexually explicit acts in
electronic forms.It provides stringent punishments, including imprisonment for up to five years
and fines of up to Rs 10 lakh on first conviction and imprisonment up to seven years and fines of
up to Rs 10 lakh for second or subsequent convictions. New s.67C imposes a liability on the
intermediaries to preserve and retain certain records for a stated period.
Prior to the 2008 amendment, s.79 made network service providers liable for third-party content
only when it was impossible to prove that the offence had been committed without the network
service providers knowledge or the network service provider had exercised due diligence to
prevent the commission of such an offence or contravention. Following the amendment of s.79 is
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a non obstante clause. Section 79 states that the intermediary shall not be liable for any thirdparty information if it is only providing access to a communication system over which
information made available by third parties is transmitted or temporarily stored or hosted, or the
intermediary does not initiate the transmission, select the receiver or select or modify the
information contained in the transmission. It provides that the intermediary shall be liable if he
has conspired in or abetted or induced, whether by threats or promise or otherwise, the
commission of the unlawful act. However, it is pertinent to note that the onus to prove
conspiracy, which is extremely difficult to prove, has now shifted to the complainant.
Under the Information Technology Amendment Act 2008, s.79 has been modified to the effect
that an intermediary shall not be liable for any third-party information data or communication
link made available or hosted by the intermediary and subject to following conditions: The
function of the intermediary is limited to providing access to a communication system over
which information made available by third parties is transmitted or temporarily stored or hosted;
The intermediary does not initiate the transmission or select the receiver of the transmission and
select or modify the information contained in the transmission; the intermediary observes due
diligence while discharging his duties.
As a result of this provision, social networking sites, such as Facebook, Twitter and Orkut, would
be immune from liability as long as they satisfy the conditions provided under the section.
Similarly, ISPs and blogging sites would also be exempt from liability. However, an intermediary
would lose immunity if the intermediary has, in the commission of the unlawful act conspired,
abetted, aided or induced, whether by threats, promise, or otherwise. Section 79 also introduced
the concept of the "notice and takedown" provision as prevalent in many foreign jurisdictions.
The new amendment to the Information Technology Act 2000 raises a new hope of curbing the
problem of obscenity publication on the internet. The judiciary plays a crucial role in balancing
freedom of speech and expression in the real and virtual worlds. Because of the increase of
crime, we need to create awareness of this problem among all people. Most of the people
browsing pornographic websites or sending pornographic emails or even pornography-related
text messages and MMS are not aware that such transmission amounts to a crime. Thus all of us
in civilized society must fulfill our obligation to the younger generation by ensuring all children
can grow up in an environment conducive to fully developing their personality and their
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physical, mental, moral and spiritual capacity. Cyber crimes differ from traditional crimes
because of the lack of territorial limits. Thus co-operation is needed at an international level to
curb the menace of obscene publication/transmission in electronic form. Unless and until a
global initiative determines to tackle this problem, some cyber-related crimes will continue to be
perpetrated and will continue to avoid detection and prosecution.
INTERNATIONAL INSTANCES OF CYBER PORNOGRAPHY
Cases and instances of cyber pornography are on a rise across the globe. Several cases have
come to surface in the past few years, a few prominent ones amongst these being the ones that
deal with child pornography. Two of such cases include the wonderland club case and the Bal
Bharti school case.
The Wonderland Club case uncovered by British authorities in April 1998 involved a
sophisticated, world-wide, covert, Internet child pornography ring. It was the largest child
pornography ring ever discovered. The U.S. Customs Service estimates that members of this
"club" collected and distributed among themselves over two million pornographic images of
children.
The sophistication of the Wonderland Club, and its members, was apparent in the precautions it
took. The club took three key actions to lower its potential for exposure: 1) limit membership, 2)
use sophisticated technology, and 3) maintain strict anonymity. Periodically, to satisfy their need
for fresh images, the ring was forced to admit new members. To deal with the risk this involved,
they instituted stringent membership requirements. First, the group required a senior member to
sponsor, or vouch for, every new member.49Next, for consideration, candidates were required to
possess in excess of 10,000 unique images of child pornography on their hard drive. As a final
precaution, a formal membership committee reviewed the credentials of all candidates seeking
membership. These requirements had the effect of limiting membership to the most hardcore of
Internet pedophiles.

49
Chris Allbritton& Larry McCshane, Suicides follow huge raid on online childpornographers, ORANGE
COUNTY REG., Nov. 15, 1998, at A22, available at1998 WL 21279602
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The investigation began in 1996 with the arrest by U.S. authorities of two members of the Orchid
Club, a small California-based Internet child-pornography ring. As a result of information gained
through that arrest, U.S. Customs officials alerted British authorities of the existence of a
member of the Orchid Club living in East Sussex, England. The Sussex police seized this
individual's computer and soon computer forensic experts unearthed evidence of the Wonder
land Club on its hard drive.50
Another shocking incident of cyber pornography that was discovered by the Police in India
involved a 16-year-old student of the air force Bal Bharti School in New Delhi. He was arrested
for having created a pornographic website. The case which otherwise would have gathered dust
in court, was quickly capped by the juvenile welfare board, who granted bail. The student was
also rusticated from school.51
A similar incident was also unearthed in a school in Indore, when a group of school students
spliced photographs of girls from their school with nude pictures downloaded from the net.
However, no arrests were made.52
Further, in Canada, the Toronto police had targeted 241 pedophile suspects in the GTA who
allegedly paid to view pornographic images on the Internet that investigators described today as
'evil'. Among those arrested across Canada already were a police officer, a teacher and a doctor.
"I think it's reasonable to assume that once we go through the list we'll come across some pretty
50
William R. Graham Jr., Uncovering and Eliminating Child Pornography Rings on the Internet: Issues
regarding and avenues facilitating law enforcements access to Wonderland, L. Rev. M.S.U-D.C.L 457
(2000)
51
TNN, Confusion prevails over tackling cybercrime, May 22, 2001, available at
http://timesofindia.indiatimes.com/city/pune/Confusion-prevails-over-tackling-cybercrime/articleshow/409953300.cms (October 6, 2014)
52
TNN, Confusion prevails over tackling cybercrime, May 22, 2001, available at
http://timesofindia.indiatimes.com/city/pune/Confusion-prevails-over-tackling-cybercrime/articleshow/409953300.cms (October 6, 2014)
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high-profile people,'' said Det.-Sgt. Paul Gillespie, who leads the Toronto police force's sex
crimes unit. Neither Gillespie nor OPP Det.-Insp. Robert Matthews could describe exactly what
kind of pornography had been seized, but both said they were disturbed by what they had seen.
Gillespie called the images "evil," while Matthews said he too was horrified. "Paul and I have
seen things that I would never want any other human being to record in their mind,'' said
Matthews. The probe, called Project Snowball in Canada, has targeted more than 2,000 Canadian
suspects.53
The Police in nine European countries and the US have arrested about 25 people for allegedly
violating child pornography laws. A police spokesman said arrests have been made in Britain,
Sweden, Switzerland, Germany and Denmark.
Illegal Cyber pornography rackets have also been uncovered in other countries like Denmark.
Troels Oerting Joergensen of the cybercrime unit of Denmark's national police stated that "The
case is unique because we caught those who have sexually abused the children, not just
distributed the child pornography. Two US citizens had been arrested in San Diego and two
Danes in Denmark. He declined to provide further details because the investigation was still
under process. He further stated that "More arrests are soon to be expected in Europe and in the
United States. The investigation began in November, 2001 when the Danish police arrested a
couple in Ringkoebing, 205 miles west of Copenhagen. They had acted on a tip from Swedish
police who had found photographs on the internet showing a man sexually abusing an 11-yearold girl. On his shirt, there was a logo of a Danish company. Danish police identified the man
and arrested him with his wife. On the couple's computer, investigators found more photos of the
girl. Police also found names of people outside Denmark with whom the couple had exchanged
photos through the internet. The couple was not identified in line with Danish privacy rules.
They were charged with sexually abusing a child and face up to eight years in prison, if
convicted. They were released from jail pending trial. So far between 30 and 35 boys and girls,

53
Josh Rubin, Teacher, doctor nabbed in porn probe, Police make plea for resources to stop spread of 'evil',
Jan 16, 2003 available athttp://www.cyber-rights.org/reports/child.htm (October 6, 2014)
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aged 3 to 15, in 10 countries have been identified. All the children were sexually abused, Mr
Oerting Joergensen said.54

CONCLUSION
In order to tackle pornography, many propose a prohibition on the dissemination of pornographic
materials of all types. While this solution appears at first glance to be an effective solution, it
must be kept in mind that prohibitions of any kind, rather than having a salutary effect, normally
succeed in driving prescribed activity underground, where it cannot be observed, much less
regulated. In the context of Internet, even the most stringent restrictions on the publication and
dissemination of pornographic materials on the Internet will have a negligible effect, as the very
nature of the medium will permit purveyors of pornographic material to evolve new and less
detectable measures to distribute pornographic materials. In such cases, it has often been seen
that greater benefits result from regulating the actual production of the material, rather than
controlling the dissemination of the products. The nature of the Internet has always made its
regulation difficult. The existence of pornographic material on the Internet perhaps received
wider publicity and greater debate than any other aspect of the medium, sometimes to the extent
of overshadowing the various other uses to which the medium can be put. Technology has an
inherent capacity to show scant regard for legislative and judicial efforts at regulating human
behavior. Science is perpetually engaged in the activity of expanding boundaries while law
struggles to define and redefine boundaries in order to keep up with it. From cloning and
54
Ananova News, Arrests in 10 countries over child porn, 22 April, 2002 available at http://www.cyberrights.org/reports/child.htm (October 6, 2014)
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biotechnology to the Internet, the past few decades have witnessed quantum leaps, which
promise to shake the very foundations of current normative, social and legal perceptions. While
there is much to benefit from, as always, there is flip side too. The problem is multiplied
manifold in an area like pornography, which has as its basis certain moral standards and uses
controversial parameters like indecency and obscenity.

55

These, by their very nature, are fluid,

varying both temporally as well as cartographically depending upon social values.

Provisions should be made for forfeiture of property, proceeds or assets that result from activities
related to online child sexual abuse. These funds should be used to support programs for
formerly abused children, children at risk of being abused, and child victims who are in need of
special care. To conclude, depiction of minors, both real and virtual, as well as adults appearing
to be minors, in electronic child pornography should be prevented by Indian law. Stringent
measures must be taken to combat such heinous abuse.
However, while it is true that there is no single monolithic authority that governs cyberspace and
there has been paranoia about the all-pervasive nature of cyber pornography, it is not a
fundamentally new form of criminal behavior. What has happened is that, distribution has been
greatly facilitated. Whether pornography has any significant harmful effect on consumers
continues to be a controversial issue, not only for average citizens but also for behavioral
scientists. Some social commentators claim that pornography is mainly a form of entertainment,
possibly educational, sometimes sexually arousing, but essentially harmless. Or, they claim, at
the very least, that there is no good scientific evidence of harm. Other social commentators claim
more dire consequences and played up by the media, of sex-murderers who have claimed that
pornography made them do it.

55
The Supreme Court has recognized that the standard of morality is not a uniform or inflexible standard
but varies according to different communities or ages as well as a number of historical, ethnic and social
conditions. Abbas v. Union of India, AIR 1971 SC 481.
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