Introduction:
Two Greek words, “porne and graphos,” derive from the word pornography. The word “porne” means captive prostitute, prostitute, or girl, and the word “graphos” means “writing about” or “description of.” Porn means “obscenity” in a legal context. Pornography encompasses all images, photographs, or films involving sexually explicit acts which the general public considers pornographic.[1]
The word pornography is used to describe the action rather than the action itself, and it does not involve live shows such as sex shows and striptease. Many who support or patronize pornography also argue that it is one’s body’s artistic display, while those who condemn pornography find it unethical and against their religious feelings.[2]
The definition of pornography was broadened in the modern age. Pornography has also been classified into softcore pornographic content and hardcore pornographic content. The only difference between softcore pornography and hardcore pornography is that softcore pornography does not portray penetration whereas hardcore pornography portrays pervasiveness.[3]
Cyber Pornography
Cyber Pornography involves the use of cyberspace to publish, distribute, or design pornography. Cyber pornography is the result of technological development technology as the technology has its pros and cons. With the Internet’s simple connectivity, people can now view thousands of porn on their smartphone or computers, and also have access to online uploading of pornographic material.[4]
Obscenity and Pornography
Pornography and Obscenity are commonly used as synonyms. Yet obscenity is a broader term than pornography. Obscenity means something that is harmful and immoral to people’s feelings, whereas pornography refers to the act of inducing sexual pleasure through, books, pictures, or films. In other words, Pornography is just part of obscenity.[5]
Porn Content
Porn contributes to 30 percent of Internet content. On the dark web, one can obtain ample access to pornographic material. The dark web also includes the contents of child pornography. It is worth mentioning that on the surface web only 10 percent of the total content is available, the majority of the content is accessible on the dark work and the deep web.
- More than 2 billion searches were recorded in the year of 2005.
- 20 percent of mobile phone searches are porn
- About 28,258 mobile phone users watch porn every second.
- 56% of the divorces contain one partner (almost always the man) who has an intense interest in porn on the internet.
- Compared to the loyal partners, adulterers seem to be more than twice as likely to be daily internet porn viewers
- 60% of girls and 90% of boys watch porn before they turn 18.
- Every month, Porn pages draw more users than Amazon, Netflix and Twitter combined.
- Porn includes abuse against women in 88 percent.
Porn Revenue
The pornography industry is an industry which is growing fastest in the world. In the year 2007, it was estimated to be worth around $60 billion.
The U.S stands first in the countries that spend more money on porn by spending about 12 billion dollars every year followed by Australia who spends about 1.5 billion dollars on porn, every year.
Porn Rise
Simple Internet access has let users consume sexual material without violating their privacy, and without exposing their identities to others. That is, easy access to sites that offer porn content for free.
It has eliminated the barriers of conventional pornography, where people used to purchase pornographic material in written media, people today are able to consume the material without the risk of being captured by anybody.[6]
Effects of Pornography[7]
- Many surveys say that a porn addict’s behavior towards his/her family is most likely to change because of watching porn regularly.
- Pornography that is typically used in private also contributes to deceit in marriage which can then have an effect on their family life.
- It can lead to prostitution, adultery, and other impossible aspirations which can lead to risky promiscuous conduct.
- Pornography might make a person addicted, escalated, desensitized, and acting out sexually.
Legal Framework
In India, there are numerous laws governing cyber pornography, such as the Information Technology Act, 2000, Indian Penal Code[8], Women’s Indecent Representation Act, and Young Person’s (Harmful Publication) Act. Under these acts, the laws relating to online pornography are discussed below.
Information Technology Act, 2000
In many countries, cyber pornography is illegal but allowed in others. Under the IT Act, 2000, cyber pornography is neither forbidden nor legalized. The IT Act bans the creation and dissemination of cyber pornography if it is child pornography, but does not prevent the uploading or sharing of pornographic content of any other types.
According to Section 67[9] of the Information Technology Act, 2000 the following actions are held punishable with imprisonment for three years and fine of 5 lakhs:
Publication: It involves posting pornographic material on a website, social media community, or some other internet portal where such pornographic material may be viewed by third parties.
Transmission: Transmission of obscene or pornographic content electronically.
Causing to be published or transmitted: It is a systematic jargon that will eventually make the intermediate platform responsible for the offender’s publishing or distributing such pornographic material. Under the Information Technology Act, the intermediary guidelines placed an onus on the intermediary/service provider to exercise due diligence to ensure that their portal is not misused.
Section 67A [10]of the Information Technology Act makes any content containing sexually suggestive behavior or behavior punishable by written, distributed, allowed to be distributed or released is subjected to imprisonment of up to 5 years and a fine of up to some 10 lakhs.
The following conclusions are derived from the above provisions:[11]
- In India, it is legal to view Cyber pornography. That is, download and access to such material is not an offense as well.
- Distribution or publication of such material is illegal.
- Storage of Cyber Pornographic content is also not an Offence.
- Sharing pornographic content through any type of social media is an Offence.
Exceptions
Section 67A[12] of the IT Act does not ban books, pamphlets, newspapers, or photographs produced for educational purposes or held for religious reasons. And the provision does not forbid the restoration of historically important sculptures.
Child Pornography
Section 67B IT Act, 2000 makes it unlawful to print, distribute, access, or download child pornography. It cannot be disputed that the Internet has made child pornography more available to marketers, as well as to dealers.
Any individual who has not attained the age of 18 is a child according to Section 67B. It also notes that the following five forms will be used to commit child pornography:[13]
- By publishing or transmitting or causing to publish or transmit any material electronically that depicts the children engaged in a sexually explicit act or conduct.
- By showing children in a sexually explicit or obscene manner.
- By inducing children to online relationships with one or more children for a sexually explicit act, or in a manner that may offend a reasonable adult on the computer resource.
- By child abuse available online.
- By recording others or the recording person himself sexually abusing a minor.
Exceptions
The provision does not forbid the books, pamphlets, magazines or pictures that are produced for the purpose of education or that are held for religious reasons. Under this clause, however, sexology (the academic study of human sexuality or sexual behavior) is not forbidden. Similarly, if a child’s image is used to say about a child’s anatomy then this does not constitute an offense according to this clause.[14]
Indian Penal Code, 1860
IPC Section 292[15] forbids the selling of obscene content. Section 292(1) describes the definition of “obscenity” and Section 292(2) defines how indecent products are prosecuted for selling, transmission, etc.
Section 292(1)[16] states that “any material will be deemed obscene if it is lascivious or prurient or any part of the material has the tendency to corrupt or deprave the people”.
Section 292(2)[17] states that a person who:
- Sell, publicly, let’s hire, distributes, exhibit, or put into circulation any obscene material.
- Exports or imports obscene material or the government gets to know that such material is put for circulation distribution or sale.
- Who is engaged or earns income from some activity in the process of which he has information or cause to suspect that these obscene items are for aforesaid purposes.
- Advertises the pornographic content or obscene material.
- Attempts or offers to do any prohibited act mentioned in this section.
Such a person shall be given either simple or stringent imprisonment on a first conviction, which may stretch to 2 years, along with a fine of up to 2,000 or shall be given a simple or stringent imprisonment if it is the person’s second conviction. And this may extend up to five years, along with a fine which may extend up to 5,000.
Section 293 of the Indian Penal Code, 1860[18], lays out the sentence for an individual who offers, permits to employ or distributes some obscene material to a child who is under the age of 20. It states that a person shall be given imprisonment on the first conviction, which may extend up to 3 years, along with the fine which may extend up to a limit of 5,000, and on subsequent conviction, with imprisonment which may extend up to 7 years, along with the fine which may extend up to 5,000.
Indecent Representation of Women’s Act, 1986[19]
Indecent Representation of the Women’s Act, 1986 aims to ban the portrayal of women or of any portion of their body in an obscene way, given that such portrayal is harmful to general morals or morality.
POCSO (The Protection of Children from Sexual Offences) Act, 2012[20]
The POCSO 2012 Act was mainly introduced to discourage minors from committing sexual crimes. The act defends minors from sexual abuse, sexual misconduct, and pornography. The purpose of the Act is to preserve the rights and well-being of children. For the intent of the act, any adult who has not reached the age of 18 is a boy. The Act is gender-sensitive.
The provisions relating to Cyber Pornography under the POCSO Act are discussed below:
Section 13 of the POCSO Act, 2012[21], states that anyone who uses a child for sexual pleasure in any type of media shall be guilty of child pornography.
Section 14 of the POCSO Act, 2012[22], provides for the punishment of people who uses children for any pornographic purpose.
Section 15 of the POCSO Act, 2012[23], provides that, if a person stores pornography involving a child, he or she shall be sentenced to imprisonment in any form that may extend to three years or a fine or both.
References:
[1] Caroline West, Pornography and Censorship Stanford Encyclopedia of Philosophy (2018), https://plato.stanford.edu/entries/pornography-censorship/#:~:text=Pornography%20is%20any%20material%20(either (last visited Aug 26, 2020).
[2] Subodh Asthana, Cyber Pornography: All You Want to Know about and ways to Vindicate it iPleaders (2019), https://blog.ipleaders.in/cyber-pornography/ (last visited Aug 27, 2020).
[3] Caroline West, Pornography and Censorship Stanford Encyclopedia of Philosophy (2018), https://plato.stanford.edu/entries/pornography-censorship/#:~:text=Pornography%20is%20any%20material%20(either (last visited Aug 26, 2020).
[4] Subodh Asthana, Cyber Pornography: All You Want to Know about and ways to Vindicate it iPleaders (2019), https://blog.ipleaders.in/cyber-pornography/ (last visited Aug 27, 2020).
[5] Ankur Singhal, Legal Status of Pornography In India, 1 International Journal of Law Management & Humanities 2581–5369 (2019), https://www.ijlmh.com/wp-content/uploads/2019/03/Legal-Status-of-Pornography-In-India.pdf (last visited Aug 27, 2020).
[6] Ankur Singhal, Legal Status of Pornography In India, 1 INTERNATIONAL JOURNAL OF LAW MANAGEMENT & HUMANITIES 2581–5369 (2019), https://www.ijlmh.com/wp-content/uploads/2019/03/Legal-Status-of-Pornography-In-India.pdf (last visited Aug 27, 2020).
[7] Ankur Singhal, Legal Status of Pornography In India, 1 International Journal of Law Management & Humanities 2581–5369 (2019), https://www.ijlmh.com/wp-content/uploads/2019/03/Legal-Status-of-Pornography-In-India.pdf (last visited Aug 27, 2020).
[8]Information Technology Act, 2000
[9] Information Technology Act, 2000, S. 67
[10] Information Technology Act, 2000, S. 67A
[11] Nitish Chandan, Pornography Rules in India The Cyber Blog India (2017), https://cyberblogindia.in/pornography-rules-india/ (last visited Aug 26, 2020).
[12] Information Technology Act, 2000, S. 67B
[13] Information Technology Act, 2000, S. 67A
[14] Nitish Chandan, Pornography Rules in India The Cyber Blog India (2017), https://cyberblogindia.in/pornography-rules-india/ (last visited Aug 26, 2020).
[15] Indian Penal Code, 1860, S. 292
[16] Indian Penal Code, 1860, S. 292(1)
[17] Indian Penal Code, 1860, S. 292(2)
[18] Indian Penal Code, 1860, S. 293
[19] Indecent Representation of Women’s Act, 1986
[20] POCSO (The Protection of Children from Sexual Offences) Act, 2012
[21] POCSO (The Protection of Children from Sexual Offences) Act, 2012, S. 13
[22] POCSO (The Protection of Children from Sexual Offences) Act, 2012, S. 14
[23] POCSO (The Protection of Children from Sexual Offences) Act, 2012, S. 15
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