Offenses relating to Publishing of Obscene Information in Electronic Form

Introduction:

In the present era, the whole world is connected through online platforms. Publishing any information in electronic form is very common. People use online platforms to express their thoughts, publish content, etc. However, there are many misuses of it. People have started to use the online platform as a platform for publishing obscene information.  This obscene information is then downloaded, shared, saved, etc.

Publishing obscene information online is a worldwide issue as there is no territorial boundary on an online platform. The publishing of obscene information in electronic form is a very serious issue. The material has not only been criticized, but also its essence. The global existence of such content and the ability to import images make it nearly impossible to censor the system.  In India, sharing of any kind of pornographic content and obscene content is prohibited. The Network, as one of the major aspects of cyberspace, has also been criticized for making pornography available. An entirely new platform for the distribution of messages, photographs, and images, including pornographic ones, has been generated by the growth of the Internet.[1]

Section 67 of the Information Technology Act[2] and Section 292 of the Indian Penal Code deals with offenses relating to publishing of obscene information in electronic form in India.

Article 19(2) of the Constitution[3] gives the power to the government to enforce law imposing reasonable restrictions on the right “freedom of speech and expression in the interest of public and to maintain public order.” The government has the power to make laws on the Publishing of obscene information in electronic form in order to maintain public order (decency and morality).

Concept of Obscenity

Obscenity is a serious issue in today’s era. It is very important to understand the concept of the “Obscenity”. The definition of obscenity varies with time and place. It is a word that cannot be confined. It can be said that the obscenity’s definition can be explained as a thing against morality, ethics, decency, etc.

For the first time, this question was answered in the case of Regina v. Hicklin[4]. It is a landmark case that defined “obscenity”. In this case, the test of obscenity was laid down. According to this, it was tested that whether the information published has the tendency to corrupt and misguide people to whom such content is reaching and those in whose hands this sort of publication may fall. 

After this, in the case of Millar v. California[5], the US court gave three tests in order to make it is clear that what “obscenity” is:

1. If an average person  will find that information contributing to the prurient interest,
2. If the work presents or describes sexual activity or excretory functions describing by any state law 
3. If the entire information is missing in serious literary, artistic, political, or scientific interest.

Even though there is no description of the term ‘obscene’  in the Indian Penal Code, 1860 (IPC). It speaks of the sale of obscene content, dissemination, etc. as an offense. The courts have also had an opportunity to differentiate obscenity from art and literature, stating that it is important to determine if the obscene information is lascivious and can misguide minds that take pleasure in such things. As per India’s Supreme Court, “the idea of obscenity would vary from nation to nation relying on contemporary society’s ethical measures.” And that obscenity has the potential to degrade and degenerate those whose brains are involved in such inappropriate results.[6]

Section 67 of the IT Act

Section 67 of the IT Act makes publishing or distributing obscene information in electronic form an offense. According to section 67 of the IT Act, if anyone publishes, communicates, or enables to be published in electronic form, any information that is lascivious or appeals to the prurient interest or if its effect may misguide and corrupt persons who are likely to read, see or hear the information it contains in it, having regard to all relevant circumstances-

1. first conviction, shall be punished with imprisonment of Imprisonment of either description for a term of up to five years and a fine of up to one lakh rupee and,
2. second or subsequent arrest, imprisonment of either description for a term of up to ten years, and also a fine of up to two lakh rupees.

Since 2008, Section 67 was the only section in the IT act related to the Publishing of Obscene information in Electronic form. Section 67A strictly prohibits the Publication of information that is sexually explicit or pornographic. Section 67B says that Child pornography is strictly forbidden under IT Act.

This section only prohibits publication and transmission of obscene information, viewing and downloading of obscene information is not prohibited under this section. As per the rules of the Act, possession etc. is not an offense. It is legal to store obscene content.

The three elements of “obscenity that can be in electronic form” are as under:

1. acts that are transmitted, causes to be published
2. “any material”, video files, audio files, text files, images, animations, and even CDs, Websites, Computer, Cell Phones etc.
3. material is lascivious, appeals to prurient interest, and maybe lead to misguide or corrupt of minds of the persons.

It is a bailable and cognizable offense. 

Exception: Section 67, 67A and 67B will not apply to any book, pamphlet, document, writing, drawing, painting, representation, or figure in electronic form in the following circumstances:

1. If the publication publishing the information proves that the information is in the public interest.
2. It is being preserved for religious purposes.

Section 292 of the IPC

Section 292 of IPC[7] says that if any book, pamphlet, paper, writing, drawing, painting, representation, figure, etc. shared in electronic form is lascivious or appeals to prurient interests, aiming to misguide and corrupt a person, that information is considered obscene. As per this section, it is an offense to use conventional print media to distribute, import, export, view, etc. obscene material.

Miller Test for Obscenity

The Miller test is the standard that courts use to define obscenity.  In the case of Miller v. California[8], Chief Justice Warren Burge set certain guidelines which are as follows:

1. if any average person, applying prevailing social norms will find that the content, taken overall, relates to the prurient interest,
2. if the content portrays or defines sexual activity that is clearly described as a patently offensive manner by the appropriate state law, and
3. if the content, taken as a whole, is lacking of significant literary, artistic, political, or scientific quality.

Case Laws

Ranjit D. Udeshi v. State of Maharashtra[9]

In this case, the appellant and  4 other persons were partners in a business and owned a bookstall, they were held convicted under section 292 for keeping a book named ‘Lady Chatterley’s Lover’ in their bookstall for sale, the book was prohibited. The Court interpreted the term “obscene” and said “obscene can be described as “offensive to decency or morality, vulgar, filthy, repulsive.”

State of Tamil Nadu v. Suhas Katti[10]

It was the first conviction case in India. The defendant in this case was the victim’s family friend. The defendant asked the victim to marry him but the victim refused and married another man. However, the marriage broke apart. The defendant saw this as an opportunity and asked her for marriage once again. The victim again denied it. The accused posted obscene and defamatory messages on Yahoo messenger groups about the victim upon being rejected, damaging her dignity and insulting her reputation. The defendant also forwarded emails received in a fake account opened in the name of the victim by the defendant. The posting of messages resulted in the victim receiving offensive calls. The calls were in the assumption that the victim was available for prostitution. The victim was fed up with all of it and filed charges against him. The defendant was arrested and he refused to any of the above-mentioned things. The defendant was held liable under section 67 of the IT Act.

Avnish Bajaj v. State[11]

This case is a classic example of the online intermediary liability problem. The case Avnish Bajaj v. State is also called the “Bazee.com case”. In this case,  a 17-year-old schoolboy filmed a sexual act in 2004 featuring himself and his friend (also a minor). a student of IIT Kharagpur, Ravi Raj posted an obscene video clip on a site called “Baazee.com”. The case became known as the ‘DPS MMS Scandal’.

Baazee.com was an eBay-owned website that acted as a website much like eBay which was an online marketplace where sellers and customers can trade. The Delhi Police took the cognizance and registered FIR. The person who is listed in the online video and the managing director of the company owned by Baazee.com, Avnish Bajaj, got arrested. This video clip was removed after 2 days from the website

The charge sheet was filed against Ravi Raj, Avnish Raj, and the person who handed over the video clip (who was a Delhi Schoolboy).

Avnish Bajaj then filed a petition seeking the quashing of his legal proceedings.

The petitioner argued that:

1.  The listing posted on the website, which was not obscene by itself and did not incur an offense under Section 292/294 of the IPC or Section 67 of the Information Technology (IT) Act, may at most be liable because the MMS was passed directly between the seller and the buyer without the involvement of the website.
2. The website deleted the video clip immediately as soon as it was known to them that it was inappropriate.
3. The scope of Section 67 of the IT Act shall be limited to the disclosure of obscene material and shall not include the disclosure of such material.

The court held that the website can be held responsible to it the awareness that such content was in fact obscene by not having adequate filters that could have identified the terms in the listing or the sexual content of what was being offered for sale. It was also held that knowledge of the listing may be imputed to the company as per the strict liability imposed by Section 292 of IPC. Avnish Bajaj was discharged as the Indian Penal Code does not accept the principle of automatic criminal liability attached to the director of the accused company. However, the other accused were not discharged.

Bennett Coleman & Ors. v. Union of India[12]

In this case, the petitioners were major media corporations engaged in the publishing of newspapers were the petitioners. The petitioners, here, challenged the limitations being imposed on the import of newsprint under the Import Control Order 1955 and the manner in which it is used by newspapers under the Newsprint Order 1962.

The Newsprint Policy of 1972-73 imposed further restrictions based on the following four features:

1. institutions that own more than two newspapers, if at least one of which is a daily newspaper, cannot launch new newspapers;
2. The total number of pages should not be more than 10 pages;
3. For newspapers that are under ten pages, the rise in the number of pages should  not be more than 20 %;
4. No modifiability of newspapers between different newspapers of the same institution or between different editions of the same newspaper should be allowed.

The Supreme Court observed that the petitions should be held maintainable. The Supreme Court of India accepted the petitioners’ arguments that the right to freedom of speech and expression was affected by the limitations and regulations on newspapers. The petitioners questioned the limitations imposed by the Import Order 1955 on the importation of newspapers; the control of the selling, purchase, and use of newspapers pursuant to the Newsprint Order 1962; and the direct regulation of the size and distribution of newspapers pursuant to the Newsprint Policy of 1972-73. It was held that the Newsprint Policy was unconstitutional because its quantitative limitations were not justified by a lack of newsprint. After all, the freedom of the press included both qualitative and quantitative dimensions.

Ajay Goswami v. Union of India[13]

The petitioner filed a Writ Petition pleading the court to pass an order in the newspaper that no sexually exploitative conflict should be published as the same is harmful to children. Besides, he claimed that the right to freedom of the press should not be permitted to violate the right to educate and protect children.  He said that such materials in the papers would harm the child’s mental well-being and fill the child’s mind with negative thoughts.

The court held that Newspaper agencies are already banned from publishing obscene materials in line with the Press Council Act, 1978 and Section 292 of the IPC. It further held that insufficient evidence had been produced to curb the freedom of speech and expression enshrined in Article 19 of the Constitution and the petition was dismissed.

Conclusion

To conclude, it can be said that The World Wide Web and Internet is a network that is very complicated and vulnerable to several illegal operations. In the wake of numerous electronic resources with promise many risks and challenges are being thrown before the law to be used as a ‘computer’ and publishing of obscene information in electronic form is a serious issue in today’s society. Although India has laws related to the publishing of obscene information in electronic form, however, in order to prevent this offense, it is important to spread awareness. The Regulatory System must be well-equipped and well trained on a priority basis. As they are directly responsible for the prevention, identification, investigation, and enforcement of cybercrime prosecutions or offenses, including electronic/cyber-obscenity or pornography, they are qualified and trained. It is also important that the cyber authorities are also trained time-to-time.

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[1] Noopar Kalpeshbhai Dalal, punishment for Publishing or Transmitting Obscene Material in Electronic Form, https:// blog.ipleaders.in/obscene-material-electronic-form (last visited Jan. 16,2021)

[2] Information Technology Act,2000,Acts of Parliament,2000(India)

[3] INDIA CONST. art. 19(2)

[4] Regina v. Benjamin Hicklin, Queen’s Bench 360 (1868).

[5] Miller v. California, 413 U.S. 15 (1973)

[6] Noopar Kalpeshbhai Dalal, punishment for Publishing or Transmitting Obscene Material in Electronic Form, https:// blog.ipleaders.in/obscene-material-electronic-form (last visited Jan. 16,2021)

[7] Indian Penal Code 1860, Acts of Parliament,1860 (India)

[8] Miller v. California, 413 U.S. 15 (1973)

[9] Ranjit D. Udeshi v. State of Maharashtra, 1965 AIR 881,SCR (1) 65

[10] State of Tamil Nadu v. Suhas Katti, 2004 AIR 4680

[11] Avnish Bajaj v. State (NCT of Delhi), (2005) 116 DLT 427: (2005) 79 DRJ 576

[12] Bennett Coleman & Ors. v. Union of India, 1973 AIR 106, SCR (2) 757

[13] Ajay Goswami v. Union of India, Writ petition(Civil) No. 384/2005