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Child pornography: an international perspective

  • The UNCRC provides a baseline international legal standard for the protection of children from sexual exploitation. Article 34, among other articles which prohibit the degrading treatment of children, explicitly requires countries to take “all appropriate national, bilateral, and multilateral measures to prevent … the inducement or coercion of a child to engage in any unlawful sexual activity … [and] the exploitative use of children in pornographic performances and materials.”
  • The United Nations Commission on Human Rights' Programme of Action for the Prevention of the Sale of Children, Child Prostitution and Child Pornography reinforces the UNCRC and international efforts to sanction those who exploit children for pornographic purposes.
  • Also important is Article 39, which requires States to provide recovery and reintegration in an environment that fosters the health, self-respect and dignity of child victims of sexual exploitation. On May 25, 2000, the General Assembly of the United Nations adopted the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography. This protocol has been in force since January 18, 2002.
  • The Optional Protocol criminalizes specific acts relating to the sale of children, child prostitution and child pornography, including attempt and complicity. It lays down minimum standards for protecting child victims in criminal justice processes and recognizes the right of victims to seek compensation. It encourages strengthening of international cooperation and assistance and the adoption of extra-territorial legislation, but it does not provide for exemption from the dual criminality principle.
  • There are concerns that the Optional Protocol does not protect children from victimization in criminal processes once they have been recognized as having had their rights violated. Because the Optional Protocol applies to specific forms of sexual exploitation, it is important to bear in mind that Article 34 of the CRC gives children the right to protection from all forms of sexual exploitation and abuse and that all exploited children have these rights recognized by the CRC. This includes the right to recovery and reintegration in the light of Article 39.
  • Article 2 of the Optional Protocol 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.” Article 3 of the Optional Protocol requires States Parties to criminalize “producing, distributing, disseminating, importing, exporting, offering, selling or possessing for the above purposes child pornography as defined in Article 2.” Pornography can, among other forms, be represented in live performances, photographs, motion pictures, video recordings and the recording or broadcasting of digital images.
  • The Committee is particularly concerned about the widespread distribution and accessibility of child pornography through the Internet. It has strongly and consistently recommended that States Parties and the international community should urgently tackle the issue. Specific recommendations have been made regarding adoption of legislation on the obligations of Internet service providers in relation to child pornography. Interpreted strictly, Article 3(1) © of the Optional Protocol obliges States Parties to punish the possession of child pornography only when this possession is “for the above purposes” – producing, distributing, disseminating, importing, exporting, offering or selling. The Committee on the Rights of the Child has nevertheless encouraged countries to prohibit simple possession.
  • The United Nations Commission on Human Rights Programme of Action for the Prevention of the Sale of Children, Child Prostitution and Child Pornography reinforces the United Nations Convention on the Rights of the Child and international efforts to punish those who exploit children for pornographic purposes.

India’s Legislature and Judicial Measures on Information Technology and Child Pornography

  • New communication systems and digital technology have made dramatic changes in the way we live and the means to transact our daily business. Businessmen are increasingly using computers to create, transmit and store information in electronic form instead of traditional paper documents. Electronic commerce eliminates need for paper based transactions.
  • At present many legal provisions assume the existence of paper based records and documents which should bear signatures. The Law of Evidence is traditionally based upon paper-based records and oral testimony. Hence, to facilitate e-commerce, the need for legal changes has become an urgent necessity.
  • The Government of India realized the need for introducing a new law and for making suitable amendments to the existing laws to facilitate e-commerce and give legal recognition to electronic records and digital signatures. Cyber laws are contained in the Information Technology Act, 2000. This Act aims to provide the legal infrastructure for e-commerce in India and would have a major impact for e-businesses and the new economy in India. The Information Technology Act, 2000 also aims to provide the legal framework under which legal sanctity is accorded to all electronic records and other activities carried out by electronic means.
  • The Act states that unless otherwise agreed, an acceptance of contract may be expressed by electronic means of communication and the same shall have legal validity and enforceability.
  • The Information Technology Bill, 2008 has been passed both the houses of Parliament in December, 2008 and was signed by the President of India on February 5, 2009 and became the Amendment Act. The Amendment Act aims to make revolutionary changes in the existing Indian cyber law framework, including incorporation of Electronic Signature i.e. enable authentication of electronic records by any electronic signature technique. There are insertions of new express provisions to bring more cyber offences within the purview of the Information Technology Act, 2000. There are various provisions in the new amendment relating to data protection and privacy as well a provision to curb terrorism using the electronic and digital medium. The Amendment incorporated Sections 67 A to 67 C to the parent Act. The sections are regarding publishing or transmitting material in electronic form containing sexually explicit act, Child pornography and obligation of intermediary to preserve and retain such information as may be specified by central government.
  • i. Amendment in Section 67: Section 67 of the old Act is amended to increase the term of imprisonment for publishing or transmitting obscene material in electronic form to three years from five years and increase the fine thereof from Indian Rupees 100,000 to 500,000. A host of new sections have been inserted as Sections 67 A to 67C. While Sections 67 A and B insert penal provisions in respect of offenses of publishing or transmitting of material containing sexually explicit act and child pornography in electronic form, Section 67C deals with the obligation of an intermediary to preserve and retain such information as may be specified for such duration and in such manner and format as the central government may prescribe.
  • Section 67A adds an offence of publishing material containing sexually explicit conduct punishable with imprisonment for a term that may extend to 5 years with fine up to ten lakhs. This provision was essential to curb MMS attacks and video voyeurism.
  • Child Pornography has been exclusively dealt with under Section 67B of the Information Technology Act, 2008. Depicting children engaged in sexually explicit act, creating text or digital images or advertising or promoting such material depicting children in obscene or indecent manner etc. or facilitating abusing children online or inducing children to online relationship with one or more children etc. come under this Section. ‘Children’ means persons who have not completed 18 years of age, for the purpose of this Section. Punishment for the first conviction is imprisonment for a maximum of five years and fine of ten lakh rupees and in the event of subsequent conviction with Imprisonment of seven years and fine of ten lakh rupees.
  • Bonafide heritage material being printed or distributed for the purpose of education or literature etc. are specifically excluded from the coverage of this Section, to ensure that printing and distribution of ancient epics or heritage material or pure academic books on education and medicine are not unduly affected. But screening video graphs and photographs of illegal activities through Internet all come under this category, making pornographic video or MMS clippings or distributing such clippings through mobile or other forms of communication through the Internet fall under this category.
  • Section 67C fixes the responsibility to intermediaries that they shall preserve and retain such information as may be specified for such duration and in such manner as the Central Government may prescribe. Non-compliance is an offence with imprisonment up to three years or fine.
  • The Indian Penal Code, 1860 Section 293 also specifies, in clear terms, the law against Sale etc. of obscene objects to minors. As per the IPC, whosoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years any such obscene object, as is referred to in IPC Section 292, or offers of attempts so to do, shall be punished with imprisonment for a term which may extend to three years, and which 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 seven years, and also with fine which may extend to five thousand rupees. It also states that it is a cognizable offence and the Magistrate is empowered to try any such case. For the purposes of sub-section (2), Section 292 IPC, 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 shall be punished with imprisonment, for the first instance, 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.
  • The Bombay High Court Committee on Protecting Children from Online Pornography, suggested following recommendations in their Report on Protecting Children from Online Pornography:
  • • Blocking of sites;
  • • Preventing minors from accessing unsuitable material from Cyber Cafes;
  • • Preventing the publication or propagation of pornography from Cyber Cafes.
  • The Protection of Child from Sexual Abuses Act, 2012 also provides for punishment regarding child pornography. Chapter 3 of the Act is titled Using Child for Pornographic Purposes and Punishment in which Section 13 to 15 provides for punishment for using a child for pornographic purposes and punishment for storage of pornographic material involving a child.
  • In Court on its own motion v. State of Punjab, it was held, “We would like to mention that recently, the Parliament has enacted the ‘Protection of Children from Sexual Offences Act, 2012’. This is an Act to protect children from offences of sexual assault, sexual harassment and pornography. It becomes necessary to have effective implementation of this enactment as well. Under the Act, the National Commission and State Commissions have been made the designated authorities to monitor the implementation. Rules, 2012 have also been framed under this Act and Rule-6 prescribes for such monitoring with specific functions assigned to National Commission and State Commissions. Needless to mention, National Commission as well as State Commissions shall start discharging their functions under this Act in a meaningful manner.”
  • In Avinash Bajaj v. State (N.C.T. of Delhi) “the law in our country is not adequate to meet the challenge of regulating the use of the internet to prevent dissemination of pornographic material. It may be useful to look at the legislative response in other common law jurisdictions. In the United States, there have been three legislations that have dealt with censorship of pornographic material on the internet: the Communications Decency Act (CDA), which was enacted as a part of the Telecommunications Act of 1996, the Child Online Protection Act 1998 (COPA) and the Children Internet Protection Act 2003 (CIPA). The CDA sought to prohibit the use of an interactive computer service to send or display in any manner to those under the age of 18, any communication that depicts or displays sexual or excretory activities in a manner that is patently offensive.
  • In the United Kingdom, the Obscene Publications Act, 1959 was amended by the Criminal Justice and Public Order Act of 1994 (CJPOA) to deal with the specific problem of internet pornography by extending the Act to cover the transmission of electronically stored data. It makes service providers liable for material placed on the internet by a third party thus requiring them to monitor material for obscene matter. Further the Protection of Children Act, 1978 was amended by CJPOA, 1994 to include photographs in electronic data format. India may want to develop a different legislative model to regulate the use of the internet with a view to prohibiting its use for disseminating child pornographic materials. Nevertheless, the task deserves the utmost priority.”
  • In Kamlesh Vaswani v. Union of India, it was held that the websites showing child pornography, especially of children between 14 to 18 years should be strictly banned. The court stressed upon the seriousness, importance and urgency of the matter and directed that, all parties by the said order must take positive steps to try and contain the menace of child pornography. Further directions issued to the Secretary, DoT to file personal affidavit within one week on issue as to whether DoT or any other department of Government of India is competent to issue direction to call off sites showing pornography.

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