By Ansu Ealias
Child means any person below eighteen years of age unless any other law in force specifies otherwise. In child pornography, the word child means prepubescentchildren. It doesn’t refer to post puberty teenagers. Child pornography is the consequence of the exploitation or sexual abuse against a child. It can be in different ways like depicting the images, audio and or video on sexual activity or the genital organs of children. Thereby promoting the sexual abuse of a children. Child pornography also known as child abuse images. Child pornography is a visual record of child sexual abuse. Children of all ages, including infants, are abused in the production of pornography. Publishing or transmitting of material depicting children in sexually explicit act, etc. In electronic form is a punishable offence under Section 67 B of Information Technology Act, 2000.
Pornography can be in the form of obscene publications, e-mails, mobile messages etc.
Example :- DPS Scandal Case
In Doctor Prakash Vs State of Tamil Nadu, a medical practitioner make pornographic photos and videos and sold them to foreign websites. The CD were obscene to such extent that the public prosecutor approach the High Court of Chennai to transfer the file from the court presided over by a lady judge to another court. The High Court gave permission to transfer it. However, on appeal the Supreme Court in 2005 sent back the case to the court presided over by lady judicial officer considering the convenience of lady witness in the case.
CASE :- The accused open a forced email account in the name of the victim. The accused was a non-family friend of her and was interested to marry her. She however married another person. The messages resulted in many phone calls to the lady in the belief that she was sole sitting. The accused was convicted under S.67.
TEST OF OBSCENITY
- HICKLIN TEST
- ROATH TEST
- CONTEMPORARY INTERPRETATION
- HICKLIN TEST :-
It is the legal test for obscenity established by the famous English case Regina Vs HICKLIN. The court held that all the materials intended to corrupt the minds of the people and causes immoral influences on people. Those materials were obscene and didn’t have any merit.
- Roath Test (1957)
In 1957, Roath Vs U.S, US Supreme Court held that Hicklin test was inappropriate. A book can be judged as an obscene by :-
- Only if the dominant theme of the material taken as a whole is judged as obscene.
- Only if it has an adverse effect on the average person and not especially susceptible person.
3. Contemporary Interpretation
(Modern Man Thinking
Aveek Sarkar Vs State of West Bengal
In 1994, German Magazine STERN published an article with a picture of Boris Becker, a world-renowned tennis player and his dark skin fiancé German Actress Barbera. In the picture both Becker and Barbera were naked and he had his arms around her in a manner to cover her breast with his arms. The articles states that both spoke freely about their engagement, their lives and future programmes and the message they wanted to convey to the people at large. For posing to such a photograph article picturizes Boris Becker as a strident protestor of the practice of Apartheid. Further it was stated that the purpose of the photograph was also to signify that love beyond any discrimination. This article was published in Ananda bazar patrika in India. A lawyer, Aveek Sarkar filed a case against the printer, editor and publisher. He alleged that photographs will deprive the minds of young, and intend of increased sales. The Supreme court held that the question of obscenity must be seen in the contest in which the photograph oppress and the message it wants to convey. The court further said that the correct test to determine obscenity would be contemporary standard test or community standard test and not Hicklin test.
MEANING OF PORNOGRAPHY
Pornography is derived from the word ‘pornographos’.The Greek word pornograhos means writing about prostitutes. ‘pornography’ means depiction the erotic behavior intended to cause sexual excitement. The word pornography means any work depicting the life of prostitutes.
According to Oxford Dictionary, ‘pornography means explicit representation of sexual activity visually or descriptively to stimulate erotic rather than aesthetic feelings, films, literature etc.
The word pornography means film, writing or picture designated to be sexually exciting.
City of Youngstown Vs. De Loreto (1969)
In this case the word pornography is defined. The pornography is defined in the case as the depiction of the erotic behavior intended to cause sexual excitement. The words, acts or representations to stimulate the sexual feelings which are independent of the presence of another loved and chosen human being.
In R vs. Butler, supreme court usefully divided pornography into three types :-
- Explicit sex with violence
- Explicit sex without violence but subjected people to treatment i.e.; degrading and dehumanizing.
- Explicit sex without violence that is neither degrading nor dehumanizing.
INFORMATION TECHNOLOGY ACT, 2000
Publishing or transmitting obscene material in electronic form is a punishable offence under Section 67 of IT Act 2000.It is cognizable and bailable for first conviction and non-bailable for second conviction and trailable by the court of Magistrate of first class.
In day-to-day application, Section 67 of the IT Act, includes websites, graphic files such as GIF and JPEG images, text messages, email, SMS, chat room, BBS, audio messages music downloads, digital photographs, MMS, PNG, JPG, morphed images, software programmes,
etc. Punishment for the first conviction of section 67 of IT Act is imprisonment for a term may extend to 3 years and with fine may extend to 5 lakh rupees. Punishment for the second conviction of this offence is imprisonment for a term may extend to 5 years and also with fine may extend to 10 lakh rupees.
Publishing or transmitting of material containing sexually explicit act in electronic form is a punishable offence under Section 67 A of IT Act, 2000.It is cognizable and non bailable is triable in the court of Magistrate of the first class. The ingredients of offence under section 67 A are the following.
- Publication or transmission in the electronic form,
- Any material containing sexually explicit act or conduct
Section 67 is generic and section 67A is specific. The test of obscenity under Section 67 is like an audience test to prove obscenity. The test of obscenity under Section 67A is not like an audience test.
The offence under Section 67A is non liable for all subsequent convictions.
Under section 67B of the IT Act 2000, the following instances of online child pornography has been considered as crimes :
- Publishing or transmitting or causing to publish or transmit material in any electronic form which depicts children engaged in sexually explicit act or conduct,
- Creating text or digital images, seeking, collecting, downloading, browsing, exchanging, advertising, promoting, distributing material in any electronic form depicting children in obscene or indecent or sexually explicit manner,
- Facilitating online children abuse,
- With one or more children cultivating, inducing and enticing children to online relationship for sexually explicit act or may offend a reasonable adult on the computer, and
- Own abuse or that of others pertaining to sexually explicit act with children recording in any electronic form.
The cyberspace must take more precautions to ensure the safety of the children by ensuring the computers installed at their facility are not used for any unlawful purposes.
Transmitting or publishing of any materials that depicting the children in sexuallyexplicit act, in the electronic form is a cybercrime under Section 67B of IT Act. Punishment for the first conviction of Section 67 B is imprisonment for a term may extent to 5 years and with fine may extent to 10 lakh rupees. Punishment for the second or subsequent conviction of this offence is imprisonment for term may extend to 7 years and also with fine may extend to 10 lakh rupees. The offence under Section 67 B of IT Act, 2000 is cognizable and non bailable and triable by the court of Magistrate of the first class.
The IT Act provides guidelines for cyber cafe in Rules, 2011.Those measures will only prove effective whether active monitoring and supervision of Registration authority or Police. They maintained to ensure the rules are effectively enforced and their licenses are revoked in case of violations or defaults.
TYPOLOGY OF CHILD PORNOGRAPHY
In 1990 a 10-level typology in the name of COPIN SCALE was developed. This10-level typology was based on the child abuse images available on internet and websites. They are indicative, erotica, nudist, posing, explicit erotic posing, erotic posing, explicit sexual activity, assault, gross assault, bestiality or sadistic.
- Indicative : non -sexualized images depicting children in their underwear, swimming costumes.
- Nudist : naked or semi naked images of children.
- Erotica : pictures of children in a safe environment showing under wear.
- Posing : naked or semi naked posed images of children.
- Explicit Erotic posing : images emphasizing genital areas.
- Erotic posing : knowingly posed images of naked or semi naked children.
- Explicit sexual activity : images of self-masturbation of children
- Assault : sexual assault images of children
- Gross assault : penetrative sex images or oral sex images of children
- Bestiality or Sadistic : images of child sex with an animal.
Images of beaten or whipped child.
There is a recent practice of child pornography. That is known as sexting, this activity people use mobile phones to send seminude or nude images of themselves to other friends or partners. They may be share and posted on the internet.
INTERNATIONAL LEGAL ASPECTS REGARDING CHILD PORNOGRAPHY
- United Nations Convention on the Rights of the child, 1989 (UNCRC)
The exploitation and the use of child pornographic materials is prohibited and prevented by the Article 34 of UNCRC.
Article 16 of UNRC ensures the right of the children against any cyber-attack. They have the right to the protection of law.
Article 17 of UNRC describe about the role of mass media for the promotion of mental and physical health of the children.
Article 13, 18 describes the development of proper guidelines for the protection of child.
Article 3 of UNRC – Prohibition of child prostitution, sexual exploitation of children, selling, producing, distributing of child pornography.
Article 4 of UNRC – Jurisdiction for these criminal offences.
Article 5 of UNRC – extradition for these criminal offences.
Article 6 of UNRC – greatest measure of assistance.
Article 8 and 9 of UNRC – protection of the rights and interest of child victim and witnesses.
To provide habitation for them.
To access the procedures of law.
To seek the compensation
For the protection and prevention of children from sexual abuse and child pornography.
- International conference on child pornography at Vienna in 1999
- International Labor Organization (ILO) Convention in 2000
- Council of Europe Convention on Cybercrime in 2001
- Council of Europe Convention on the Protection of Children against sexual exploitation and sexual abuse in 2007
- International Centre for Missing and Exploited Children (ICMEC) in 2008 – review of child pornography laws.
NATIONAL LAW REGARDING CHILD PORNOGRAPHY
IT Act 2000 was amended by IT Amendment Act, 2008.Section 67B of Act is applicable to the child pornography. In Indian Penal Code, 1860 the Sections 292, 293, 294, 500, 506 and 519 are applicable to the child pornography.
The victim of the child pornography can file a complaint in the nearest police station or where comes to know about the crime.
The Delhi Police Cyber Crime Cell registered a case of cyber pornography under Section 67 of the IT Act, 2000.
In New Delhi a student studying in Air Force Bal Bharati School, was teased by all his classmates. He created a website. He uploaded details about various sexy girls and teachers of the school in that site. The father of a girl registered a case of cyber pornography under Section 67 of the IT Act, 2000.He was an Air Force officer. The police kept the concerned student at Delhi Juvenile home. After one week the juvenile board granted bail to that 16-year-old student.
- Disconnecting Child Pornography on the Internet : Barriers and Policy Considerations.
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- Childhood Sexual Abuse : A Reference Handbook
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- Understanding and Preventing Online Sexual Exploitation of children
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- Child Abuse on the Internet : Ending the Silence
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- Children and Criminality:
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