By : Adv.Navas.C.P, Associate, Alishahz Legal LLP –
Introduction
In a civilized society, the importance of child welfare cannot be under estimated because the welfare of entire community, growth and development of depends on the health and well being of the children. The growth of internet and information technology in India and across several other jurisdictions has been phenomenal in the last two decades. The internet brings with it unprecedented potential for the positive development of our society. The ability to disseminate information and to communicate almost instantaneously has already revolutionized numerous facets of our lives and will continue to do so. On the same time internet provides extremely effective tools and mechanism for individual and groups who seek to conduct unlawful activity. Throughout history, each advance in technology has brought new means by which traditional crimes could be committed.
Internet’s impact on children has been a prime subject of concern among all stakeholders, including law enforcement, internet service providers, parents, educators and children themselves. Information technology and proliferation of iPods, laptops, smart phones and other gadgets have several benefits for children. Likewise it also poses number of serious threats for children. The glaring instances of child pornography rackets, cyber bullying, sexual grooming and other kinds of online abuse related to children reported in press and media almost on a daily basis. The expansion of internet and advanced digital technology lies parallel to the explosion of the child pornography markets. Child pornography images are readily available through virtually every internet technology including social networking websites, file-sharing sites, photo sharing sites, gaming devices and even mobile apps. Child pornography offenders share their interests, desires and experiences abusing children, in addition to selling, sharing and trading images through network forums. This study gives an insight into the Anti- Child Pornography laws and its socio – legal challenges.
What is child pornography
Meaning and definitions :
Pornography has existed for centuries. There has been so many debates about whether pornography is socially or morally acceptable but as it involves adults, there is no law that is broken. But when children are involved in sexual exploitation, pornography is explicitly regarded to be a heinous crime in multiple nations.
Child pornography relates to publishing and transmitting of any obscene material of children in electronic form. Child pornography is considered as one of the most heinous crime which occurs and also giving way to crimes such as sex tourism, sexual abuse of child etc. It includes, a minor engaged in sexually explicit conduct and a person appearing to be a minor engaged in sexually explicit conduct.
Child pornography has becomes a glaring problem in India, until 2009, the Indian I.T Act, 2000 hasn’t explicit section prohibiting child pornography (except a general section prohibiting transmission and publication of obscene materials electronically) By virtue of IT (Amendment) Act, 2008 Section 67B now expressly prohibits child pornography. According to this section, if any person publishes or transmits materials depicting children, in sexually explicit acts in electronic form or creates images, text, collects, seeks, downloads, advertises, promotes or distributes content that depicts children in obscene or in sexually explicit manner, such person is punishable with imprisonment for a term which may extend up to 5 years and imposes fine which may extend up to Rs. 10 lakhs. The said section also provides that if any person entries children into online relationship with one or more children for sexually explicit acts or in a manner that can offend a reasonable adult, or facilitates abusing children online or records in electronic form own abuse or that of others relating to sexual explicit act with children such act is punishable on the first conviction with imprisonment for a term which may extend up to 5 years and 5 upto Rs. 10 lakhs. In the event of second conviction it is punishable with imprisonment for a term which may extend upto 7 years and a fine up to 10 lakhs. For the purpose of this section “child” means person who has not completed the age of 18 years.
CHILD PORNOGRAPHY AND INTERNATIONAL LAWS
Internationally, child abuse and exploitation is a groove problem and probably one of the most heinous types of child sexual abuse. It may involve some fining less than a rape like exposing him/her to pornography, voyeurism and exhibitionism. The complaints lodged in child pornography cases are rather very few because of the people’s unease and unawareness about this medium and the lack of evidence which can be gathered by them, obscenity impairs the moral and ethnical development of the young. Parents are deprived of the right to bring up their children in an untainted, unpolluted, healthy and morally upright environment.
United Nations Convention on the Rights of child, 1989 is the first internationally legally binding document concerning child rights. It includes protection of children from sexual exploitation. It implies the state parties to prevent the inducement or coercion of a child to engage in any unlawful sexual activity, the exploitive use of children in prostitution or other unlawful sexual practices and the exploitative use of children in pornographic performances and materials. It also requires state to provide recovery and re-integration 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 united nations adopted the optional protocol on the sale of children, child prostitution and child pornography. This protocol in force since January 18,2002. Optional protocol criminalizes specific acts relating to sale of children, 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 co operation and assistance and adoption of extra territorial legislations, but it does not provide for exemption from the dual criminality principle.
The committee is particularly concerned about the widespread distribution and accessibility of child pornography through the internet. It has strongly recommended the state parties and international community should urgently tackle the issue. Specific recommendations have been made regarding adoption of legislation on the obligation of ISP. in relation to child pornography. Article 3(1)(c) of optional protocol to this convention obliges state parties to punish the possession of child pornography only when this possession is for the ‘’above purpose”, i.e, producing, distributing, disseminating, importing, exporting, offering or selling. The convention on the rights of children has nevertheless encouraged countries to prohibit simple possession. The united nations commission on Human Right 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 child and international effort to punish those who explicit children for pornographic purposes.
Why there is an urgent need to curb child pornography?
The production of child pornography creates a permanent record of a child’s sexual abuse. When these images are placed on the internet and disseminated online, the victimization of the children continues in perpetuity. Experts and victims agree that victims depicted in child pornography often suffer a lifetime of revictimisation by knowing the images of their sexual abuse are on the internet forever. The children exploited in these images must dive with the permanency, longevity and circulation of such a record of their sexual victimization. This often creates lasting psychological damage to the child including disruptions in sexual development, self image and developing or trusting relationships with others in future.
What is the truth that no child porn can create without abusing children. For their better development and growth, the menace should be taken as a serious socio – legal issue. Another important point to keep in mind that most of the child sex rackets and they compelled to be porn tools.
INDIAN LAWS AGAINST CHILD PORNOGRAPHY
The government of India realized the need for introducing a new law and for making suitable amendments tot eh existing laws to facilitate e-commerce and give legal recognition to electronic records and digital signatures. Cyber laws are contained, in the I.T Act 2000 and to make appropriate laws against cyber crimes.
Section 67 of the said Act punishes publication or transmission of obscene content in electronic form. Therefore if a child pornographic material or other wise adult content is published or transmitted in electronic form. If amounts to an offence under this section. Section 67A also provides punishment for obscene digital content such as adult content vides or a MMs or short clips or images including selfies (self cliked images). Section 67 B added by IT (Amendment )Act 2008, punishes child pornography, child grooming or exploitation.
The law does not provide any definition for pornography or obscenity. The law varies from country to country and might consider a material sexually explicit but not obscene in one country may well be taken as obscene in India.
The Indian Penal Code does not describe obscenity but simply takes about selling and distribution of obscene materials etc. the problem is more complicated and offensive when it comes to cyber obscenity.
While relying on a famous US case which gave the Miller Test for obscenity in Ranjeet Udeshi V. State of Maharashtra.
The court held that – “obscenity without prepondering social purposes or profit cannot have the constitutional protection of free speech and expression and obscenity in treating sex in a manner appealing to the carnal site of human nature o having that tendency. The obscene material in a book must be considered by itself and separately to find out where it is so gross and its obscenity is so decided that it is likely to deprave and corrupt those whose minds are open to influence of this sort and in to whose hands the book is likely to fall.
In samaresh Bose V. U Amal Mitra.
The court held that to decide the question of obscenity the judge ought to place himself in the position of authors and then as a reader of every age group likely to read the book in order to assess its influence on the minds of readers.
POCSO, 2012 provides protection to children from sexual assault, harassment and pornography. In this Act section 13 makes use of children for pornographic purposes a criminal offence that can lead to being jailed for up to 5 years and subsequent convictions up to seven years besides fine amount mentioned in S.14(1).
National policy for children 2013 and national charter for children 2003 has takes so many preventive measures to protect child from prostitution and all cyber of commercial exploitation.
The issues and challenges in the existing laws.
India has become one of the biggest contributors and consumer of child pornography. Even though there has been heavy crackdown on such explicitly content, the numbers seems to be rising.
According to the statistics obtained through various sites, pornographic content is created in every 40 minutes. Kerala leads the list in uploading pornographic content on to websites while Haryana is highest in viewing such content through mobile phone. Statistics clearly show around 40% of porn uploaded on to internet is related to children /teens. Tracking results suggest that research engines like google, yahoo and others get over 1 lakh queries daily related child pornography.
The online communities have promoted communications and collaboration between child pornography offenders, thereby fostering a larger relationship premised on a shared sexual interest in children. This has the effect of eroding the shame that typically would accompany this behavior, as well as desensitizing those involved to the physical and psychological damage caused to child victims.
But the number is very less comparing to the cases reporting. No special courts have been set up under IT Act 2000. The courts which near other criminal cases are also empowered to hear the cyber crime cases. This causes long delays in disposal of cybercrime cases and many cases are not decided in a timely manner. In most cases the prosecution fails for lack of evidence, or tempering or destructions of electronic evidence.
The law enforcement including the police and judges ought to be trained to deal effectively with cases relating to cybercrime directed against children and trained police officers, including women police officers must be deputed to deal with these cases.
It was reported in 2014 that special public prosecutors have not been appointed to deal with child sexual harassment cases as envisaged by POCSO Act. Such lacunae in implementation of law must be immediately addressed.
Legal challenges
There are legal challengers including differences among the nation in the definition of a child, differences in law, and international co operation arrangements to combat cybercrimes. In some countries commercial trading of adult content for sale to children may be acceptable while in others it is not. A low conviction rate in cybercrimes does not serve as a deterrent for cybercriminals, particularly in India.
Law is a challenge to law enforcement as it does not deter criminals. It is pertinent to mention that all those offences under I T Act, 2000 for which term of imprisonment on first conviction is three years are bailable offences with three year imprisonment and above are cognizable. This is quite a challenge to law enforcement as it does not deter criminals and a criminals out on bail can easily tamper /destroy electronic evidence stifling the investigation and prosecution in a case. In order to investigate cybercrime, the Indian Police has set up cyber police stations at various states.
Special police officers and public prosecutors should be appointed to deal with child sexual harassment cases. Another lacuna in implementations of laws is seen with respect to operations of cybercafés in India. (Although rules to regulate cybercafés have been framed in India), active monitoring or their implementation is largely lacking. For instance, such cafes either have no license to operate or do not comply with other reporting obligations or obligations to maintain record of usage of their service in registers and electronically.
Lack of international co operation : Many of cyber crime are trans-border and determining jurisdiction becomes a major challenge for both investigation and prosecution purposes. IT Act, 2000 has a prescriptive jurisdiction over foreign national who many commit crimes violating the IT Act 2000, enforcing the law is met with practical hurdles of lack of co operation from foreign countries in absence of bilateral/multilateral co operation treaties extradition and mutual assistance arrangements. India has not signed a cybercrime convention till date which obligates signatory countries to extend co operation in combating cybercrime.
Role of ISP: Internet service provider must report any e – payment being effected for sale/ purchase of obscene materials using internet/particularly child pornography. Such co operation networks by credit card agencies, internet services providers and law enforcement are quite common in U.K and USA. In India POCSO has put the reporting obligation on internet service providers but how effectively it is being implemented requires detailed assessment. Sufficient funds should be allocated to meet the objectives in the National plan of Action to protect the children. Also, the government and private stake holders must adopt more measures to spread cyber awareness about online child safety.
Apart from these measures, schools and educations, parent can import strong awareness on child abuse matters and reinforce moral and social netiquette in their children, school must impart netiquette as part of its value education programme. They should aware about software –based filters, web filtering on routers, browser level filtering, hardware based filtering and mobile parental control mechanisms.
Conclusion
Child pornography is a serious issue all over the world. Statistical reports show that India has become one of the biggest contributors and consumer of child pornography. Even though many legislations are there to tackle the menace, the challenges number of cases are increasing due to inadequate laws /policies and/ or its in-effective implementation. The methods many offenders use to evade law enforcement detection have also become increasingly sophisticated. Purveyors of child pornography continue to use various encryptions techniques and anonymous networks on the “Dark Internet” attempting to hide their amassed collection of illicit child abuse images. Several sophisticated online criminal organization have been written security manuals to ensure that their members follow preferred security protocols and encryption techniques in an attempt to evade law enforcement and facilitate sexual abuse.
There is a need of reforming child pornography legislation. A careful assessment of the harms of child pornography needs to be undertaken by the government to provide stronger legislation. Attention should be paid in prohibiting possession of child pornography. This needs to be done keeping in mind integrative aspect of expertise. Banning pornography is not a solution. Rather open communication must be initiated where the child is interacting with the peers, schools and parents. It becomes the duty of each one of us to make people aware of such crimes of child pornography.