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Cyber pornograpghy (with special reference to child pornography)


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containing all provisions of Indian Penal Code & IT act 2000 related to pornography & child pornography. Prepared by Gunpreet kaur kamboj, law student of GNDU (asr) . if u like it then please like it or comment i did alot of hardwork

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Cyber pornograpghy (with special reference to child pornography)

  1. 1. Presentation On Cyber Pornography GNDU law student Submitted by: Gunpreet kaur(602)
  2. 2. INTRODUCTION • The word “pornography” has come to the English language from the Greek language i.e. ‘Pornographos’ (porne prostitute + graphien write) • The word ‘porno’ means ‘prostitution’, that implies that the subject is not love, or love at all, but domination & violence against women. • The word “graphos” means ‘writing about’ or ‘description of which puts still more distance between the subject & object’.
  3. 3. History and Religious Context  The first documented porn picture were printed in oriental manuals of sex , “Kama Sutra” was the first manual on love written in 300 AD & contained explicit description of lovemaking and related subject.  The escapades of Lord Krishna with Gopis in “Raaslila” are revered in Hindu Mythology.
  4. 4.  The statues in famous temple of “Khujraho” depict the lovemaking scenes in explicit details and are places of not only art and culture but of worship also.  The paintings on walls by the tribal societies hardly show the titillation caused by nudity, for nudity was natural to them.  The statutes of “Yakshi” in National Museum. At the end of the 18th century France was the leading country regarding the spread of porn pictures. Porn became an element of playing cards, posters, post cards & so on.
  5. 5. Any new technological achievement was placed at the service of porn. The first porn daguerreotype appeared in 1855, & the first porn film was made in a year after the Lumiere brothers invented cinema. By the mid 1980’s, the Golden Era Of Porn came to naught. By that time, the most popular porn stars appeared in hundreds of porn films or even became porn directors & producers.
  6. 6. International Prospective  European Union Convention on Cyber Crimes 2001: “Article 9” imposes a duty upon the parties to the convention to establish as criminal offences of intentionally ‘producing, offering, making, distributing, transmitting, procuring or possessing child pornography through a computer system for oneself or to distribute to another’  Budapest Convention on Cyber Crimes 2001: “Article 9” prohibits the child pornography & imposes the duty on state to prevent the coercion & prostitution of children for such activities as well as safeguard children from pornographic performances & materials.
  7. 7. • Convention on the Rights of Child: Article 2 (c) The Optional Protocol to the convention on the Rights of child on ‘sale of children, child prostitution & pornography’ it requires its members to prohibits sale of children, child prostitution & pornography. It allows the children or their representatives to file an individual complaint on violation of their rights. It was adopted in December, 2011 • UN Convention on the Rights of Child: Article 34 provides that every chid has a right to be protected from the sexual abuse or sexual exploitation. Article 36 provides that states shall protect children against any form of exploitation. Article 35 provides that state shall take measure to prevent the abduction or sale of children for any purpose International Perspective
  8. 8. HISTORY OF CYBER PORNOGRAPHY • EARLY 1990’s  February 1993 – The internet is made public  March 1993 – The largest child pornography investigation in history begins.  1995 – A study is conducted that said that about 80% of internet usage is from pornography. • LATE 1990’s  1996 – The Communication Decency Act (CDA) is created  1996 - The Association of Sites Advocating Child Protection (ASACP) is created • IN 2000’s  2004 – China attempts to ban internet pornography  2007 – International child pornography investigation has been done  2009 – Media Streaming is improved & bandwidth costs drop  2015 – Indian govt. decides to ban 286 porn sites .
  9. 9. Definitions of Pornography • The Explicit description or • exhibition of sexual subjects or • activity in literature , painting ,films, etc., • In a manner intended to stimulate erotic rather than aesthetic feelings; literature etc. The Oxford Dictionary • Writings, pictures, etc intended to arouse sexual desire • The production of such writings, pictures , etc known as pornography. The Webster Dictionary
  10. 10. Characteristics of Pornography  Its primary purpose is to stimulation of sexual interest and excitement.  Its degrading portrayal of a human [male/female] as a mere object to be exploited & manipulated sexually.  Pornography is [visual/audio] material that combines sex or degradation in a manner that appears to : • encourage such behaviour
  11. 11. Types of Pornography • According to the report of the Attorney General Commission on Pornography in 1986, broadly pornography is of two types i.e Pornography Hardcore Pornography Softcore Pornography
  12. 12. • It is still photography or video footage that contains explicit forms of pornography, most commonly including depictions of sexual acts. • It usually takes the forms of pics often displayed in magazines or on the internet , or films & cartoons • It is commercial still pornography or film that has a pornographic or erotic component • It is intended to be arousing & aesthetical beautiful. Its designed to a visual aphrodisiac – a seduction • It is less sexually graphic & intrusive than hardcore pornography
  13. 13. Pornography or Obscenity- a debate • The literal meaning of pornography is “describing or exhibiting sexual acts in order to cause sexual excitement through books, films etc”. The pornography in itself cannot become crime unless it amounts to ‘obscenity’ • The word obscenity means “offensive to modesty or decency, livid, repulsive”. • The test of obscenity was laid down in Regina v. Hicklin as the tendency ‘to deprave & corrupt those whose minds are open to such immoral influences & into whose hands a publication of this sort may fall’ • In Miller v. California, the U.S. Supreme court set out three prong test for obscenity, called the ‘Miller test’ i.e. Whether the work as a whole Appeals to prurient interest Depicts or describes in offensive way Lacks serious literacy, artistic, political or scientific value
  14. 14. • It is very well said that all obscene material is pornographic but vice versa is not true. For example 1. Where a medical students are taught the human reproductive system, depiction of all the reproductive organs & their functions in great details is not indecent hence not obscene but becomes obscene if used to cause any sexual excitement. 2. Depiction of nude body form is indecent & vulgar for some , but for someone it is an artistic expression. All depictions of nudity is not a pornographic like NICK UT won Pulitzer Prize for this picture
  15. 15. The ‘NUDE’ in Fine Arts • The word ‘nude’ in fine arts represents a “balanced, prosperous & confident body” – not a defenceless body • Nudity to express order, despair, detail & perfection • Fine arts nudity is exhibited in public places, galleries, museums, etc The ‘Naked’ in porn • To be ‘naked’ is to be deprived of one’s clothes, & to be embarrassed in that condition • Porn uses naked people for lust & greed • Pornography is shameful secret even though it is sold openly
  16. 16. Obscene  According to law in India : “anything that is lascivious or appeals to the prurient interest or if its effect is to deprave & corrupt persons would be considered to be obscene”  Like India in many other countries i.e. Indonesia, Iran, Pakistan etc. making or owing pornography is a crime.  In India the laws that provide punishment for this are • The Indian Penal Code, 1860 • The Information Technology Act,2000
  17. 17. INDIAN CONSTITUTION(Article 19) • Article 19(1)(a) provides all citizens with rights to freedom of speech & expression. • But the state has been empowered to legislate in order to reasonably curtail this freedom in a few specified circumstances provided under (Article 19(2))
  18. 18. The Indian Penal Code,1860 (Section 292)  Section 292 of IPC comprehensively sets out the circumstances in which ‘obscenity’ material is an offence. Whoever Advertises Sells Lets to hire Know about Distributes Publicly exhibits in any manner put into circulation Makes Produces Has in his possession Exports
  19. 19. • Any obscene • Shall be punished pamphlet book paper Drawing Painting Or any other obscene material On 1st conviction Imprisonment which may extend to two years & with fine which may extend to two thousand rupees On 2nd conviction Imprisonment which may extend to five years & with fine which may extend to five thousand rupees • Exceptions to this 1. Justifiably for the public good e.g. interest of science, literature , art or learning or other purposes of general concern 2. For bona-fide religious purposes 3. In any ancient monument within the meaning of the Ancient Monuments within the meaning of the Ancient Monuments & Archaeological Sites & Remains Act, 1958 4. Any temple or on any car used for the conveyance of idols or kept or used for any religious purpose
  20. 20. Publishing or transmitting obscene material in electronic form  Section 67 lays down that whoever • Publishes or transmits in the electronic form • Any material lascivious or appeals to the prurient interest • Tendency to deprave & corrupt persons • Likely audience • To read, see or hear the matter contained or embodied in electronic form • Shall be punished On 1st conviction Imprisonment which may extend to 3 years & with fine which may extend to five lakhs rupees On subsequent conviction Imprisonment which may extend to 5 years & with fine which may extend to 10 lacs rupees
  21. 21. Cases • In Bobby Art International v. Ompal Singh (1996) (known as Bandit Queen case), the Delhi High Court restrained the release of the film on the ground of obscenity. However the apex court allowed the appeal against the HC & held that in fact the exhibition of the film does not stimulate the sexual arouse due to its context related with the story. • In Air Force Bal Bharti School, Delhi case (2001), a student was teased by all his classmates for having a pockmarked face. Fed up with all these he set up a website with pornographic material & scanned photographs of his classmates & teachers morphed them with nude photographs & put them up on websites that he uploaded on a free web hosting service. A case was registered u/sec 67 of IT Act,2000 & police picked up the concerned student & kept him in juvenile home & after one week he was on bail. • In Pune, a first class magistrate held liable for the offences u/s 292 of IPC. On the complaint by a student that the search facilities offered by could be used to view websites containing pornographic material. The magistrate observed that one could not have seen the obscene site without a search engine.
  22. 22. Punishment for violation of privacy (Section 66E) • Section 66E provides that whoever • Shall be get punished Imprisonment that may extend to 3 years Or with fine not exceeding 2 lacs rupees Or with both •Intentionally or •Knowingly 1 •Captures, •Publishes or •Transmits 2 •Images of a private area of any person 3 •Without his or her consent 4
  23. 23. • Violation of privacy may include instances of installation of spycams, hidden cameras or communication devices inside washroom , bedrooms, changing room etc for the purpose of violating bodily privacy of any user. • The sting operations by a private person or an agency which may result in violating bodily privacy of another person will fall under this section. Whatever may be the reason public interest or the people right to know, one should not disregard the protection being given to an individual against his bodily privacy under this section.  In Court on its own motion v. State, the Division Bench of the Hon’ble Delhi High Court summarized its view on the sting operations as follows: 1. A sting operation by a private person or agency is, by & large, unacceptable in a civilized society. A sting operation by a state actor is also unacceptable if the state actor commits an offence so that an offence by another person is detected. 2. A sting operation cannot be initiated to induce or tempt an otherwise innocent person to commit crime or entrap him to commit a crime 3. If a private person or agency unilaterally conducts a sting operation, it would be violating the privacy of another person & would make itself liable for action at law. 4. A sting operation must have the sanction of an appropriate authority. Since no authority exists in India & until it is set up, a sting operation by a private person should have the sanction of court of competent jurisdiction or if it is done without sanction then that person is liable under Section 66E
  24. 24. Violation of privacy under IPC • It is imperative that Section 66E should now be applied in conjunction with 354A,354B & 354C of IPC  Section 354A (Sexual harassment & punishment for sexual harassment): • This section provides that a man doing sexual harassment of the nature of • Shall be liable for punishment Unwelcome physical contact Demand or request for sexual favours Showing pornography Making sexually coloured remarks Under 1st three cases • Imprisonment which may extend to three years • Or with fine • Or with both Under fourth case • Imprisonment which extend to 1 year • Or with fine • Or with both
  25. 25. Assault or use of criminal force to woman with intent to disrobe (Section 354B) • A man who • With the intention of disrobing or compelling her to be naked • Shall be punished with Assaults any woman Uses criminal force to any woman Or abets such act Imprisonment of not less than 3 years but which may extend to 7 years and with fine • The term “assaults” is nowhere defined but dictionary meaning is ‘making a physical attack on’
  26. 26. Voyeurism (Section 354C) • Any man who • Shall be punished • Watches or • Captures the images 1 • Woman engaging in private act 2 •Where in normal expectation of not being observed by any person 3 On 1st conviction Imprisonment of not less than 1 year which may extend to 3 years & with fine On subsequent conviction Imprisonment not less than 3 years which may extend to 7 years & with fine  The term “private act” includes an act 1. That would reasonably expected to provide privacy or 2. That is not a kind ordinarily done in public  NOTE: Where the victim consents to the capture of the images or any act, but not to their dissemination to 3rd person & if it get disseminated that will be considered an offence under this section
  27. 27. Material containing sexually explicit act • Section 67A provides that whoever • Shall be punished •Publishes or •Transmits 1 • Causes to be • Published or • Transmits 2 •In electronic form 3 •Any material which contains sexually explicit act or conduct 4 On 1st conviction Imprisonment which may extend to 5 years & with fine which may extend to 10 lakhs rupees On subsequent conviction Imprisonment which may extend to 7 years & with fine which may extend to 10 lacs rupees  NOTE • The expression ‘publication or transmission’ includes dissemination, storage & transmission of information or data in electronic form.( Bennet Coleman & co. V. UOI) • The term “sexually explicit act or conduct” has been qualified by the ‘explicit’ meaning thereby that mere obscene act or conduct may not fall under this section
  28. 28. Cases • In case of Engineering & Management graduate who was facing prosecution for harassing his wife for dowry was caught sending obscene e-mails(that contained pornographic material, vulgar language etc) in his wife’s name to several of her relatives, friends & others in order to harass her further & thus was arrested by Delhi police. • There are many websites also that commits defamation & insulting the modesty of women. For Example, a website called “Desibaba” contains nude photographs of many of the Indian bollywood stars.
  29. 29. INTRODUCTION • Child pornography is that visually depicts children(real as well as computer generated depictions of children) under the age of 18 years engaged in actual or simulated sexual activity. • According to International Criminal Police Organisation defines it as “means of depicting or promoting sexual abuse of a child, including print, audio etc” • Article 2(c) of the Optional Protocol to the conventions on the rights of the child on their sale, prostitution & pornography defines it as “any representation, by whatever means of a child engaged in real or simulated explicit sexual activities or representation of the sexual parts of a child for primarily sexual purposes”
  30. 30. HISTORY • In the US, the first federal law to ban the for-profit production & distribution of child pornography was the Protection of Children Against Sexual Exploitation Act of 1977. • US congress passed the Child Protection Act of 1984, broadening the definition of child pornography & criminalizing child pornography trafficking • In 2003, congress passed the PROTECT Act, authorising to convict the offenders of child pornography • A bill named Internet Safety Act, intended to stop child pornography & protect children from online predators
  31. 31.  In 1999 investigation on child pornography which resulted in multi-national arrests & 7 convicted.  In 2004 Ukrainian child pornography raids: • It was held in July,2004 when police in Ukraine raided a softcore child pornography ring. • The ring had operated since 2001, & used a modeling agency as a front . This agency produces erotic materials & distribute it over the Internet to various countries • The raids were conducted after a joint investigation between Ukrainian police & Interpol & it get completed by 6 april 2005  In 2007 international investigation on child pornography: • It was an international criminal investigation into criminal organization dealing in child pornography • Austrian authorities initiated the investigation in July & were the ones who uncover the criminal organisation • More than 2360 suspects residing in 77 countries were investigated
  32. 32.  ILO Convention on the worst form of Child Labour (November 2001) • This convention prohibits & eliminate the worst forms of child labour that include sexual exploitation. • The convention recognizes the “use, procuring or offering of a child for prostitution, production of pornography or for pornographic performances” as a worst form of child labour which requires immediate elimination & prohibition as a matter of urgency  SAARC Convention on Preventing & Combating Trafficking in Women & Children (15 November 2005) • It was the first regional treaty dealing specifically with trafficking in South Asia. • It advocates criminalization of trafficking • It provides elaborate mechanism to prevent & combat trafficking in women & children for prostitution
  33. 33. The Information Technology Act,2000 • Under Section 67B five instances of online child pornography has been criminalized i.e. 1) Clause (a) is in generic in nature. It provides that whoever Note : i) no matters it can in any form i.e. text, image, audio or video ii) Even any instance of attempted publishing, or transmission of child pornography is also an offence.  Cases • U.S. v. Joseph C. Bledsoe: the defendant was convicted for knowingly publishing a notice over the Internet offering to exchange child pornography . The U.S. Courts of appeals affirmed the conviction & sentence. • U.S. V. Philip M. Sebolt: the accused was convicted for using computer to posses, transmit, advertise child pornography in violation of US laws. Publishes or transmit Any material depicting children In any sexually explicit act or conduct
  34. 34. Section 67B clause (b) • It provides that Whoever • Any material depicting children Creates text Creates digital images seeks browses downloads Advertises promotes Exchanges Distributes In obscene or Indecent or Sexually explicit manner Note: The term material may also include “pseudo pics” means an images whether made by computer graphics or otherwise which appears to be a photographs.  CASES Bombay Swiss Couple case: a couple used to gather slum children & then force them to appear for obscene photographs. They would then upload these photographs to websites . The Mumbai Police arrested them & they were convicted. Atkins v. Director of Public Prosecutiolls A was charged with possession obscene images of children, which were found in computer’s memory. It was held by the court that the person is liable u/s 67B.
  35. 35. Section 67B clause (c) • It deals with all instances of online ‘grooming’ of children for sexually explicit purposes • It involve cultivation, enticement or induction of children to online relationship that may offend a reasonable adult using computer resource. • NOTE: the terms “cultivating, enticing & inducing” have not been defined so one have to look into circumstances to draw any conclusion  CASES U.S. v. Jimmy Olive: the accused was convicted for attempting to distribute a visual depiction in order to induce minor to engage in sexually explicit conduct. He was sentenced to life imprisonment. U.S. v. Todd Tykarsky: The defendant was convicted for using the internet to send sexually explicit instant messages to a minor & arranging to meet her in another state.
  36. 36. Section 67B clause (d) • It deals with an act ‘facilitation or providing’ any assistance to abuse children online. • NOTE: this may be used against intermediaries including cyber cafes for not taking sufficient due care. • U.S. V. Jesus Norberto Evans Martinez: the defendant was convicted for sending emails advertising the creation of a Yahoo! Group for sharing child pornography Section 67B clause (e) • It deals with an act of ‘recording’ own abuse or that of others pertaining to sexually • NOTE: mere recording of sexually explicit act is enough whether such a recorded text, images, audio or video is put into publication or transmission it is not an issue under this clause • The term “recording” here means capturing such an act on a recording device or media
  37. 37. Proviso to Section 67B • This section does not extend to any • Punishment under this section book pamphlet Paper Writing Drawing Painting figure Kept or used for bonafide heritage or religious purposes Public good & that is in interest of science, literature , art or learning or other object of general concern On 1st conviction Imprisonment which may extend to 5 years & with fine which may extend to 10 lakhs rupees On subsequent conviction Imprisonment which may extend to 7 years & with fine which may extend to 10 lacs rupees
  38. 38. Provisions Under IPC  Procuration of minor girl (Section 366A) :  Whoever a) Induced a girl of below 18 years b) To go from a place, or to an act c) With an intent or knowledge that d) Such girl would be forced, or seduced to illicit intercourse with a person  Shall be punished with imprisonment upto 10 years & fine  Importation of girls from foreign country (Section 366B) :  Whoever a) Imports a girl of below 21 b) To India from places outside India c) With an intent or knowledge that d) Such girl would be forced, or seduced to illicit intercourse with another person  Shall be punished with imprisonment upto 10 years & fine
  39. 39. • Selling minor for purposes of prostitution (Section 372): • This sec punishes the sale or letting the hiring of minors (below the age of 18) for the purpose of 1. Prostitution or 2. Illicit intercourse or 3. For other unlawful & immoral purposes • With imprisonment upto 10 years & with fine • Buying minor for purposes of prostitution (Section 373): • This sec punishes the buying or hiring of minors(below the age of 18) for the purpose of 1. Prostitution or 2. Illicit intercourse or 3. For other unlawful & immoral purposes • With imprisonment upto 10 years & with fine
  40. 40. Effects of Pornography • Addiction First Phase • Escalation Second Phase • Desensitization Third Phase • Acting out Fourth Phase
  41. 41. First Phase- Addiction Characteristics of this phase • The addiction effect, the consumer gets hocked • The material provides a powerful sexual stimulant or aphrodisiac effect • This stimulation is followed by sexual release • The higher the I.Q of an addict the more vulnerable they are, this due to a greater ability to fantasize. • The person develops an obsession &compulsion to pornography
  42. 42. Second Phase - Escalation Characteristics of this phase • The escalation effect, the addicted person requires rougher, more explicit more deviant, more “kinky” kinds of sexual material to get their sexual “highs”. • The compulsion & the deviant factor begins to have an effect in material relationships.
  43. 43. Third Phase - Desensitization Characteristics of this phase • Materials (books, magazines, videos) which was originally perceived as shocking, taboo, illegal, repulsive or immoral, in time came to be seen as acceptable & commonplace • This is the legitimization effect.
  44. 44. Fourth Phase – Acting out Sexually • At this phase the addicted person only gets deeper & deeper into the addiction, if no help or treatment is sought • This leads to various crimes like illegal activities, rape, illicit sex etc.
  45. 45. Moral & Spiritual Effects • Addiction • Self destructive behaviour • Inability to sustain healthy relationship • Demeans & objectifies women & the human body • The dehumanization of human dignity • Divorce • Increase in crime rate • Watching internet porn effects your brain