Child Pornography – A Menace

Child Pornography is defined as any visual depiction involving the use of a minor, or one appearing to be a minor, engaging in sexually explicit conduct. Visual depictions include photographs, film, video, pictures or computer-generated images or pictures, whether made or produced by electronic, mechanical, or other means.

Child pornography has become particularly problematic with the rise of the Internet and its ability to both transmit data far and wide and provide a level of anonymity to its users and the victims depicted in images of child pornography.

In the physical world, parents know the face of dangers and they know how to avoid & face the problems by following simple rules and accordingly they advise their children to keep away from dangerous things and ways. But in the case of the cyber world, most of the parents do not themselves know about the basics in internet and dangers posed by various services offered over the internet. Hence the children are left unprotected in the cyber world.

Pedophiles take advantage of this situation and lure the children, who are not advised by their parents or by their teachers about what is wrong and what is right for them while browsing the internet

How do Pedophiles Operate

• Pedophiles use a false identity to trap children/teenagers.
• Pedophiles contact children/teens in various chat rooms which are used by children/teen to interact with other children/teen.
• Befriend the child/teen.
• Extract personal information from the child/teen by winning his confidence.
• Gets the e-mail address of the child/teen and starts making contacts on the victim’s e-mail address as well.
• Starts sending pornographic images/text to the victim including child pornographic images in order to help child/teen shed his inhibitions so that a feeling is created in the mind of the victim that what is being fed to him is normal and that everybody does it.
• Extract personal information from child/teen
• At the end of it, the pedophile set up a meeting with the child/teen out of the house and then drag him into the net to further sexually assault him or to use him as a sex object.

Types of Depictions

Any depiction of a child engaged in sexually explicit conduct may be considered child pornography. This can include photographs, digital images, computer-generated images, drawings, videos, or animations, among others. This also applies if the person in the depiction is actually an adult but appears to be a minor.

Moreover, altering an image or video so that it appears to depict a minor may also be child pornography (for example, editing the face of a minor onto the nude body of an adult in an image or video).

• A minor is any person under the age of eighteen years.
• Sexually explicit conduct means actual, graphic or simulated sexual intercourse, including anal and oral; bestiality; masturbation; sadistic or masochistic abuse; or lewd exhibition of the genitals or pubic area of the minor.

Child Pornography

According to section 161(1) of criminal code, child pornography means

1. a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

• that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or
• the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;

(b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act

(c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act or

(d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.

Clause 2: Making of child pornography

Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year

Clause 3: Distribution, etc. of child pornography

Every person who transmits makes available, distributes, sells, advertises, imports, exports or possesses for the purpose of transmission, making available, distribution, sale, advertising or exportation any child pornography is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.

Clause 4: Possession of child pornography

Every person who possesses any child pornography is guilty of

• an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year
• an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

Accessing child pornography

Clause 4.1 says  Every person who accesses any child pornography is guilty of –

• an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
• an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

Interpretation

Clause 4.2 says For the purposes of subsection (4.1), a person accesses child pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself.

Aggravating factor

(4.3) If a person is convicted of an offence under this section, the court that imposes the sentence shall consider as an aggravating factor the fact that the person committed the offence with intent to make a profit

DEFENCE

• In respect of a visual representation that the accused believed that a person shown in the representation that is alleged to constitute child pornography was or was depicted as being eighteen years of age or more unless the accused took all reasonable steps to ascertain the age of that person and took all reasonable steps to ensure that, where the person was eighteen years of age or more, the representation did not depict that person as being under the age of eighteen years.
• No person shall be convicted of an offence under this section if the act that is alleged to constitute the offence – (i) has a legitimate purpose related to the administration of justice or to science, medicine, education or art and: (ii) does not pose an undue risk of harm to persons under the age of eighteen years.

Exceptions

There is an exception to typical definitions of child pornography. If it can be proven that the depiction has serious literary, artistic, political, or scientific value, it may be exempted from child pornography laws.

The definition of a pornographic image can be subjective and many courts refer to the case of UNITED STATES of America v. Robert S. Dost and Edwin E. Wiegand,  636 F. Supp. 828 (1986) to determine whether an image meets the criteria for pornography. That case created the “Dost Test” in order to better determine whether a visual depiction of a minor constitutes a “lascivious exhibition of the genitals or pubic area.”

The Dost Test has six criteria: 

• Whether the focal point of the visual depiction is on the child’s genitalia or pubic area.
• Whether the setting of the visual depiction is sexually suggestive
• Whether the child is depicted in an unnatural pose or inappropriate attire given the age of the child.
• Whether the child is fully or partially clothed/nude.
• Whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity.
• Whether the visual depiction is intended or designed to elicit a sexual response in the viewer

The role of the internet in promoting child pornography

The Internet has escalated the problem of child pornography by increasing the amount of material available, the efficiency of its distribution, and the ease of its accessibility.

• permits access to vast quantities of pornographic images from around the world
• makes pornography instantly available at any time or place
• allows pornography to be accessed (apparently) anonymously and privately
• facilitates direct communication and image sharing among users
• delivers pornography relatively inexpensively
• provides images that are of high digital quality, do not deteriorate and can be conveniently stored
• provides for a variety of formats (pictures, videos, sound), as well as the potential for real-time and interactive experiences
• permits access to digital images that have been modified to create composite or virtual images (morphing)

The SC Even as technology bigwigs like Google and Microsoft are sitting up to take note and combat child sex abuse on the Internet, the Supreme Court of India (SC) has issues a notice to the Department of Telecom (DoT), seeking a response on how to block child pornography.

SC Court DoTS Order

The DoT order says that content hosted on porn sites relate to morality and decency and is, therefore, subject to “reasonable restrictions” on the Fundamental – Right to freedom of speech and expression.

While the individual is guaranteed this freedom under Article 19(1) (a) of the Constitution, Article 19(2) allows the state to impose “reasonable restrictions” on its exercise “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”.

On March 24, 2015, while quashing the much-abused Section 66A of the IT Act — which allowed police to arrest people for social media posts that were construed as being “offensive” or “menacing” — the Supreme Court had also dealt with Section 79(3)(b), and read it down. The court held that intermediaries cannot be called upon to exercise their discretion in blocking content and that they must act only either on court orders or when the government asks them to.

Also, the Court order and/or the notification by the appropriate Government or its agency must strictly conform to the subject matters laid down in Article 19(2). Unlawful acts beyond what is laid down in Article 19(2) obviously cannot form any part of Section 79, the Supreme Court had ruled.

This judgment did not, however, make it mandatory for the executive to evaluate the necessity of issuing the restriction order, or to state the reasons for blocking a web site. The DoT order is amenable to judicial review, and ISPs, the blocked websites, or even an individual Internet user can approach a High Court or the Supreme Court if they feel that the order is not covered by the restrictions mentioned under Article 19(2)

THE IT ACT

To order the blocking of these sites, the DoT relied on Section 79(3)(b) of the IT Act. Section 79 lays down conditions under which ISPs or intermediaries are exempt from culpability for offensive content uploaded by a third party. It obligates the intermediaries to exercise “due diligence”, and to act on the orders of the court or the government and its agencies to qualify for immunity

Section 79(3) (b) states that intermediaries would not be entitled to exemption from liability if they failed to “expeditiously” remove or disable access to objectionable material “upon receiving actual knowledge, or on being notified by the government or its agency that any information…

residing in or connected to a computer resource controlled by the intermediary” was being used to commit unlawful acts. In addition, under the Information Technology (Intermediary Guidelines) Rules, 2011, intermediaries must inform “users of computer resource not to host, display, upload, modify, publish, transmit, update or share any information that is…

grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, pedophilic, libelous, invasive of another’s privacy, hateful, or racially, ethnically objectionable…”, etc., and “harm[s] minors in any way”.

Challenges in Controlling Internet Child Pornography

Internet child pornography presents some unique challenges for law enforcement agencies. These challenges include:

1. The structure of the Internet: The structure of the Internet makes the control of child pornography very difficult. The Internet is a decentralized system with no single controlling agency or storage facility. Because it is a network of networks, even if one pathway is blocked, many alternative pathways can be taken to reach the same destination. Similarly, if one website or newsgroup is closed down, there are many others that can instantaneously take its place. The decentralized nature of the Internet, and resultant difficulties in restricting the distribution of child pornography, is exemplified by P2P networks involving direct connections among computers without the need for a central server.
2. The uncertainties of jurisdiction: The Internet is an international communication tool that crosses jurisdictional boundaries. Not only is cooperation among law enforcement agencies necessary to track offenders across jurisdictions, but it is also required to coordinate resources and avoid duplication of effort. Parallel operations run from different jurisdictions may unknowingly target the same organization or offender. Equally problematic is the issue of who is responsible for investigating child pornography on the Internet when there is no clue as to where the images originate.
3. The differences in legislation: To the extent that there have been attempts to regulate the Internet, control efforts are hampered by cross-jurisdictional differences in laws and levels of permissiveness regarding child pornography. For example, in the United States, a child is defined as someone under 18; in Australia, the age is 16. Moreover, countries vary in their commitment to enforce laws and act against offenders, either for cultural reasons or because of corruption.
4. The expertise of offenders: As the typology of Internet offending behavior suggests, offenders vary in the degree to which they employ elaborate security measures to avoid detection. There is a core of veteran offenders, some of whom have been active in pedophile newsgroups for more than 20 years, who possess high levels of technological expertise.
5. The volume of Internet activity: The sheer amount of traffic in child pornography makes the task of tracking down every person who visits a child pornography site impossible. Many offenders realize that realistically their chances of being caught are quite remote
6. Due to lack of regulation.

Preventing and Identifying Child Sexual Abuse

1. In early childhood, parents can teach their children the name of the genitals, just as they teach their child names of other body parts. This teaches that the genitals, while private, are not so private that you can’t talk about them.
2. Parents can teach young children about the privacy of body parts, and that no one has the right to touch their bodies if they don’t want that to happen. Children should also learn to respect the right to privacy of other people.
3. Teach children early and often that there are no secrets between children and their parents, and that they should feel comfortable talking with their parent about anything — good or bad, fun or sad, easy or difficult.
4. Be aware of adults who offer children special gifts or toys, or adults who want to take your child on a “special outing” or to special events.
5. Enroll your child in daycare and other programs that have a parent “open door” policy. Monitor and participate in activities whenever possible.
6. As children age, create an environment at home in which sexual topics can be discussed comfortably. Use news items and publicized reports of child sexual abuse to start discussions of safety, and reiterate that children should always tell a parent about anyone who is taking advantage of them sexually.
7. If your child discloses any history of sexual abuse, listen carefully, and take his or her disclosure seriously. Too often, children are not believed, particularly if they implicate a family member as the perpetrator. Contact your pediatrician, the local child protection service agency, or the police. If you don’t intervene, the abuse might continue, and the child may come to believe that home is not safe and that you are not available to help.
8. Support your child and let him or her know that he or she is not responsible for the abuse.

1. Acts Done By A Child And An Insane Person(Opens in a new browser tab)
2. National Commission For Protection Of Child Rights (NCPCR)(Opens in a new browser tab)