This article by Ananya Tiwari & Manushree M.B. talks about ‘Exploitation of Children in the Virtual World’ Abstract We have witnessed different types of crimes and porn within the times has embedded its root in society, particularly within the case of kids. Within the gift world, smut has become a significant sort of criminal activity that provides a… Read More »

This article by Ananya Tiwari & Manushree M.B. talks about ‘Exploitation of Children in the Virtual World’

Abstract

We have witnessed different types of crimes and porn within the times has embedded its root in society, particularly within the case of kids. Within the gift world, smut has become a significant sort of criminal activity that provides a hopeless impact on society. Child pornography will be witnessed in 2 forms i.e. physically and nearly. This text specifically focuses on virtual smut. The thing of virtual smut isn’t a true kid but it’s an Associate in a nursing unrealistic kid or we will say a non-existent one. And this has a junction rectifier to the sexual exploitation yet as abuse of kids throughout the globe.

There’s a requirement for reconciliation the right of privacy and freedom of expression as warranted beneath the constitution on the one hand, and protection of kids and their rights throughout the globe on the opposite hand. There square measure ample websites on social media that publish and flow into many pictures and videos which square measure terribly tough to eradicate. Those pictures or videos once it’s been uploaded on the internet that youngsters become a long victim of this crime.

This was never in restraint and the condition has worsened throughout the pandemic. We’ve come upon, several youngsters United Nations agency that have become victims of kid porn because the virtual world is penetrating the $64000 world. Due to this terrible reason, there’s a requirement for defense for the exploitation of kids and also the ethical values of society.

Introduction

We are living in the 21st century in the era of developing thoughts with different cultures having both new and old traditions with unlike sentiments making us as a member of the society. India has over 450 million active internet users per month and this leads to subsequent arousal of crimes like cyberbullying, child pornography, blackmailing, etc.

Here we speak about child pornography which means transmission or distribution of the pornographic material related to the kids in electronic form and it can also be said that simple access of web that is porn which is defined under the POCSO Act and also punishable under the provisions of POCSO Act 2012, Information Technology Act 2000, and Indian Penal Code 1860.

In a nutshell, child pornography is not a state issue but a global issue. If at all we make a comparative analysis of the states like the United Kingdom, United States of America with that of India we observe that the laws in India are comparably stringent to others. Now in this COVID-19 Pandemic, the sexual exploitation of children has been intensified to a greater extent.

For instance, more than 200 cases were filed before the police of Maharashtra where 105 people were arrested in connection to the creation and circulation of child pornography on the internet in the last 18 months. The Government of India has made an immense effort to curb the issues arising concerning child pornography.

Definition

In India, the term ‘child pornography’ has been defined under the Protection of Children from Sexual Offences (Amendment) Act, 2019 (POCSO). According to section 2(da) of the POCSO Act, “child pornography” means any visual depiction of sexually explicit conduct involving a child which includes a photograph, video, digital, or computer-generated image indistinguishable from an actual child, and image created, adapted, or modified, but appear to depict a child.[1]

To be very specific, section 2(d) of the POCSO Act 2012 defines a ‘child’ to be any person below the age of eighteen years.[2]

On an international level, there is one Optional Protocol on the sale of children, child prostitution, and child pornography (OPSC) that deals with the issue of child pornography.

According to Article 2(c) of the OPSC, child pornography means 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.[3]

Provisions Related to Child Pornography In India

Under POCSO Act,2012

This act makes an act of using a child for the purpose of pornographic punishment. Now all actions which constitute the usage of a child for purpose of pornographic have been explained under Section 13 of the Act.

According to the aforesaid section, whoever uses a child for sexual gratification through any quiet media either written or electronic, regardless of whether or not it absolutely was aimed for distribution or simply personal use is alleged to possess used the kid for sexy functions. It includes the show of a child’s sexual organs, indecent illustration of a toddler, and interesting a toddler in true or simulated sexual intercourse wherever penetration isn’t a compulsory condition.

Section 14 of the Act explains the punishment for committing an offense under Section 13 with imprisonment of not less than 5 years and a fine. And further, for repeated offenders, imprisonment is not less than 7 years and fine.

Section 15 of the act punishes for storing or possessing any kind of pornographic material which involves a child in three different situations.

Firstly, if it has been done to share these kinds of material to commit child pornography then the punishment is a minimum of rupees 5000/- fine; for repetition of the act, the fine is not less than rupees 10,000/-.

Secondly, if such storage or possession has been displayed or distributed then the punishment is imprisonment which may extend to 3 years or with a fine or both; but this offense is exempted if it is done to use it as a shred of evidence in the court of law.

Thirdly, the said pornographic material is possessed to use for commercial purposes then this will be punishable under imprisonment which would be between 3-5 years, or fine, or both, and for the repetition of the offense, the punishment is between 5-7 years of imprisonment and fine.

Under the Indian Penal Code, 1860

The Indian legal code doesn’t modify porn directly, however, it prohibits the show of obscene material to young people underneath section 293. during this context, a juvenile person would be someone WHO is under twenty years older. So, someone would be punishable u/s 293 of the Code if he/she shares, disperses, exhibits, sells, or lets to rent any obscene material (as explained in section 292 IPC) to any juvenile person.

The wrongdoer would be punishable with imprisonment up to three years and a fine of Rs. 2000/- on a primary conviction, however, he would be punishable with imprisonment up to seven years and Rs. 5000/- fine just in case of the second conviction.

Under Information Technology Act, 2000

Section 67B of the IT Act punishes the act of publication, transmittal, creating, collecting, browsing, downloading, advertising, promoting, exchanging, distributing, recording, etc. of any material in electronic type that shows a sexually expressed activity participating a toddler. It conjointly punishes the formation of online relationships with any kid for sexually expressing acts and abusing the kid online.

The penalty provided u/s 67B is imprisonment of five years and 10 large integer rupees fine on the primary conviction, and just in case of a second conviction, it’s seven years of imprisonment and a fine of Rs. ten lakhs.

In the case of U.S. v. Joseph C. Bledsoe, the defendant was convicted for knowingly publishing a notice over the internet offering to exchange child pornography in violation of 18 U.S.C. & 2251(d). The defendant appealed his conviction and sentence. The U.S. court of appeals for the Fourth Circuit affirmed the conviction and sentence.[4]

Challenges Of Child Pornography

Child sexy contents area unit mushrooming at associate in a nursing exponential rate. There’s an enormous variety of websites having such content. This poses an enormous challenge among us to eradicate smut at a go.

Below are some challenges listed

  1. A single approach won’t be economical in handling a large variety of kid teams to guard them against such abuses. a child is treated otherwise, a young adult is treated otherwise, etc.
  2. The lack of correct sex education is additionally a serious reason behind the shortcoming to eradicate this crime.
  3. It’s troublesome for IT professionals to trace and monitor such content on an everyday basis on this vast net.
  4. Obscene contents area unit on the market on the net, that any adversity this.
  5. Sufficient anti-child creation laws exist in several nations, however social control of such laws is incredibly weak.
  6. Sometimes the family of the victim doesn’t join forces with police in characteristic the hotspots of kid creation in society attributable to their name or generally, they were blackmailed by the criminal.
  7. It ought to be noted that this might be the result of proximity and chance once the wrongdoer is a component of the child’s ‘circle of trust’ – their family or community. it should even be indicative of traveling sex offenders moving domestically or regionally to offend.
  8. Another interesting finding relates to the difficulty researchers encountered in categorizing sexual materials which had been self-generated (i.e., created by the child). This task was a child’s play with video material than pictures as more information on whether the child may have been extorted or coerced were available in the context of production.

Recent trends in child victims’ gender also deserve further analysis. Although girls continue to be victimized more than boys in CSAM production, boys do make up significant proportions. As mentioned earlier, ECPAT and INTERPOL 2018 analysis showed 30.5% of images included boys and that sexual exploitation materials of boys were also more likely to be severe or involve paraphilic themes and violence. Further, in 2011, 20.1% of images in the UK Child Exploitation and Online Protection Centre database were found to be of boys.[5]

INHOPE annual data reported a marked increase in the proportion of boys depicted in reported CSAM from 4.3% in 2017 to 16.8% in 2018.[6]

There is a time of abuse and exploitation between the web and offline worlds. The sexual violence we tend to observe in pictures and videos online may be a record of the sexual violence kids suffer offline. CSAM created and shared online square measure the digital proof of hands-on statutory offense committed against that kid represented on the photographs.

Comparing The Jurisdiction Of United Kingdom, United States Of America And India

Child pornography may be a multi-jurisdictional issue to that a worldwide methodology should be applied. Effectively fighting pornography and kid misuse on a worldwide scale needs uniform enactment; laws that fluctuate from nation to nation serve to weaken the position against kid statutory offense and allow kid predators to a mass endeavors in nations wherever they notice they’re best able to abuse kids.

A comprehensive and uniform technique log is the best method for battling the statutory offense of youngsters since it takes into thought consistency in legislation and discipline, it raises open consciousness of the problem, it expands administrations accessible to assist unfortunate casualties, and it improves normally law demand endeavors at the national and worldwide levels. Agreeing to international legitimate models is an underlying advance desiring to pornography, to be trailed by national execution enactment and also the production of a national body attempt to battle kid sex amusement.[7]

In the UK if there is an engagement of sexual activity of an adult in the presence of the child then it results in an offense with a punishment of 10 years imprisonment, considering that causing a child to watch a sexual act is also an offense even inciting or causing a child to involve in pornography is also an offense.

However, in India, any object in any form for pornography to show the child is termed sexual harassment and for sexual gratification, if there is a use of a child in any form of media which may include representation of sexual organs or engaging the child in the real or simulated act or if any obscene representation of child then that is an offense.

There is a term in the UK Act that is sexual grooming where when a person meets a child or travels to meet the child intentionally to do anything in respect to the child then that is also a punishable offense under the act, but the term sexual grooming is not mentioned under Indian Act. However, there is a similar punishment for the family members who commit a sexual offense on a child under both the act i.e., the UK and the Indian act.[8]

There is a wide gap between the federal system and sentencing guidelines in the USA. Despite the purpose of the Sentencing Reform Act, 1984, the guidelines concerning child-porn have failed to prosecute criminals on the fundamentals of punishment, that is, deterrence and rehabilitation. Due to Booker’s era, courts have a lax pattern to apply their opinion whereas the guidelines simply discourage courts to contemplate factors such as previous criminal record, age, family responsibility, physical or mental condition unless it amounts to an unusual and unavoidable magnitude when judging criminal culpability in general and pertaining to child porn.

The UK on the other hand has a stringent set of laws governing the problem of child pornography but it lacks the aspect that the laws are covered by the blanket of indecency laws which on various occasions refrains the judicial system to talk about this heinous crime independently. In other words, focusing on indecency takes away the attention from the anguish that child porn results in. Indecency is principally the moral facet of the offense, which in the turn, ruins the importance of the child’s lamentable experience.

The existing laws will only work better and in an uncompromising manner if the moralistic approach is taken away and the enactments are reframed to match the actual harm around child pornography. The Indian stand seems much organized as an outcome of this essay. The country has specific provisions dealing with the deleterious issue of child pornography. Apart from the ITA and IPC, POSCO is another piece of legislation that confirms the seriousness of the issue and uses no blanket term to address the problem, unlike the UK and the USA.

Furthermore, Tata Commutations is the first internet service provider to be a part of the Internet Watch Foundation. This is a significant initiative to protect Indian networks from child sexual abuse content online. “Perfection is a myth”, in the light of the said statement, the research conducted points to a slight drawback pertaining to section 15 of POSCO which only covers punishment for storage of child pornographic material for “commercial use”.[9] The provision should have been specific about the kind of use or should have laid down exceptions to the user as it will widen the scope of prosecution in possession cases.

Considering the flaws in all the three jurisdictions, the USA comes out to be the most liberal with the UK being on similar lines but still more stringent than the USA. India, on the other hand, holds a stronger position in this regard due to its peculiar legislation committed to countering the problem of child pornography.

In a nutshell, child porn is not a state issue but a global nuisance, and major jurisdictions in the world are required to fight it on both national and international levels to eradicate the issue completely. Understanding the delicate state of mind, a child carries and the threat it poses to society, it is important to save the future by educating children, parents, and responsible citizens.[10]

Effect Of Covid-19 Pandemic On Child Pornography In India

The India Child Protection Fund (ICPF)[11] report dated April 2020 reported that there has been an associate degree step-up of 95% in consumption of kid erotica material in India. This information has been cited from ‘Pornhub’, which is one of the most important erotica websites everywhere on the planet. In the amount of internment because of the unfold of COVID-19, the majority of faculties, colleges, and offices were closed down. All the works and studies were being conducted online because the quantity of hours individuals spent on the net accrued to an oversized extent.

There’s little doubt that except for the usage of the net for educational functions, youngsters would get exposed to all or any of the aspects of this advanced digital technology if they pay such a lot of time on that. However, while exploring the net, these innocent youngsters don’t have any plan regarding the sexual predators who square measure roaming out there to hunt them. And therefore the reason these individuals square measure targeting youngsters is none aside from the rising demand for kid smut as we’ve got already mentioned.

In the internment amount, every kind of individual together with pedophiles, kid molesters, kid rapists, etc. spent their time browsing the net far more than they typically do. It’s evident from the very fact that there has been an increase in looking out of words like ‘teen sex’, ‘sexy child’, etc. during this amount in keeping with the ICPF report. Such actions result in the rise in demand for kid regulatory offense content, and to satisfy a similar the controllers of kid erotica networks head to any extent to produce updated material to their customers and fill their pockets with billions.

This demand encourages the masters of the erotica market to try to kid regulatory offense, kid molestation, kid trafficking, etc., hence, giving rise to a lot of and a lot of crimes. Moreover, a recent Childline India Helpline’s Report disclosed that they’d received over ninety-thousand calls relating to the request to guard youngsters from abuse throughout the national internment. This truth indicates that the danger of kid abuse during this internment had been a lot higher and is anticipated to extend additional.[12]

Case Laws

In the case, a reformative judgment was given by Madras High Court which involved a boy who was 15 years old who became a victim of sexual harassment by the petitioner, a British national while the former was residing in the trust run by the latter. The court had viewed while defining the term ‘child sex abuse’ that intercourse, attempt to intercourse, oral-genital contact, fondling of genitals directly or via clothes, exposing children to attempt pornography, and use of children for prostitution or pornography are the examples of the same. The court in the light of the present scenario made the following observation;

  1. The government must decide on sex education as nowadays where knowledge is available via the internet, young people have been attracted towards sex and more into the pornographic pieces of stuff which intend to eroticism and also the commission of sexual offenses against minors.
  2. Children should be educated about sexual solicitation, sexual abuse, and improper touching which is fraught with dangerous issues caused by lack of sex education which must be squared. While dismissing this petition the Hon’ble High Court viewed that the red corner notice which was issued by INTERPOL remain stayed, to enable him to visit India only for the appearance of the trial court and to face the trial.[13]

In the case, Kamlesh Vaswani v. Union Of India and Ors (2016)[14], where the petitioner filed a petition before the Supreme Court of India to ban pornographic content on the internet under the provisions of the IT act 2000; and also appealed that the consumption and dissemination of pornography can be treated as a non-bailable and cognizable offense. His petition went far in calling for the criminalization of all forms of pornographic usage, whether private or public.

During proceedings, the petitioners went to the department of telecommunications with the list of 800 websites that host porn content, and these websites were blocked without any verification. This appeal puts serious threats to our liberty under Article 21 of the Indian Constitution and must be addressed. Here the Supreme Court of India observed and stated that watching privately in a room is the constitutional right under the Right To Personal Liberty and hence legal. No authority can take away this right except by the procedure established by law thus the ban was revoked after all the criticisms.

In the case, P.G. Sam Infant Jones v. The State[15] The High Court of Madras led by Hon’ble Justice Swaminathan determined whether child pornography is an offense; where the petitioner had downloaded and transmitted pornographic content of child through his mail and Facebook account by using his Airtel network. Here the respondent mentioned that NCMEC (NATIONAL CENTER FOR MISSING AND EXPLOITED CHILDREN) and International NGO which maintains a cyber tipline.

An important observation made was that this incident took place a year ago and looked to be a one-time occurrence and thus the petitioner was asked to surrender his sim card, phone, and other related materials to the respondent. Here Hon’ble High Court noticed that privately watching pornography can be considered an offense and also till day there are no laws that prohibit private activities and these are protected under the right to privacy guaranteed under Article 21 of the Indian Constitution.

Although, section 67B of IT Act 2000 states that every act related to child porn is punishable even watching is illegal. Further, the Court stated that it’s obvious that the minute one enters digital space then that is subjected to monitoring by either government or the one who is operating social networking sites additionally, the court said that “if you value your privacy. You have no choice but to avoid such networks. Of course, in today’s world, this is not an option“.[16]

Conclusion

Child pornography is a grievous offense that must be curbed at the early stage and before it takes a prodigious shape. As we all are witnessing the rapid growth of technology in this 21st century though that’s a boon to the whole of humankind yet, it imposes a threat to the growing child in the form of exploitation and child abuse.

Thus, there is a demand for the protection of children’s rights as the pornographic act is noxious to the public morality and decency in the Indian scenario. Though the Government of India banned many pornographic websites yet the technology is so much developed that it can be easily accessed through other means. So, stricter measures must be taken at all levels to curb this issue as it corrupts the tender minds of the children.


[1] SECTION 2(da) of POCSO (Amendment) Act, 2019

[2] SECTION 2 of POCSO ACT, 2012

[3] ARTICLE 2(c) of OPSC, Available here

[4] U.S. v. Joseph C. Bledsoe, 04-4276, 177 Fed. Appx.311

[5] Quayle, E., and Jones, Sexualized images of children o the internet, 23(1) Sexual abuse, 7-21, (2011)

[6] INHOPE. (2019). Annual Report 2018, Available here

[7] Deepa Salian and Sofia Khatun, Legal Framework on Child Pornography: A Perspective, Available here

[8] Shivika, Child Pornography: A Comparative Analysis, Available here

[9] Parnita Agal, Child Pornography: A Comparative Analysis, 8(4) IJSR, 748 (2019), Available here

[10] Ibid

[11] India Child Protection Fund, Available here

[12] Akshita Jain, Remedies Against Child Pornography In India, Available here

[13] Crl.O.P.(Md)No. 11735 of 2014 v. State (2015).

[14] (2016) 7 SCC 592

[15] CRL OP (MD). No. 7426 Of 2021

[16] Oishika Banerji, Is Watching Porn Crime In India: An Insight, Available here


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Updated On 2022-02-19T14:28:03+05:30
Ananya Tiwari and Manushree M B

Ananya Tiwari and Manushree M B

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