Pornography and Obscenity Online

• Pornography Rules in India

“Pornography rules in India”, are there any? People whether they are youngsters or not are consuming pornography and are afraid whether watching porn is legal in India. 

Nobody in this country will put you in the jail for watching porn unless you are doing it in public. No vigilante groups, hackers, state bodies etc. anywhere in the world support the idea of child pornography. The very fact that child pornography exists is a failure of the entire ecosystem of morals, internet, values and the law. Even in USA and UK  where possession of pornography has never been an offence, Child Pornography is condemned and is a penal offence.

In India though watching porn is not illegal, yet making someone else watch it is a crime punishable by up to 7 years of imprisonment. There are several cases where guys have often forced upon girls to watch porn. It has been while they have been in relationships or just friends as well. Within this ambit of “making someone watch”, the legal words are publishing, transmitting or causing any of the two. This means that if you publish anything containing a sexually explicit act, even if it is an image, you are liable for the same punishment. The same goes for transmitting in private messages, Facebook Chats, WhatsApp messages etc.

What if I sent someone an obscene picture?

There is definitely a law against it. As for this post, we will keep it to pornography. If you send someone a picture that depicts some sort of sexual act, you are liable for punishment.

Is porn hosted outside India Legal?

Outside India is outside India’s jurisdiction in the practical sense. If pornography is legalized in the country where it is hosted, India cannot force upon the website to stop functioning. Alternatively, as we have seen, the Government or the Judiciary might ban it in India, if it is thought to be unacceptable. There are many efforts which Indian Government has taken steps in the year 2019 by banning more than 700 websites hosting Pornography materials.

 ·        To sum up all the pornography rules in India:

1. Watching porn at home is not illegal.
2. Saving it on your personal laptop, smartphone, storage media is also not illegal.
3. Distribution/Sale/Showcasing/Publishing/Sending on private messages etc. is illegal.
4. Sending porn videos/images/texts or anything depicting sexually explicit acts (unless educational) to someone is also illegal.
5. Sex stories are also sexually explicit content.
6. Whether ISPs are causing transmission of such porn into the country is a grey area but practically they will not be held responsible except for child pornography.
7. Child Pornography, in any sense, watching, saving, sharing etc. is totally illegal.

• Is it legal to share nude pictures over WhatsApp?

It is that more than half of the young population of the country is involved in sharing nude pictures, semi-nude selfies and intimate moments over WhatsApp and other chat messaging applications. Is the reason cultural? No, statistics indicate that the same is the position in the west as well and other nations with a different culture than ours.

There are many cases where girls who had sent certain objectionable pictures of hers to their boyfriends who they were  in love with. The interesting facts are that many of the girls are not even 16 years of age and now being blackmailed to keep sending their pictures to the boyfriends. The threats are that such boys would put the pictures online and distribute them among their and the girls friends as well. So the best advice to give to you right away is not to indulge in sending any nude pictures or videos over chats and emails that can cause problems to you.

No! Sharing nude pictures over WhatsApp can be illegal even if both the sender and the receiver consent. If there is to be a situation later where you need to defend yourself after sending such content to anyone, it can be problematic. But Section 67 of the Information Technology Act, 2008, it goes on to say that if somebody publishes or transmits any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years.

The gist is that, if you send something to someone or publish online that is lascivious (tending to excite lust, obscene etc.) it can land you up in prison for three years. Moreover, if it is a minor in question that you entice or induce (basically, get a person below 18 years of age to send you nude pictures or even get in a relationship with you), according to Section 67B the punishment can be for five years. The Law also protects your privacy if someone tries to blackmail you or uploads your private pictures at any place or sends them to anyone. The law in India does not talk about sexting or revenge porn but these are the things that all of this relates to.

• Is Hosting a Porn Website Legal in India?

For the purpose of this question, Section 67, 67A, and 67B of the Information Act, 2000 (herein referred as the IT Act) along with Section 292 of the Indian Penal Code, 1860 (herein referred as IPC) are relevant. Section 67, 67A, and 67B prohibit publication and transmission of obscene content, sexually explicit content, and child pornography respectively.

Section 292 talks about a representation, a figure, or any other object which can be deemed to be obscene. It states that participating in selling, publication, public exhibition, advertisement, or any such activity related to obscene content is an offence. It prescribes an imprisonment up to two years or fine up to ₹4000 or both on the first conviction while up to 5 years and ₹5000 on the second conviction.

The judgement of Supreme Court in Aveek Sarkar & Anr vs State of West Bengal & Anr (2014) changed how the Indian legal system will deal with questions related to obscenity. The law views these matters aligned with the way they are obscene. Now, over the years there were different legal tests as to whether something is obscene or not but this case has brought about a pleasant change to protect non-offenders in situations where they are wrongly held. The bench of Justice K.S.Radhakrishnan and Justice AK Sikri struck down the age-old Hicklin test (Given by the Queen’s Bench in Regina vs Hicklin (1868)) and adopted what they called as Community Standards Test.

According to this, obscenity will be measured on the current community standards in the society and the judicial system has been vested with the interpretation.  If the above-mentioned legal provisions are to be interpreted cohesively on the lines of Aveek Sarkar case, hosting a website displaying pornographic content would definitely invite the applicability of Section 292 of IPC.

Moreover, Section 67, 67A, and 67B will be applicable as per the type of content involved as the IT Act is a law specialis i.e. law governing a specific subject matter. The doctrine of lex specialis derogat legi generali (A special law prevails over general and prior laws) has been upheld by the Supreme Court in the case of Anvar vs Basheer (2014) and same has been stated by the apex court in Sharat Babu Digumarti vs Government of NCT of Delhi (2016). Hence, hosting a porn website is not legal in India.
 
On the similar lines, hosting a website containing sex stories or cartoons depicting sexually explicit content will be considered as an offence under the Indian law as well. 

• Obscenity & the Indian Law

The best way to define obscenity is actually to not define it. Not because it would be lewd, overreaching or offensive in diktat but because no one has actually done it. Obscenity changes with time, values, society, popular culture etc. The number of things that have a direct impact on the standards and level of obscenity are many and locking them into one line or a few lines are not possible.  The legal provisions related to obscenity, however, are mainly given under the Indian Penal Code, 1860 (herein referred to as IPC) and the Information Technology Act, 2000 (herein referred to as IT Act) as far as India is concerned.

The concept of obscenity differs from nation to nation and it depends on the moral and cultural values that have shaped that country. Indian society has always been very conservative about girls and the purity of woman has always been considered essential to sustain a family’s reputation.

The definition of obscenity still isn’t clear. It changes with time and depends on the factual circumstances of the case. What was considered obscenity 30 years ago, might not be considered so now. India has always adopted tests from other countries to determine the element of obscenity in its court cases. The tests have changed over time according to its adaptiveness in the continuously evolving society.

Influence of Obscenity Laws in other Countries over India

The test of obscenity has been laid by several countries based on certain moral principles and decency codes of the particular country. Few of these tests have been adopted by the Indian courts over time to determine obscenity.

England

The test to determine obscenity under English Law was first laid down in R vs. Hicklin case. The statutory interpretation of the word obscene as given under the Obscene Publications Act, 1857 was the issue. According to the Queen’s Bench, all the materials depraving and corrupting the minds open to immoral influences was considered obscene, regardless of its literary merit. Here, the intention was considered immaterial. If any portion of the work or publication was considered obscene even if that portion was out of context, it didn’t matter, the entire work could be outlawed.

The United States

In 1957, the US court developed a new test for obscenity in Roth vs. United States. It was decided that only those sex-related materials which had the capability of generating prurient interest or lustful thoughts would fall under the category of obscene. This had to be judged from the point of view of an average person following community standards, unlike the previous test which focused only on the susceptible readers i.e. the vulnerable sections of the society such as children or weak-minded adults.

Here, it was also held that obscenity is not constitutionally protected speech or press. The materials which cause normal healthy sexual desires will not come under the purview of obscene, the interest shown has to be shameful interest in nudity, sex or excretion. The Roth test is, therefore, sharper and narrower compared to the Hicklin test as it does not cover all the materials that might corrupt but limits itself to the dominant theme of the material and checks whether if taken as a whole has any redeeming social value or not.

In 1966, in Memoirs v. Massachusetts, the US court expanded the Roth test and stated that the last part of the definition i.e. utterly without redeeming social importance element had to be proved to classify something as obscene.

In 1973, the Miller test or the three-prong obscenity test was developed in Miller v. California. This test was for determining what kind of speech and expression can be classified as obscene. The test is based on 3 conditions and a piece of work would be considered obscene only if all the conditions were satisfied. The first two conditions are governed by the community standard while the third prong is governed by what is reasonable to a person of the US as a whole. The national reasonable standard acts as a check on the community standard allowing protection for works that in a certain community might be obscene but at the national level, it should have to redeem social value. This could create conflicting interest between communities as what is treated as obscene by one community could have been treated differently by another.

The Journey of Obscenity in India: Related Provisions & Case Laws

Legal Provisions

The words obscene and obscenity have not been defined in the IPC. Section 292 of IPC in simple terms state that if any material is taken as a whole is lascivious or appeals to prurient interest and tends to deprave and corrupt the persons who read, see or hear the matter contained will come under the purview of obscenity. Section 293 also bans the selling of obscene objects to young persons and prescribes punishments for the same.

The provisions of Section 292 are not applicable to works done in public interest such as in cases of science, literature or religious purposes. Section 292 also conflicts with Article 19(2) of the constitution which is about the freedom of speech and expression, however, the Constitution provides that the fundamental rights are subjected to reasonable restrictions to prevent indecency in public.

The punishment for publishing of obscene material in electronic form is given under Sec 67 of IT Act. It is important to note that any offence related to obscenity in electronic form can only be tried under the IT Act and not IPC as Section 81 of the IT Act clearly states its overriding effect. But sometimes if there is a need, provisions of both the IT Act as well as IPC are considered together, as done in the case of Avnish Bajaj v. State (NCT of Delhi). Since the Internet is global and dynamic in nature, we have Section 75 of the IT Act taking care of the issues related to electronic transmission of obscene material from other jurisdictions as well.

Sec 2(c), Sec 3, Sec 4 of the Indecent Representation of Women Prohibition Act, 1986 also deal with the prohibition of such acts. The Cable Television Networks Regulation Act, 1995 prohibits telecast of obscene acts on television. Section 4 and Sec 5A of the Cinematograph Act, 1952 provides for the examination of films before release. The Young Persons Harmful Publication Act, 1956 prohibits publications which can corrupt a child. Section 294 of the IPC punishes a person for committing obscene acts in public place and also for singing obscene songs. Similarly, Section 354 and Section 509 of IPC are also applicable for punishing crimes against sexual harassment of women at the workplace.

Case Laws

In 1965 judgement of Ranjit D. Udeshi v. State of Maharashtra, the SC had adopted the English Hicklin test which had raised a few problems. The Sec 292 of IPC required any material to be taken as a whole whereas the Hicklin test required the material content to be checked in isolation. So there was a conflict of interest between the two. There were other loopholes too because of which the courts started undermining the Hicklin test. The conditions of the Hicklin test were liberalized and applied until the case of Aveek Sarkar.

In the case of Aveek Sarkar v. State of West Bengal, the Supreme Court had said nude can’t be considered obscene per se under the meaning of Sec. 292 unless it arouses a feeling of sexual desire. In this particular case after 50 years of the application of the Hicklin test, the court finally disapproved it and adopted the Roth test. The intention behind it was to decide cases keeping in mind the contemporary national standards and not the group of susceptible persons. But the problem is that the test does not contemplate differential standards for different community and proceeds on a simple basis. Here, only it is the nature of work that matters and whether such work is accepted by the society at large or not. There was a lot of confusion as to what exactly constituted obscenity. How can the court draw a different line of a threshold for historically respectable figures in these cases? How do they decide the threshold? But at least people accepted the fact that obscenity is an exception to freedom of speech.

In 2006, the Supreme Court in the case of Ajay Goswami v. UOI stated that the community based standard test has become redundant now and proposed a new test called as responsible reader test wherein a reader should be cautious in this era of technology. With respect to the online form of obscenity, we have cases like Avnish Bajaj v. State, wherein the question was whether the website was responsible for the publication of the MMS or not. The website which was just an intermediary was held responsible for the same in this case. 

In another case, M. Saravanan & Dr. L. Prakash v. State, a doctor was punished under Section 67 IT Act for online distribution of lewd photos and videos of a woman just for the purpose of making money.

In 2015, the AIB group was also in the headlines for its roast show AIB Knockout wherein there were multiple instances where a celebrity was made fun of allegedly in a very rude and offensive manner. In view of this incident, several complaints were filed. The judgement is yet to come in this case but this is going to be an important precedent in future as this case is going to define the limits of freedom of speech and expression for TV shows involving celebrities and their impact on the society.

• 5 Steps to Immediately take if your nudes are being used to Blackmail YOU.

Sharing nude pictures over WhatsApp, iMessage and other sorts of messengers has become a pretty common activity across age groups today. What ordinarily follows these temporary (thought of as permanent) relationships is revenge porn which is the reason behind so many giving up and committing suicides. The pictures which were then shared voluntarily are now used to blackmail. If you or your loved one is a victim of such a crime please do not feel pathetic about yourself because people are there to help, you just need to ask for it. Please be bold and take the following steps:

1. Do not delete the message

If you are one of those who goes on like this : STOP.! These messages are a very important source of evidence. By deleting these messages, you are destroying evidence. 

2. Take a screen shot.

Often the accused uses fake accounts to blackmail the victim. In some cases, after the account is deactivated the chats are not visible as well. That is why it is best to take a screenshot as soon as you receive such messages. These screenshots are also helpful when filing complaints or gathering preliminary data for investigation. The screenshot should capture the time stamp along with the message.

3. Get Expert Help

File an FIR or contact the woman helpline service quickly. Often people don’t approach such services because of the fear of giving out these images or lack of adult help. Rest assured, these people are experts and they receive such complaints every day. Your photos will be dealt with confidentially.

4. Do not give in to the blackmailer’s demand

No matter what the blackmailer says, do not give in to his demands because there is no assurance that he will stop. The only word you need to understand is ‘consent’. If you don’t wish to give it, don’t be forced to. You will just make him feel more powerful and provide him more material to blackmail you further. 
5. Talk to a friend, family member or Someone Trustworthy.

Give voice to your pain and talk things out with someone. You will be very relaxed and safe by sharing your problems.

Views by Adv.Pankaj B.Bafna[ Bafna Law Associates, Mumbai[India]