Monday, November 17, 2014

Cyber Pornography in India – Sprouting of a Hydra’s head

Cyber Pornography in India – Sprouting of a Hydra’s head
By Adv. Prashant Mali, Cyber Law & Cyber Security Expert, Author, Speaker
Email : prashant.mali@cyberlawconsulting.com | Mobile : +919821763157

The etymology of pornography can be traced to graphos (writing or description) and porneia (prostitutes) and hence it means the description of the life, manners, etc. of prostitutes and their patrons. The first known use of the word to describe something similar to pornography as understood today was in eighteenth century, when the city of Pompeii was discovered. The entire city was full of erotic art and frescoes, symbols, inscriptions and artifacts that were regarded by its excavators as ‘pornographic’. One of the commonly accepted definitions of “pornography” in modern times defines it as sexually explicit material that is primarily designed to produce sexual arousal in viewers. In India, pornography is seen as an aggravated form of obscenity.
In the India Amateur pornography production with or without consent from women is higher than the consumption of industry-produced porn.
There needs to be an amalgamation of Education, Law, Technology and Governance for effective control of pornography over the Internet. The law alone will be toothless if not enforceable.

Now, if rightly said 2/3 part of India’s population is below 35 years, that also signifies a sexually active population in a timid culture of India where anything related to sex itself is a taboo. Watching Cyber pornography is the way out for these sex oppressed minds to exercise their Right to Privacy and feed their information related hungry minds.

Digression is synonymic with excursion then yes the age we are discussing have all right to do so. Distortion, if you believe cyber pornography as “act committed by real humans” is a wrong word in the context itself. Distress if synonyms to pain and suffering then it only signifies to the petitioners feelings coz audience to the cyber pornography never feel the distress unless physically incapacitated. Seeing Cyber Pornography as Manoranjan itself is a half cooked thought. I feel Cyber pornography is viewed for pleasure (i.e for prasannata, Khushi, anannd) . To argue further, I would refer to Freudian psychology, the pleasure principle is the instinctual seeking of pleasure and avoiding of pain in order to satisfy biological and psychological needs. Specifically, the pleasure principle is the driving force guiding the individual identification or id. Epicurus in the ancient world, and Jeremy Bentham in the modern laid stress upon the role of pleasure in directing human life, the latter stating:"Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. Cyber pornography has grown so much coz it is associated with pleasure and not with manoranjan  (entertainment) as claimed by petitioner.
Manobhanjan(Destruction of Mind), some gurus have said that to attend Samadhi, Manobhanjan that is destroying the mind is also another path, so this theory and idea becomes debatable.    

The statistics used in the said petition under discussion are based on News Paper reports, never a credible evidence in any courts of Law, it states that 70% of the traffic online is connected to pornography. The survey done by the company in 2010 namely ExtremeTech reveals that it is exactly the opposite that only 30% of the internet traffic relates to pornography. India now has over 20 crore Internet users in around 121 crore population and labeling 14 crore people as cyber pornography watchers is more than ambitious.

Concerns raised by the petitioner with regards to Child pornography are justified but I think around 120 countries including India has strong laws related to child pornography due to the ratification of the Optional Protocol on Child Pornography.  Section 67B of The IT Act, 2000 deals with child pornography and not only watching or transmitting child pornography is a crime but even searching for child pornography related material on Google is a Non-Bailable and Cognizable offence. So it is clear when it comes to child pornography India already has Law, the question is of equal enforcement throughout the country and effective preemptive measures. Indian ISP association along with police should have a monthly review meeting to ban certain branded websites spreading child pornography and some types of extreme porn. Even though I sympathize with the view of Government that not all porn sites can be banned due to technological issues, but I strongly suggest that there has to be concerted efforts by the stake holders to show some action which can serve as detrimental to child porn industry operating or exhibiting within cyber boundaries of India. Action speaks louder than thousand words that is what is missing when it comes to banning few known websites, even if websites sprout like Hydras head  .

With almost negative or miniscule amount of sexual education across the country, limited pornography also serves as a tool to sexual education for information seekers. If pornography is a threat to women then I feel  they should be protected by better implementation of legal reforms and stronger rights against invasion of their privacy, this includes exploitation of her body by taking image or video without her consent. Sexually explicit material has been around in India in the form of temple statues, Kamasutra e.t.c. but that was what we call soft porn (and should not be confused with violent porn). Even print porn has only been around in India for last 2 decades or so and is strictly censured, again to soft porn levels. What India is being exposed to right now, all of a sudden, is violent porn from the west.

Law as it stands :
Pornography or obscenity is very sensitive issue all over the world yet there is no settled definition of the word under any law. Whether a given pornographic ‘work’ may be termed obscene will be determined by applying what is known as the Miller test (the three-prong obscenity test), which was developed by the US Supreme Court in the landmark case of Miller v. California. This test poses three fundamental questions about the work under scrutiny:
§  Whether the average person, applying ‘contemporary community standards’, would find that the work, taken as a whole, appeals to the prurient interest
§  Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law
§  Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value
Section 292 of the Indian Penal Code (IPC) defines obscenity as that which is
‘lascivious or appeals to the prurient interest or tends to deprave or corrupt persons’. In recent supreme court judgment  Aveek Sarkar & Anr Versus State of West Bengal & Ors on obscenity, it was held that nude picture of women is not obscene per se. This judgment overruled the Hecklin test which was used to interpret obscenity by courts till date for deciding cases on obscenity.

Besides shunning the temptation of sharing salacious videos, the mobile user should be wary of misusing his mobile to invade somebody's privacy. Section 66E, one of the amendments made to the IT Act, 2000, introduced punishment up to three years for whoever "intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person".

Under S.354C of the Indian Penal Code on voyeurism, the offences included are capturing the image of a woman in a private or sexual act with a hidden camera or device, without the consent of the woman. If the woman consents to the capture of the images but not to its dissemination, then it is still an offence under the same law and the imprisonment is from three to seven years. Forcibly showing pornography to a woman is also included under sexual harassment under S.354A of the Indian Penal Code.
Summing up Section 66E,67,67A,67B of The IT Act, 2000 addresses issues of pornography and Child Pornography along the lines of POCSO. 


Cyber Pornography and Right to Privacy
Canadians have the right to be anonymous on the internet, and police must obtain a warrant to uncover their identities, Canada's top court has ruled in R. v. Spencer, 2014 SCC 43. The landmark decision from the Supreme Court  bars internet service providers from disclosing the names, addresses and phone numbers of their customers to law enforcement officials voluntarily in response to a simple request .
In India, our Constitution does not contain a specific provision as to privacy but the right to privacy has been spelt out by our Supreme Court  from the provisions of Art. 19(1)(a) dealing with freedom of speech and expression, Art. 19(1)(d) dealing with right to freedom of movement and from Art. 21, which deals with right to life and liberty In Govind v. State of MP, Mathew J. developed the law of privacy. The learned Judge held that privacy claims deserves to be denied only when important countervieling interest is shown to be superior, or where a compelling state interest was shown If the court then finds that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling state interest test. Then the question would be whether the state interest is of such paramount importance as would justify an infringement of the right. In Naz Foundation v. Government of NCT of Delhi, the Delhi High Court took the right of privacy the Delhi High Court took the right of privacy to new level. The Court held that privacy recognises a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which one gives expression to one’s sexuality is at the core of this area of private intimacy. If, in expressing one’s sexuality, one acts consensually and without harming the other, invention of that precinct will be a breach of privacy. Now, since manufacturing and viewing of pornography are medium of expression of one’s sexuality, it must fall within the ambit of right to privacy, provided it is manufactured and viewed privately by consenting adults and thereby not causing any harm to the others.
Conclusion
The line demarcating the ‘decent’ from the ‘obscene’ is still vague, and the distinction is purely ambiguous as it is based on individual interpretation. The concept of only ‘Violent Pornography’ which includes (rape, fetish, kinky, sadomasochism) needs to be adequately defined  in any existing  Law, to enable insertions of  new sections competent to deal with it, or modify the existing provisions in law to effectively tackle the problem. The restriction on ‘Violent Pornography’ via using” Intelligent Filters “ linked to globally available databases or self created updatable databases at ISP levels can prove as an efficacious remedy to arrest it in some proportions as completely eradicating cyber pornography would be like plucking out hydra’s sprouted heads which are known to regenerate.


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