Home protecting the online interests of children Are Indian laws protecting the online interests of children

protecting the online interests of children

Are Indian laws protecting the online interests of children

August 23, 2022

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This article is written by Athira R a 10th sem BBA LLB (h) student of Government law college thriss pursuing a Diploma in Technology Law, Fintech Regulations and Technology Contracts at Lawsikho. This article has been edited by Ojuswi (Associate, Lawsikho).

This article has been published by Sneha Mahawar.

Introduction

Recently, children have become more and more reliant on the internet, especially during the covid-19 pandemic. As a result of the lockdown, closure of schools and online education most children have started spending more time on the internet. India has witnessed an increased 50% internet usage as an aftereffect of the pandemic. The Internet can be considered a double-edged tool as it can be both a boon and a bane to children. The Internet serves as a platform for quick access to information as everything is accessible at the fingertips. The Internet, on one hand, ensures access to knowledge and entertainment for children and on the other hand, provides potential exposure to harmful and inappropriate content. Such exposure leads to various online offences including child pornography, cyberbullying, cyber sexual harassment, loss of privacy, cyber grooming and enticement to illegal behaviour. The increasing number of children using social media and other platforms for sharing videos and daily activities necessitated regulations for monitoring the children’s online activities and protecting them from harm.

The Convention on the Rights of the Child Council, Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, Europe Convention on Cyber Crime and Council of Europe Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse are important international conventions and policies for the protection of children online. India ratified the Convention on the Rights of the Child and acceded to the Second Optional Protocol to the Convention on the Right of Children. Hence India is obliged to make regulations and policies for the protection of children from both online and offline offences. India has a wide range of laws for protecting children and their online interests. The Indian government formulated many legislations to protect children online. Information technology act 2000, national policy for children 2013, national policy of ICT in schools 2012, national cyber security policy 2013, indecent representation of women(prohibition) act 1986, and protection of children from sexual offences 2012 have been important legislations in India for protecting the children online.

Need for protecting the children and their online interest

The Internet can be a very useful tool if used properly as it is a quick and easy method to access knowledge and information. Through the internet, children learn, imagine and develop their social networks. The Internet is a very useful tool that can at the same time lead to many kinds of exposure which can cause harm to children both physically and mentally. Offence against children through the internet is mushrooming at an alarming rate. Some of the offences are:

Cyber bullying/ Cyber harassment

Cyberbullying or cyberharassment is also known as online bullying. It is a form of bullying through online media. Cyberbullying or harassment is an act of a person, particularly a teenager that leads to harassment of other persons online or on any digital platform like social media. Posting of rumours, pejorative labels, sexual remarks, threats, victims’ personal information etc. is some of the bullying practised against children. Many times students who are bullied via the internet may also be bullied physically or verbally and at other times students may be exclusively bullied online. The children who are victims of cyberbullying may experience a feeling of suicidal ideation, lower self-esteem, and increased negative emotional responses. There are different types of cyberbullying. They are:-

Trolling

Internet trolling is the most common form of cyberbullying which is performed on online platforms including social media. Internet trolling is an act by which a person intentionally provokes another person to elicit a reaction. Internet trolling may or may not lead to cyberbullying. Some trolls may lead to cyberbullying while others may be considered harmless mischief.

Cyberstalking

Is another form of cyber harassment in which a person uses electronic means to stalk a victim. It leads to a threat to the safety of the victim as the person performing the act of cyberstalking may send repeated messages with the intention of threatening or harassing the victim and they may also encourage others either explicitly or by impersonating the victim. Many times children are victims of cyberstalking.

Hate raids

In live streaming platforms a situation may be created whereby the stream will be raided by multiple viewers which will lead to flooding of the chat with hateful and harassing messages. Such a situation prevents the streamer from executing the stream. This is called hate raids. This type of cyberbullying may not affect children in the same way it affects adults.

Child pornography

Child pornography has been defined under section 2(da) of the protection of children from sexual offences act, 2012 (POSCO). According to Section 2(da), child pornography means any visual depiction of sexually explicit conduct involving a child. Such depiction may be in the form of photographs, videos or computer-generated pictures. When an act of child pornography is committed there is the likelihood that the child has actually suffered the sexual abuse or repeated acts of sexual abuse while making such images, videos or pictures. Such acts of child pornography only aggravate the physical and mental sufferings of the child victim. Child pornography deteriorates the mental and physical well-being of the child victim pushing them into a state of trauma and also making a grave impact on society. Fear, humiliation and lack of confidence are some other sufferings of the child victim apart from physical and mental trauma.

Loss of privacy

Children being minors may not understand the term online privacy. They may understand it to mean privacy from parents while using websites and other platforms. They being minors might easily give consent to the big data stakeholders for storing their data identities. But the consent of the parents is necessary for storing the data of minor children. Hence lack of knowledge of the children about online privacy and their low consciousness leads to exposing children to offences such as cyber threats and cyberbullying.

Cyber grooming

Cyber grooming is an act committed by a person often adults by which they befriend a child and try to establish an emotional connection with the child to exfoliate the child from sexual abuse, sexual harassment or immoral trafficking. It may be done by gaining the trust of the child and then obtaining personal or intimate information about the child and using this information for threatening the child in the future.

Laws for protecting children and their online interests in India

The constitution of India provides for the enactment of special legislation and regulations for the protection of children. The state is responsible for providing special legislation for the protection of children. In India various legislation deal with the protection of children and their online interests.

Information And Technology Act 2000

Information technology act 2000 is one of the important pieces of legislation that provide for protection in online activities. The information and technology amendment act 2008 gave a more clear definition to the term “communication device”. Section 2(1) (ha) defines the term communication devices. Section 2(1)(ha) now brings within its ambit mobile phones. Now it equally applies to mobile phones, iPad, tablets, laptops etc. as it applies to computers. The act recognizes online offences against children. The act treats the following offences as offences against children

Publication and transmission of child pornographic material or any other obscene content, and content depicting children as engaged in a sexual act in any electronic form. Section 67B of the Act provides punishment for the same.
Intentionally or knowingly publishing or transmitting pictures of private persons with or without their consent amounts to a violation of privacy.
Alluring a child to enter into a relationship to sexually exploit the child by connecting with the child online.
Securing access to computers or any other electronic devices without authority, in turn, leads to violation of privacy, committing data theft, tampering with electronic devices, corrupting the device by introducing a virus and damaging a computer program. This act is only specifically against the children; it can be against any person who in turn includes children in their ambit. Causing identity theft by using someone else’s password or electronic signature without their consent, and dishonestly receiving any electronic device impersonation.
Privacy violation of children by any other form.

The IT act further provides certain mandatory guidelines for cybercafé. It includes insisting on documents of identity, adult along with the child, use of available filtering software to avoid access to pornographic websites or any other obscene content, displaying a clear and visible board prohibiting access to pornographic websites and other websites prohibited in the IT act as well as copying or downloading any content prohibited under the IT (Guidelines for cybercafé) rules, 2011.

POCSO Act, 2012

Protection of children from sexual offences is legislation enacted to protect children below 18 years of age from all forms of sexual offences including sexual assault, sexual abuse, sexual harassment, and child pornography.

Section 11 of the POCSO Act provides instances of sexual harassment. A few instances involving electronic media are

A person with sexual intent who shows any material to the child on any electronic media for pornographic purposes is said to commit sexual harassment of the child.
A person who constantly contacts a child through any electronic media is said to commit sexual harassment.
If a person threatens a child through any electronic form to use any body of the child or the child involved in a sexual act whether real or fabricated commits sexual harassment
Allures a child for pornographic purposes.
Section 12 of the POCSO Act provides punishment for sexual harassment. Any person committing an offence of sexual harassment shall be punished with imprisonment for a term which may extend to three years and with a fine.

Section 13 of the POCSO Act explains the use of children for pornographic purposes that are prohibited under law. Section 13 provides that any person who uses the child for sexual gratification in any electronic media either for his personal use or for distribution can be said to have used that child for a pornographic purpose. It includes obscene representation of the child, display of sexual organs of the child, and display of a child engaged in a sexual act.
Section 14 of the Act provides punishment for using the child for pornographic purposes. A person committing an offence under section 13 of the Act shall be punished with imprisonment for a term not less than five years and with a fine. On second or subsequent conviction for a term not less than seven years and with a fine. If the person also commits an offence under section 3 or section 5 or section 7 or section 9 by himself participating in the act of pornography shall be punished under section 4 or section 6 or section 8 or section 10 respectively in addition to the punishment under section 14.
Section 15 of the Act provides punishment for storing pornographic material which involves a child. If a person stores or possesses the material with the intention to transmit or distribute the same without reporting it to the authority will be liable to pay a fine of not less than rs.5000. On second or subsequent conviction with a fine of not less than rs.10000. If a person stores or possesses the material for transmitting or displaying or distributing the same except in a manner prescribed under law for reporting the same will be punished with imprisonment for a term which may extend to three years or fine or both. If a person stores or possesses the material for a commercial purpose shall be punished with imprisonment for a term not less than three years but may extend to five years or a fine or both. On second or subsequent conviction for a term not less than five years but may extend to seven years or fine or both.
Section 16 of the Act provides that abetment to commit any of the above offences shall be punishable.

Indian Penal Code

Indian Penal Code applies to offences of criminal intimidation, Hate speech, and defamation committed online.

Section 153 A of IPC deals with hate speech. If any person commits an act which leads to promoting enmity between different groups on different grounds and which are prejudicial to the maintenance of harmony.

Section 419 of IPC deals with cheating by impersonation. Under the section, any person who commits cheating by impersonation will be punished with imprisonment for a term which may extend to three years or fine or both.
Section 500 deals with defamation. Any person who commits defamation will be punished with simple imprisonment for a term which may extend to two years or with a fine or both.
Section 506 deals with criminal intimidation. A person who commits criminal intimidation will be punished with imprisonment for a term which may extend to two years or with a fine or both.
Section 292 prohibits the possession, sales etc. of obscene material.

Indian Penal code deals with these in general and not specifically the children. But these can be applied even in cases of these offences when committed against children.

Data Protection Bill 2021

The bill provides various safeguards for the protection of the privacy of the children. One of the most important provisions is the specification of the age of consent as 18 years. The bill provides that for processing a child’s personal data a data fiduciary must obtain consent from the guardians. It also recommends that the data fiduciary exclusively dealing with children must mandatorily register with the data protection authority. For determining a significant data fiduciary, processing children’s data and providing them services is considered a qualifying factor. Significant data fiduciaries have to comply with additional obligations specified in the bill. Data fiduciaries are prohibited from monitoring or tracking the children’s data or processing personal data in such a manner that it causes harm to the children.

This bill, which is a draft bill on the report of a joint parliamentary committee suggesting necessary changes to the data protection bill 2019 focuses on the protection of online privacy of the children.

National Cyber Security Policy

National cyber security was enacted with various objectives by the government of India. One of the objectives of the policy is the prevention and proper investigation of cybercrimes including those committed against children. It provides for an appropriate legislative framework for enhancing enforcement capability. It aims to create awareness about cyber security in society. In addition, the bill protects citizens’ data, prohibits violations of their privacy, and protects them from any losses caused by cyber crimes, like data thefts, that occur due to privacy violations.

Limitation of laws in protecting the children and their online interest

Lacunae in Indian laws

Although Indian laws criminalise many offences against children it fails to identify certain acts as an offence. Cyberbullying which is criminalised in many countries is still a serious offence in India. The same is the case with sexting. Cyberbullying and sexting are not treated as serious offences in India and it is mainly because Indian laws do not provide for any legal provision for punishment for these offences. Even though the laws criminalise the offence of child trafficking done with the intention of sexual exploitation, it remains silent on the act of child trafficking with the intention to produce pornographic or obscene material. It is also silent about cyber grooming which is also done with the intent of sexual exploitation and it is one of the offences that are happening at an alarming rate against children in our country which in the end might result in the children committing suicide. Therefore Indian laws do not touch every aspect of the protection of children online. It still needs to develop and legislate on this aspect and provide complete legislation for the protection of children and their online interests.

The conflict between protection and privacy

Children’s right to privacy conflicts with their right to protection. Children like every other citizen of India do have the right to privacy. There are many laws in India protecting the right to privacy of children. Protection of children involves proactive measures such as monitoring and sometimes intruding on the right to privacy of children. Protection of children should be in such a law that it should not conflict with the right to privacy of the children. Legislators should formulate provisions which deal with the protection of children online without intruding on their privacy. Protection and privacy must go hand in hand.

Lack of clarity in interpretation

Law enforcement agencies are not very well acquainted with handling digital evidence. In the absence of proper guidelines as to the handling of electronic or digital evidence to law enforcement agencies, there will be subjectivity in interpreting these digital pieces of evidence and the related legal provisions. There needs to be a balance between the freedom of speech and expression as well as protecting the children. As a result of these subjective interpretations, it may often lead to violation of freedom of speech and expression. Therefore law should provide proper guidelines and provisions for interpreting the digital evidence and connected legal provisions.

Conclusion

In light of the growing dependence of children on the internet especially with the beginning of online Education has made it important to create a safe online environment for children. Along with offences being committed against children through the internet the privacy violation of the children also needs to be addressed efficiently. The existing policies and laws provide for protecting children against both online and offline abuse. The advantages of the existing laws can only be realised if there is proper enforcement of the laws as well as monitoring of recent technological developments.

These laws to a great extent protect children online still there are a lot of issues these laws fail to address. There is a need to create awareness about the protection of children online. The government needs to provide proper legislation which addresses all the issues relating to the protection of children online and also look into the proper implementation of these laws. The government must take extra care while protecting the children so that the laws do not lead to violation of the right to privacy of children. Children’s rights to privacy need to be considered equally important as that of adults.

Thus though the Indian laws are equipped to protect children and their online interest to a great extent there is still lacunae that need to be filled by providing complete and full legislation to protect children and their online interest.

References

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