OBSCENE MATERIAL

This article is by Advocate Puneet Bhasin, Cyber Law Expert, Cyberjure Legal Consulting, on Cyber Pornography Law in India.

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Cyber pornography is in simple words defined as the act of using cyberspace to create, display, distribute, import, or publish pornography or obscene materials. With the advent of cyberspace, traditional pornographic content has now been largely replaced by online/digital pornographic content.

Cyber pornography is banned in many countries and legalized in some. In India, under the Information Technology Act, 2000, this is a grey area of the law, where it is not prohibited but not legalized either.

Under Section 67 of the Information Technology Act, 2000 makes the following acts punishable with imprisonment upto 3 years and fine upto 5 lakhs:

  1. Publication- which would include uploading on a website, whats app group or any other digital portal where third parties can have access to such content.
  2. Transmission- this includes sending obscene photos or images to any person via email, messaging, whats app or any other form of digital media.
  3. Causing to be published or transmitted- this is a very wide terminology which would end up making the intermediary portal liable, using which the offender has published or transmitted such obscene content. The Intermediary Guidelines under the Information Technology Act put an onus on the Intermediary/Service Provider to exercise due diligence to ensure their portal is not being misused.

Section 67A of the Information Technology Act makes publication, transmission and causing to be transmitted and published in electronic form any material containing sexually explicit act or conduct , punishable with imprisonment upto 5 years and fine upto 10 lakhs.

An understanding of these provisions makes the following conclusions about the law of cyber pornography in India extremely clear:

  1. Viewing Cyber pornography is legal in India. Merely downloading and viewing such content does not amount to an offence.
  2. Publication of pornographic content online is illegal.
  3. Storing Cyber pornographic content is not an offence.
  4. Transmitting cyber pornography via instant messaging, emails or any other mode of digital transmission is an offence.

In a very recent case, a 21 year old Engineering student was arrested for sending obscene pictures by whats app to a woman.

In the infamous Bazee.com case, the CEO Avinash Bajaj was arrested for an advertisement by a user to sell the DPS sex scandal video. The video was not uploaded on the portal, despite that Avinash was arrested under Section 67 of the Information Technology Act. It was subsequent to this case that the Intermediary guidelines were passed in 2011 whereby an Intermediary’s liability would be absolved if they exercised due diligence to ensure obscene content is not displayed on their portal.

However, there is one case in which viewing Cyber pornography is punishable with imprisonment upto 5 years and fine upto 10 lakhs. Where the content contains children engaging with one another or with adults in sexually explicit acts.

Browsing or downloading Child pornography online is also a punishable offence under the Information Technology Act. The creation of child pornography is also punishable under the Act.

The act of collecting and storing cyber pornography is not an offence, but if the content involves minors, then it is punishable with imprisonment upto 5 years and fine upto 10 lakhs.

World over online child pornography is illegal. One of the biggest publicized catches of child pornography perpetrators was launched in May 2002 and called Operation Ore. After the FBI accessed the credit card details, email addresses, and home addresses of thousands of pornographers accessing a British child pornography site, the particulars were given to the British police for investigation. The arrest of a computer consultant in Texas led to an international investigation that jailed Thomas Reedy for 1,335 years for running the pornography ring. About 1,300 other perpetrators were also arrested, including teachers, child-care workers, social workers, soldiers, surgeons, and 50 police officers. As a result, 40 children, 28 of them in London, were placed under protective care.

To conclude, Cyber pornography has not been legalized in India, however, it s browsing has not been prohibited either except in the case of child pornography.

Click on the links mentioned below to get more insight on the related topics:

Pornography and Its Legal Recourse in India

Legality of recent ban on Pornography in India

What To Do When You’re Being Sexually Harassed

What should you do if someone publish your nude pictures without your consent

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26 COMMENTS

  1. I have query

    if i start a website with some affiliated site or white label websites cantaints adult chat,adult dating etc is it legal in India.

  2. Hello sir, i want to know is working on escorts or call girls website as an SEO (not as a broker) it is illegal or legal? if it is illegal then what will be punishment in India.?

  3. Sir, my freind caught arrested for distributing porn vedios from his mobile shop. So what will be the punishment and what is the loopholes to save him.

    • It is illegal in India, there is an easy turnaround to that however. A few of my friends are earning via video uploads and cam shows. It’s a lucrative profession. I can let you know the details of how to do it, just mail me at [email protected]

  4. hello sir, if by mistake one went to a link containing underage and was prompted as blocked by the isp, does it amount to be punishable?

  5. hi…do watching porn from your residense lead to the arresting of the person.or the person who has the lisence over the computer.

    please do give a reply/…with full hope ghf

  6. If distribution is illegal then is it possible to bring case against website owners? Lots of websites are cropping up everyday and no one seems to be arrested. Can the authorities take duo Moto cognizance?

  7. Does transmission also includes ISPs providing the content from Website server to my home ?

    Thereby indirectly helping the publisher to reach more users.

    Please clarify.

    • No I don’t think so. But I am not lawyer 🙂

      I may say that ISP is road, publisher is shops near road and you are customer. If you buy bad illegal things whom to arrest? Road, shop or you? Normally you and shop will be arrested but in internet crime mostly they will arrest you because arresting shop is not possible easily.

      Child pornography is hard to stop because I think some people want it badly and they can view it easily by the internet. So easy to share these days that it is not possible to know what is where.

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