Preying On Innocence
Spotlight/ Child Abuse & Pornography
T
The Bois Locker Room Case has brought to light increasing cases of online child abuse. And
social media can be held liable under Section 20 of the POCSO Act and the IPC for such content
By Dr Vidyottma Jha
HE recent Bois Locker
Room case where disturb-
ing tweets and Instagram
posts were shared about
minor girls has brought to
light increasing cases of
child abuse. An all-boys group chat was
created on Instagram with around 100
members, all boys from South Delhi,
which was made to send objectionable
pictures of minor girls, morphing them,
using abusive language and talking
about gang raping them.
Child sexual abuse is a form of
abuse where an adult or older adoles-
cent uses a child for sexual stimulation.
Various forms of child sexual abuse
include engaging in sexual activities
with a child whether by asking, pressur-
ing or indecent exposure. In fact, sexual
violence against children is a gross
violation of their rights. Yet, it is a global
reality which can also take the form of
sexual abuse, harassment, rape or
sexual exploitation by prostitution or
pornography. It can happen in homes,
institutions, schools, workplaces and
within communities.
The increasing use of the internet
and mobile phones has put children at
risk of sexual violence and the number
and circulation of images of child abuse
have risen. In fact, children themselves
forward each other’s sexualised mes-
sages or images. This “sexting” puts
them at risk for abuse.
With the lockdown due to Covid-19,
children are spending more time online,
which has aggravated the rate of crimes
against them. A report released by Eu-
ropol titled “Pandemic Profiteering”
28 June 15, 2020
stated that there is an increase of online
activity by those who are seeking child
abuse material. The report found a
correlation between this being consis-
tent with online postings in forums
by offenders.
PORNOGRAPHY
Pornography is a depiction of sexual
behaviour through books, pictures, stat-
ues, motion pictures and other media
and intends to cause sexual excitement.
The word pornography, derived from
the Greek porni (“prostitute”) and gra-
phein (“to write”), was originally defined
as any work of art or literature depicting
the life of prostitutes.
Pornography can be divided into two
VULNERABLE TO ABUSE
The increasing use of the internet and mobiles
has put children at risk of sexual violence and
circulation of images of child abuse has risen
categories—child pornography and adult
pornography. Child pornography has
two basic contents:
i. Oral communication about sex
ii. Sending the child pornographic data.
Pornographic images and films be-
came even more widely available with
the emergence of the internet in the
1990s. The pornography industry be-
came one of the most profitable on the
internet. Apart from providing a vast
marketplace for commercial pornogra-
phy, it appealed to many diverse tastes
which later added to the increased avail-
ability of child pornography. Porno-
graphy has long been condemned and
legally proscribed in the belief that it
depraves and corrupts both minors and
adults and leads to the commission of
sex crimes.
CYBER CRIME MENACE AND THE
LEGAL SCENARIO
Pornography has emerged as a subject
of discussion globally. It seems like the
worse impact of technology. The free use
of the internet has impacted the next ge-
neration badly. The Information Tech-
nology Act, 2000, Chapter XI in Article
67, clearly mentions online pornography
as a criminal offence and carries a jail
sentence of up to three years and a fine
of up to Rs 5 lakh. The IT Act, under
Section 67A, lays down that the publica-
tion and transmission of documents in
electronic form related to sexually ex-
plicit acts or behaviour are punishable
with imprisonment up to five years and
a fine up to Rs 10 lakh.
The Indian Penal Code, 1860, under
Section 293 specifically mentions the
law against the sale of obscene objects to
minors which pertains to pornography
or “obscenity” under Section 293. The
Act was amended by the Information
Technology Act in 2008 for the inclu-
sion of electronic data. According to the
amendment, a section was added which
criminalises surfing, downloading and
According to the Information Technology
Act, 2000, the offences that were
committed in the Bois Locker Room
case include using of a fake identity to
create an Instagram account.
publication of child pornography. Thus,
internet pornography can lead to a sen-
tence of five years’ imprisonment and
Rs 4 lakh fine.
BOIS LOCKER ROOM CASE
According to the Information Techno-
logy Act, 2000, the offences that were
committed in this case include using of
a fake identity to create an Instagram
account. This is punishable by up to
three years and a fine up to Rs 1 lakh.
Publishing, transmitting or causing the
same in electronic form would be liable
for imprisonment up to five years and
fine up to Rs 1 lakh. Besides this, if it
depicts children in an obscene or sexual-
ly explicit manner, creates texts or digi-
tal images, browses, downloads or ex-
changes, it would be liable to imprison-
ment up to five years and a fine up to
Rs 10 lakh.
POCSO ACT, 2012
The Protection of Children from Sexual
Offences (POCSO) Act, 2012, is an ess-
ential piece of legislation that crimina-
lises cybercrime against children, inclu-
ding child pornography, cyber stalking,
cyber bullying, defamation, grooming,
hacking, identity theft, online child traf-
ficking, online extortion, sexual harass-
ment and violation of privacy. Any per-
son who has knowledge of commission
of such an offence or knows that an
offence is likely to be committed must
report it to the local police and the
Special Juvenile Unit under Section 19
of the Act.
LAWS REGULATING
SOCIAL MEDIA
The Constitution guarantees to all citi-
zens a number of Fundamental Rights.
One of the most important ones is the
“Right to freedom of speech and expres-
sion” under Article 19 (1)(a). This free-
dom is not absolute. It is always subject
to certain reasonable restrictions which
the State may impose in the interest of
the citizen or the country. Therefore, ev-
en social media is regulated by the In-
formation Technology Act which was
enacted to regulate, control and deal
with the issues arising out of IT.
Social networking media is an “inter-
mediary” within the Information Tech-
nology Act. Thus, in India, this media is
liable for various acts or omissions. To
add to it, under the Indian Penal Code,
there are important sections which
could be effective against posting offen-
sive messages on social media. The
defamatory statement could be oral or
written or in sign language or by visible
representation and should be made or
published with the intention to harm or
with the knowledge of its defamatory
character. Section 499, IPC, is wide en-
ough to encompass the publication and
dissemination of defamatory content via
electronic means. Defamation is punish-
able under Section 500, IPC.
Further, the law against obscenity is
a reasonable restriction on the “funda-
mental right to freedom of speech and
expression”. The Internet facilitates the
creation as well as rapid transmission of
such material across the world. Legal
regulation is complicated by the fact
that there is no universally acceptable
definition of obscenity. Traditional
| INDIA LEGAL | June 15, 2020 29
Spotlight/ Child Abuse & Pornography
“Under the shadow of
Covid-19, the lives of
millions of children have
temporarily shrunk to just
their homes and their
screens. We must help
them navigate this
new reality,”
—UNICEF Executive
Director Henrietta Fore
laws that deal with obscenity, including
pornography, are contained in Sections
292-294 of the IPC. Publishing as well
as circulating of obscene photographs of
women is also punishable under Sec-
tions 3 and 4 of the Indecent Represen-
tation of Women (Prohibition) Act,
1986. These provisions can also be used
for punishing people who circulate ob-
scene material in electronic form.
LIABILITY OF INSTAGRAM
Social media platforms enjoy a safe har-
bour with respect to online offences.
They are considered intermediaries and
thus, under Section 79 of the IT Act, are
granted conditional immunity from lia-
bility for third party acts. This implies
that social media platforms are merely
a facilitator of communication and do
not have any “knowledge nor control”
over the information transmitted
through them.
This issue was highlighted in Ashish
Bhalla vs. Suresh Chaudhary, where
group administrator WhatsApp was
made party to a suit regarding a defam-
atory post. The Delhi High Court held
that the administrator could not be held
liable for defamatory statements made
on the group.
The reason cited was that members
can make posts on the group without
the approval of the administrator. The
30 June 15, 2020
unicef.org
Court observed that holding the admin-
istrator accountable for such content
was the equivalent of making the manu-
facturer of newsprint on which defama-
tory statements are published liable
for defamation.
Despite having this judgment as a
precedent, the gravity of the offence
and its seriousness cannot be ignored.
Even with the provision of safe harbour
protections, Instagram can still be
held liable under Section 20 of the
POCSO Act.
The Act requires any personnel of
the media or other groups to file a com-
plaint with the Special Juvenile Police
Unit or the local police whenever they
come across any such content. The
Delhi Commission for Women has also
taken suo motu cognisance of the Bois
Locker Room case and issued a notice to
Instagram asking it about the action
taken by them against the alleged abuse.
REPORTING OF CYBER
OFFENCES
In a maiden initiative by the govern-
ment, it has started a portal to facilitate
complaints about cyber crimes online.
This portal caters to complaints pertain-
ing to online child pornography (CP),
child sexual abuse material or sexually
explicit content such as rape/gang rape
(RGR) content and other cybercrimes
such as mobile crimes, online and social
media crimes, online financial frauds,
ransomware, hacking, cryptocurrency
crimes and online cyber trafficking.
The portal also provides the option of
anonymously complaining about online
CP or sexually explicit content such as
RGR content.
Thanks to the pandemic, there has
been an unprecedented rise in screen
time. Families worldwide are relying on
technology and digital solutions to keep
children learning, entertained and con-
nected to the outside world. Spending
more time on virtual platforms can leave
children vulnerable to online sexual
exploitation and grooming as predators
look to exploit the pandemic for their
benefit. A lack of face-to-face contact
with friends and partners may lead to
heightened risk-taking such as sending
sexualised images, while increased and
unstructured time online may expose
children to potentially harmful and vio-
lent content as well as put them at a
greater risk of cyber bullying.
“Under the shadow of Covid-19, the
lives of millions of children have tem-
porarily shrunk to just their homes and
their screens. We must help them navi-
gate this new reality,” said UNICEF Exe-
cutive Director Henrietta Fore.
A great amount of responsibility now
rests on governments and industry to
join forces to keep children and young
people safe online through enhanced
safety features and new tools. Parents
and educators need to teach children
how to use the internet safely. Children’s
rights to privacy and protection should
not be compromised.
Moreover, the lockdown is a time for
parents to speak to their children about
online safety, how to change settings to
“private, friends or contacts only”, or
prevent spam or unwanted sexual con-
tent. Promoting positive online and
recreational use and building children’s
skills to stay safe online will serve them
well after the lockdown is lifted.
—The writer is an advocate in the
Supreme Court