By – MEGHA MALHOTRA
The Internet has given rise to a new industry for the online publication and consumption of obscene materials. Millions of people around the world are visiting web-sites catering to this product. These Internet sites represent the largest growth sector of the digital economy. But as the use of internet is grown by the time, it is misused also and a large number of different types of crime are committed through this internet as hacking, cyber stalking, cyber defamation, cyber fraud, cyber forgery, cyber terrorism, IPR infringement etc. Cyber obscenity is one of them.
MEANING OF OBSCENITY
Obscenity is very sensitive issue all over the world yet there is no settled definition of the word ‘obscenity’ under any law. What is nude art or sexually explicit thing for one person may be obscene or porn for another. Obscenity on the Internet is not a common crime. Internet has provided a medium for the facilitation of crimes like obscenity or pornography. Cyber obscenity is the trading of sexually expressive materials within cyber space. Although the Indian Constitution guarantees the fundamental right of freedom of speech and expression; it has been held that a law against obscenity is constitutional. The Supreme Court has defined obscene as “offensive to modesty or decency; lewd, filthy, repulsive”. It is very difficult to testify whether any pornographic material is illegal or not? One particular pornographic material may be illegal in India but not in other countries. The test for obscenity was first laid down the Regina v. Hicklin, as a tendency to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.”
The word Cyber or Cyber Space denotes a virtual environment within which networked computers’ activity takes place and Obscenity is any statement or act which strongly offends the prevalent morality of the time. Obscenity is a legal term that applies to anything offensive to morals and is often equated with the term pornography. Obscenity is derived from the Latin word obscaena. In R v. Hicklin, the word obscene was clearly defined as “Any matter which has the tendency to deprave or corrupt those whose minds are open to immoral influence.”
According to Supreme Court of India, “the concept of obscenity would differ from country to country depending on the standards of morals of contemporary society.” And that obscenity has a tendency to deprave and corrupt those whose minds are open to such immoral influences.
TEST OF CYBER OBSCENITY:
The United States Supreme Court laid down the ‘Miller Test’ in case of Miller v. California.
It is a three-prong test for obscenity:
1. Whether the ‘average person’ applying community standards would find the work, taken as a whole, appeals to the prurient interest;
2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically denied by state law;
3. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
The Hicklin’s test was laid down in English law in the case of Regina v. Hicklin. On Application of Hicklin’s test, a publication can be judged for obscenity based on the isolated part of the work considered out of the context. While applying Hicklin’s test the work is taken out of the whole context of the work and then it is seen that if that work is creating any apparent influence on most susceptible readers, such as children or weak-minded adults.
In 1957, a new test was developed by US courts to judge obscenity in case of Roth v. United States, In this case it was held that only those sex-related materials which had the tendency of exciting lustful thoughts were found to be obscene and the same has to be judged from the point of view of an average person by applying contemporary community standards. This test was sharper and narrower than the Hicklin’s test as it does not isolate the alleged content but limits itself to the dominant theme of the whole material and checks whether, if taken as a whole, it has any redeeming social value or not.
CYBER OBSCENITY IN INDIA:
Indian Judiciary for the first time defined obscenity in the case of Ranjit D. Udeshi v. The State of Maharashtra. In this case Hon’ble Supreme Court observed that the test of obscenity is, whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to immoral influences, but the test of obscenity must agree with the freedom of speech and expression guaranteed under our Constitution. Therefore, sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more.
The Court went on to admit that obscenity has been understood in the following terms:
(1) That which depraves and corrupts those whose minds are open to such immoral influences.
(2) That which suggests thoughts of a most impure and libidinous character.
(3) That which is hard-core pornography.
(4) That which has a substantial tendency to corrupt by arousing lustful desires. (5) That which tends to arouse sexually impure thoughts.
(6) That which passes the permissive limits judged of from our community standards.
In this case the Hicklin test was applied and given due regard by the court to judge obscenity.
In another such case, K.A. Abbas v. Union of India and Anr, the Hon’ble Supreme Court validated the pre-censorship of content as exception to the right to freedom of speech and expression. However, the court observed that “the censors need to take into account the value of art while making their decision. The artistic appeal or presentation of an episode robs it of its vulgarity and harm and also what may be socially good and useful and what may not.”
While determining that whether a thing presented in a film is obscene or not it should be considered with the context in which that thing is being portrayed and it should not be isolated from the context. Based on this same concept as mentioned, the Supreme Court in case of Bobby Art International & Ors. v. Ompal Singh Hoon while dealing with the question of obscenity in the context of film called Bandit Queen, ruled that the scenes depicting must not be scene in isolation. Hon’ble court said that the so called objectionable scenes in the film have to be considered in the context of the whole film and with the context that film is seeking to transmit in respect of society.
In case of Director General, Directorate General of Doordarshan & Others v. Anand Patwardhan and Another in this case an independent filmmaker challenged doordarshan’s refusal to telecast his documentary, giving reason that it contain scenes that could promote violence and it’s telecast would be against the policies of doordarshan. The court held that tough, there are some scene of violence and social injustices in the film but because of this it cannot be said that the filmmaker supports any of that, and this depiction is only meant to convey that such social evils still exist. The Court also held that a documentary couldn‟t be denied exhibition on Doordarshan simply on account of its “A” or “UA” certification. the Court held that a film must be judged from an average, healthy and common sense point of view.
In case of Maqbool Fida Husain vs Raj Kumar Pandey Delhi High Court while dealing with the issue of whether a nude painting depicting ‘Bharat Mata’ can be said to be obscene or not. The court answered this in negative and went on observing that “nudity or sex alone cannot be said to be obscene.”
High Court of Bombay in case of state of Maharashtra v. Joyce Zee alia Temiko observed that, A .customer, above the age of eighteen, who goes to a hotel, where a cabaret show is run, looks forward to be entertained by obscenity and cannot complain of annoyance to which, if any, he shall be deemed to have given his consent.
In the recent land mark judgment of Aveek Sarkar v. State of West Bengal Hon’ble Supreme Court while dealing with the issue of obscenity finally disapproved the Hicklin’s test and adopted the Roth test. The issue was revolving around a picture which was alleged to be obscene in nature.
subsequent case the Supreme Court further articulated on the test for obscenity.
In Chandrakant kalyandas kakodkar v. State of Maharashtra, the court held: “What is obscenity has not been defined either in section 292 of IPC or in any other statute. It only prohibits or penalizes the mailing, imparting, exporting, publishing and selling of the obscene matters. It is the duty of the Court to consider the obscene matter by taking an overall view of the entire work and to determine whether the obscene passages are so likely to deprave and corrupt those whose minds are open to influences of this short.”
Hon’ble Supreme Court in this case held that “the question of obscenity must be seen in the context in which the photograph appears and the message it wants to convey.” The Court further said that the correct test to determine obscenity would be, Community Standards Test i.e. Roth test and not Hicklin Test. The Court observed that in every case related to check on obscenity the material in question to be ‘taken as a whole’. When the matter taken as a whole and it is lascivious and tends to deprave the person who reads, see or hear that material, then only that material can be said to be obscene. The court observed that the Hicklin test is in contravention of IPC. Further court observed that as the terms ‘obscene’ and ‘obscenity’ is not defined in Indian Law, this makes the community standard test to be more suitable for Indian Law Regime, also, the community standards test is more adaptive to any changing society.
PROHIBITION OF PUBLISHING OR IMPARTING OBSCENE MATERIAL UNDER VARIOUS LAWS:
Attempts to control, restrict and regulate cyber obscenity have completely failed. In the year 1996, the Communications Decency Act was legislated in the United States of America for the purpose of regulating the pornographic content on the internet to protect minors, which was met by severe criticism, inter-alia on the arguments of free speech and violation of the rights of adults. Two provisions of the Communications Decency Act, 1996 sought to protect minors from harmful material on the internet. One of the provisions sought to criminalize the “knowing” transmission of “obscene or indecent” messages to any recipient under the age of 18 years. The other provision prohibited the “knowing”, sending or displaying to a person under the age of 18 years any message “that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.” In case of Reno v. American Civil Liberties Union, Supreme Court held that the aforesaid provisions were violative of the freedom of speech which was protected by the First Amendment.
In case of Avnish Bajaj vs. State (N.C.T.) of Delhi, a MMS clip was sold by this website viz. Baazi.com. It was informed to the portal. But it was not blocked at 38 hours after being informed. And the filters those were put up by the website to make filter the unlawful words also grossly inadequate found in investigation.
Court opined that the prosecution was unable to show that it what stage the MD Avnish Bajaj was himself directly involved in the screening of listing or its removal. It would me mere surmise that the petitioner was himself responsible for the offence.
State of Tamilnadu v. Dr L. Prakash was the landmark case in which Dr. Prakash stood convicted of manipulating his patients in various ways, forcing them to commit sex acts on camera and posting the pictures and videos on the Internet. He was sentenced to life imprisonment in a case pertaining to online obscenity.
THE LIABILITIES OF INTERNET SERVICE PROVIDERS:
Internet Service Provider (ISP) is an organization that provides Internet access and related services to users. A Network Service Provider means ‘Intermediary’ or any person who on the behalf of another person receives, stores or transmits the records or provides access to that information in an electronic form. It includes Telecom Service Provider, Network Service Provider, Internet Service Provider, Web Hosting Service Provider, Search Engines etc. They are the entities that provide individual and institutional subscribers with access to Internet. The function of an intermediary has to be understood in the terms of its role as a facilitator with respect to any particular electronic message between an ‘originator’ and an ‘addressee’.
Section 230 of the Communications Decency Act protects providers and users of “interactive computer services” from liability based on the publication of content provided by third parties. Section 230 (c)(1) says that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”. ‘Information Content Provider’ means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service as per the section 230 (e)(2) of the Communications Decency Act.
Section 79 of the Information Technology Act deals with the liability of the Network Service Providers. The explanation to this section provides that ‘Network Service Providers’ means an ‘Intermediary’. According to Section 2(w) “Intermediary” means with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes.
Section 79 of the Information Technology Act says that an intermediary shall not be liable for any third party information or data or communication link made available or hosted by him if following conditions are satisfied:
1. If the intermediary function is limited to providing access to a communication system over which information made available by third party is transmitted or temporarily stored or hosted; or
2. If the intermediary does not:
a) Initiate the transmission.
b) Select the receiver of the transmission.
c) Select or modify the information contained in the transmission.
3. If the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Govt. may prescribe in this behalf.
EXCEPTIONS: Intermediary shall be liable in the following cases:
1. If the intermediary has conspired or abetted or aided or induced, whether by threat or promises or otherwise in the commission of the unlawful act.
2. If the intermediary upon receiving actual knowledge or being notified by the appropriate government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by intermediary is being used to commit the unlawful act, fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.
Intermediaries are also liable under certain circumstances:
• In violating the directions to preserve and retain information as the Central Govt. may prescribe.
• In violating the directions of the Central Govt. and State Govt. by a subscriber to extend facilities to decrypt information.
• In violating the directions of the Central Govt. or any of its officers specially authorized by it to block any information for access by the public.
• In violating the directions of the Central Govt. to monitor and collect traffic data or information.
• In violating the directions of the Indian Computer Emergency Response Team (ICERT).
CYBER OBSCENITY UNDER VARIOUS LEGISLATIONS IN INDIA:
Obscenity is an offence under the Indian Penal Code. Section 292 of the IPC comprehensively sets out the circumstances in which ‘obscenity’ is an offence. According to section 292(1) says that any activity i.e.(a) sale, hire, distribution, public exhibition or circulation, makes, produces or has the possession of any obscene book, pamphlet, paper, drawing, painting, representation, or figure or any other obscene object whatsoever or (b) import, export or convey any obscene object for any of the purposes mentioned aforesaid, or knowing or having reason to believe that such obscene object will be sold, let to hire, distributed or publicly exhibited or in any manner out into circulation, or (c) taking part in or receiving profits from any business in the course of which any such obscene objects are, for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or (d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act or that any such obscene object can be procured from or through any person or (e) offer or attempt to do any act, are the offence under section 292 of IPC.
Obscenity is also an offence under the Information Technology Act 2000. Section 67 of the Information Technology Act lays down the law that obscenity is an offence when it is published or transmitted or caused to be published in any electronic form.
· Published: The Oxford dictionary defines publish as “make generally known; announce formally promulgate, issue copies for sale to public.”
· Transmitted: The Oxford dictionary defines transmission as “pass on, hand on, transfer, communicate, allow passing through, being a medium for, serve to communicate (signal etc.)”
· Caused to be published: Cause means to produce an effect. To cause to be published means to produce the effect of publishing. It is apparent that the term ’cause to be published’ would cover the job performed by the Web server. A web server causes material to be published over the Internet.
The Indecent Representation of Women (Prohibition) Act 1986 prohibits indecent representation of women. Section 2(C) of the Indecent Representation of Women (Prohibition) Act defines indecent representation of women as “the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to, or denigrating, women, or is likely to deprave, corrupt or injure the public morality or morals.”
This Act prohibits any publication, exhibition, advertisements, produce or cause to be produced, sale, let to hire, distribute or circulate containing indecent representation of women and the publication or sending by post any books, pamphlets, slide, film, writing, drawing, painting, photograph, representation or figure in any form containing indecent representation of women.
THE PUNISHMENT UNDER INDIAN PENAL CODE, INFORMATION TECHNOLOGY ACT & INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT:
The punishment for an offence under section 292 of the IPC is on first conviction with imprisonment (simple or rigorous) for a term which may extend to two years, and with fine which may extend to two thousand rupees, and in the event of a second or subsequent conviction, with imprisonment (simple or rigorous) for a term which may extend to five years, and also with fine which may extend to five thousand rupees.
The punishments are provided under Information Technology (Amendment) Act, 2008 in different phases. As they are:
• Punishment for publishing or transmitting obscene material in electronic Form: Section 67 of Information Technology (Amendment) Act, 2008 says, whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.
• Punishment for publishing or transmitting of material containing sexually explicit act in electronic form:
Section 67 of Information Technology (Amendment) Act, 2008 says, whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.
• Punishment for publishing or transmitting of material depicting children in sexually explicit act in electronic form:
Section 67 of Information Technology (Amendment) Act, 2008 says, whoever,
a) publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct, or
b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner, or
c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource, or
d) facilitates abusing children online, or
e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with a fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees:
Section 6 of the Indecent Representation of Women (Prohibition) Act says that Any person who contravenes the provisions of this Act shall be punishable on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and in the event of a second or subsequent conviction with imprisonment for term of not less than six months but which may extend to five years and also with a fine not less than ten thousand rupees but which may extend to one lakh rupees.
There are certain recommendations which I want to give on this particular topic. By following these recommendations this crime viz. cyber obscenity can be regulated to some extent. These are as given below:
1) To restrict or to reduce the crime of cyber obscenity the public must be aware. Through education the public may be aware of the disadvantages of the publication of obscene material through the internet.
2) There must be the offices of the entire websites trough out the countries of all over the world.
3) There must be a process to create an email account in any website. As an application form must be submitted by the offline process to the offices made by those websites. And with the application form a photograph & the identity must be submitted by the applicant.
4) Only by this process any one should make his or her email account then there is very less chance to upload any obscene material through those email accounts. Because they can convict very easily by those information.
5) On the conviction of the offender uploading the obscene material, the punishments of imprisonment ant the fine are not sufficient. There must be a punishment to debar the offender to use his account or to make a new account to a certain period of time according to the nature of the crime committed by him.
Obscenity is more of a social evil than crime (i.e. illegal). It is a matter which cannot be solved in a day. Further I would still insist on my point that ‘Pornography’ per se is not obscene and illegal, but ‘pornography’ which is obscene is illegal and immoral. There is a dire need to change our outlook & try to understand this very basic demarcation between ‘pornography’ and ‘obscene’. We can’t deny the fact that cyber obscenity is present in our society and it cannot be ignored. If we try or of we assume that it can be removed in a short time then we are wrong. It is not through legislation that we can check or curb it. Because this obscenity has done the minds of internet users dirty. But by the enactment of strict legislation for the cyber world can restrict its influence to some extent. One of the possible ways may be through increasing and spreading awareness among the masses.
It is not only the offenders who transmit or publish this material are responsible to increase this crime. The general public who never involve in such activity are also responsible for this because they who search these items in Internet to watch or hear. And by searching these items in internet they are supporting financially those websites who are transmitting these. Because their income is depends upon the number of the viewers of that particular sites.
Therefore if we want to curb this crime we shall have to restrict our hands to entering these websites and will have to check ourselves not to provide any financial support indirectly