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Ban on Pornographic Websites In India

One man's pornography is another man's theology - Clive Barker

Cyber pornography is defined unadorned as an act of manoeuvre creation of cyberspace, display, distribute, import, or publish pornography or obscene materials. With the dawn of cyberspace, traditional pornographic content has been replaced by online pornography. It has been interdict in many countries and legalized in minuscule. In India, under the Information Technology Act, 2000, this is a waxen area in law, where it is not prohibited but not legalized either. Online pornography is also known as digital pornography, where publishing or transmitting or causing to be published or transmitted of the pornography content via digital means like social medias, e-mails etc is punished under Indian law in the following provision at first instance.

India's Panorama on Pornographic Website:

Under Section 67 of the Information Technology Act, 2000 makes the it punishable with imprisonment upto 3 years and fine upto 5 lakhs; and 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.[2]

In the famous case,[3]the CEO Avinash Bajaj was arrested for an advertisement by a user to sell the DPS sex scandal video. Avinash was arrested under Section 67 of the Information Technology Act. 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.

Section 79 of the IT Act[4]may be adopted. It contains various provisions regarding Internet Service Providers (ISP), and intermediaries are exempted from the culpability of certain uploads done by third parties. It makes an obligation on intermediaries to exercise “due diligence” and to act according to the orders of the Court and the Government to gain immunity. Section 79(3)(b) states that no exemption will be provided - intermediaries if they fail “expeditiously” to remove such content within a reasonable period upon the information or notification by the Government or its agencies that such content is being used for unlawful purposes. Under the Information Technology Rules, 2011, it has been stated that the intermediaries must inform users not to host, display, share, upload or transmit any such information that contains pornographic or obscene content which may cause harm mainly to minors.

In 2013, Kamlesh Vaswani,[5]a lawyer, filed Public Interest Litigation before the Supreme Court ultimatum for a separate law to piloting online pornography content and the PIL also sought a ban on access to such websites. “Nothing can more efficiently destroy a person, fizzle their mind, evaporate their future, eliminate their potential or destroy society like pornography”. The Supreme Court rejected his demand for introducing a ban on pornography with Supreme Court Chief Justice H.L. Dattu stating that, “Adults in India had the right to peruse pornographic material if they wanted to as long as they did it within the four walls of their homes. He further rightly said that such a ban would be a violation of Article 21 which safeguards a person’s right to personal liberty.”[6]

Another Supreme Court Bench headed by the then Chief Justice R.M. Lodha, called for a combined effort between the Department of Telecommunication, Information and Broadcasting Ministry and Home Ministry to deal with the issue, especially the aspect of curbing access to child pornography which is an offence under section 67B of IT Act. He said that there must be a “synthesis between law and technology” to control the abundant availability of pornographic material on the Internet. Vaswani’s lawyer argued that the officials who ran these websites were guilty of offences under s. 292 of IPC[7](punishment for showing obscene materials) and s. 13 of Protection of Children from Sexual Offences Act (use of children for pornographic purposes).[8]

The telecom department had rolled back the notification back in 2015 after a public outcry. The department had said then in a memo to internet service providers that they only need to block websites that peddle child porn. The memo, according to are port in Mint, said that ISPs are “free not to disable any of the 857 URLs, as given in the list, which do not have any child pornographic content”

It all started way back in 2013 when lawyer Kamlesh Vaswani petitioned the Supreme Court seeking a ban on porn. Vaswani argued that most of the porn online is exploitative and consuming it increases the violent sexual behaviour in the real world.

International Perspective:
Interpol has cited Germany as one of the major producers of child pornography, with the Netherlands and the United Kingdom as the major distribution centers. United States is one of the largest markets of demand for child pornography, though more interest has shifted to South East Asia in recent years.[9]
# The Optional Protocol on the Sale of Children,
# Child Prostitution and Child Pornography is a protocol to the Convention on the Rights of the Child and require states to prohibit the sale of children, child prostitution and child pornography."

The Protocol was adopted by the United Nations General Assembly in 2000- Article 1 of the protocol declares that states must protect the rights and interests of child victims of trafficking, child prostitution and child pornography, child labor and especially the worst forms of child labor. Punishable by appropriate penalties that take into account their grave nature were also mentioned in this protocol.

A Nord VPN is a concrete solution for security. It offers military-grade encryption, Cyber Sec protection and Double VPN. Encrypting your data twice gives you extra privacy. It has more than 3500 servers located worldwide with congruous measure to fortify them. In order to obstruct content, all an ISP needs to check the URL (website address) against a blacklist of banned sites. This same technology can be used to tracking of people watching banned content. Every webpage has a unique URL, which means the government could block a specific page or an entire site, depending on the amount of detail in the blacklist. However, this doesn’t abolish the porn content in websites.[10]

Which is legal in a country may not be in another. To definite the term ‘obscenity’ is quite hard. But India is a land of morals, ethics, culture, where people find dignity more important than education. However, the generic definition of obscenity refers to an act or speech or item that is likely to corrupt the morality of the general public because of its indecency or lewdness in content or form. The grey area that prevails in India as of legality or illegality of pornographic website should be regulated and special laws shall be provided in order to uplift the culture in India and the child pornographic website should be prevented and stringent measures shall be given in order to provide safety to young children and help, even them to live with dignity and uplift Article.21 of the Indian Constitution at large.

[1] 4th YEAR, B.C.A, LL.B (Hons); School of Excellence In Law, The Tamil Nadu Dr. Ambedkar Law University, Chennai.
[2] Information Technology Act, 2000.
[4] 79 Exemption from liability of intermediary in certain cases. -
(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.
(2) The provisions of sub-section (1) shall apply if-
(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or
(b) the intermediary does not-
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;
(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if-
(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or othorise in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on 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 the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.
Explanation. -For the purpose of this section, the expression "third party information" means any information dealt with by an intermediary in his capacity as an intermediary.]
[5] Kamlesh vaswani v. Union of India & Ors.
[6] 292 of ipc- Sale, etc., of obscene books, etc.—261[
(1)For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the pruri­ent interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.]
[(2)] Whoever—
(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or
(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or
(c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that 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 which is an offence under this section, or that any such obscene object can be procured from or through any person, or
(e) offers or attempts to do any act which is an offence under this section, shall be punished263[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 of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees].
[(Exception)—This section does not extend to—
(a) any book, pamphlet, paper, writing, drawing, painting, representation or figure— (i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or (ii) which is kept or used bona fide for religious purposes;
(b) any representation sculptured, engraved, painted or otherwise represented on or in— (i) any ancient monument within the meaning of the Ancient Monu­ments and Archaeological Sites and Remains Act, 1958 (24 of 1958), or (ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.]
[7] international criminal police organization more commonly known as INTERPOL, is an international organization that facilitates worldwide police cooperation.

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