Cyber Pornography

By : Adv. Rajas Pingle on 07 November 2014

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This post has been divided into following parts:

1. Current Scenario in India & in other Developed Countries;
2. Practicality of banning Cyber Pornography in India & Role of an Intermediary;
3. Necessary amendments to Information Technology Act, 2000 for better Regulation,
prosecution and conviction as far as Cyber Pornography Offences are concerned
4. Educating the Police on Cyber Pornography Offences for quality investigation and Problems
& Solutions while Investigating the Cyber Pornography Offences; And
5. Awareness campaigns for educating Parents on Parental Control in curbing Cyber
Pornography
Current Scenario in India & other Countries
In India Information Technology Act, 2000 deals with the issue of Cyber Pornography. Under

the Act storing or private viewing of pornography is legal as it does not specifically restricts
it. On the other hand transmitting or publishing the pornographic material is illegal, following
are some sections of Information Technology Act, 2000 which prohibit cyber pornography
with certain exceptions to Section 67 & 67A;
Section 66A of the Information Technology Act, 2000 prohibits sending of offensive
messages through communication service
Section 66E of the Information Technology Act, 2000 prohibits capturing, transmitting or
publishing the image of a private area of a person without consent
Section 67 of the Information Technology Act, 2000 specifically prohibits, transmission or
publication of obscene material in electronic form
Section 67A of the Information Technology Act, 2000 prohibits transmission or publication of
material containing sexually explicit act in electronic form
Section 67B of the Information Technology Act, 2000 prohibits storying, private viewing,
transmission or publication of material containing child pornography in electronic form.
Exception: Section 67 and section 67A does not extend to any book, pamphlet, paper,
writing, drawing, painting, representation or figure in electronic form(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.
As far as the above sections relating to Cyber Pornography are concerned, Section 67A and
67B are the only sections which are non-bailable as per Section 77B of the Act, whereas
others are bailable.
We also have Section 69A of the Information Technology Act, 2000 where Central
Government or its officer appointed can issue directions to other Government Agencies and
Intermediaries to block such information for public access if it is necessary or expedient so to
do in the interest of sovereignty and integrity of India, defence of India, security of the State,
friendly relations with foreign states or public order or for preventing incitement to the
commission of any cognizable offence relating to above, now considering the topic of Cyber
Pornography although blocking of Cyber Pornography is not explicitly mentioned in this
section but it could be implied the term Public Order in the above mentioned section would
mean Maintenance of Law. Hence an inference can be drawn that Cyber Pornography can be
blocked under the said provision.
On perusal of the above mentioned sections one could see there is a clear contradiction
between Section 66E of the Information Technology Act, 2000 and other Pornography related
sections as Section 66E prohibits capturing, transmitting or publishing the image of a private

area of a person without consent but the question arises here, is it allowed with consent?,
whereas Section 67 and Section 67A of the Information Technology Act, 2000 prohibits the
transmission and publication of obscene and sexually explicit material.
In United States of America with the exception of child pornography, the legal status of
accessing Internet pornography is still somewhat unsettled, though many individual states
have indicated that the creation and distribution of adult films and photography are legally
termed as an act of prostitution.
As of now in America Cyber Pornography is regulated and for the same the traditional method
mentioned in the Landmark Judgement of Miller Vs State of California is used along with
other legislations. The legality of pornography is determined by the Miller test, the test
dictates that the opinion of the local community on a specific pornographic piece is most
important in determining its legality. Thus, if a local community determines a pornographic
work to meet its standard for obscenity then it is more likely to be banned. This means that a
pornographic magazine that might be legal in California could be illegal in Alabama. This
standard on pornographic legality is extremely difficult to uphold for the internet given that
the internet contains ubiquitous amounts of pornography. It has been argued that if the Miller
test were applied to the Internet then, in effect, the community standards for the most
conservative community would become the standard for all U.S. based Web sites. The courts
are currently examining this issue.
In United kingdom, the possession of pornographic images for private use has never been an
offence, however the sale or distribution of hardcore pornography through any channel was
prohibited until the rules were relaxed in 2002. The UK citizens were always able to access
pornography without breaking any laws except child pornography.
In UK, pornography has been divided into three parts, softcore pornography, hardcore
pornography and extreme pornography. Extreme pornography is illegal to even possess as on
January 2009 and carries a three year imprisonment. Criminal Justice & Immigration Act,
Sections 63 to 67 of the Act make it an offence to possess pornographic images that depict
acts which threaten a person's life; acts which result in or are likely to result in serious injury
to a person's anus, breasts or genitals; bestiality; or necrophilia. They also provide for the
exclusion of classified films etc. and set out defences and the penalties for the offence.
The UK Government has instructed ISPs to filter legal pornography and other adult
subjects"by default". This would mean that anyone who wanted to view websites dealing with
these sensitive subjects would have to choose to do so.
In Australia, government has implemented rating based regulatory framework, criminal
legislation in Australia prohibits production, dissemination and consumption of illegal
pornography. It is illegal for internet content providers within Australia to 'broadcast' internet
pornography classified as MA15+ to R18+ unless such internet pornography is subject to an
age verification system or internet pornography which may be classified as X18+ to RC
content that is not subject to an Australian Communications and Media Authority (ACMA)
infringement notice through exceptions.

Cyber pornography hosted outside Australia classified by the ACMA under the Classification
Board legislation will be blocked if such Cyber pornography is deemed by the AMCA to be
refused classification , or 'potentially' refused classification. Refused classification (RC) does
include real child abuse internet pornography and bestiality internet pornography. Cyber
pornography is prohibited in Australia if it falls within the RC or X18+ classifications or, for
content hosted in Australia that is not restricted by an adult verification procedure, if it falls
within the R18+ classification.
Practicality of banning Cyber Pornography & Role of an Intermediary in India
In India, we already have provisions for blocking of Cyber Pornography vide Section 69A and
Information Technology (Procedure and Safeguards for Blocking for Access of Information by
Public) Rules, 2009 of the Information Technology Act, 2000 which lays down the procedure
for actually blocking for access of information by public. According to me the procedure
mentioned in the rules is a bit lengthy as one needs to write a complaint and send it to the
concerned Nodal Officer appointed by the respective organisation and then if the concerned
organisation is satisfied about the need to block the information, then only the Nodal Officer
of the organisation will forward the same to designated officer appointed by the Central
Government in this behalf, instead of going through all these hassles the Central Government
can simply create a wing, where the cognisance of these complaints can be taken and acted
upon immediately.
The Information Technology Act, 2000 does not provide specific wording for blocking of Cyber
Pornography for public access, one has to interpret Section 69A of the Information
Technology Act, 2000 in such a way so as to include Cyber Pornography into the definition of
Public Order to put check on Cyber Pornography, where Courts in India have already
interpreted Public Order as Maintenance of Law.
Where completely removing pornographic websites will not be a feasible idea, as most of
these pornographic websites have their servers outside India, in the Countries where Cyber
Pornography is loosely regulated or completely legal, however these pornographic websites
can either be completely blocked or regulated by new framework for Cyber Pornography
altogether. Service providers as Intermediaries play a very important role as far as
enforcement of the present law or future regulatory framework is concerned. Section 79 of
the Information Technology Act, 2000 exempts liability of an Intermediary in certain
scenarios, however as far as Cyber Pornography offences are concerned, Rule 3(4) of
Information Technology (Intermediaries guidelines) Rules, 2011 will be applicable;
The intermediary, on whose computer system the information is stored or hosted or
published, upon obtaining knowledge by itself or been brought to actual knowledge by an
affected person in writing or through email signed with electronic signature about any such
information as mentioned in sub-rule (2) above, shall act within thirty six hours and where
applicable, work with user or owner of such information to disable such information that is in
contravention of sub-rule (2). Further the intermediary shall preserve such information and
associated records for at least ninety days for investigation purposes
On the other hand, if at all we consider complete blocking of every pornographic website at

ISP level by putting network filters, one of the downsides would be, everything would be
blocked even the good literature or the websites including government websites providing sex
education and health education as sometimes the filters provided by ISPs would not
recognise the difference between violent pornographic website and a website providing
education or good literature.
The other challenge is blocking or taking down the offensive/objectionable content which is
there on the website which do not have servers in India, these organisation don't really
comply with the Indian Laws, so obviously Law Enforcement Authorities would have to
request these organisation to take down the content and these organisation if they deem fit
would do so, taking their own sweet time. The solution would be bringing these organisations
within the ambit of Indian Laws by compelling them to establish their servers in India.
Necessary Amendments to Information Technology Act, 2000
As we all know, Information Technology Act was introduced in the year 2000 and it was the
first technology legislation in India and in the year 2008 the Act was amended and it turned
out to be a Scenario Changer! Also Information Technology Rules, 2011 defined Sensitive
Personal Data & Reasonable Security Practices, which are remarkable welcome changes but
nevertheless the current Act still lacks in many areas.
The Cyber Pornography Offences are mainly defined in sections,66A 66E, 67, 67A and 67B,
as already discussed above. All other Pornography related offences are bailable as per
Section 77B of the Information Technology Act, 2000 the only exceptions being Section 67A &
section 67B. This is the main reason why the offenders are committing pornography related
offences and still have the audacity to repeat it, as they are entitled to bail as of right and not
to mention the long trial period. These sections of the Act should be made non-bailable so as
to strike fear into the minds of these offenders, this would definitely reduce the crime rate to
some extent.
Section 66A prohibits sending of offensive messages though communication service, but does
not define the word offensive, the same should be clearly defined to avoid the misuse of this
section.
Section 67 which prohibits transmission or publication of obscene material in electronic form
desperately needs an amendment as the word Obscene is not specifically defined but
nevertheless it gives out a partial definition which is, any material which is lascivious or
appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt
persons who are likely, having regard to all relevant circumstances, to read, see or hear the
matter contained or embodied in it but at the same time the Apex court bench of Justices
K.S. Radhakrishnan and A.K. Sikri upheld the appeal in Sportsworld case in 2014 and ruled
that a picture or article can be deemed obscene only if it is lascivious, appeals to prurient
interests and tends to deprave and corrupt those likely to read, see or hear it.
A picture of a nude/semi-nude woman cannot per se be called obscene. Only those sexrelated materials which have a tendency of exciting lustful thoughts can be held to be
obscene, but the obscenity has to be judged from the point of view of an average person, by

applying contemporary community standard(s), the court said.

Applying the community tolerance test, we are not prepared to say such a photograph is
suggestive of depraved minds and designed to excite sexual passion which would depend
upon the particular posture and background,
The Apex Court in this case has applied the same test of Community Standards as mentioned
in the case of Miller Vs. State of California, USA. This issue should obviously be examined
further for clarity in the section.
There is an obvious contradiction between Section 66E and other pornography related
sections, Section 66E prohibits capturing, transmitting or publishing the image of a private
area of a person without consent but if it is done with consent then it is allowed, whereas
Section 67 and Section 67A of the Information Technology Act, 2000 prohibits the
transmission and publication of obscene and sexually explicit material. The words
transmitting or publishing should be removed by amendment to resolve this issue.
In India storing or private viewing of pornography is legal as the Information Technology Act,
2000 does not specifically restricts it, according to me Cyber Pornography should be divided
into three parts namely Softcore Pornography, Hardcore Pornography and Extreme
Pornography, by defining and adding these types it would be easier to regulate and restrict
pornography in general. By amending the Cyber Pornography sections Government can
include and prohibit even storing or private viewing of Hardcore and Extreme Pornography.
As per Rule 3(4) of the Information Technology (Intermediaries guidelines) Rules, 2011 the
intermediary shall preserve such information and associated records for at least ninety days
for investigation purposes. The stipulated period of preserving the information should be
increased from ninety days to one hundred and eighty days, so that the Law Enforcement
Agencies could obtain the data even at a later stage in cases which are filed after 90 days.
Educating the Police on Cyber Pornography Offences for quality investigation and
problems & solutions while investigating the Cyber Pornography Offences.
The first step towards curbing Cyber Pornography is, getting highest conviction rate, the
ultimate effect of this would strike fear in the mind of the offender and as per jurisprudence
will have deterrent effect on the offender. This will only happen if the evidence gathered by
the investigating agencies is appreciated in the Court of Law. Currently the Defence Lawyers
are taking advantage of lack of knowledge as far as evidence gathering in Cyber Pornography
Offences is concerned. Courses should be organised at the State level by inviting Cyber
Experts, this will ensure quality of investigation and evidence gathering in Cyber Offences in
general.
While investigating Cyber Pornography Offences, sometimes the necessary information is
required from the Intermediary to forward the investigation, but as some of these
intermediaries consider themselves outside the ambit of Indian Laws, getting information
from is tiresome process. In some cases, even after providing a Court Order to get the
necessary information for investigation, some of the intermediaries dont provide the

information. The solution for this is, these intermediaries should be told to install their
servers in India to route the internet traffic from India through these servers, this will ensure
their liability under Indian Laws and specifically under Information Technology Act, 2000 and
would also speed up the investigation process.
Awareness Campaigns for Educating Parents on Parental Control to curb Cyber
Pornography
It is known fact, that children/minors are most prone to Cyber Pornography as we have
entered into twenty first century and everyone has a Computer at their home. Indian
Government should start running campaigns for educating parents on parental control, which
can be helpful in curbing Cyber Pornography at its grass root level. Parental Control software
or Antivirus which has inbuilt Parental Control should be made available by the Government
officially, so that it is easily downloaded and subsequently installed on every computer.
Adv. Rajas C Pingle
[Cyber Law & Cyber Security Expert]
Disclaimer: This does not constitute a legal opinion and would not create Attorney-Client
relationship. This article is only for information and awareness purpose and merely a possible
interpretation of the law.
Website - www.netlawgic.com
LinkedIn - in.linkedin.com/in/rajaspingle/
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