Mukt Shabd Journal ISSN NO : 2347-3150
INTERNET AND VULNERABILITY OF CHILDREN IN CONTEMPORARY SOCIETY
Jigmee Wangchuk Bhutia Research Scholar (Ph.D.) Department of Law, Sikkim University
Abstract
In a society, human beings are inevitable and so is conflict. Over the couple of years technology assisted by internet has shaped the manner of conflict and widened the jurisdiction of cyber criminals. Internet has impacted all ages of human, and children are the most affected of them all. Today’s education system demands use of computers, tech-gadgets etc. for smooth and techno-friendly way of study method. But the issue here is, these gadgets are not only used for educational and learning purposes. Children’s are highly influenced by the social networking sites like Facebook and such, where cyber criminals take advantages of their age and dupe them for their immoral and monetary gains. Child trafficking, online harassment, Pornography, identity thefts are some of the crimes to which young age people and children becomes victims and face unimaginable damage. Thus, this paper will highlight the effects of internet on children with special focus on ‘child-trafficking’ and ‘child pornography’. Further this paper will also try to understand the reasons for such uncontrollable nature of the cyber-crimes.
Key Words: Cyber-Crimes, Internet, Children
1. INTRODUCTION
The invention of computer has invited innumerable amount of danger and risks in human lives, especially in the lives of innocent children. Cyber-Criminals target young children for their immoral gains and satisfaction. Child Trafficking is one such example. Even though our Indian Constitution1 prohibits and abhors child trafficking, It takes place every now and then. Internet is
1Article 23 Constitution of India “Prohibition of traffic in human beings and forced labour. (1) Traffic in human being are beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law
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the tool criminals use in this era to achieve their motives. Women and girls are more prone to trafficking because of unbreakable social norms that marginalize their value and status in society.2
The traditional method of crimes has been replaced and made easy with the help of computers. Criminals can target anyone from anywhere at just a click of mouse and escape legal liabilities for the simple reason that technology has given them wings to veil their personal information and features from the one they are duping.
The fruit of technology is not only enjoyed by the noble masses but also by the wrong doers in all possible opportunities. The cross-border and universal mobile nature of the internet has supported conducting of cyber-crimes by developing new techniques and on an online environment. To address computer related crimes, Indian Legislature enacted the Information Technology Act, 2000. Under this Act, establishment of Cyber Appellate Tribunal is mentioned under section 48(1) but unfortunately neither this Act nor the Information Technology (Amendment) Act, 2008 defines the term “Cyber-Crime”, “pornography”, “trafficking” and “Identity theft”. However, Section 66 C3 is inserted via 2008 amendment to punish the culprit for identity theft, and Section 674 prescribes punishment for children related offences. Section 66 D5
(2) Nothing in this article shall prevent the state from imposing compulsory service for public purpose, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them. 2 Human Trafficking, available at https://en.wikipedia.org/wiki/Human_trafficking (accessed on 31.10.16 at 7:21 PM). 3 Section 66 C Information Technology (Amendment) Act, 2008 “Punishment for Identity Theft”; Whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique identification feature of any other person, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lakh. 4 Section 67 B Information Technology (Amendment) Act, 2008 “Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc. in electronic form”. 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:
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is another important amendment made by the Information Technology (Amendment) Act, 2008 to punish the wrongdoer who commits crime with the help of internet and computer. The legal issue here is there are no comprehensive laws in India to concentrate on these organized cyber- crimes also known as computer related crimes.
2. DEFINITION
In legal parlance, a child is the term used to refer minor.6 The term ‘child’ has been defined by couple of Indian laws except the Information Technology (Amendment) Act, 2008, however the term ‘children’ has been used in the explanation part of Section 67 B7 of this Act of 2008 to include children who has not completed 18 years of age. The Immoral Traffic Prevention Act (ITPA) 1956 defines the term child as “a person who has not completed the age of eighteen years”8 and section 2 (d) of the Prevention of Children from Sexual Offences Act, 2012 defines ‘child’ as “any person below the age of eighteen years”. The term ‘child’ also finds its place under Article 1 of the Convention on the Rights of Child.9 The term ‘child trafficking’ has been defined under any law but trafficking Police Officer” has been defined under Section 2 (j)10 of the ITPA Act, 1956. Article 3 (a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000) 11 , defines “trafficking in persons”. 12 The
Provided that the provisions of section 67, section 67A and this section 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 for bonafide heritage or religious purposes Explanation: For the purposes of this section, "children" means a person who has not completed the age of 18 years. 5 Section 66 D Information Technology (Amendment) Act, 2008 “Punishment for cheating by personation by using computer resource”; Whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique identification feature of any other person, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lakh. 6 Tim Zubizarreta, Combating Child Pornography in India (May, 14 2020) available at https://www.jurist.org/commentary/2020/05/milind-rajratnam-combating-child-pornography/ (accessed on 2.7.2020 at 1:34 PM). 7 Supra at Note 4 8 Section 2 (aa) 9 Article 1 of the Convention on the Rights of child, “child” is defined as a human being below the age of 18 years old. 10 Article 2 (j) of The Immoral Traffic Prevention Act (ITPA) 1956 “trafficking police officer” means a police officer appointed by the Central Government under subsection (4) of Section 13. 11 Supplementing United Nations Convention against Transnational Organized Crime (Assembly Resolution 55/25 of 15 November 2000).
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Information Technology Act, 2000 under section 2 (1) (i)13 has defined the term ‘computer’ and ‘computer network’ under section 2(1) (j)14. In understanding child related cyber-crimes it is pertinent to understand some key terms like ‘child’ and ‘computer’, because in this 21st century most of the children are victims of crimes which are committed by use of computers.
3. CYBER-CRIMES AND CHILDREN
3.1.Child Trafficking and India Laws:
In information society, protection of children’s data and privacy are even more important than that of the adult because children indulge and share their information with lots of trust and little knowledge of the cyber-crimes and their effects.15 The fight against human trafficking is not a straightforward process.16 Our country is troubled with so many social and legal issues with the growth of trafficking of children. Our society from ages has witnessed this crime in person or through news or newspaper. Human trafficking occurs at all levels. It ranges from local to international level. This crime is prohibited under Article 23 of our Constitution, however; children are trafficked for exploitation which has added vulnerability to their personal growth
12 Article 3 (a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000) “Trafficking in Person”; "Trafficking in persons" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
13 Section 2 (1) (i) of the Information Technology Act, 2000 "computer" means any electronic magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software, or communication facilities which are connected or related to the computer in a computer system or computer network; 14 Section 2 (1) (j) of the Information Technology Act, 2000 "computer network" means the interconnection of one or more computers through— (i) the use of satellite, microwave, terrestrial line or other communication media; and (ii) terminals or a complex consisting of two or more interconnected computers whether or not the interconnection is continuously maintained; 15 Marco De Boni & Martyn Prigmore, Growing Up in Cyber Space: Children’s Rights Online, available at https://www.researchgate.net/publication/2482723_Growing_Up_In_Cyberspace_Children's_Rights_Online (accessed on 2.07.2020 at 2:09 PM ) 16 Cecilia Flores-Osbenda (2014),“3 major challenges in the fight against human trafficking” available at https://www.devex.com/news/3-major-challenges-in-the-fight-against-human-trafficking-84047 (accessed on 31.10.16 at 5:28 PM).
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and well-being.17 Trafficking has many facets ranging from sex trafficking to forced labor. In this so called modernized era, children in general are exposed to unseen dangers, mostly, cyber- crimes. With the help of internet this crime has become one of the most organized crime in digital India and our country has placed under tier-II by the United States (US) Department of State for failing to address and prevent this crime.18 At this juncture it is very sad to state that our statutes lack well proposed and complete definition of the term trafficking. It is well known fact that India is a signatory to international conventions and the development of constitutionally guaranteed fundamental human rights is inspired by number of international Bills and Rights.19 Some of them includes, the Convention on Rights of the Child (1989), Convention on Elimination of all forms of Discrimination Against Women (1979), UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (2000) and South Asian Association for Regional Cooperation (SAARC) Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (2002). Its membership with the above-mentioned conventions makes it evident of the fact that India had realized the danger of child trafficking and human long back but still our legal and regulatory authority has failed to prevent this social menace and track down the traffickers within the State as well as across the borders. The income generated by trafficking is comparable to the money generated through trafficking in arms and drugs.20 There are cases in India where poverty is the sole reason women and children are trafficked for prostitution. 21 Our country is a source and niche for human trafficking for number of reasons like lack of comprehensive laws and awareness programmes. Turning a blind eye by the civil society is another important issue which adds fuel to the burning child related crimes.22 Trafficking in Women and Children is the gravest form of abuse and exploitation of human beings. Thousands of Indians are trafficked every day to some destination
17 Child Protection from violence, exploitation and abuse, available athttps://www.unicef.org/protection/57929_58005.html (accessed on 1.06.2020 at 2:47 PM). 18 Dr. Pramita Gurung, “Human Trafficking in India: Examining the Complex Social Issues and Legal Responses” (Mukt Shabd Journal) (Volume IX, Issue 6, JUNE/2020), available athttp://shabdbooks.com/gallery/371- june2020.pdf (accessed on 1.06.2020 at 3:10 PM). 19England's Bill of Rights (1689), the United States Bill of Rights (approved on 17 September 1787, final ratification on 15 December 1791) and France's Declaration of the Rights of Man (created during the revolution of 1789, and ratified on 26 August 1789) 20 Malavika Kumar “Trafficking in Women and Children-An ounce of Prevention is worth a pound of cure” available at http://www.legalserviceindia.com/articles/tch_wo.htm ( accessed on 31.10.16 at 3.00 PM). 21Budhadev Karmaskar vs. State of West Bengal 2014 SCC OnLine Pat 5013. 22 James Schlarmann (2013), “Constitutional vs. Human Rights”, available at http://www.forwardprogressives.com/constitutional-vs-human-rights/ (accessed on 31.10.16 at 5:48 PM).
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or the other and are forced to lead lives devoid of dignity, growth and bright future. They survive in brothels, factories, guesthouses, dance bars, farms and even in the homes of well-off Indians, with no control over their bodies and lives.23
Although India has a number of laws and provisions prohibiting activities associated with trafficking, still it continues to fester year after year. Information Technology Act, 2008, Indian Penal Code, 1860 (I.P.C.), and the Immoral Traffic Prevention Act of 1956 are few sets of laws which have made provisions to address cyber-crimes. The Indian Penal Code contains more than 20 provisions dealing with trafficking issues and imposes criminal penalties for offenders.
3.2. Child Pornography
Since time immemorial children are exploited. Such exploitations have gained massive momentum after the innovation of computers and internet, in-short, technology. India is one of those countries where huge population, poor family and lack of education and job attributed it in becoming one of the red alert zones for children exploitation for flesh and money. Earlier only particular sections of children were exploited but today with the help of computer and internet, children from every strata of society are affected. Social networking sites like Facebook have facilitated the wrong doers to commit crimes like child pornography, child trafficking etc.
With the advent of Information and Communication Technologies (ICTs) criminals have become pro-active in using keyboard rather than deadly heavy weapons like gun to target the innocents.24 There has been a hypothetical assumption by Jurists about cyber world and have stated that cyberspace, is the new home of mind. 25 Everyone is aware that Cyberspace is a free space. Its free nature has attracted different taxonomy of crimes which takes place 24x7 with the help of computer networks. The revolution in the internet and network computers have provided better platforms for cybercrimes and have gravely surprised our legal system.26 In cyber world one may not easily track the location of the master planner behind illegal crimes, like identity theft, child pornography etc. In order to cope up with the changing dimension of internet, India came-
23 Malavika Kumar “Trafficking in Women and Children-An ounce of Prevention is worth a pound of cure” available at http://www.legalserviceindia.com/articles/tch_wo.htm (accessed on 31.10.16 at 3.00 PM). 24 Talat Fatima “Cyber Crimes” 39(2016) (EBC Publishing) 25 See John Perry Barlow, “A Declaration of the Independence of Cyberspace” in Margaret Jane Radin, John A. Rothchild & Gregory M. Silverman, Internet Commerce: The Emerging Legal Framework (University Casebook Series, Foundation Press, New York, 2020)2. 26 Talat Fatima “Cyber Crimes” 47(2016) (EBC Publishing)
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up with Information Technology Act, 2000. This act however does not define the term ‘child pornography’, so inserted section 67-B supra to fill up the legal gap and focus on only punishment relating to child pornography which is different from mainstream pornography. This Act is not comprehensive in dealing with child related crimes but till date it is the only statute which is acting as a guiding torch. The Indian Penal Code, 1806 which is one of the oldest statues in Indian history falls short in defining this heinous crime but does punish the wrong doer for selling of obscene books and obscene objects to young person under Sections 292 and 283 respectively.27
The term ‘child Pornography’ has only been defined under Section 2 (da)28 of the Prevention of Children from Sexual Offences Act, 2019 (POCSO). Earlier this term was not defined under the Prevention of Children from Sexual Offences Act, 2012. The term has been added by the amendment brought by the Prevention of Children from Sexual Offences Act, 2019.
When children below 18 years are exploited it is called ‘child related crimes’ and when computer and children are involved it is called ‘child related cyber-crimes’. The act of portraying minor children in computer generated content including sexually explicit act, videos or photographs are termed as “child pornography”.29 The online platform has made it easier for cyber criminals in selling, posting and sharing of child porn videos at just a click of mouse. The increase in pornography has alerted all the legal system including India to frame effective laws to combat this menace at the earliest. The Council of Europe Convention on Cyber Crime popularly known as the Budapest Convention defines the term ‘child pornography’ as “a material that visually depicts a minor or a person appearing to be minor to be engaged in a sexually explicit act.”30
27 ibid 141 28 Section 2 (da) of the Prevention of Children from Sexual Offences Act, 2019 “child pornography” means any visual depiction of sexually explicit conduct involving a child which include photograph, video, digital or computer- generated image indistinguishable from an actual child, and image created, adapted, or modified, but appear to depict a child. 29 Tim Zubizarreta, Combating Child Pornography in India (May, 14 2020) available at https://www.jurist.org/commentary/2020/05/milind-rajratnam-combating-child-pornography/ (accessed on 2.7.2020 at 1:34 PM). 30 Article 7 of the Budapest Convention
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4. CONCLUSION
From the above piece of research, it is understood at the outset that children are the most vulnerable group of society who needs special legal protection as well as personal care. There are so many children who have become the victim of cyber-crimes which need social as well as legal consideration at the earliest. The level of protection is very poor as compared to the numbers of crimes which are increasing every day. The outbreak of Covid-19 has too added in increased child exploitations in the form of child labor. Apart from the above discussed two major crimes, identity theft is another form of crime which is common among children. With the ongoing trend of social networking sites like Facebook, protection of child’s privacy and data has become a serious problem. The online world has taken a toll in the lives of minors. The debate about privacy and data privacy also includes privacy and data of small children. International laws like Geneva Declaration of the Rights of the Child (1924), United Nations (UN) Universal Declaration of Human Rights (UDHR) (Article 25 and 26) etc. offers children’s special protection; protection greater than which is given to an adult. In information society protection of children’s data and privacy are even more important than that of the adult because children indulge and share their information with lots of trust and little knowledge of the cyber-crimes and its effects supra. The term ‘Identity Theft’ has not been defined under the Information Technology Act, 2000 or in the Information Technology (Amendment) Act, 2008 supra but punishment for such act has been prescribed under Section 66C supra, of the Amended Act of 2008.
Children are the future of our society, therefore it the utmost duty of the State to provide all possible legal protection. The legislature must take prompt initiative to combat child related cyber-crimes and make comprehensive cyber-laws to deal with taxonomy of crimes which are targeting minors in an online as well as on offline platform. A perusal of Indian Statues makes it evident that there is no solid piece of legislation to deal with above discussed child related crimes even in this 21st century where laws need to keep tandem with the changing technology. Apart from the Government, institutions like schools and colleges should also take suo moto steps to sensitize young children about pros and cons about social networking sites, cyber-crimes, cyber- laws etc. It is also the duty of the parents to talk freely about pornography and sex-trafficking
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with their children on day to day basic and guide them in making proper use of the technology with right amount of knowledge.
REFERENCES:
1. Talat Fatima “Cyber Crimes” 39(2016) (EBC Publishing)
2. John Perry Barlow, “A Declaration of the Independence of Cyberspace” in Margaret Jane Radin, John A. Rothchild & Gregory M. Silverman, Internet Commerce: The Emerging Legal Framework (University Casebook Series, Foundation Press, New York, 2020)2.
3. Dr. Pramita Gurung, “Human Trafficking in India: Examining the Complex Social Issues and Legal Responses” (Mukt Shabd Journal) (Volume IX, Issue 6, JUNE/2020), available athttp://shabdbooks.com/gallery/371-june2020.pdf
4. England's Bill of Rights (1689), the United States Bill of Rights (approved on 17 September 1787, final ratification on 15 December 1791) and France's Declaration of the Rights of Man (created during the revolution of 1789, and ratified on 26 August 1789)
5. Tim Zubizarreta, Combating Child Pornography in India (May, 14 2020) available at https://www.jurist.org/commentary/2020/05/milind-rajratnam-combating-child-pornography/
6. Human Trafficking, available at https://en.wikipedia.org/wiki/Human_trafficking
7. Marco De Boni & Martyn Prigmore, Growing Up in Cyber Space: Children’s Rights Online, available at https://www.researchgate.net/publication/2482723_Growing_Up_In_Cyberspace_Children's_Ri ghts_Online
8. Cecilia Flores-Osbenda (2014),“3 major challenges in the fight against human trafficking” available at https://www.devex.com/news/3-major-challenges-in-the-fight-against-human- trafficking-84047
9. Child Protection from violence, exploitation and abuse, available athttps://www.unicef.org/protection/57929_58005.html
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10. Malavika Kumar “Trafficking in Women and Children-An ounce of Prevention is worth a pound of cure” available at http://www.legalserviceindia.com/articles/tch_wo.htm
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