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Shri Param Hans Education & Research Foundation Trust Www International Research Journal of Management Sociology & Humanities ISSN 2277 – 9809 (online) ISSN 2348 - 9359 (Print) An Internationally Indexed Peer Reviewed & Refereed Journal Shri Param Hans Education & Research Foundation Trust www.IRJMSH.com www.SPHERT.org Published by iSaRa Solutions IRJMSH Vol 9 Issue 4 [Year 2018] ISSN 2277 – 9809 (0nline) 2348–9359 (Print) Cyber Child Pornography: Legal Status and Efforts for Prevention Manish Kumar Advocate Introduction Cyber child pornography is an increasingly visible problem in society today. Pornography is a picture, film, or writing that deliberately stimulates sexual arousal. Child abuse is the maltreatment of a child. Child pornography is a hidden crime. It is hard for police to find and catch the offenders, especially if the material is homemade. Child pornography is considered to be any depiction of a minor or an individual who appears to be a minor who is engaged in sexual or sexually related conduct. This includes pictures, videos, and computer-generated content. Even altering an image or video so that it appears to be a minor can be considered child pornography. This crime typically occurs over the Internet or by downloading files from the Internet that contain illegal images. Increasingly, child pornography laws are being relied on to punish individuals who use the internet to share or obtain pornographic images and videos involving children. Child pornography crime such as manufacturing, distribution, or possession typically requires the illegal activity to cross state lines, such as on the internet or through the mail. Child pornographers and pedophiles come from all different walks life. Many of them have occupations that bring them into frequent contact with children. Often these people hold respected positions with their community and have kept their interest in child pornography a secret. Legal Scenario of Child Pornography Child pornography is any material that is prohibited by law. It is a visual image or depiction of a child engaged in a form of sexual behaviour. Most people consider pornography to be graphic images of consenting adults. Criminalizing child pornography, however, has proven to be a difficult balancing act between the protection of children and the protection of the rights set out in the Charter of Rights and Freedoms. child pornography is any pornographic image or representation which involves a minor. In Canada, this means an individual under the age of eighteen. Producing, distributing, possessing, and accessing child pornography are offenses under the Criminal Code. The Criminal Code defines child pornography under section 163.1(1) as: A photographic, film, or other visual representation, whether or not it was made by electronic or mechanical means; Any written material whose dominant characteristic is the description, for International Research Journal of Management Sociology & Humanity ( IRJMSH ) Page 284 www.irjmsh.com IRJMSH Vol 9 Issue 4 [Year 2018] ISSN 2277 – 9809 (0nline) 2348–9359 (Print) sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offense under this act: or Any audio recording that has as its dominant characteristic the description, presentation or representation, for sexual purpose, of sexual activity with a person under eighteen years of age that would be an offense under this act. The Charter of Rights and Freedoms guarantees the freedom of speech, thought and expression. Child pornography causes harm; children are neither mentally nor physically prepared for the acts that they are put through and the side effects are lifelong and devastating. The case of R. v. Sharpe motivated this new legislation surrounding child pornography. Sharpe was arrested after police found a collection of photographs of nude teenage boys, some of whom were engaged in sexual acts with each other, in his apartment.The Court determined that there was no reasonable risk of harm to children if the pornographic material possessed is:“self-created expressive material, i.e., any written material or visual representation created by the accused alone, exclusively for his or her own personal use;and private recordings of lawful sexual activity, i.e., any visual recording, created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use.” Child pornography is a crime in India. At present many legal provisions assume the existence of paper based records and documents which should bear signatures. The Law of Evidence is traditionally based upon paper-based records and oral testimony. Hence, to facilitate e-commerce, the need for legal changes has become an urgent necessity. The Government of India realized the need for introducing a new law and for making suitable amendments to the existing laws to facilitate e-commerce and give legal recognition to electronic records and digital signatures. Information Technology Act, 2000 & Indian Penal Code, 1860 provides protection from child pornography. Child is the person who is below the age of 18 years.12 In February 2009, the Parliament of India passed the Information Technology Bill which made creation and transmission of child pornography illegal. This Act aims to provide the legal infrastructure for e-commerce in India and would have a major impact for e-businesses and the new economy in India. There are various provisions in the new amendment relating to data protection and privacy as well a provision to curb terrorism using the electronic and digital medium. The Amendment incorporated Sections 67 A to 67 C to the parent Act. The sections are regarding publishing or transmitting material in electronic form containing sexually explicit act, Child pornography and obligation of intermediary to preserve and retain such information as may be specified by central government. Section 67A adds an offence of publishing material containing sexually explicit conduct punishable with imprisonment for a term that may extend to 5 years with fine up to ten lakhs. This provision was essential to curb MMS attacks and video voyeurism. Section 67B proposes specifically to punish involvement in sexually explicit online International Research Journal of Management Sociology & Humanity ( IRJMSH ) Page 285 www.irjmsh.com IRJMSH Vol 9 Issue 4 [Year 2018] ISSN 2277 – 9809 (0nline) 2348–9359 (Print) or electronic content that depicts children. Section 292 of the Indian Penal Code, 1860 does not per se deal with obscenity online. As per the IPC, whosoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years any such obscene object, as is referred to in IPC Section 292, or offers of attempts so to do, shall be punished with imprisonment for a term which may extend to three years, and which 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 seven years, and also with fine which may extend to five thousand rupees. The Protection of Child from Sexual Abuses Act, 2012 also provides for punishment regarding child pornography. Chapter 3 of the Act is titled Using Child for Pornographic Purposes and Punishment in which Section 13 to 15 provides for punishment for using a child for pornographic purposes and punishment for storage of pornographic material involving a child. Justification Pornography victims face different trials as their image is circulated amongst hundreds or thousands of strangers and the material will continue to exist long after the act has occurred. The following is a list of common effects of child pornography. Child pornography laws provide severe penalties for producers and distributors in almost all Western societies, usually including incarceration, with shorter duration of sentences for non-commercial distribution depending on the extent and content of the material distributed. 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 requires states to prohibit the sale of children, child prostitution and child pornography. The Protocol was adopted by the United Nations General Assembly in 20001 and entered into force on 18 January 2002. As of April 2011, 142 states are party to the protocol and another 24 states have signed but not yet ratified it. In almost all the countries there are provisions regarding obscenity and pornography. There are international conventions on the protection of children from various crimes and for providing them basic amenities of life. The United Nations Convention on the Rights of the Child, 1989 is the first internationally legally binding document concerning child rights. It includes protection of children from sexual exploitation. Article 34 of the Convention provides States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. May 25, 2000, the General Assembly of the United Nations adopted the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography. This protocol has been in force since January 18, 2002. The United Nations Commission on Human Rights Programme of Action for the Prevention of the Sale of Children, Child Prostitution and Child Pornography reinforces the United Nations Convention on the Rights of the Child and international efforts to punish those who exploit children for pornographic purposes. International Research
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