User:S F A Naqvi

INTERNET PORNOGRAPHY - A MENACE

By- S. FARMAN AHMAD NAQVI ADVOCATE, HIGH COURT, ALLAHABAD.

Digital technology and new communication systems have made dramatic changes in our daily lives. Use of computer & internet had become a necessity in urban lives, but now it also extended its hands towards small towns & even villages. In India the computer industry is expanding with rapid speed. In the same speed use of its technology is expanding for spreading technical knowledge & other learning. The spread of technology has created immense opportunities for students, businessmen, industries, institutions & professionals for learning new things & for earning more. The urban India is slightly better placed than its rural brethren in using & utilizing Internet towards more advancement. The computer emergency response team (CERT) estimates that in 2001 there were 530 million internet users world wide, and the same may reach 1 billion in the year 2005. The emergence of computer technology has created new ways to access information, even such information not intended to be accessed. But with continuing growth thousands of unscrupulous sexually explicit & obscene websites came into existence, which raise serious concerns in the society. Unsuspecting user of internet comes across with obscene porno sights perchance or sometimes it appears on the screen in the apparel of an advertisement. Although it is often argued that if you are not interested then don’t see by visiting the obscene porno sight. But it doesn’t gives one license to float any bad idea in the air by asking that don’t corrupt yourself by hearing or seeing such a bad idea. The argument further extends that why at first place one should be allowed to float such an obscene idea in the garb of freedom of speech & expression & whether the questionable material transmitted via internet is otherwise permissible in normal modes to be shown in public without raising any questionable concern. The Information Technology Act 2000 came into existence to control cyber crimes, as well to place India on the global network to control such crimes. It adopted all the hallmarks of ‘world market’s’ concerns about cyber crimes relating to financial transactions, but somewhere in the line failed to touch the traditional Indian concerns, relating to building a moral character of society relating to women, child & obscenity. The Act showed genuine concern towards the business transactions. While dealing with cyber crimes relating to obscenity under section 67 of The Information Technology Act 2000 had touched the word obscenity in its heading only in the following manner,” Publishing of information which is obscene in electronic form”. One fails to under stand that why the word obscenity was not properly defined in the definition clause or in the section itself to lay a clear guideline in this respect, like for other aspects great details were laid down in the act. It is also strange that obscenity was not defined in The Indian Penal Code also, although it proposes punishment for publication of obscene books, selling obscene object to young people & obscene acts & songs in public places, under sections 292, 293 & 294 etc. Considering the fact that the Indian Penal Code has not defined the meaning & scope of obscenity the framers of The Information Technology Act 2000 had got greater responsibility upon their shoulders to protect the citizenry by applying vision. The dictionary meaning of word obscene is ‘which offends or wounds the imagination in sexual matters’ or ‘offensive’ or ‘revolting’. The ‘obscenity’ means the state or quality of being obscene’. At the stage when the IPC came into existence the morals were such that the dictionary meaning of word ‘obscenity’ was understood in its simplest terms as ‘a thing or act which is vulgar and lascivious & its effect is such that it may corrupt mind or body.’ But today in the days of ‘freedom’ any unscrupulous person is ever ready to take advantage of any loophole in the law. When ever a prosecution is launched under section 67 of IT act 2000, the person will take refuge behind big words like ‘freedom of speech’ ‘expression’ etc. The IT act came into existence in the year 2000, although prior to that we all came to know that porno sites are roaming on the information highways like wildfires by distributing obscene materials in abundance, causing concerns to the citizenry. The same can very well be demonstrated from the following data of US. There are currently more than one lakh sexually explicit websites showing obscene materials. In US 65 percent teenagers, below the age of fourteen, visited porno websites in the year 2000 alone (net value report on minors online, Dec. 2000). The FBI of US had registered 4000 cases of online child pornography. The framers of law have a greater responsibility upon their shoulders in protecting the interest of its people. The financial interest of any country is prime concern of every person & its protection is also needed by applying all means & resources available with the country. In the age of globalization & free trade the financial interests of foreign partners are necessarily to be protected by us to protect our own interest & to gain further markets & profits. To maintain balance between the profits & society is the prime duty of the Government. The Government should have shown equal concern towards protecting the cultural identity of the country. One of the prime concerns of the Indian society is protecting its honour & respect. Such an honour includes safety & respect of women & children. Manu Smriti mandates highest respect, protection & regard to woman throughout her life, when it says,” Women must be honoured and adorned, by their fathers, brothers, husbands and brother-in-laws, who seek their own welfare,” (Manu Smriti III-55). The best obscene material used in porno sights are women of all ages. Every country has got its own unique features which relates back to its cultural identity. Indian Society is not 200 or 300 years old society which only existed for business or money. It existed because of some high morals which it inherited from its thousands of year’s traditions. Obscenity was well defined in one of the famous US Supreme Court case of Miller vs. California (413 U. S. 15 (1973). Miller was convicted after a jury trial under the California Penal Code of knowingly distributing obscene material. The state appellate tribunal affirmed the Judgment. The US Supreme Court enunciated a three- part test with 5-4 majority judgment written by its Chief Justice. The three points ‘Miller’ test defined ‘obscenity’ in the following words; 1. If it arouses “Prurient Interest” that does not match to “contemporary community standards”. 2. If it is “patently offensive.” 3. If it “lacks serious literary, artistic, political or scientific value.” By applying these three Miller tests can it be said that in any circumstance an obscene material on a porno website, showing hard core sex, e.g. anal, child, oral etc. can qualify these tests? The answer is emphatic NO. Then if the answer comes in an emphatic no then why The Information Technology Act 2000 is silent about this aspect & lays down no definition of obscenity but provides punishment under section 67 for publishing obscene material in electronic form, keeping a loophole open for an unscrupulous website portal to take asylum behind undefined term ‘obscenity’ & freedom of speech & expression of press. As I indicated above that more than one lakh sexually explicit websites showing obscene materials are available on internet, & the numbers are increasing day by day. In such a situation some drastic measures are required to save our freedom & honour from such abhorrent materials. One such step would be to block permanently all such obnoxious internet sites at the threshold. The Ministry of Communication and Information Technology on 7th July 2003 issued a notification laying down a procedure to block or intercept any information through any computer resources in relation to five purposes, namely, interest of the sovereignty or integrity of India, the security of State, friendly relation with foreign states, or public order, or, for preventing incitement to the commission of any cognizable offence. The notification further says that ‘there is no explicit provision in the IT act 2000 for blocking websites. In fact, blocking will amount to censorship. Such blocking can be challenged if it amounts to restriction of freedom of speech & expression. But websites promoting gambling, promoting racism, violence and terrorism, hate contents, slander or defamation of others and other such materials, in addition to promoting pornography, including child pornography, and violent sex can reasonably be blocked since all such websites may not claim constitutional tight of free speech.’ Here also the notification is silent about obscenity & covers only a small part of porn & obscene websites. It appears that somewhere down the line obscenity & porn things were left to judgment of creators of porn & obscene sites, otherwise it would not have created various sections of porn sites e.g. child pornography, and violent sex excluding other obscene materials. The notification also lays down such an arduous manner to block a site that it will take enormous time & energy for an individual to get an obnoxious website blocked by applying with the Ministry. Although a vast and increasingly sophisticated computer security industry has developed for businesses in response to critical need to secure electronic data & systems. Its primary goals are to protect computer systems from viruses, eavesdropping, hacking, theft, tampering, forgery and interception. But all these efforts are only confined to the safety & security of business & financial interests but no steps were taken to save the ethical standards of the society. It will be appropriate to place the provisions of two other acts which also deal the indecent display of women, prostitution, indecent representation of women & obscenity etc. namely The Immoral Traffic (Prevention) Act, 1956 & The Indecent Representation of Women (Prohibition) Act, 1986. Under section 2 (a) of the Immoral Traffic (Prevention) Act, 1956, the ‘brothel’ had been defined as a house, room [conveyance] or place or any portion of any house room [conveyance] or place, which is used for purposes of sexual exploitation or abuse for the gain of another person or for mutual gain of two or more prostitutes. Under section 2 (f) of the Immoral Traffic (Prevention) Act, 1956, the word ‘prostitution’ had been defined as the sexual exploitation or abuse of persons for commercial purposes, and the expression prostitute was to be understood accordingly. The word ‘public place’ had been defined in the above act as any place intended for use by or accessible to, the public and includes any public conveyance’.

The statement & object of the Indecent Representation of Women (Prohibition) Act, 1986, it is said that the law relating to obscenity had been codified in sections 292, 293 & 294 of the IPC, but in spite of these provisions, there is a growing tendency of indecent representation of women or reference to women in publications & advertisements, etc. which have the effect of denigrating women and are derogatory to women Under section 2 (c) of The Indecent Representation of Women (Prohibition) Act, 1986, the words ‘indecent representation of women’ had been defined 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 effect of being indecent, or derogatory to, or denigrating, women, or is likely to deprave, corrupt or injure the public morality or morals’.   

Taking into account to the definition of prostitution, public place, indecent presentation of women & brothel it is clear that the people who indulge in the business of floating porn & obscene sites by sexual exploitation of persons for commercial purposes on the information highways are indulging in prostitution & the places where these sites are being shot & shown are simply the ‘brothels’. These porn & obscene sites by using & utilizing body of women presenting the same indecently which ultimately is derogatory & also denigrates women, & this act is being done to earn money, hence the same is an act which is not exempted under the guarantee to freedom of speech as provided to a citizen in our Constitution. It will be appropriate to place here the case of Yahoo, Inc. vs. La Ligue Contre Le Recisme et L Antisemitism [169 F. Supp. 2d 1181 (N.D. Cal. 2001)], whereby the French court blocked a sight of Yahoo.com, for the reason that it tends to sell by auction some banned materials in France. Two human rights organizations filed a law suit in France against Yahoo, alleging that its auction practices violate French law. The French court ruled that Yahoo was violating French law by failing to block French users from accessing the prohibited material. The Judge stayed the execution of his judgment until a panel of experts could decide whether it was technically possible for a US based internet company to identify and exclude French users. The technical panel of experts after examination of internet service provider addresses of users concluded, that a filtering system could be implemented to block French users. The Yahoo case is an eye opener, and in the backdrop of Delhi Public School MMS case, Jammu sex scandal, south Indian actress sister’s nude photo sandal, Allahabad’s latest expose etc. etc. is it not the high time to ta The Information Technology Act 2000 came into existence to control cyber crimes, as well to place India on the global network to control such crimes. It adopted all the hallmarks of ‘world market’s’ concerns about cyber crimes relating to financial transactions, but somewhere in the line failed to touch the traditional Indian concerns, relating to building a moral character of society relating to women, child & obscenity. The Act showed genuine concern towards the business transactions. While dealing with cyber crimes relating to obscenity under section 67 of The Information Technology Act 2000 had touched the word obscenity in its heading only in the following manner,” Publishing of information which is obscene in electronic form”. One fails to under stand that why the word obscenity was not properly defined in the definition clause or in the section itself to lay a clear guideline in this respect, like for other aspects great details were laid down in the act. It is also strange that obscenity was not defined in The Indian Penal Code also, although it proposes punishment for publication of obscene books, selling obscene object to young people & obscene acts & songs in public places, under sections 292, 293 & 294 etc. Considering the fact that the Indian Penal Code has not defined the meaning & scope of obscenity the framers of The Information Technology Act 2000 had got greater responsibility upon their shoulders to protect the citizenry by applying vision. The dictionary meaning of word obscene is ‘which offends or wounds the imagination in sexual matters’ or ‘offensive’ or ‘revolting’. The ‘obscenity’ means the state or quality of being obscene’. At the stage when the IPC came into existence the morals were such that the dictionary meaning of word ‘obscenity’ was understood in its simplest terms as ‘a thing or act which is vulgar and lascivious & its effect is such that it may corrupt mind or body.’ But today in the days of ‘freedom’ any unscrupulous person is ever ready to take advantage of any loophole in the law. When ever a prosecution is launched under section 67 of IT act 2000, the person will take refuge behind big words like ‘freedom of speech’ ‘expression’ etc. The IT act came into existence in the year 2000, although prior to that we all came to know that porno sites are roaming on the information highways like wildfires by distributing obscene materials in abundance, causing concerns to the citizenry. The same can very well be demonstrated from the following data of US. There are currently more than one lakh sexually explicit websites showing obscene materials. In US 65 percent teenagers, below the age of fourteen, visited porno websites in the year 2000 alone (net value report on minors online, Dec. 2000). The FBI of US had registered 4000 cases of online child pornography. The framers of law have a greater responsibility upon their shoulders in protecting the interest of its people. The financial interest of any country is prime concern of every person & its protection is also needed by applying all means & resources available with the country. In the age of globalization & free trade the financial interests of foreign partners are necessarily to be protected by us to protect our own interest & to gain further markets & profits. To maintain balance between the profits & society is the prime duty of the Government. The Government should have shown equal concern towards protecting the cultural identity of the country. One of the prime concerns of the Indian society is protecting its honour & respect. Such an honour includes safety & respect of women & children. Manu Smriti mandates highest respect, protection & regard to woman throughout her life, when it says,” Women must be honoured and adorned, by their fathers, brothers, husbands and brother-in-laws, who seek their own welfare,” (Manu Smriti III-55). The best obscene material used in porno sights are women of all ages. Every country has got its own unique features which relates back to its cultural identity. Indian Society is not 200 or 300 years old society which only existed for business or money. It existed because of some high morals which it inherited from its thousands of year’s traditions. Obscenity was well defined in one of the famous US Supreme Court case of Miller vs. California (413 U. S. 15 (1973). Miller was convicted after a jury trial under the California Penal Code of knowingly distributing obscene material. The state appellate tribunal affirmed the Judgment. The US Supreme Court enunciated a three- part test with 5-4 majority judgment written by its Chief Justice. The three points ‘Miller’ test defined ‘obscenity’ in the following words; 1. If it arouses “Prurient Interest” that does not match to “contemporary community standards”. 2. If it is “patently offensive.” 3. If it “lacks serious literary, artistic, political or scientific value.” By applying these three Miller tests can it be said that in any circumstance an obscene material on a porno website, showing hard core sex, e.g. anal, child, oral etc. can qualify these tests? The answer is emphatic NO. Then if the answer comes in an emphatic no then why The Information Technology Act 2000 is silent about this aspect & lays down no definition of obscenity but provides punishment under section 67 for publishing obscene material in electronic form, keeping a loophole open for an unscrupulous website portal to take asylum behind undefined term ‘obscenity’ & freedom of speech & expression of press. As I indicated above that more than one lakh sexually explicit websites showing obscene materials are available on internet, & the numbers are increasing day by day. In such a situation some drastic measures are required to save our freedom & honour from such abhorrent materials. One such step would be to block permanently all such obnoxious internet sites at the threshold. The Ministry of Communication and Information Technology on 7th July 2003 issued a notification laying down a procedure to block or intercept any information through any computer resources in relation to five purposes, namely, interest of the sovereignty or integrity of India, the security of State, friendly relation with foreign states, or public order, or, for preventing incitement to the commission of any cognizable offence. The notification further says that ‘there is no explicit provision in the IT act 2000 for blocking websites. In fact, blocking will amount to censorship. Such blocking can be challenged if it amounts to restriction of freedom of speech & expression. But websites promoting gambling, promoting racism, violence and terrorism, hate contents, slander or defamation of others and other such materials, in addition to promoting pornography, including child pornography, and violent sex can reasonably be blocked since all such websites may not claim constitutional tight of free speech.’ Here also the notification is silent about obscenity & covers only a small part of porn & obscene websites. It appears that somewhere down the line obscenity & porn things were left to judgment of creators of porn & obscene sites, otherwise it would not have created various sections of porn sites e.g. child pornography, and violent sex excluding other obscene materials. The notification also lays down such an arduous manner to block a site that it will take enormous time & energy for an individual to get an obnoxious website blocked by applying with the Ministry. Although a vast and increasingly sophisticated computer security industry has developed for businesses in response to critical need to secure electronic data & systems. Its primary goals are to protect computer systems from viruses, eavesdropping, hacking, theft, tampering, forgery and interception. But all these efforts are only confined to the safety & security of business & financial interests but no steps were taken to save the ethical standards of the society. It will be appropriate to place the provisions of two other acts which also deal the indecent display of women, prostitution, indecent representation of women & obscenity etc. namely The Immoral Traffic (Prevention) Act, 1956 & The Indecent Representation of Women (Prohibition) Act, 1986. Under section 2 (a) of the Immoral Traffic (Prevention) Act, 1956, the ‘brothel’ had been defined as a house, room [conveyance] or place or any portion of any house room [conveyance] or place, which is used for purposes of sexual exploitation or abuse for the gain of another person or for mutual gain of two or more prostitutes. Under section 2 (f) of the Immoral Traffic (Prevention) Act, 1956, the word ‘prostitution’ had been defined as the sexual exploitation or abuse of persons for commercial purposes, and the expression prostitute was to be understood accordingly. The word ‘public place’ had been defined in the above act as any place intended for use by or accessible to, the public and includes any public conveyance’.

The statement & object of the Indecent Representation of Women (Prohibition) Act, 1986, it is said that the law relating to obscenity had been codified in sections 292, 293 & 294 of the IPC, but in spite of these provisions, there is a growing tendency of indecent representation of women or reference to women in publications & advertisements, etc. which have the effect of denigrating women and are derogatory to women Under section 2 (c) of The Indecent Representation of Women (Prohibition) Act, 1986, the words ‘indecent representation of women’ had been defined 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 effect of being indecent, or derogatory to, or denigrating, women, or is likely to deprave, corrupt or injure the public morality or morals’.   

Taking into account to the definition of prostitution, public place, indecent presentation of women & brothel it is clear that the people who indulge in the business of floating porn & obscene sites by sexual exploitation of persons for commercial purposes on the information highways are indulging in prostitution & the places where these sites are being shot & shown are simply the ‘brothels’. These porn & obscene sites by using & utilizing body of women presenting the same indecently which ultimately is derogatory & also denigrates women, & this act is being done to earn money, hence the same is an act which is not exempted under the guarantee to freedom of speech as provided to a citizen in our Constitution. It will be appropriate to place here the case of Yahoo, Inc. vs. La Ligue Contre Le Recisme et L Antisemitism [169 F. Supp. 2d 1181 (N.D. Cal. 2001)], whereby the French court blocked a sight of Yahoo.com, for the reason that it tends to sell by auction some banned materials in France. Two human rights organizations filed a law suit in France against Yahoo, alleging that its auction practices violate French law. The French court ruled that Yahoo was violating French law by failing to block French users from accessing the prohibited material. The Judge stayed the execution of his judgment until a panel of experts could decide whether it was technically possible for a US based internet company to identify and exclude French users. The technical panel of experts after examination of internet service provider addresses of users concluded, that a filtering system could be implemented to block French users. The Yahoo case is an eye opener, and in the backdrop of Delhi Public School MMS case, Jammu sex scandal, south Indian actress sister’s nude photo sandal, Allahabad’s latest expose etc. etc. is it not the high time to take some drastic measures to protect the honour & prestige of women folks & our future generations from slipping into an intentional trap. The major question before us at present is that how to maintain & enterprise the network security which shall not compromise our laws as well the Indian traditions & to maintain a balance between the traditional virtues & modern business interests & necessities. More so these porn obscene websites can not be said to fulfill & qualify any of the tests of being the service provided in the interest of well being of society or a public utility service, arouses serious literary, artistic, political, or scientific research related interests. Till the loopholes left out in the IT act 2000 are being cured and exhaustive provision to award exemplary punishment for all such persons who create and float such websites which show obscene porno scenes are not introduced in the act, these porn obscene websites be permanently blocked at the gateway to India. The word obscenity, porno etc. be defined properly in the IT act 2000. A provision for blocking porn & obscene websites is also to be introduced in the IT act 2000. ********

Published in law journal (2005 UP Local Bodies & Educational Cases volume 2 page 37 journal section) and several daily newspapers in 2005.