Under Article 1 of the Convention on the Rights of Child, a “child” is defined as a human being below the age of 18 years old and, in legal parlance, a child is referred to as a minor. A study by UNICEF found that 1 out of 3 girls and 1 out of 5 boys were likely to be sexually assaulted before they reach the age of 18, and in a startling revelation, also found that 90% of these children know their offenders.
Child pornography refers to the portrayal of a minor or a person who appears to be minor in a sexually explicit act by way of videos, photographs or other computer-generated content. Even the modification of an image or video in such way that it appears to be a minor engaged in a sexually explicit act is considered child pornography. Child pornography is one of the most heinous crimes in existence because it encourages sexual abuse of children, sex tourism, human trafficking etc.
Over the years, the sharing of child porn over the internet has increased manifold. In 1998, over 3,000 cases were registered against websites containing child pornography. The number of cases increased to over 100,000 just a decade later, and in the year 2014, the number exceeded 1 million for the first time. Last year, there were 18.4 million reported cases of child pornography across the world.
The porn industry has been highly lucrative these days and is spreading across the globe in an exceedingly coordinated manner. It is a multi-million-dollar industry that has made young children its most vulnerable victims. According to market figures from the National Center for Sexual Abuse, child pornography is one of the fastest growing online businesses and India is among its biggest consumers and contributors. In India, a pornographic video is captured every 40 seconds, about 38 percent of which are linked to child sexual abuse. The director of the Indian Cyber Army stated that, around 25% of all the search engine queries in India are related to child pornography. A recent study by the US National Center for Missing and Exploited Children (NCMEC) and the Indian National Crime Records Bureau (NCRB) found that more than 25,000 pieces of alleged child sexual abuse content have been uploaded to social media platforms in India over the last 5 months (as on 2nd May 2020).
This article analyzes the issue of child pornography and the international frameworks that are present to deal with this menace. A special emphasis is laid on the Indian laws that are meant to tackle child pornography.
The Role of International Law in Combating Child Pornography
The United Nations Convention on the Rights of the Child, 1989, the first legally binding treaty on the rights of children, provides for the protection of children from sexual abuse. Article 34 of the Convention puts obligations on the states to undertake all appropriate national, bilateral and multinational measures for the protection of children from all forms of sexual exploitation or abuse.
In 2000, the United Nations General Assembly adopted the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (hereinafter “the optional protocol”). It is the leading universal treaty that deals specifically with the issue of sexual abuse of children. It recognized the rights of victims of these crimes and laid down standards for the protection of victims in the criminal justice process. The Optional Protocol provided not only for the strengthening of international cooperation and the adoption of extra-territorial laws, but also for the non-recognition of the concept of dual criminality. Article 3 of the Optional Protocol mandates the States to criminalize the production, distribution, importation, exportation, dissemination, offer or sale of child pornography and Article 3(1)(c) obliges the States to punish the possession of child porn if it is for any of the purposes previously mentioned.
The Council of Europe Convention on Cybercrime (2001), aka, the Budapest Convention, is among the foremost conventions that deal with child abuse as it has a more pragmatic approach with a universal application to both the judicial officers and the law enforcement agencies at the same time. Article 9 of the Budapest Convention defines 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.” The Budapest Convention is also notable for its use of unambiguous terms and its detailed categorization of child pornography on the internet. It also provides for the criminalization of child pornography.
The Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (2007) categorizes child pornography within child abuse. It is wider in its ambit as it also covers sexual tourism within child abuse. The drawback of this convention is its lack of global adoption as it has only been adopted by the European nations so far.
India’s Response to Combating Child Pornography
Section 293 of the Indian Penal Code, 1860 specifically criminalizes the sale, distribution, exhibition, circulation, etc. of any obscene material to any person below the age of twenty years. It considers such acts to be cognizable offences.
The Information and Technology Act, 2000 (hereinafter “IT Act”) is the bedrock of cyber laws in India. While it was being amended in 2008 to expand its ambit, both the Standing Committee and the Expert Committee to the Information and Technology (Amendment) Bill recommended for the incorporation of a specific provision dealing with the criminalization of child pornography. The recommendation manifested in the form of insertion of Section 67B to IT Act, which criminalized child pornography. For “first time offenders”, it provides imprisonment for a term of five years and a fine of ten lakh rupees and for “subsequent offenders”, the term of imprisonment is seven years along with a fine of ten lakh rupees. Also, under the IT Act, the storage and consumption of adult porn is not criminalized but the storage and consumption of child porn is criminalized.
The Protection of Children from Sexual Offences Act, 2012 (hereinafter “POCSO Act”) also provides for punishment regarding child pornography. Section 14 of the POCSO Act criminalizes the use of children for pornographic purposes in any form of media, including the portrayal of child’s sexual organs, the participation of a child in real or simulated sexual activities and the indecent or inappropriate portrayal of a child. Under the POCSO Act, the storage of child pornographic material for commercial purposes is criminalized but storage for non-commercial purposes is not.
While Section 67B of the IT Act targets the object of child pornography by criminalizing the pornographic depiction of a child, Section 14 of the POCSO Act targets the subject of child pornography by criminalizing the use of a child for the purpose of pornography. The consent of a child is irrelevant under both the laws as a child is deemed unable to give consent.
Conclusion
Child pornography is not only a legal issue, but also a moral issue as it has the propensity to adversely alter a child’s perception of humanity. The repeated circulation of pornographic content over the internet worsens the trauma of child victims by keeping the wounds fresh.
The International Centre for Missing & Exploited Children (ICMEC) analyzed child pornography laws in 184 Interpol-member countries and found that more than half of them had no legislation directly addressing the problem of child pornography, and those countries where laws were in place were unsuccessful in dealing with it efficiently. As of now, only 45 countries in the world have comprehensive laws to combat child pornography.
Despite having some international conventions in place, we, as a global community, have had setbacks in chalking out conclusive guidelines for their implementation. A universal global framework for the detection, assessment, and prosecution of online child pornography is the need of the hour, and it must be implemented as a principle of international law. The framework should be more inclusive and less dogmatic in its approach, and it should be one that reinforces redressal mechanisms through global cooperation and participation.
Milind Rajratnam is currently in his second year at Dr. Ram Manohar Lohiya National Law University, Lucknow. He takes an active interest in Criminal Law and Constitutional Law. He is associated with various organizations that work toward creating legal awareness in society.
Suggested citation: Milind Rajratnam, Combating Child Pornography in India, JURIST – Student Commentary, May 14, 2020, https://www.jurist.org/commentary/2020/05/milind-rajratnam-combating-child-pornography/
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org
