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Decency, Obscenity and Crime in the realm of Online Pictures !

This is something that significant number of folks get it wrong as cultural norms and all sorts of twisted thinking get into the mix. But law is very clear on this. See the example below of a recent arrest. The conclusion (which claims that guy got arrested for failing public decency norms) is completely wrong which made me post this.

http://www.deccanchronicle.com/150813/technology-latest/article/techie-posts-child-porn-whatsapp-group-held.  (This is the story about a man who posted a nude picture of a child to a whatsapp group and getting arrested.)

First lets start with the term “Child Porn”. The term itself trivializes the horrific nature of the crime and the correct and preferred term in law enforcement circles is child sexual abuse. That brings us to the question what if the picture is of adult. “Consent” plays a huge part in determining the severity of the crime and in some countries it may not be a crime. Indian law goes a step further and prohibits transmission (see the definition below) of any pictures of this kind. Below is the excerpt which details the nuances.

66E. Punishment for violation of privacy. (Inserted Vide ITA 2008)

Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both Explanation.

– For the purposes of this section —

(a) ―transmit‖ means to electronically send a visual image with the intent that it be viewed by a person or persons;

(b)―capture‖,with respect to an image, means to videotape, photograph, film or record by any means;

(c)―private area‖ means the naked or undergarment clad genitals, pubic area, buttocks or female breast;

(d)―publishes‖ means reproduction in the printed or electronic form and making it available for public;

(e)―under circumstances violating privacy‖ means circumstances in which a person can have a reasonable expectation that—

(i)he or she could disrobe in privacy, without being concerned that an image of his private area was being captured; or (ii)any part of his or her private area would not be visible to the public, regardless of

whether that person is in a public or private place.

  1. Punishment for publishing or transmitting obscene material in electronic form (Amended vide ITAA 2008)

Whoever publishes or transmits or causes to be published in the electronic form, 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, shall be punished on first conviction with imprisonment of either description for a term which may extend to two three years and with fine which may extend to five lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.

67 A. Punishment for publishing or transmitting of material containing sexually explicit act,etc. in electronic form (Inserted vide ITAA 2008)

Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with 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.

Exception: This section and section 67 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.

67 B. 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:

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

 

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