360 Degree: Porn and law - Privacy vs transmission

India’s Department of Telecommunications had sprung into action in 2015, blocking a total of 857 websites, which were identified as pornographic. Section 79(3) (b) of the IT Act was pressed into service — it deals with the culpability or otherwise, of the intermediaries in the event of content which may, among other categories, fall within the scope and ambit of being pornographic. Interestingly, the word “pornography” is not defined in any of the criminal statutes in India. While quashing Section 66 A of IT Act in March of 2015, which allowed police to arrest people for social media posts that were construed as being “offensive” or “menacing”, the Supreme Court had held that intermediaries cannot be called upon to exercise their discretion in blocking content, and that they must act only either on court or government orders.

The Supreme Court ruled that unlawful acts, beyond what is laid down in Article 19(2), obviously cannot form any part of Section 79. But the issue of pornography was not directly in issue in the said case. The Union of India expressed its difficulty in blocking porn sites before the Supreme Court on the grounds that many of these servers were located outside India. It was contended before the Apex Court that whenever a porn site was blocked, another would surface. Also, Section 292 of the Indian Penal Code deals with any act for the purpose of selling, hiring or publishing any books, pamphlets, paper, writing, drawing or painting of any object, shall deemed to be obscene, lascivious or prurient in nature or may likely to harm any other person, is liable for a punishment for a period of two years along with a fine or both.

And Section 67 of the IT Act purely deals with cyber pornography and provides strict action against such persons who are involved in such acts. The Act of cyber pornography has been banned in many parts of the world but in India, under the Act, it has not been banned... but has not been legalised either. Section 67 of the Act states that any publication, transmission of any information which contains obscene content, or causing to be published or transmitted, will be punishable with up to 3 years’ imprisonment and a fine of Rs 5 lakh. Section 354A of the IPC also provides certain liabilities to a person who exhibits pornographic content to any women against her will. Such provisions say explicit and exploitative usage of such content may result in certain penal liabilities. Additionally, Section 354 C of the IPC reads: ….. Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished. Proponents of free speech would advocate that freedom of speech and expression, would curb any such restriction on accessing pornographic material and such restrictions would impinge on basic rights. But while the law doesn’t prohibit one from watching pornography privately, it forbids its  transmission, distribution or production.

The writer is an advocate at the Hyderabad High Court and an IT Act specialist.