By - Anshika Goel, a 4th Year Student at Amity Law School Delhi, GGSIPU
INTRODUCTION
Child pornography means the depiction of a minor or an individual who appears to be minor in a sexually provocative act by means of videos, photos, or other computer-generated material. It is severe offences in nature as it promotes the sexual assault of children, sex slavery, human trafficking, etc.
Such photographs and videos, which include the recording of the real crime scene, are often shared for personal use. Most recently, live-streamed sexual exploitation has started to surface. In such instances, people pay to view a child's live abuse from a network of video sharing. This form of abuse is complicated to track, owing to its real-time complexity and the loss of digital evidence left behind since the incident.
Although "child pornography" remains the legal word for this content, the subject matter is horrific and awful types of child exploitation imaginable. For this cause, those seeking to counter this form of violence have begun to use the word "child sexual abuse material" (CSAM), which conveys the substance more clearly and is specifically related to the root of the matter.
DEFINITION UNDER INDIAN LAW
It has been defined in Section 2(da) of POCSO[1] as "child pornography" as any graphic depiction of sexually suggestive activity involving a child that involves a picture, film, the digital computer-created image that is indistinguishable from the real child and an image that is made, altered or modified that tends to represent the child.
The definition includes digital or computer-generated content.
India has perhaps the most noteworthy number of children in the world, Census information from 2011 uncovers that India has a sum of 472 million children beneath the age of 18 years. State protection of children ensured to Indian residents by broad perusing of Article 21[2] and is likewise commanded, given India's status as a signatory to the Convention on the Rights of the Child.
WHO IS THE ABUSER?
CSAM victims are sometimes exploited by those they know — the ones these children would have been able to trust. These offenders have direct exposure to the children they assault, using bullying techniques to normalize inappropriate activity, and promote confidentiality.
The matter of pornography of children is not only a national issue but also a major global issue that needs to be taken up as early as possible. For protecting children from exploitation and pornography, several measures are being taken both at the national and international levels.
INDIA'S RESPONSE TO COUNTER CHILD PORNOGRAPHY
Child sexual abuse laws have been implemented in India as part of India's child safety policies.
The Protection of Children from Sexual Offences Act, 2012 (herein referred to as the "POCSO Act"), provides for punishment for child pornography. Section 14[3] criminalizes the usage of children for obscene purposes in any media, including the depiction of the child's genital organs, the involvement of the child in actual or imaginary sexual acts, and the profane or improper depiction of the infant. Within the POCSO Act, the hold of the material of pornography of child for commercial reasons is criminalized, but possession for non-commercial purposes is not criminalized.
Section 293[4] explicitly criminalizes the selling, distribution, exhibition, transmission, etc. of any pornographic content to any person under the age of 20 years. It believes such acts to be cognizable offences.
The Information and Technology Act, 2000 (herein referred to as the "IT Act"), is the cornerstone of cyber legislation in India. It was amended in 2008 to broaden its scope to include a specific provision dealing with the criminalization of child pornography. Recommendations were rendered in the context of the insertion of Section 67B[5], which condemned child pornography. To "first time offenders," with imprisonment of 5 years and a fine of ten lakh rupees, and for "subsequent offenders," the period of imprisonment is seven years with a fine of ten lakh rupees. For a fact, under the IT Act, the storage and consumption of adult porn are not criminalized. However, the storage and consumption of child porn are criminalized.
While Section 67B of the IT Act focuses on the object of child pornography by criminalizing the sexual portrayal of a child, Section 14 of the POCSO Act focuses on the matter of child pornography by criminalizing the utilization of a child with the end goal of pornography. The consent of a child is meaningless under both the laws as a child is esteemed unfit to give consent.
Strangely, India isn't a part of the Virtual Global Taskforce yet. India depends vigorously on the US-based NCMEC (National Center for Missing and Exploited Children) for alerts. NCMEC NGO recently alerted the Government of India about the existence of child pornographic material on different social networking platforms in the country and found out that almost 25,000 cases of alleged child pornographic material have been uploaded in India.
The Adhoc Committee was set up by Rajya Sabha on 12 December last year. It provided 40 far-reaching recommendations to deter the sexual assault of a child and to eliminate access to and dissemination of child pornography on social media.
The Committee proposed fundamental amendments to the Protection of Children from Sexual Offences Act, 2012, and the Information Technology Act, 2000.
The Committee has tried to address two major concerns:
Children's access to social media pornography content and
The dissemination of obscene content on social media.
The 40 recommendations provided by the Adhoc Committee include the implementation of a wider concept of child pornography, the regulation of children's access to such materials, containing creation and distribution of CSAM, making responsible the Internet Service Providers and online websites to restrict access to children and delete any pornographic material from internet pages, in addition to tracking, identifying and deleting information, prohibiting underage usage of such content, allowing parents to provide early access to such material by children, enabling effective action by governments and authorized agencies to take the appropriate preventive and penal measures, etc.
The Committee emphasized the need to adopt its recommendations as an integrated set of measures and not piecemeal to have any worth and effect.
THE ROLE OF INTERNATIONAL LAW IN COUNTERING CHILD PORNOGRAPHY
The 1989 United Nations Convention on the Rights of the Child, the primary lawfully restricting treaty on the rights and liberties of children, calls for the protection of minors from sexual assault. Article 34 of the Convention obligates States to take all appropriate regional, bilateral, and multinational steps to shield children from all kinds of sexual harassment or violence.
In 2000, the UNGA approved the Optional Protocol on the vending of children, sexual exploitation, and child pornography (herein referred to as the Optional Protocol). This acknowledged the privileges of victims of these offences and developed guidelines for the safety of victims in the process of criminal justice. Article 3 of the Optional Protocol requires States to criminalize the creation, distribution, importation, exportation, dissemination, offer, or sale of child pornography, and Article 3(1) (c) obliges States to prosecute hold of child porn for any of the reasons referred to above.
The Council of Europe Convention on Cybercrime (2001), also referred to as the Budapest Convention, is one of the important conventions dealing with child abuse, since it has a more realistic practical approach with universal application to both judicial officers and law enforcement agencies at the same time. Article 9 of the Convention describes child pornography as "a content that visually portrays a minor or an individual who appears to be minor to be involved in a sexually suggestive type."
The Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (2007) classifies child pornography as sexual violence. This is wider because it also includes sexual tourism in the shape of child violence. The European nations have only accepted it to date.
CONCLUSION
Child pornography is not only a legal issue but also a moral issue because it is likely to affect the child's view of humanity adversely. Besides bringing several international conventions in force, we, as a global society, have had shortcomings in drawing up decisive rules for their usage. A widespread worldwide system for the identification, evaluation, and indictment of online child pornography is the need of the hour, and it must be executed as a fundamental of international law.
References
[1] The Protection of Children from Sexual Offences (Amendment) Act, 2019, No. 25, Acts of Parliament, 2019 (India).
[2] The Constitution of India, Article 21
[3] The Protection of Children from Sexual Offences Act, 2012, No. 32, Acts of Parliament, 2012 (India).
[4] The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).
[5] The Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India).
(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)