Legal Consequence of Publishing Illicit Content on Mobile Apps | Criminal Law Attorney in Delhi NCR | Criminal Lawyer in Delhi NCR |
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“Publication of obscene material is a criminal act or a criminal offense which is non-bailable and non-compoundable in nature. Publication of illicit content or obscene material either on a website or on mobile application attracts criminal liability under the penal laws and/or the Information Technology laws or the IT laws. There are a very few criminal defenses available to the accused and very few grounds are available to obtain bail in such cases.”
With tremendous development of technology the use of the internet has grown by leaps and bounds in India. However with the increasing use and dependency upon the internet, there has been frightening increase of cyber crimes in India. One such cyber crime is the publication of obscene content using the internet. Due to the transcendental reach of internet, published obscene content poses a threat of destroying the moral fabric of the society. In a recent incident, businessman Raj Kundra was arrested for being involved in publishing pornographic content using mobile app ‘Hotshots’. The mobile application was mainly used for making and publishing pornographic videos. A similar incident of sharing obscene content online took place last year when screenshots of an Instagram group named ‘Bois Locker Room’ came into light. The Instagram group was used to share morphed pictures of minor girls and passing deprecatory comments on those pictures by adolescent boys. However the offender in such situations do not go spotfree. There are necessary legal implications which follows him on commission of such derogatory offence.
Legal implications of publication of obscene content online through mobile Apps: Best Criminal Lawyer Advice
In India, viewing obscene content material in private spaces is not an offence. As remarked by The Supreme Court in the case of Kamlesh Vasvani v. Union Of India And Ors. [Writ Petition(s)(Civil) No(s). 177/2013] that an adult cannot be stopped from watching sexually explicit/obscene content in the privacy of his room as it will be a violation of his fundamental freedom under Article 19(1) (a) of the Indian Constitution. Though viewing sexually explicit content is not prohibited in India but its creation, publication and circulation is prohibited.
In India, Information Technology (IT) Act 2000, the Indian Penal Code, 1860, the Protection of Children from Sexual Offences (POCSO) Act 2012 and The Indecent Representation of Women (Prohibition) Act, 1986 are the four major legislations which deals with publication of obscene content online.
Indian Penal Code (IPC), 1860
In an incident of sharing any obscene/ illicit content on internet using mobile apps, the offender attracts the liability under the following sections of Indian Penal Code:
Under Section 292 of the Indian Penal Code, 1860, any person found selling or circulating any book, pamphlet, painting or any other obscene material which appeals to the prurient interest or is lascivious or has a tendency to corrupt a person who sees or hears it, shall be punished with imprisonment of a term up to 2 years and fine up to Rs. 2000 on first conviction and imprisonment extendable up to 5 years and fine of Rs 5000 on subsequent conviction. Supreme Court using Hicklin’s Test in the case of Ranjit D. Udeshi vs State Of Maharashtra [1965 AIR 881] defined obscenity as anything which has the tendency to deprave and corrupt those minds which are open to immoral influence. mere sex and nudity does not constitute obscenity.
The sale, circulation, distribution and exhibition of any obscene material as described under section 292 of the Indian Penal Code, 1860 to any person below the age of 20 years is punishable with an imprisonment of a term of 3 years and fine up to Rs. 2000 for first conviction and for second conviction, the imprisonment can be extended up to 5 years and fine up to Rs. 7000, under Section 293 of Indian Penal Code.
Section 354A of the Indian Penal Code, 1860 criminalises and provides punishment for a man who shows pornographic content to a woman against her will. This section provides the punishment of rigorous imprisonment up to 3 years or fine or both.
The Information Technology (IT) Act, 2000
Unlike Indian Penal Code, Information Technology Act, 2000 is well equiped to deal with incidents of sharing obscene/ illicit contents on the internet via mobile applications or computer and hence it plays a key role in deciding the liability of the offendors.
Section 67 of the Information Technology Act, 2000 provides the punishment for publication or transmission of obscene material in electronic form. Under this Section whoever publishes or transmits any lascivious material or a material which appeals to prurient interest or tends to corrupt or deprave anyone who sees or hears it, shall be punished with imprisonment up to 3 year and fine upto Rs. 5 lakh for first conviction and imprisonment extendable up to 5 years and fine extendable up to Rs.10 lakh for subsequent convictions.
Section 67A of the Information Technology Act, 2000 provides the punishment for publication and transmission in electronic form, of any material which contains sexually explicit act. it provides for imprisonment up to 5 years and fine extendable up to Rs. 10 lakh on first conviction and imprisonment extendable up to 7 years and fine of Rs. 10 lakh on subsequent conviction.
In the case of Avnish Bajaj vs State (N.C.T.) Of Delhi [116 (2005) DLT 427] the Supreme court held that a website or any online portal will be liable for punishment under Section 67 and 67A of Information Technology Act, 2000 if any obscene material will be published on it by any third-party. Post this decision of Supreme Court, Section 79 of Information Technology Act, 2000 was amended to provide a safe harbour to websites from penalties under Information Technology Act, 2000. Therefore, now on sharing any obscene/illicit material on any mobile application, the mobile application will shielded from any liability subject to the conditions mentioned under Section 79 of Information Technology Act, 2000.
Role of Consent in Publication of Obscene Material on Mobile Applications: Criminal Defense
Consent plays a very important role when it comes to capturing, publication or dissemination of pictures or video of a person indulging in an intimate act. According to Section 354C of the Indian Penal Code, 1860, when any man watches or captures the photograph of women or a girl indulging in private acts and does not expect being observed by anyone , then the man is guilty of voyeurism. But the man cannot be convicted under this section if the girl has consented to such observation or photography. However, if the woman/girl expects the photograph to remain only with certain people then further sharing or publishing of such photograph will be an offence. Section 354C provides for the punishment for the offence of voyeurism as imprisonment of 1 year extendable up to 3 years for first conviction and imprisonment of not less than 3 years extendable up to 7 years and fine for subsequent conviction.
Section 66E of the Information Technology Act, 2000 deals with video voyuerism. It provides that when a person intentionally captures, publishes or transmits an image of private area of a person without his/her consent violates the privacy of such person. such offender shall be punished with imprisonment extendable up to 3 years or with fine up to Rs. 2 lakhs or both.
While section 354C of the Indian Penal Code, 1860 provides protection only to women or girls, section 66E of the Information Technology Act, 2000 protects both men and women from violation of their privacy.
Publication of Content containing Child Pornography
Offenders publishing content containing Child pornography are dealt under Information Technology Act, 2000 and The Protection of Children from Sexual Offences Act, 2012 herein referred to as POCSO Act, 2012. Under Section 67B of the Information Technology Act, 2000 anyone who publishes, transmits, creates downloads, browses, advertises, distributes any material, text or digital image in electronic form, depicting children in obscene or indecent manner or engaged in a sexually explicit act shall be punished with imprisonment of 5 years and fine up to Rs 10 lakhs for first conviction and imprisonment extendable up to 7 year and fine up to Rs 10 lakhs for subsequent conviction.
In addition to Section 67B of Information Technology Act, 2000, the POCSO Act 2012 also prohibits child pornography. Section 14 of the POCSO Act, 2012 makes using a child for pornographic purposes, an offence. any person guilty under Section 14 will be punished with imprisonment of a term of at least 5 years and fine on first conviction and imprisonment for a term expandable up to 7 years and fine on subsequent conviction. When it comes to child pornography, mere possession of content containing child pornography is an offence under the law. Section 15 of the POCSO Act, 2012 prohibits the storage or possession of any material containing child pornography with the intension of distribution or transmission. any person found in possession of child pornographic material for commercial or distribution purpose will be punished with imprisonment for a term not less than 3 years and extendable to 5 years on first conviction and imprisonment for a term 5 years extendable to 7 years on subsequent conviction.
The Indecent Representation of Women (Prohibition) Act, 1986
Publication of illicit content online also attracts The Indecent Representation of Women (Prohibition) Act, 1986. Section 4 of Indecent Representation of Women (Prohibition) Act, 1986 prohibits the sale, distribution and circulation of any book, paper, film, photograph, drawing or a painting which contains an indecent representation of women. and section 3 prohibits the publication of any advertisement which contains indecent representation of women. Any person found violating Section 3 or Section 4 shall be punished with imprisonment for a term up to 2 years and fine up to Rs. 2000 on first conviction and imprisonment for a term not less than 6 months extendable to 5 years and a fine not less than Rs 10000 extendable up to Rs 1 lakh.
Conclusion
With the ever-increasing abuse of cyber space, it has now become important to actively tackle the issue of sharing obscene/illicit contents on internet using computer or mobile application by promptly filing a complaint against the suspect before cyber cell or national commission for women. Such incidents can also be reported on the social media websites in which they took place and such social media websites are obliged to take action within 36 hours as per the Information Technology Rules, 2011.
Authored By: Adv. Anant Sharma & Mahua Dutta