Child Pornography: Browsing And Downloading, Even For Private Viewing, Is An Offence
Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.
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By Sunil Garodia
First publised on 2021-06-19 13:55:59
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Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.
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The Madras High Court granted anticipatory bail to an accused for accessing child pornography and sharing it with a friend on Facebook messenger on the grounds that "it appeared to be a one-off act" and that the prosecution did not allege that the "possession or transmission was for commercial purpose". One feels that the reasoning for granting bail is not sound.
Saying that viewing pornography privately does not constitute an offence, the bench referred to Section 40 of the IPC to say that "offence is an act forbidden by law and made punishable. As on date, there is no provision prohibiting such private acts".
But Section 67B(b) of the Information Technology Act (IT Act) clearly says that whoever "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". This means that browsing and downloading child pornography privately is also an offence under the IT Act.
Further, in March 2020, the government had notified the Protection of Children from Sexual Offences
Rules, 2020 which said that "any person who has received any
pornographic material involving a child or any information regarding such pornographic
material being stored, possessed, distributed, circulated, transmitted,
facilitated, propagated or displayed, or is likely to be distributed,
facilitated or transmitted in any manner shall report the contents to the SJPU
or local police, or as the case may be, cyber-crime portal (cybercrime.gov.in)
and upon such receipt of the report, the SJPU or local police or the
cyber-crime portal take the necessary action as per the directions of the
Government issued from time to time. The report shall include the details of the device in which
such pornographic content was noticed and the suspected device from which such
content was received including the platform on which the content was
displayed".
One
is of the opinion that the very act of accessing child pornography in
electronic form (or in any other form) and downloading it on one's device is an
offence. Forwarding it to others, even if commercial gains are not involved, is also an offence.
Although there is a gap in the POCSO Act insomuch as Section 15 of the said act says that: "15. Punishment for storage of pornographic material involving child-Any person, who stores, for commercial purposes any pornographic material in any form involving a child shall be punished with imprisonment of either description which may extend to three years or with fine or with both" (as it makes only commercial use of child pornography punishable), the offence under Section 40 of the IT Act is committed under Section 67B(b) of the IT Act and the POCSO Rules, 2020 as soon as one accesses and downloads child pornography and it is immaterial if it is done for private viewing or for commercial gain.
As for the reason that "it appeared to be a one-off act", the very fact that the accused first sought, then browsed and finally downloaded child pornography on his device and then added to the offence by sharing it with a friend proves that it was not accidental but definitely intentional. These were multiple offences. That act was intercepted and flagged by the international NGO National Centre for Missing & Exploited Children and hence came to light. Who knows whether the accused committed a similar offence, or how many more times he did it, before or after the one that was flagged?
Pic Courtesy: SheThePeople TV
