Viewing ‘Child Pornography’ is an offence? Is there a distinction between a one-time consumer of ‘child pornography’ and someone who distributes and transmits it on a digital domain? Imperative Decision

Madras High Court: G.R. Swaminathan, J., addressed a matter in regard to child pornography.

An instant petition for anticipatory bail was filed.

Prosecutions’ Case

Petitioner browsed, downloaded and transmitted child pornographic material by using Airtel sim through his e-mail and Facebook Account.

Child Pornography an offence or not?

It is stated that viewing pornography privately will not constitute an offence. As of date, no provision exists that prohibits such private acts and there are even some that elevate it as falling within one’s right to free expression and privacy.

Section 67-B of the Information Technology Act, 2000 penalises every kind of act pertaining to child pornography.

 Whoever 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 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 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 facilitates abusing children online, or records in any electronic form own abuse or that of others pertaining to sexually explicit act with children is liable to be punished.

Therefore, even viewing child pornography constitutes an offence.

How the offending activity that took place in a private place came to light?

As per a news report quoting a police officer warning citizens that they must understand that activities on cyber space are always monitored.

It was stated that there is an international NGO called NCMEC (National Center for Missing & Exploited Children) and it maintains a Cyber Tipline. There is a Memorandum of Understanding between the National Crime Records Bureau (NCRB), India and NCMEC, USA and that provides access to the material available with NCMEC. One such Tipline report sent to the respondent police implicated the petitioner.

Further, it was noted that the said occurrence took place almost one year back and appeared to be a one-off act. Hence petitioner was directed to hand over his phone and sim card and other involved devices to the respondent.

Court expressed that custodial interrogation was not warranted.

Expressing that Child Pornography is a serious issue warranting a firm approach, Bench added that it would make a distinction between a one time consumer and those who transmit or propagate or display or distribute in the digital domain.

It is obvious that the moment one steps into digital space, one comes under the surveillance either of the State or those manning the social networking sites. If one is zealous about privacy, the only option is to stay outside such networks. Of course, in the current world, it is not a viable option.

 Though Central and State Governments are mandated to spread awareness under Section 43 of the POCSO Act about the provisions of the State, yet alone the same may not be sufficient since the “Big Brother” watching us may not deter those who are determined to indulge in such acts.

Adding to the above, it was stated that moral education is the only way out.

It is only the Bharatiya culture that can act as a bulwark. The menace of child pornography can be tackled only if all of us inculcate the right values.

 [P.G. Sam Infant Jones v. State, 2021 SCC OnLine Mad 2241, decided on 11-06-2021]


Advocates before the Court:

For Petitioner: Mr. Venkateshwaran. R.

For Respondent: Mr. T. Senthilkumar, Government Advocate (Crl.Side)

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