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Misuse of social media for accessing pornographic content and child abuse

The Adhoc Committee of the Rajya Sabha instituted by Chairman Shri M. Venkaiah Naidu has made 40 far-reaching recommendations to prevent sexual abuse of children and to contain access to and transmission of child pornography content on the social media. The report of the Committee was today presented by the Chairman of the Committee Shri Jai Ram Ramesh to Shri Naidu.

Expressing concern over the seriousness of the prevalence of the horrific social evil of child pornography, the Committee has recommended important amendments to the Protection of Children From Sexual Offences Act, 2012 and the Information Technology Act, 2000 besides technological, institutional, social and educational measures and state-level initiatives to address the alarming issue of pornography on social media and its effects on children and the society as a whole.

The 40 recommendations made by the Adhoc Committee relate to adoption of a broader definition of child pornography, controlling access for children to such content, containing generation and dissemination of Child Sexual Abuse Material (CSAM), making accountable the Internet Service Providers and online platforms for denying access to children and removing such obscene content from online sites besides monitoring, detection and removal of content, preventing under-age use of such content, enabling parents for early detection of accessing such content by children, enabling effective action by the governments and authorized agencies to take necessary preventive and penal measures, etc.

Noting that the purveyors of child pornography seem always to be one step ahead of the regulators, the Committee stressed the need for implementation of its recommendations as an integrated package of measures and not piecemeal to have any value and impact. The Committee urged the Prime Minister to take up the subject of child pornography and the measures required to combat it in one of his forthcoming ‘Man Ki Baat’ broadcast besides taking the lead in building up a global political alliance to combat child pornography on social media like the International Solar Alliance initiative.

The Committee has broadly sought to address two main issues viz.,

  • access of children to pornographic material on social media and
  • the circulation of pornographic material on social media in which children are abused.

The major recommendations of the Committee are as under:

Legislative measures

  1. The Committee has recommended some important amendments to the POCSO Act, 2012 and the IT Act, 2000 with corresponding changes to be carried out in the Indian Penal Code;
  2. A clause to be inserted in the POCSO Act, 2012 under which advocating or counseling sexual activities with a person under the age of 18 years through any written material, visual representation or audio recording or any characterization is made an offence under the Act;
  3. Another clause to be inserted in the POCSO Act, 2012 prescribing a Code of Conduct for intermediaries (online platforms) for maintaining child safety online, ensuring age-appropriate content and curbing the use of children for pornographic purposes;
  4. Under the POCSO Act, 2012, school management should be responsible for the safety of children within schools, transportation services and any other programmes with which the school is associated;
  5. National Cyber Crime Reporting Portal shall be designated as the national portal under-reporting requirements in the POCSO Act in case of electronic material;
  6. A new section be included in the IT Act 2000, providing for punitive measures for those providing pornographic access to children and also those who access, produce or transmit Child Sexual Abuse Material(CSAM);
  7. Union Government shall be empowered through its designated authority to block and/or prohibit all websites/intermediaries that carry child sexual abuse material;
  8. IT Act to be modified making intermediaries responsible for all measures to proactively identify and remove CSAM as well as report it to Indian authorities as well besides the foreign authorities. Gateway Internet Service Providers (ISP’s) must bear a significant liability to detect and block CSAM websites. Intermediaries shall also be responsible to report to the designated authority, IP addresses/identities of all those searching/accessing child porn/CSAM keywords;

Technology measures

  1. Law enforcement agencies be permitted to brake end to end encryption to trace distributors of child pornography. Apps that help in monitoring children’s access to pornographic content shall be made mandatory on all devices sold in India. Such Apps or similar solutions to be developed and made freely available to ISP, companies, schools and parents;
  2. Ministry of Electronics and IT and Ministry of Home Affairs shall coordinate with Blockchain analysis companies to trace identities of users engaging in cryptocurrency transactions to purchase child pornography online. Online payment portals and credit cards be prohibited from processing payments for any pornographic website;
  3. ISPs shall be required to provide family-friendly filters to parents at the point of sign up to regulate children’s access to internet content;
  4. All social media platforms should be mandated with minimum essential technologies to detect Child Sexual Abuse Material besides regular reporting to law enforcement agencies in the country;
  5. On-streaming platforms like Netflix and social media platforms like Twitter, Facebook etc. should have a separate adult section where under-aged children could be disallowed;
  6. Social media shall have a mechanism for age verification and restricting access to objectionable/obscene material;

Institutional measures

  1. The Committee recommended an upgraded and technologically empowered National Commission for Protection of Child Rights(NCPCR) to be designated as the nodal agency to deal with the issue of child pornography. NCPCR should have necessary technological, cyber policing and prosecution capabilities;
  2. The National Crime Records Bureau (NCRB) shall mandatorily record and report annually cases of child pornography of all kinds. A national Tipline Number should be created where child sexual abuse, as well as the distribution of child pornographic material, can be reported by concerned citizens;

Social and Educational measures

  1. Ministries of Women and Child Development and Information and Broadcasting shall launch campaigns for greater awareness among parents to recognize early signs of child abuse, online risks and improving online safety for their child. Schools shall undertake training programmes for parents at least twice a year, making them aware of hazards for children of free access to smartphones, internet at an early age. Based on the experiences of other countries, a proper practicable policy for restricting use of smart phones by under aged kids needs to be considered;

State-level implementation

  1. The committee recommended that each State and Union Territory shall have empowered State Commission for the Protection for Child Rights mirroring capabilities and capacities of the NCPCR. E-safety Commissioners be appointed at state level to ensure implementation of social media and website guidelines relating to the removal of pornographic content, age verification, issuing warnings, etc.

The 14-member Committee including 7 women members of Rajya Sabha was set up by Shri Venkaiah Naidu on December 12 last year further to some members voicing concern over widespread misuse of social media for accessing pornographic content and child abuse.

The Committee heard the views of the Ministries of Women and Child Development, Electronics and IT and Home Affairs besides NCPCR and Telecom Regulatory Authority of India and other stakeholders like Google, Facebook, Whatsapp, Bytedance(TikTok), Twitter and Sharechat.

The Committee also received representations from 3 NGOs viz., HERD Educational & Medical Research Foundation, Nagpur, Centre for Child Rights, New Delhi and Internet Freedom Foundation, New Delhi.

Case BriefsHigh Courts

Delhi High Court: Observing that the trial court, in the present case, did not seem to be alive to realities, Sanjeev Sachdeva, J. quashed an order whereby the accused-respondent (father of the prosecutrix) was discharged of the offence punishable under Sections 354 (outraging modesty of a woman) and 376(2)(f) (punishment for rape committed by a relative, guardian, teacher or person in position of trust or authority of a woman) IPC.

The trial court discharged the accused as he was blind and the allegations made against him were not specific. Also, the prosecutrix did not raise alarm when she had opportunities and did not file any complaint all this while. It is pertinent to note that the parents of the prosecutrix were divorced and as per the prosecutrix, she did not even remember as to when sexual assaults started to be committed upon her by her father. In the present complaint, she mentioned about incidents which happened when she was the age of 6 years old upto the age of 13-14 years old. She was 18 years old at the time of filing of the complaint. She mentioned that it was only when she was taught sex-education in her hostel, that she came to realise that she was being sexually assaulted. She then talked about it to her friend, who advised her about her options and thereafter they got in touch with an NGO.

The High Court noted that the prosecutrix had given a detailed description of the manner in which she was assaulted by the accused. It was observed: “A child who is subjected to sexual abuse and assault from a tender age of 6 and which assault continues till she is 14 years of age, would not even be aware that she is being abused or any offence is happening. The prosecutrix in her statement has stated that she was not aware of the abuse and became aware only when she grew up.”

Commenting on the flawed approach of the trial court, it was stated: “Trial court has erred in not appreciating that the accused is the father of the prosecutrix and was in a dominating position and keeping in the view the relationship, it would not be abnormal for the prosecutrix not to make a complaint against her own father. The reasoning given by the Trial Court is completely perverse and contrary to record.”

Satisfied that the allegations raised gave suspicion against the accused of having committed the alleged offence, the High Court allowed the present petition of the State which was filed after elucidating opinions from the Additional Public Prosecutor, the Chief Prosecutor, the Director of Prosecution, the Principal Secretary (Law and Justice) and also the Law Minister. The matter was remitted to the trial court for framing of appropriate charges against the appellant. [State (NCT of Delhi) v. X, 2019 SCC OnLine Del 7913, decided on 02-04-2019]