In a recent incident, a minor girl discovered a mobile phone in a washroom in local restaurant in Diu, a popular tourist destination in western India. When she alerted her family members who were having a short halt there for refreshment, they found out that an employee of the restaurant installed the device for recording washroom activities of women and children. The man apparently opened the video setting while installing the device and hence his images were also captured: this helped the family to identify the perpetrator and immediately take action. The report suggests that the person was handed over to the police who charged him under S.77 of Bharatiya Nayay Sanhita which penalizes voyeurism and Ss.13, 14 and 15 of the Protection of children from sexual offences Act, 2012 which prescribes punishment for using children for pornographic purposes and for storage of porn contents involving children.

There are two aspects in this case that I would be discussing here:

• The punishment and the purpose of the same,  and
• The questions of legal liabilities in such cases

At the onset, let me share that Bharatiya Nyaya Sanhita was brought in to Indianise the criminal acts and the punishments for the same: the colonial concepts of criminal acts were changed to adjust the entire criminal justice system to contemporary Indian understanding.  While many research papers, articles and informative write-ups are created on pornography and its effect on society, surprisingly, the terminology of “pornography” is not properly defined in the laws in India. It is rather defined from the perspective of sexually explicit content, that we get to see in different laws including Information Technology Act, 2000 (amended in 2008). Largely, pornography is explained by private and government stakeholder as some visible representations that arouse and give sexual pleasure. Given this understanding, pornography can have two sides: legal pornography that are created only for medical purposes with contents, images or consensual human activities of adults like sexual acting /performing for sexual arousing of adults; and illegal pornography which is created by different methods including voyeurism, rape videos, using children and disabled people coercively etc. Many stakeholders have huge disagreements regarding legal nature of pornography. But unfortunately the reality needs to be accepted. Diving deep into legal philosophy, we may see that once we can differentiate legal and illegal pornography, the legal liabilities for illegal pornography may become more acceptable and prominent for prohibiting such illegal acts and designing thoughtful restorative justice oriented punishment for the same.  In the contemporary criminal justice system, voyeurism creation, production, circulation of illegal pornography and sexually explicit contents are seen as   bailable offence under Nyaya Sanhita for the first conviction as the maximum time for imprisonment has been set to three years. Protection of children from sexual offences Act however categorized such offences as non bailable in most cases. Indian courts have produced some landmark cases in this regard too. But unfortunately that did not deter   people like this restaurant employee to go ahead for installing device for recording washroom activities of women and children that can not only be viewed for personal sexual gratification, but also can be used for generating illegal profit by selling them in the porn market. Apparently the penal system may have failed to create deterrence feeling and awareness for illegalities for such activities. We however cannot blame the criminal justice system entirely. We need to see the digital technological advances too that provides anonymity and second life for anyone who may need to create multiple avatars to survive in the cyber space. 

Now, let us concentrate on the legal liabilities  of stakeholders for creating porn contents. In the Diu restaurant case, the perpetrator had apparently used device that was under his control and had installed it in the washroom of the restaurant where he was working. The legal liability may be divided for production of the content between the owner/chief operator of the premises, owner of the device and the person who is installing the device   if the owner/operator /chief manager of the premises knew beforehand about the purpose of the installation of the video capturing device in the washroom which may not be subject to surveillance in general times. The same understanding of liability will also be applicable for the owner of the device if the same was being handled by any other person for creation of the porn content. Given the understanding that device owner and the installer of the device in the washroom in this case  may be the same, we now have to turn our attention to the liability of the android service provider and the internet service provider (in case if the content was being live streamed). Apparently, the last two stakeholders may apply immunity veil through liability exemption clause as described under S.79 of the Information Technology Act, 2000(amended in 2008). The provision reads as follows:

S.79(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.

(2) The provisions of sub-section (1) shall apply if–

(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or

(b) the intermediary does not–

(i) initiate the transmission,

(ii) select the receiver of the transmission, and

(iii) select or modify the information contained in the transmission;

(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

(3) The provisions of sub-section (1) shall not apply if–

(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act;

(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.

Explanation. — For the purposes of this section, the expression “third party information” means any information dealt with by an intermediary in his capacity as an intermediary

While the statute as shown above, saves the intermediary from being a stakeholder in cases of such as these, Clause (3) of S.79 highlights liabilities of the intermediary in case it knowingly took part in the action of production, creation, circulation of the content that falls in the category of illegal porn content and sexually explicit content, creation, production and circulation of which is criminalized.   

Now, let us see if the perpetrator can be charged and tried under S.15 of the Protection of Children from Sexual Offences Act, 2012. This provision speaks about storing of child porn contents. S.15(1) f the POCSO Act prescribes punishment with a fine of Rs 5000/- in the fist conviction and Rs.10,000/- in the second conviction for a  “ person, who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same to the designated authority, as may be prescribed, with an intention to share or transmit child pornography”.  This sub clause therefore penalizes storing of child porn content with an intention to share and transmit it and does not report the matter to the designated authority. Clause (2) of S.15 goes ahead further for prescribing punishment of jail term for  a maximum period of 3 years for storing or possessing  “…….pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting, as may be prescribed, or for use as evidence in court.”

Clause (3) further prescribes punishment stores or possesses pornographic material in any form involving a child for commercial purposes. The maximum punishment is for five years jail term with the minimum time period for the jail term is three years. It may become bailable offence if this very provision is applied for the perpetrators.

Interestingly, in the recent case of JUST RIGHTS FOR CHILDREN ALLIANCE Vs. S. HARISH Diary No.- 8562 – 2024, the Supreme Court has held that mere watching of child pornography is also considered as offence  as this may be considered as inclusive of a chain of behavior like opening the link containing porn content, storing the same with possible control over the possession , reporting of the content and deleting the content without opening the content.

Above discussion may now lead us to understand the followings about legal responsibilities of stakeholders who may be involved for producing, creating and circulating porn contents including child pornography contents:

1. Production of porn contents may not only mean financially facilitating the creator of the porn content, but also may mean any one who may provide facilities like permitting to use premises under his/her own possession for creation of porn contents mainly with purpose of gaining /sharing illegal profit from illegal distribution of such contents.
2. Installation of camera devices secretly in washrooms, rest rooms, bed rooms etc, may be considered as an act for the purpose of recording, creating and disseminating voyeur images, child porn and nonconsensual adult porn images.
3. The mobile phone company, software company that may facilitate operation in the mobile phone or electronic devices and the service provider that may be used to record, store, disseminate the illegal images, may not be held liable for aiding the actual perpetrator unless they are knowingly aiding in such work.
4. Storing of such images (including illegally captured images of sexual organs of adults and children, people engaged in sexual acts etc, is considered as an offence under POCSO Act as well as under Information Technology Act, 2000(amended in 2008).
5. Non-reporting of receiving /knowledge of such illegal porn contents can also be considered as an offence especially under POCSO Act.

May every child be safe . May every adult be safe.

Please don’t violate the copyright of this writeup. Please cite as Halder Debarati (2024).. Published in https://internetlegalstudies.com/2024/11/14/Creation of Porn content (including child porn): who holds the liability ?by-dr-debarati-halder/ on 14/11/2024