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A

PROJECT REPORT
ON
OBSCENITY AND CHILD PORNOGRAPHYAPPLICABILITY OF HICKLIN TEST

SUBMITTED TO:
Prof. Kumar Gaurav
FACULTY OF CYBER LAW

CHANAKYA NATIONAL LAW UNIVERSITY


PATNA-800001

SUBMITTED BY:
ARCHIT RAJPAL
ROLL.NO: 322
CNLU, PATNA.

ACKNOWLEDGEMENT

The present project on Obscenity and Child Pornography- Applicability of


Hicklin Test has been able to get its final shape with the support and help of people from
various quarters. My sincere thanks go to all the members without whom the study could not
have come to its present state. I am proud to acknowledge gratitude to the individuals during
my study and without whom the study may not be completed. I have taken this opportunity
to thank those who genuinely helped me.
In the completion of this project many people helped me directly and indirectly. First
of all I would like to thank my university i.e. CHANAKYA NATIONAL LAW
UNIVERSITY, PATNA, who gave me the idea and encouragement to venture into this
project.
I am grateful to our faculty of CYBER LAW who gave me the opportunity to make
a project on Obscenity and Child Pornography- Applicability of Hicklin Test.
Any sort of addition, alteration and criticism regarding our work is most welcome.
I have made every effort to acknowledge credits, but I apologies in advance for any
omission that may have inadvertently taken place.
Last but not least I would like to thank Almighty whose blessing helped me to
complete the project.

RESEARCH METHODOLOGY

AIMS & OBJECTIVES:


The aim of the project is to present a detailed study of Obscenity and Child PornographyApplicability of Hicklin Test through decisions and suggestions and different writings,
articles & reports.

SOURCES OF DATA:
The following secondary sources of data have been used in the project1. Articles
2. Books
3. Websites

METHOD OF WRITING:
The method of writing followed in the course of this research paper is primarily analytical.

INDEX

1. INTRODUCTION
2. MEANING AND DEFINITION OF CYBER CRIME
3. CLASSIFICATION OF CYBER CRIME
4. MEANING OF PORNOGRAPHY AND CYBER PORNOGRAPHY
5. CONCEPT OF CHILD PORNOGRAPHY
6. CHANGING NATURE OF OBSCENITY
7. REGINA Vs. HICKLIN
8. APPLICATION OF HICKLIN TEST
9. LEGAL

APPROACH

TO

LEGISLATIONS COMPARED
10. CONCLUSION
11. BIBLIOGRAPHY

CYBER

PORNOGRAPHY:

VARIOUS

INTRODUCTION
"What is illegal offline is illegal online"1, commented the Home Office on the present
state of obscenity and pornography in the backdrop of the Internet. The pornographic content
on the Internet calls for a separate category of content-related crimes 2 which are being
committed online. Aberrant activities on the Internet have given opportunities to the Internet
gurus to make lucrative clientele online in total disregard of its baneful effect on the social
and moral ethos of human society. Even countries like the US who are the flag holders of
freedom of thought and expression, abhor it vehemently as the fleeting images and the nature
of the Internet is such that while it is giving the most ideal situation to flourish, to maintain
privacy while resorting to such aberrant activities, providing it free of cost and providing it
in abundance, it is at the same time becoming difficult to put a halt to the nudity race.
Ironically enough, this strange offence has popularised the Internet among its users. Before
analysing the term Obscenity and Child Pornography, we must first understand what cyber
crime refers to. The offences which take place on or using the medium of Internet are known
as cybercrimes. These include a plethora of illegal activities. The term cybercrime is an
umbrella term under which many illegal activities may be grouped together. Because of the
anonymous nature of Internet, there are many disturbing activities occurring in the
cyberspace which may enable the perpetrators to indulge in various types of criminal
activities which are called as cyber crimes. The weapon with which cybercrimes are
committed is technology and therefore, the perpetrators of these crimes are mostly
technically skilled persons who have a thorough understanding of the Internet and computer
applications. Some of the newly emerged cybercrimes are cyber-stalking, cyber-terrorism, email spoofing, e-mail bombing, cyber-pornography, cyber-defamation etc. Some
conventional crimes may also be cybercrimes if they are committed through the medium of
Internet. For example theft, fraud, cheating, mischief, misrepresentation, intimidation etc.

A. Travis, Bound and Gagged: A Secret History of Obscenity in Britain (Profile Books, London
2000) 293.
2

Cybercrime Convention, 2001.

which are all punishable under the IPC, 1860. Thus, cybercrime means any unlawful act
wherein the computer is either a tool3, or a target4 or both.

MEANING AND DEFINITION OF CYBER CRIME


1. Information Technology Act 2000
As regards exact definition of cybercrimes, it has not been statutorily defined in any statute
or law as yet. Even the IT Act, 2000 does not contain the definition of cybercrime. However,
cybercrimes may precisely be said to be those species of crime in which computer is either
an object or a subject of conduct constituting the crime or it may be even both. Thus, any
activity that uses computer as an instrumentality, target or a means for perpetrating further
crime, falls within the ambit of cybercrime.
2. Prof. S.T. Viswanathan
He has given three possible definitions of cyber crimes and these are as follows:
a. Any illegal action in which a computer is the tool or object of the crime i.e. any
crime, the means or purpose of which is to influence the function of a computer,
b. Any incident associated with computer technology in which a victim suffered or could
have suffered loss and a perpetrator, by intention, made or could have made a gain,
c. Computer abuse is considered as any illegal, unethical or unauthorized behavior
relating to the automatic processing and transmission of data.5

3. UN Congress on Prevention of Cyber Crime and Treatment of Offenders


Cybercrime as defined internationally by the UN Congress on Prevention of Cyber Crime
and Treatment of Offenders6 comprises of following 2 categories:

Cybercrimes which involve computer as a tool are usually modification of conventional crimes such
as drug-trafficking, on-line gambling, financial fraud or forgery, cyber defamation, pornography,
intellectual property crimes, cyber-stalking, spoofing etc.
4
Nandan Kamath, Dealing with Cyber Crime, Chartered Secretary, July, 2003, p. 201
5
S.T. Viswanathan, The Indian Cyber Laws with Cyber Glossary, 2001, p. 81.
6
Tenth UN Congress on Prevention of Crime & Treatment of Offenders was held in Vienna on April
10-17, 2000.

i. Narrow sense: cybercrimes in a narrow sense connotes a computer crime and


includes any illegal behavior directed by means of electronic operations that targets
the security of the computer systems and the data processed by them.
ii. Broader sense: cybercrime in broader sense includes all computer related crimes
and consists of any illegal behavior committed by means of, or in relation to, a
computer system or network, including such crimes as illegal possession and offering
or distributing information by means of a computer system or network.

CLASSIFICATION OF CYBER CRIME


Cyber crime could be classified into various categories depending upon its nature.
However, here we concentrate upon the category of cyber crime which revolves around its
subject which also could be termed as the victim.
Depending upon the victim of cyber crime, it may be broadly classified under the
following three heads:
i.

Against Individuals
Under this category it can be against individuals or against individual property
through different means.

ii.

Against organizations

iii.

Against society at large


The crimes basically affect the society at large and the same is executed in the form
of
a. Pornography
b. Indecent exposure
c. Trafficking
d. Financial crimes
e. Sale of illegal articles
f. Online gambling
g. Forgery
It is pertinent to note that Cyber obscenity and pornography have at times also been

classified under the head social cyber crime, keeping in mind its nature.

MEANING OF PORNOGRAPHY AND CYBER


PORNOGRAPHY
Pornography7 (often abbreviated as "porn" or "porno" in informal usage) is
the explicit portrayal of sexual subject matter for the purpose of sexual arousal. Pornography
may use a variety of media, including books, magazines, postcards, photos, sculpture,
drawing, painting, animation, sound recording, film, video, and video games. The term
applies to the depiction of the act rather than the act itself, and so does not include live
exhibitions like sex shows and striptease. A pornographic model poses for still photographs.
A pornographic actor or porn star performs in pornographic films. If dramatic skills are not
involved, a performer in porn films may be also be called a model.
Pornography is often distinguished from erotica, which consists of the portrayal of
sexuality with high-art aspirations, focusing also on feelings and emotions, while
pornography involves the depiction of acts in a sensational manner, with the entire focus on
the physical act, so as to arouse quick intense reactions.8 9
Pornography has often been subject to censorship and legal restraints to publication
on grounds of obscenity. Such grounds and even the definition of pornography have differed
in various historical, cultural, and national contexts. 10 With the emergence of social attitudes
more tolerant of sexuality and more specific legal definitions of obscenity, an industry for
the production and consumption of pornography arose in the latter half of the 20th century.

Greek: porneia, fornication


William J. Gehrke (1996-12-10). "Erotica is Not Pornography". The Tech.
9
"h2g2 - What is Erotic and What is Pornographic?". BBC.co.uk. 2004-03-29. Retrieved 2012-01-14
10
H. Mongomery Hyde (1964) A History of Pornography: 126
8

The introduction of home video and the Internet saw booms in a worldwide porn industry
that generates billions of dollars annually.
Meaning of Cyber Pornography
Morality has sociological and psychological aspects. Morality is individuals
perception due to which human beings accept certain things as good and reject certain things
as bad in society. It is dynamic with dynamic society. It varies from person to person and
society to society. What is immoral for one is not so to other or in other society. There is no
yardstick to determine what things are moral and what are immoral.11
Therefore, it is left to the judiciary as reasonable and prudent repository of
moral standard in society. Law and morality are closely related. When there is synthesis
between them in society, there will be no conflict and society will progress smoothly and
fast. But all morals are not enforceable by law rather we have to make a balance and accept
shared morality.
We have freedom of speech and expression under the Constitution 12 but reasonable
restriction is imposed on it to maintain decency and morality. 13 Again restrictions imposed
by the IPC, 1860 provide for offences against morality, decency, privacy, law and order. 14
Therefore, obscenity is prohibited. In the era of information technology it is prohibited by
the IT Act, 2000.15
In Life Insurance Corporation of India v. Prof. M.D. Shah,16 the court held that this
freedom is basic and fundamental right of individuals which they acquire by virtue of birth
as human beings, and in a democratic country any attempt to gag this right except under
Art.19 (2) is violation of democracy and Art.19 (1) (a).
The first World Congress was held in August 1996 at Stockholm. The prime issue of
the Congress was Commercial Sexual Exploitation of Children. The Congress discussed
about visual or audio material which exploit children sexually. Due to easy access to
worldwide web through new multimedia technology, cyber pornography and other cyber
11

M.K. Nagaraja, Cyberporn Crimes: An Analytical Approach to Investigation, CBI Bulletin, July
2000, p. 25
12
The Constitution of India; Article 19 (1) (a)
13
Ibid., Article 19 (2)
14
The Indian Penal Code, 1860; Section 292, 293, 499, 502, 502A, 509
15
The Information Technology Act, 2000; Section 67, 67A
16
AIR 1993 SC 171; (1992) 3 SCC 637; JT 1992 (4) SC 181

crimes are increasing every moment. These pose a complex challenge for the legislation and
law enforcing agencies worldwide. It became very easy to use, distribute or sell
pornographic materials. These acts affect moral and psychological growth of society.
The United States of America (USA), the United Kingdom (UK), Canada, Russia,
Australia, India and other countries worldwide are raising their voice to fight against cyber
pornography which corrupt mind of young people and others who are sensitive to these. It
demonises our socio-moral values, culture and taboos.
In contemporary social phenomenon live sex, video clip, MMS clip etc. are also
increasing day by day in Indian society be it Dr. Prakash, Delhi Bal Bharati School, Delhi
Public School, Mr. Kulkarni in Pune, Nilmani Halder, Orkut controversy in Kolkata at
Jadavpur, Bollywood actress Mallika, Kareena or Prettys case. The list is not exhaustive.
The Wolfenden Committees Report 195717 of the United Kingdom recommended that
prostitution as well as homosexual activities done in private between two consenting adults
are not crime though immoral. Professor J.S. Mill in his book on Liberty 18 says that unless
there is harm to others in the society, State must not interfere with individuals right or
liberty. Even H.L.A Hart and Lord Devlins debate 19 concluded with the shared morality,
which we require for balancing democracy as well as morality in society.
Thus in India there is no exact or particular definition of obscenity. There is
possibility that simply sexually explicit content is obscene in one country but it may not be
considered as obscene in another country. Pornography on the Internet is available in
different formats. It is difficult to limit the availability of pornographic content on the
Internet. There are pictures, videos, animated movies, sound files etc are easily available on
internet. People use internet to discuss sex, see live sex acts, and arrange sexual activities
from computer screens. Although the Indian Constitution guarantees the fundamental right
of freedom of speech and expression, it has been held that a law against obscenity is
constitutional. The Supreme Court has defined obscene as offensive to modesty or decency;
lewd, filthy, repulsive.

17

Report of the Committee on Homosexual Offences and Prostitution, 1957, London, Her Majestys
Stationary Office, Reprinted 1968, 11s. 0d. Net
18
Basil Mitchell, Law, Morality, and Religion in Secular Society, Oxford University Press, London,
1967
19
H.L.A. Hart, Law, Liberty and Morality, Oxford University Press, London, 1963.

In India the Information Technology Act, 2000 covers cyber pornography.


According to section 67 of the IT Act Whoever publishes or transmits or causes to be
published in the electronic form, any material which is lascivious or appeals to the
prurient interest or if its effect is such as to tend to deprave and corrupt persons who are
likely, having regard to all relevant circumstances, to read, see or hear the matter
contained or embodied in it, shall be punished on first conviction with imprisonment of
either description for a term which may extend to five years and with fine which may
extend to one lakh rupees and in the event of a second or subsequent conviction with
imprisonment of either description for a term which may extend to ten years and also with
fine which may extend to two lakh rupees.

CONCEPT OF CHILD PORNOGRAPHY


Child pornography refers to pornography depicting sexually explicit activities
involving

a child.20 It

may

use

variety

of

media, including writings,21 magazines, photos, sculpture, drawing, cartoon, painting, animat
ion, sound recording,22 film, video, and video games. Child pornography is divided
into simulated child pornography and pornography which was produced with direct
involvement of the child (also known as child abuse images23). Abuse of the child occurs
during the sexual acts which are recorded in the production of child pornography.24
Ninety-four of 187 Interpol member states had laws specifically addressing child
pornography as of 2008, though this does not include nations that ban all pornography. 25 Of
those 94 countries, 58 criminalized possession of child pornography regardless of intent to
distribute. Both distribution and possession are now criminal offenses in almost all Western
20

Finkelhor, David. "Current Information on the Scope and Nature of Child Sexual Abuse.". Future of
Children. v4 n2 (SumFall 1994): p3153.
21
Akdeniz, Yaman (2008). Internet child pornography and the law: national and international
responses. Ashgate Publishing, Ltd. p. 11. ISBN 0-7546-2297-5.
22
Akdeniz, Yaman (2008). Internet child pornography and the law: national and international
responses. Ashgate Publishing, Ltd. p. 153. ISBN 0-7546-2297-5.
23
Wortley, Richard; Stephen Smallbone (2006). Situational Prevention Of Child Sexual Abuse,
Volume 19 of Crime prevention studies. Criminal Justice Press. p. 192.ISBN 1-881798-61-5.
24
Agnes Fournier de Saint Maur (January 1999). "Sexual Abuse of Children on the Internet: A New
Challenge for INTERPOL" (PDF). Expert Meeting on Sexual Abuse of Children, Child Pornography
and Paedophilia on the Internet: an international challenge. UNESCO (United Nations Educational,
Scientific and Cultural Organization).
25
Child Pornography: Model Legislation & Global Review, 2008

countries. A wide movement is working to globalize the criminalization of child


pornography, including major international organisations such as the United Nations and the
European Commission.
Legal definitions of child pornography generally include sexual images involving
prepubescents and pubescent or post-pubescent minors and computer-generated images that
appear to involve them.26 Most possessors of child pornography who are arrested are found
to possess images of prepubescent children; possessors of pornographic images of postpubescent minors are less likely to be prosecuted, even though those images also fall within
the statutes.
Producers of child pornography try to avoid prosecution by distributing their material
across national borders, though this issue is increasingly being addressed with regular arrests
of suspects from a number of countries occurring over the last few years. 27 The prepubescent
pornography is viewed and collected by pedophiles for a variety of purposes, ranging from
private sexual uses, trading with other pedophiles, preparing children for sexual abuse as part
of the process known as "child grooming", or enticement leading to entrapment for sexual
exploitation such as production of new child pornography or child prostitution.28 Child
pornography is illegal and censored in most jurisdictions in the world.29

26

Wells, M.; Finkelhor, D.; Wolak, J.; Mitchell, K. (2007). "Defining Child Pornography: Law
Enforcement Dilemmas in Investigations of Internet Child Pornography Possession" (PDF). Police
Practice and Research 8 (3): 269282.doi:10.1080/15614260701450765. Retrieved 2008-07-01.
27
"Child porn among fastest growing internet businesses". National Center for Missing and Exploited
Children, USA. 2005-08-05. Retrieved 2008-03-13.
28
Crosson-Tower, Cynthia (2005). Understanding child abuse and neglect. Allyn & Bacon.
p. 208. ISBN 0-205-40183-X.
29
"World Congress against CSEC". Csecworldcongress.org. 2002-07-27. Retrieved 2012-01-07.

CHANGING NATURE OF OBSCENITY


Of all the crimes being committed on the Internet, obscenity appears to be the one
which has serious moral implications and it is the form of information that has increased in
economic value in our network environment. It is said that the pornography industry has
been estimated to contribute some $20 billion annually to the global economy.30 While the
other cybercrimes threaten the very credibility of the Internet, cyber pornography promotes
the use of the Internet.31 Apart from general obscenity or pornographic material, there is also
specified pornography such as child pornography which has increased multifold with the
advent of information technology. The Council of Europe Convention on Cybercrime in its
Preamble declares that it considers and gives importance to the 1989 United Nations
Convention on the Rights of the Child and the 1999 International Labour Organisation Worst
Forms of Child Labour Convention and it also aims at the "protection of society against
cybercrime".32 Thus, it has deliberated on the subject of child pornography and under Article
933, has urged the Member States to legislate on it rendering child pornography a criminal
offence. The article defines child pornography as including pornographic material which
shows:
a. A minor engaged in a sexual act.
30

Quoted in "Cashing on Porn Boom" BBC News, 5-7-2001.

31

Vivek Sood, Chap 2 "Cyber Crime and Criminal Justice: Penalties, Adjudication and Appeals
Under the IT Act, 2000" in Cyber Law Simplified (Tata McGraw-Hill Publishing Co. Ltd., New Delhi
2001) 70.
32

PreambleThe
23-11-2001).
33

Council

of Europe

Convention

Art. 9, cl. 1Offences related to child pornography.

on

Cybercrime

(Budapest

b. A person shown as a minor and engaged in a sexual act.


c. "Realistic images" of a minor engaged in a "sexually explicit act".
The definition remarkably upholds gender equality in this respect as it includes
within the word "minor" not only females but males as well, as it uses the words "all persons
under 18 years of age". Generally speaking, women are the object of physical exploitation or
a symbol of sex but child pornography rightly upholds the right to decency of all children
whether male or female, hence the definition is in right direction. Article 9 regards following
activities or conduct when done intentionally and without right as a criminal offence:
I. Production and distribution of child pornography through a computer system.
II. Presentation and depiction of child pornography through a computer system.
III. Distribution and transmission of child pornography through computer system.
IV. Procuring child pornographic material for one's self for others.
V. Possession of child pornography in any electronic form through the computer data
storage medium.
Thus the offence has two main ingredients:
1. The conduct which is inclusive of production, presentation, distribution,
transmission, procuring or possession of child pornographic material.
2. The medium which has to be a "computer system".
It is interesting to note, however, that "viewing" is not included in the criminal conduct
which keeps viewing out of the purview of criminality. However, in the term "procuring",
downloading of the child pornographic matter may be deemed included. Moreover, the use
of the terms "computer system" ultimately covers not only the matter received through the
medium of the Internet but even the storage of such pornographic material in a stand alone
computer without the Internet connection. Thus, the Council of Europe Convention on
Cybercrime comprehensively covers the offence of online child pornography.
Diversity exists among nations regarding illegality of pornography while majority of
countries regard child pornography as illegal. Moreover, cultural, moral and legal variations
make it difficult to define "pornographic content" in a global society. 34 Perhaps all the crimes
34

Y. Akdeniz, "Governance of Pornography and Child Pornography on the Global Internet: A MultiLayered Approach" in L. Edwards and C. Waelde (Eds.). Laiv and the Internet: Regulating
Cyberspace (Hart Publishing, UK 1997).

bearing a moral turpitude face the same difficulties when they are judged at the international
level, for example, prostitution is regarded in some countries as a source of earning foreign
exchange and thus, attracting foreign tourists and selling one's body for sexual use by others
for monetary gains, and is promoted as an industry while in countries like India, it is an
offence.35 Similarly, the debate over obscene material on the Internet is contentious because
the governing laws differ drastically. For example, in Britain, individuals regularly consume
images that might be classed as obscene in many Middle Eastern countries. In seeking to
clarify this issue, the European Commission's Green Paper on the protection of minors and
human dignity in audio-visual and information services (1998) highlighted the need to
distinguish between illegal acts, such as child pornography, which are subject to penal
sanctions and children gaining access to sites with pornographic content, which is not illegal
but may be deemed as harmful for children's development. Nonetheless, differences in
classification between countries create problems when information of a seemingly
pornographic content is internationally transmitted via the Internet.36
Cyber obscenity
Technology and its proliferation expanded the ambit of the crime of obscenity.
Today, pornographic material is freely and readily available on the Internet thus bringing the
glut of such material to the common vision with great ease and for no value. Ramifications
of such a crime are equally great. The Carnegie Mellon Study, though methodologically
flawed, showed that at least half of Internet content was related to pornography and media
attention was widely drawn which showed the genesis of the first Internet moral panic. 37
Another project by Mehta and Plaza38 in 1994, analysed the content of pornography on the

35

Cybercrime Convention, 2001, 72.

36

These are: the European Union (EU), the Council of Europe (COE), and the G8. Certain other
organisations like the Organisation for Economic Cooperation and Development (OECD), the United
Nations, Interpol and Europol are also involved to a lesser extent. Richard A. Wright &C J. Mitchell
Miller (Eds.), Encyclopedia of Criminology, Vol I (A-G) (Routledge, New York 2005) 215.
37

M. Rimm, "Marketing Pornography on the Information Superhighway": A survey of 9,17,410


images, descriptions, short stories and animations downloaded 8.5 million times by consumers in
over 2000 cities, in 40 countries, provinces and territories, (1995) 83 Geo LJ 1849
38

M.D. Mehta and E. Plaza Dwaine, "Content Analysis of Pornographic Images Available on the
Internet" in The Information Society, (1997) 13, 2: 153-162, original study presented in October 1994

Internet and yet another study on the newsgroups by Harmon and Boeringer39 in 1997, shows
the ease with which the pornographic material on the Internet is accessed and viewed.
Pornography is available on the Internet in different formats whether that is short animated
movies, sound files or textual stories.40 Thus, cyber pornography refers to stimulating sexual
or other erotic activity over the Internet.41 This includes pornographic websites, pornographic
magazines produced using computers to publish and print the material and the Internet to
download and transmit pornographic pictures, photos, writings, etc. Recent reports show that
online pornography industry is growing at an alarming rate. 42 Hard-core pornography including material aimed at pedophiles has earned a bad reputation for the Internet. On the
Internet, there is general pornography or other sexual material which is not illegal for adults
to access, but there is a specific category of pornography called child pornography which is
legally forbidden by almost all the legal systems including US, UK and India. It is illegal for
adults to read or view child pornography. 43 It is this area of pornography which is stringently
treated by legislation almost universally.

39

D. Harmon and S. Boeringer, "A Content Analysis of the Internet-Accessible Written Pornographic
Depictions"
Electronic
Journal
of
Sociology,
31,
<http://
www.sociology.org/content/vol003.001/boeringer,html>
40

Y. Akdeniz, "Governance of Pornography and Child Pornography on the Global Internet: A MultiLayered Approach" in L. Edwards and C. Waelde (Eds.), Law and the Internet: Regulating
Cyberspace (Hart Publishing, UK 1997)
41

E-bhasin, "The Internet Service", <http://www.ebhasin.com/bonline/profaqs.htm>

42

In a 2002 report, online pornography industry generated approximately $1 billion annually with
growth projections to $5-7 billion over the next five years. Almost 74 per cent of adult commercial
sites display free teaser porn images on homepage. Children viewing online pornography is all the
more shocking. Nine out of ten kids who are 8-16 years old have viewed porn online, mostly
accidentally while doing homework. As much as 26 popular children's characters, such as Pokemon,
My Little Pony and Action Man, revealed thousands of links to porn sites out of which 30 per cent
were hardcore. Source: <http://www.enough.org/alarmingfacts.htm> as quoted in S.K. Verma &;
Raman Mittal (Eds.), Legal Dimensions of Cyberspace (Indian Law Institute, New Delhi 2004) 237
43

"Cyber Crime: High Tech Crime 5.1 Pornography Overview", JISC Legal Information Service

REGINA Vs. HICKLIN44


The Hicklin test is a legal test for obscenity established by the English case Regina
v. Hicklin (1868). At issue was the statutory interpretation of the word "obscene" in the
Obscene Publications Act 1857, which authorized the destruction of obscene books.45 The
court held that all material tending "to deprave and corrupt those whose minds are open to
such immoral influences" was obscene, regardless of its artistic or literary merit.46
The modern English law of obscenity began with the Obscene Publications Act 1857,
also known as Lord Campbells Act.47 Lord Campbell, the Chief Justice of Queen's Bench,
introduced the bill, which provided for the seizure and summary disposition of obscene and
pornographic materials. The Act also granted authority to issue search warrants for premises
suspected of housing such materials.48
Regina v. Hicklin involved one Henry Scott, who resold copies of an anti-Catholic
pamphlet entitled "The Confessional Unmasked: shewing the depravity of the Romish
priesthood, the iniquity of the Confessional, and the questions put to females in confession."
When the pamphlets were ordered destroyed as obscene, Scott appealed the order to the
court of Quarter Sessions. Benjamin Hicklin, the official in charge of such orders
44

L.R. 3 Q.B. 360 (1868).


Robert H. E. Bremmer (1 January 1971). Children and youth in America: a documentary history.
1866 - 1932. Harvard University Press. p. 231. ISBN 978-0-674-11612-2. Retrieved 30 September
2011.
46
Craig R. Ducat (29 February 2008). Constitutional Interpretation: Rights of the individual. Cengage
Learning. p. 540. ISBN 978-0-495-50324-8. Retrieved 30 September 2011.
47
Miriam A. Drake (2003). Encyclopedia of Library and Information Science: Abs-Dec. CRC Press.
p. 470. ISBN 978-0-8247-2077-3. Retrieved 30 September 2011.
48
Wayne C. Bartee; Alice Fleetwood Bartee (1992). Litigating morality: American legal thought and
its English roots. Greenwood Publishing Group. pp. 6465. ISBN 978-0-275-94127-7. Retrieved 30
September 2011.
45

as Recorder, revoked the order of destruction. Hicklin held that Scott's purpose had not been
to corrupt public morals but to expose problems within the Catholic Church; hence, Scott's
intention was innocent.The authorities appealed Hicklin's reversal, bringing the case to the
consideration of the Court of Queen's Bench.
Chief Justice Cockburn, on April 29, 1868, reinstated the order of the lower court,
holding that Scott's intention was immaterial if the publication was obscene in fact. Justice
Cockburn reasoned that the Obscene Publications Act allowed banning of a publication if it
had a "tendency ... to deprave and corrupt those whose minds are open to such immoral
influences, and into whose hands a publication of this sort may fall." Hicklin therefore
allowed portions of a suspect work to be judged independently of context. If any portion of a
work was deemed obscene, the entire work could be outlawed.
Adoption of obscenity laws in the United States was largely due to the efforts
of Anthony Comstock. Comstock's intense lobbying led to the passage in 1873 of an antiobscenity statute known as the Comstock Act. Comstock was appointed postal inspector to
enforce the new law.49 Twenty-four states passed similar prohibitions on materials
distributed within the states.50 The law criminalized not only sexually explicit material, but
also material dealing with birth control and abortion. 51 Although lower courts in the U.S. had
used the Hicklin standard sporadically since 1868, it was not until 1879, when prominent
federal

judge Samuel

Blatchford upheld

the

obscenity

conviction

of D.

M.

Bennett using Hicklin, that the constitutionality of the Comstock Law became firmly
established.52 In 1896, the Supreme Court in Rosen v. United States, 161 U.S. 29 (1896),
adopted the Hicklin test as the appropriate test of obscenity.
However, in 1957, the Supreme Court ruled in Roth v. United States, 354 U.S. 476 (1957)
that the Hicklin test was inappropriate.53 In Roth, Justice Brennan, writing for the majority,
noted that some American courts had adopted the Hicklin standard, but that later decisions
49

Michael J. Rosenfeld (2007). The age of independence: interracial unions, same-sex unions, and
the changing American family. Harvard University Press. p. 28. ISBN 978-0-674-02497-7. Retrieved
17 October 2011.
50
Kevles, Daniel J. (July 22 2001). "The Secret History of Birth Control". The New York Times.
Retrieved 2006-10-21.
51
Joan Axelrod-Contrada (September 2006). Reno v. ACLU: Internet censorship. Marshall
Cavendish. pp. 2021. ISBN 978-0-7614-2144-3. Retrieved 17 October 2011.
52
Janice Ruth Wood (2008). The struggle for free speech in the United States, 1872-1915: Edward
Bliss Foote, Edward Bond Foote, and anti-Comstock operations. Psychology Press. pp. 43
45. ISBN 978-0-415-96246-9. Retrieved 17 October 2011.
53
Robert L. Hilliard; Michael C. Keith (2007). Dirty discourse: sex and indecency in broadcasting.
Wiley-Blackwell. p. 5. ISBN 978-1-4051-5053-8. Retrieved 17 October 2011.

more commonly relied upon the question of "whether to the average person, applying
contemporary community standards, the dominant theme of the material taken as a whole
appeals to prurient interest."54 This Roth test became essentially the new definition of
obscenity in the United States.55
Thus in Regina v. Hicklin,56 Lord Cockburn observed that think the test of obscenity is this,
whether the tendency of the matter charged as obscene is to deprave and corrupt those,
whose minds are open to such immoral influences and into whose hands a publication of this
sort may fall. This is popularly known as Hicklin test.

54

"Roth v United States, 354 U. S. 476 : Volume 354 : 1957 : Full Text : US Supreme Court Cases
from Justia & Oyez". Retrieved 2011-10-17.
55
Robert D. Richards (1 September 1994). Uninhibited, robust, and wide open: Mr. Justice
Brennan's legacy to the First Amendment. Parkway Publishers, Inc. pp. 4951. ISBN 978-09635752-4-1. Retrieved 17 October 2011.
56
Regina v. Hicklin, [1868] 3 LR QB 360; See also Uttam Singh v. The State (Delhi Administration),
(1974) 4 SCC 590

APPLICATION OF HICKLIN TEST


A thin line demarcates between something which is obscene and something which is
a piece of art or creativity. Obscenity is regarded as an offence as it drives a human to
commit a crime which he would not have committed had he not encountered the disputed
obscene material. The lecherous material arouses the baser instincts in a human being and
corrupts his judgment so much so that he forgets the standards of decency and morality
which are the gifts of civilisation and hence, the unnatural act got listed among crimes. Thus,
as per Cockburn CJ in R. v. Hicklin57 in 1868, the test of obscenity is
...whether the tendency of the matter charged as obscene is to deprave and
corrupt those whose minds are open to such immoral influences, and into
whose hands a publication of this sort may fall.58
The
(Ranjit D.

Supreme

Court

of India

in

Ranjit D. Udeshi v. State of Maharashtra59

Udeshi), has observed that the test of obscenity laid down by Cockburn CJ

should not be discarded. It has held that the test of obscenity to adopt in India is that
obscenity without preponderating social purpose or profit cannot have the constitutional
protection of free speech and expression, and obscenity is treating sex in a manner appealing
to the carnal side of human nature or having that tendency. The obscene matter in a book
must be considered by itself and separately to find out whether it is so gross and its obscenity
so decided that it is likely to deprave and corrupt those whose minds are open to influences
of this sort and into whose hands the book is likely to fall.60
57

(1868) LR 3 QB 360, 371


Ibid. It is also confirmed by the Supreme Court of India and various High Courts in several cases:
Thakur Dtttt er Devi Chand, (1917) PR No. 25 of 1917; Ghulam Husain, (1916) PR No. 5 of 1917;
Sree Ram Saksena v. Emperor, ILR (1940) 1 Cal 581; Ranjit D. Udeshi v. State of Maharashtra, AIR
1965 SC 881: (1965) 2 Cri EJ 8.
59
AIR 1965 SC 881: (1965) 2 Cri EJ 8
60
M. Hidayatullah J & R. Deb (Eds.), Ratanlal & Dhirajlal's the Indian Penal Code (26th Edn.
Wadhwa & Co. (P) Ltd., Nagpur 1987) 259.
58

Section 292, IPC regards the sale, etc. of obscene material as an offence and for such
purposes, regards certain books, pamphlets and other mediums as obscene if these contain
the kind of matter as described in Section 292(1).61 The wording of the section does not contain definition of the term "obscene" and thus it is totally left to the courts to explain the
connotation of the term.
Section

292 achieves the object of freedom of speech and expression

enshrined in Article 19(i)(a) of the Constitution of India which aims at upholding the values
of public decency and morality. In Ranjit D. Udeshi62, the court said that the freedom under
Article 19(i)(a) is recognised as a means of social change, for advancement of human
knowledge and it is not so expansive as to include within it, expressions or depictions of all
sorts, indecent or obscene. Thus Section 292, by making indecent expressions as a
punishable offence, merely supplements the constitutional provisions under Article 19(i)(a)
read with clause 2 of the same article. The restrictions therefore on ground of decency and
morality are constitutional.
In Chandrakant Kalyandas Kakodkar v. State of Maharashtra63, the Supreme Court
ruled that the concept of obscenity would differ from country to country on the standard of
morals of contemporary society and recognised that in India, the standards of contemporary
society are fast changing. The court said that it is the class and not an isolated case into
whose hands the book, article or story falls, suffer in their moral outlook or become deprave
by reading it or might have impure and lecherous thoughts aroused in their minds.
The court later held in Samaresh Bose v. Amal Mitra64, that in order to constitute an
offence under Section 292 IPC, the obscene matter must be so grossly indecent that it is
prone to deprave and corrupt the mind of those who come across it. More importantly, the

61

292(1).For the purposes of sub-s. (2), a book, pamphlet, paper, writing, drawing, painting,
representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals
to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of
any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are
likely, having regard to all relevant circumstances, to read, see or hear the matter contained or
embodied in it.
Sub-s. (2) of S. 292 from sub-els, (a) to (e) enumerates the various activities which will come within
the mischief of the section and are thus punishable accordingly.
62
AIR 1965 SC 881: (1965) 2 Cri LJ 8
63
(1969) 2 SCC 687
64
(1985) 4 SCC 289

court also held that obscenity is an extremely subjective concept and may differ not only
from society to society but also from Judge to Judge and though the Judge may apply his
wisdom dispassionately; his mind may affect the verdict unconsciously. 65
In UK, the Hicklin test dominated the legal circles until 1954 and slowly and
gradually, public opinion towards sex became liberal and its horizons broadened so much so
that Stable J observed in R. v. Martin Seeker & Warburg Ltd.66, that the Hicklin test should
be applied keeping in mind present day standards, taking into account the prevailing attitude
towards sex. The change in attitude led to the passing of the Obscene Publications Act, 1959
in which under Section z, obscenity is described in the following words:
For the purpose of this Act, an article shall be deemed to be obscene if its effect
...taken as a whole, such as to tend to deprave and corrupt persons who are likely, having
regard to all relevant circumstances, to read, see or hear the matter contained or embodied in
it.
In the US, the Hicklin test was abandoned in 1933 in United States v. One Book
Entitled Ulysses by James Joyce67. Moreover, in US, obscenity is not an area of
constitutionally protected speech or press.68 In 1973, the US Supreme Court issued the
following test:
(a) whether the average person, applying contemporary community69 standards
would find that the work, taken as a whole, appeals to the prurient interest ...
(b) whether the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law; and

65

In Bobby Art International v. Om Pal Singh Hoon, (1996) 4 SCC 1, the Apex Court has justified
even the nude scenes in the movie as it was necessary to show the atrocities committed on the
young village girl which shattered her psyche and which ultimately led her to take the course of
revenge. Thus, through nudity in movies in normal circumstances may be regarded as obscene, in
the given surroundings as in the case of Bandit Queen, it is justified.
66
(1954) 1 WLR 1138, cited in, H.C. Dhokalia, Right to Freedom of Speech and Expression in India,
167
67
72 F 2d 705
68
Roth v. United States, 354 US 476, 484: 1 L Ed 2d 1498 (1957) ([I]implicit in the history of the First
Amendment is the rejection of obscenity as utterly without redeeming social importance.)
69
Defining the relevant "community" to determine patent oftensiveness and appeal to prurient
interest is that which appeals to shameful or morbid interest in sex. See, Brockett v. Spokane
Arcades Inc., 472 US 491: 86 L Ed 2d 394: 105 S Ct 2794 (1985)

(c) whether the work, taken as a whole, lacks serious literary, artistic, political or
scientific value.70
As Stevens J (dissenting) pointed out in Smith v. United States71 that
"In my judgment, the line between communications which 'offend'
and those which do not is too blurred to identify criminal conduct."
The concept of obscenity is an extremely relevant one. The community as such does
not always correspond to a geographic area. A non-geographic standard may, for example,
be applied to radio and television broadcasts.72 However, in US, an individual has the right to
possess obscene materials in the privacy of his or her own home. 73 Thus, what the State
restricts is the dissemination or publication of an offending material and not more. Up to five
years' imprisonment is prescribed for knowing interstate or foreign transport of any obscene,
lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print,
silhouette, drawing, figure, image, cast, phonographic recording, electrical transcription, or
other article capable of producing sound or any other matter of indecent or immoral
character.74

Indian law and English law compared


The traditional English Law for long regarded obscenity as a mere libel but the
Obscene Publications Act, 1959 (later supplemented and amended respectively by the
Obscene Publications Act, 1964 and the Criminal Law Act, 1977) now governs obscenity.
Under Section 2(5) of the said Act, defence of ignorance is available to the accused and he
can show that he had not examined the objectionable article. The Indian law, however,
divides the liability regarding the offence of obscenity. Under Section 292, as regarding the
offence of obscenity, knowledge of the objectionable matter is not regarded as an ingredient
70

Miller v. California, 413 US 15: 37 L Ed 2d 419 (1973)


431 US 291, 313-16: 52 L Ed 2d 324 (1977)
72
See, Sagittarius Broadcasting Corpn., re, 7 FCC Red 6873 (1992) (non-geographical standard
applied for measuring whether Howard Stern broadcast was patently offensive). As mentioned in
supra, n. 58, 181.
73
"If the Eirst Amendment means anything, it means that a State has no business telling a man,
sitting alone in his own house, what book he may read or what films he may watch. Our whole
constitutional heritage rebels at the thought of giving government the power to control men's minds."
Stanley v. Georgia, 394 US 557, 565: 22 L Ed 2d 542 (1972)
74
S. 1465.
71

of crime but in case of selling or keeping the objectionable matter, mens rea is required to be
proved. This was stated by the Supreme Court of India in Ranjit D. Udeshi75, in which it was
stated that to escape liability, the accused will have to prove his lack of knowledge. Here, the
English law and Indian law are the same. Moreover, both the laws as under Section 4(1) of
the Obscene Publications Act, 1959 and under exception clause of Section 292, IPC
publications for public good are exempted from the mischief of the respective sections. The
US Supreme Court in Roy Splawn v. State of California76, has taken the same view.
Moreover, in India, as regarding exhibition of films, a certificate granted by the Censor
Board is a good defence by virtue of Section 79 IPC. Thus traditional obscenity laws,
whether in India, UK or US, circumscribe the guilt to an area where the objectionable matter
is not aimed at achieving public good or where it is not a piece of art, etc. None of the laws
come up with a definite definition of the term "obscenity".

75
76

AIR 1965 SC 881: (1965) 2 Cri LJ 8


1978 Cri LJ 1385: 52 L Ed 2d 606 (1977)

LEGAL APPROACH TO CYBER PORNOGRAPHY:


VARIOUS LEGISLATIONS COMPARED
A. UK
In the traditional UK legislation, it is not an offence to possess obscene material in
private as long as there is no attempt to publish, distribute or show it to others. But as
regards, child pornography possession as well as circulation is criminalised. The Criminal
Justice Act, 1988 [S. 160] makes it an offence for a person to have any indecent photograph
of a child in his possession. English obscenity laws, amended in 1994, address computerrelated activities in this area. Thus in 1994, the Criminal Justice and Public Order Act
amended the Protection of Children Act, 1978 and the Criminal Justice Act, 1988, to extend
offences in relation to the distribution and possession of indecent photographs of children to
the concept of pseudo-photographs created through the use of digital images [S. 84]. 77 It also
widened the definition of a publication to include a computer transmission which led to the
prosecution of Fellows and Arnold in R. v. Fellows78 and R. v. Arnold in I996.79 While
countries may differ in their definition of the term "obscenity" or "pornography" depending
on the standard of morals existing in a particular community, almost all the legal systems do
have a common conviction in drawing a distinction between "mainstream pornography"
which is lawful and "child pornography" which is considered illegal.
The courts in UK have also applied the existing legal provisions to the latest
activities on the Internet in this field. In R. v. Bowden80 a court held that downloading and
printing images from the Internet fell within the concept of making, as the term "applies not

77

Ian Walden, Chap 9 "Computer Crime" in Chris Reed (Ed.), Computer Law (3rd Edn. Oxford
University Press, 2003) 300. See also, recommendations made by the Home Affairs Committee of
the House of Commons "Computer Pornography" (1st Session Report, 1993-94 HC No. 126)
78
(1997)2 All ER 548 (CA)
79
Suresh T. Viswanathan, "The Criminal Aspect in Cyber Law" in Indian Cyber Law (2001) 216
80
(2000) 1 Cri- App R 438, 444, per Otton LJ

only to original photographs but ... also to negatives, copies of photographs and data stored
on computer disc".81
Again while applying the Protection of Children Act, 1978 and Criminal Justice Act,
1988, issue regarding cache copies came up before the court. In Atkins and Goodland v.
Director of Public Prosecutions82 the pornographic material was contained in the cache
memory of the defendant's machine which are generally created and stored automatically by
the browser software and the user is unaware of the activity. As the prosecution failed to
prove that the defendant was aware of the cache copies, the conviction could not be upheld
in appeal as the court ruled that, knowledge of the offending material on the part of the
defendant was necessary to make him liable under Section 1(1) of the Protection of Children
Act, 1978 or under Section 160 of the Criminal Justice Act, 1988.83
Similar issue came up before the court in R. v. Westgarth Smith and Jayson84, the
prosecution was able to prove that the defendant was aware of the caching function within
his browser software and the court held that the mere "act of voluntarily downloading an
indecent image from a web page on to computer screen is an act of 'making' ". Section 7(4)
(b) of the Protection of Children Act, 1978 recognises as publications, photographs stored on
computers and even pseudo-photographs, digitally-altered images especially used by
pedophiles to merge the bodies of adults with the faces of children. Federal law prohibits
transport of the offending material. In a landmark prosecution, United States v. Thomas85, a
couple living in Milpitas, California were convicted by a Memphis, Tennessee jury for transmitting obscene computer-generated images, i.e. Graphic Interchange Format (GIF) files in
interstate commerce. The case centred on the "Amateur Action Bulletin Board System", a
BBS operated from the Thomas' home since 1991. It featured a collection of adult computer
files. Robert Thomas scanned pictures from sexually explicit magazines purchased from
California public bookstores, creating GIF files organised in binary format on the BBS
(which has to be downloaded and then decoded to get viewable images). Access to GIF 86
81

82

Ibid

(2000) 2 All ER 425


Ibid.
84
2002 EWCA Cri 683
85
Nos. 94-6648, 94-6649, 1996 US App Lexis 1069 (6th Cir 1996)
86
"GIF is one of the two most common file formats for graphic images on the world wide web. The
other is the JPEG. On the Web and elsewhere on the Internet (for e.g., bulletin board services), the
GIF has become a de facto standard form of image". Raman Mittal &c Nilotpal Deka, "Cyber Privacy"
in S.K. Verma &c Raman Mittal (Eds.), Legal Dimensions of Cyberspace (Indian Law Institute, New
83

files was limited to BBS members. Robert Thomas also purchased videotapes from adult
bookstores, which he sold to BBS members. 87 Thomas could escape conviction at the jury
stage as there was no evidence that the BBS had any members in Tennessee other than
Dirmeyer or that Thomas ever solicited subscribers from Tennessee, he also denied
requesting the magazines,88 and the jury acquitted him on the child pornography charges.
However on appeal, it was argued that the operative statute does not cover computer
transmissions at all and it is concerned only with tangible objects, not intangible computer
impulses.89 The US Court of Appeals for the 6th circuit rejected these claims and ruled that
the defendants "erroneously concluded that the GIF files are intangible" and sentenced
Thomas to 37 months and his wife, Carleen to 30 months imprisonment.
B. US
In US, a pornography specific legislation, the Communications Decency Act, 1996
broadly aims at protecting children from exposure to indecent material and is the most
successful and controversial effort so far.90 The Communications Decency Act, 1996 thus,
... prohibits a person in interstate or foreign communications who uses a
telecommunication device91 from knowingly making, creating, or soliciting any
comment, request, suggestion, proposal, image or other communication which is
Delhi 2004)216
87
18 USC S. 1343, 182
88
In 1994, Dirmeyer sent Robert Thomas an envelope containing three child pornography
magazines. Dirmeyer claims that he sent Thomas an e-mail message stating that he had "hardcore
sex magazines featuring young girls having sex with adults and other children", proposing to let
Thomas scan the magazines and create GIF files. The government claims that Thomas was
"interested"' and then only Dirmeyer sent the child pornography magazines, which formed the basis
for a federal search warrant. According to the Society for Electronic access, local law enforcement
authorities did not bring any charges against Thomas and returned the computer equipment. In its
arnicus curiae brief , the society notes, "Mr Thomas and Mrs Thomas have sworn under oath and
without contradiction that the San Jose Police Department provided them with a written release
affirming that the materials stored on the [Amateur action BBS] were legal and not obscene." United
States v. Thomas, Nos. 94-6648, 94-6649, 1996 US App Lexis 1069 (6th Cir 1996), Brief of Amicus
Curiae, The Society for Electronic Access, 7, n. 2 (6th Cir April 1995).
89
The claim was relied on the decision of the 10th Circuit in United States v. Carlin Communications
Inc., 815 F 2d 1367 (10th Cir 1987).
90

18 USCS. 1343, 185


According to the government, [w]hatever meaning is encompassed by th[e] term
[telecommunication device]; it specifically does not include an interactive computer device. ACLU v.
Reno, Civ. No. 96-963, Defendant's opposition to plaintiff's motion for a temporary restraining order
(E.D. Penn. 14-2-1996); 47 USC S.223(a)(l)(B).Ibid.
91

obscene or indecent, knowing that the recipient of the communication is under 18


years of age, regardless of whether the maker of such communication placed the call
or initiated the communication.92
Regarding "interactive computer services" in particular, the Act prohibits their use to
send or "display in a manner available to" a person under 18 any comment, request,
proposal, suggestion, image, or other communication that, in context, depicts or describes, in
terms patently offensive as measured by contemporary community standards, sexual or
excretory activities or organs, regardless of whether the user of such service placed the call
or initiated the communication.93
Penalties under the Communications Decency Act, 1996 include fines up to
$1,00,000 and two years imprisonment. 94 The said Act being rated as broad enough to stifle
the liberty of speech and expression guaranteed under the First Amendment was struck down
in July 1997.95 Under the Act, interest of minors is jealously guarded.
The Children's Internet Protection Act (CIPA) is one of the number of bills that the
US Congress has proposed in an attempt to limit children's exposure to pornography and
explicit content online. President Bill Clinton signed it into law on 21 December 2000 and it
was upheld by the Supreme Court of the US on 23 June 2003.
CIPA is a federal law enacted by the US Congress to address concerns about access
to offensive content over the Internet on school and library computers. CIPA imposes certain
types of requirements on any school or library that receives funding for Internet access or
internal connections from the E-rate programa program that makes

certain

communications technology more affordable for eligible schools and libraries. In early 2001,
the FCC issued rules implementing CIPA.
C. India
Traditional Indian law of obscenity is contained in Sections 292-294 IPC as
mentioned above. However, though the unamended IT Act, 2000 was deficient in dealing
with this crime, a lot more is done under the IT (Amendment) Act, 2008 in respect of
92

ACLU v. Re/70..Civ. No. 96-963, Defendant's opposition to plaintiff's motion for a temporary
restraining order (E.D. Penn. 14-2-1996); 47 USC S. 223(0)(1)(B). Ibid.
93
47 USC S. 223(d)
94
Ibid.
95
Dev Saif Gangee, "Pondering Cyber Porn in the Indian Context" in Nandan Kamath (Ed.), Law
Relating to Computers, Internet & E-Commerce (Universal Law Publishing) 305

obscenity and sex-related offences committed online. New sections have been inserted thus
including obscenity relating crimes in the catena of cybercrimes. The earlier Section 67 96
was the only section dealing with it which was insufficient to deal with the offence of
obscenity. The wording of the section was such which did away with any distinction
between child pornography or mainstream pornography and regarded that obscenity in any
form on the Net is illegal.
The IT (Amendment) Act, 2008 (10 of 2009) has reformed the law of obscenity in
India to a greater extent. The combined effect of Sections 66-E, 67, 67-A and 67-B is that
online obscenity has been brought within the legal regime and it also differentiates between
"child pornography" and "mainstream pornography". Section 67 which provides punishment
for publishing obscene material in electronic form reads thus,
67. Punishment for publishing or transmitting obscene material in
electronic form.-Whoever publishes or transmits or causes to be published or
transmitted in the electronic form, any material which is lascivious or appeals to the
prurient interest or if its effect is such as to tend to deprave and corrupt persons who
are likely, having regard to all relevant circumstances, to read, see or hear the matter
contained or embodied in it, shall be punished on first conviction with imprisonment
of either description for a term which may extend to three years and with fine which
may extend to five lakh rupees and in the event of second or subsequent conviction
96

67. "Publishing of information which is obscene in electronic form.Whoever publishes or


transmits or causes to be published in the electronic form, any material which is lascivious or appeals
to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely,
having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in
it, shall be punished on first conviction with imprisonment of either description for a term which may
extend to five years and with fine which may extend to one lakh rupees and in the event of a second
or subsequent conviction with imprisonment of either description for a term which may extend to ten
years and also with fine which may extend to two lakh rupees."
The section was deficient in many ways:
Firstly, S. 67 said nothing about the knowledge of the offender, i.e. it says nothing whether in
cases where such an offending material is hidden in the cache memory of a system of which the
offender is unaware, what will be his liability in such a case?
Secondly, the section uses the word persons and omits to mention the age of such a person.
It only means that A who is a matured person of 50 if the material published, depraves and corrupts
his mind, the offence is committed and if a child of eight is not depraved or corrupted by seeing,
hearing or reading such an offending material, the offence is not committed. Does the section then
aims at particular application? Here the prosecution may take the help of S. 293 IPC as mentioned
above. Thirdly, the section also omits to clarify as to what is "obscenity".

with imprisonment of either description for a term which may extend to five years
and also with fine which may extend to ten lakh rupees.
This section differs from the previous section only in two respects:
Firstly, in the marginal heading, the word "transmitting" is inserted.
Secondly, the quantum of punishment has undergone a change as the term of
imprisonment has been decreased in the first conviction, from five to three years and in the
second conviction, from ten to five years while the amount of fine has been increased from
one lakh to five lakh rupees in the first conviction and from five lakh to ten lakh rupees in
the second conviction.
The section is deficient in many ways:
Firstly, Section 67 says nothing about the knowledge of the offender, i.e. it says
nothing whether in cases where such an offending material is hidden in the cache memory of
a system of which the offender is unaware, what will be his liability in such a case?
Secondly, the term obscenity has not been defined. To put it so, the section does
not dispel the content of obscenity. A comparison of Section 292, IPC and Section 67 of the
IT Act discloses the similarity in omitting to clarify as to what is the true content of the term
obscenity; vagueness regarding the term is the common lacuna of both the sections. The
phrase deprave and corrupt persons who are likely, having regard to all relevant
circumstances, to read, see, or hear the matter contained or embodied in it is a verbatim
replica of the phrase contained in Section z of the Obscene Publications Act, 1959 of UK
which reads:
For the purposes of this Act an article shall be deemed to be obscene if its effect ... is,
if taken as a whole, such as to tend to deprave and corrupt persons who are likely,
having regard to all relevant circumstances, to read, see or hear the matter contained
or embodied in it.
However, as the Obscene Publications Act, 1959 is an Act containing the detailed
obscenity law of UK, the vagueness of the phrase is clarified in other parts of the Act, but as
Section 67 of the IT Act is a sole provision on the Internet obscenity; the wordings could be
more comprehensive.

However, the main stress is on publishing or transmitting the offending material in


electronic form and hence, mere possession of such an offending material is not an offence
under the section. The punishment given is not only twofold, i.e. not only that imprisonment
and fine are to be read conjointly but that the punishment is two-tier as in the case of a
subsequent conviction, the punishment is doubled which is stringent as according to Indian
standards.
The punishment given is not only twofold but it is also stringent, i.e. for the first time
commission of offence, the punishment includes both fine and imprisonment and for a
subsequent commission, the quantum of this punishment is doubled which is more severe as
compared to the Indian standard.
Like fraud and other crimes, in the matter of Internet obscenity too, the provisions of
traditional obscenity law as contained in Section 293 IPC97 will be helpful as to when it
comes to prosecute persons dealing in cyber pornography that is applicable to persons under
the age of 20 years.98 Other Acts like the Indecent Representation of Women (Prohibition)
Act, 1986 and Young Persons (Harmful Publications) Act, 1956 may also be invoked in the
matter of Internet obscenity.
67-A.99 Punishment for publishing or transmitting of material containing sexually
explicit act, etc. in electronic form.Whoever publishes or transmits or causes to be
published or transmitted in the electronic form any material which contains sexually
explicit act or conduct shall be punished on first conviction with imprisonment of
either description for a term which may extend to five years and with fine which may
extend to ten lakh rupees and in the event of second or subsequent conviction with
imprisonment of either description for a term which may extend to seven years and
also with fine which may extend to ten lakh rupees.

97

Sale, etc. of obscene objects to young person.Whoever sells, lets to hire, distributes, exhibits or
circulates to any person under the age of twenty years any such obscene object as is referred to in
the last preceding section, or offers or attempts so to do, shall be punished on first conviction with
imprisonment of either description for a term which may extend to three years, and with fine which
may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with
imprisonment of either description for a term which may extend to seven years, and also with fine
which may extend to five thousand rupees.
98
Supra, n. 145, 240
99
Inserted by virtue of S. 32 of the IT (Amendment) Act, 2008 (10 of 2009)

This new section clearly comes out with the explanation that an act which depicts sex
appealing activities in electronic form is also punishable. The section thus enlarges the area
of obscenity and includes within it, depiction of sex activities. It is for the first time that any
Indian law defines such type of offence thereby indicating indirectly that depiction of sexrelated act in public is intolerable, prepares the weak minded to commit an offence and is
morally degrading and hence, an offence. The punishment given here is two-tier which only
shows that the fear of graver punishment may deter the criminal to commit the offence for
the second time.
Then again Section 67-B is a long awaited one which differentiates between
mainstream pornography and child pornography as it separately makes it an offence.
The section reads thus,
67-B.100 Punishment for publishing or transmitting of material depicting children
in sexually explicit act, etc. in electronic form. Whoever,
(a) 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
(b) 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
(c) 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
(d) facilitates abusing children online; or
(e) records in any electronic form own abuse or that of others pertaining to sexually
explicit act with children,
shall be punished on first conviction with imprisonment of either description for a term
which may extend to five years and with fine which may extend to ten lakh rupees and in the
event of second or subsequent conviction with imprisonment of either description for a term
which may extend to seven years and also with fine which may extend to ten lakh rupees:
Provided that provisions of Section 67, Section 67-A and this section does not extend to any
book, pamphlet, paper, writing, drawing, painting representation or figure in electronic form

100

Ibid

(i)

the publication of which is proved to be justified as being for the public good on
the ground that such book, pamphlet, paper, writing, drawing, painting
representation or figure is in the interest of science, literature, art or learning or
other objects of general concern; or

(ii)

which is kept or used for bona fide heritage or religious purposes. Explanation.
For the purposes of this section, "children" means a person who has not
completed the age of 18 years.

The section is an exhaustive one and dwells well on the subject of child pornography. It
elaborately describes as to what constitutes child pornography and is a pioneer law provision
in the country in the sense that even in the time-tested IPC, the term child pornography
does not occur. The reason can well be understood in the context that India is a religiously
dominated society where morality and spirituality are deep-rooted; even lawful wedlocks
keep shy of sexual behaviour in the eye of the family or public. Going to the extent of indulging in physical exploitation with the underage is though not ruled out but publicising the
same and making it a profession, was hitherto unknown to it. While the underage are
physically and economically exploited; their use before the public eye and their depiction for
public show has been scant in India. Thus, formulating law on this subject was hitherto not
necessitated by public demand or social need until the Internet spree made it not only
common but the foreign element aided in popularising it among the masses.
The section makes it an offence not only the publication or transmission of it but also the
creation of, the browsing and downloading of these objectionable materials though posted by
others, as an offence. Thus, any human act connected with child pornography comes under
the definition of child pornography though the term has not been included in the section. The
section provides not only grave corporal punishment (up to five years in first conviction and
up to seven years in second conviction) but the pecuniary punishment is also heavy
(maximum amount of 10 lakh rupees in both convictions).
The section is self-containing in the sense that the maximum age which is required to
complete the offence is 18 years which is the age of majority in India.
The IPC and the IT Act in respect of child pornographyThough Section 67-B is a
pioneer law in the country, yet it was in the middle of 19th century that safeguarding
children against obscene influence had started. As per the social conditions prevailing at that

time, offence like child pornography was non-existing. Section 67 is patterned on the
construction of Section 292. IPC and has some relation with Section 293 of the same Act.
Section 67 (IT Act) and Section 292 (IPC)The main body of both the sections
including the opening clause have tremendous similarity in matter of wording. The words:
67. Whoever publishes or transmits or causes to be published or transmitted in the
electronic form, any material which is lascivious or appeals to the prurient interest or if
its effect is such as to tend to deprave and corrupt persons who are likely, having regard
to all relevant circumstances, to read, see or hear the matter contained or embodied in
it ...
292. ... if it is lascivious or appeals to the prurient interest or if its effect, or (where it
comprises two or more distinct items) the effect of any one of its items is, if taken as a
whole, such as to tend to deprave and corrupt persons who are likely, having regard to all
relevant circumstances, to read, see or hear the matter contained or embodied in it ...
Thus, the similarity in these clauses show that both the penal law of the country and the
technology law agree on the content of obscenity, or what constitutes obscenity.
Moreover, the exceptions under both the sections are the same. The exception under
Section 292 says that the description of obscenity shall not extend to the following, namely:
(a) any book, pamphlet, paper, writing, drawing, painting, representation or figure
(i) the publication of which is proved to be justified as being for the public good on
the ground that such book, pamphlet, paper, writing, drawing, painting,
representation or figure is in the interest of science, literature, art or learning or other
objects of general concern, or
(ii) which is kept or used bona fide for religious purposes;
(b) any representation sculptured, engraved, painted or otherwise represented on or in
(i)

any ancient monument within the meaning of the Ancient Monuments and
Archaeological Sites and Remains Act, 1958 (24 of 1958), or

(ii)

any temple, or on any car used for the conveyance of idols, or kept or used for
any religious purpose.

Under Section 67-B of the IT Act too, the exception is on the same ground that the
description of obscenity in the main body of the section shall not apply to the following,
namely:
Provided that provisions of Section 67, Section 67-A and this section does not extend
to any book, pamphlet, paper, writing, drawing, painting, representation or figure in
electronic form
(i)

the publication of which is proved to be justified as being for the


public good on the ground that such book, pamphlet, paper, writing,
drawing, painting representation or figure is in the interest of science,
literature, art or learning or other objects of general concern; or

(ii)

which is kept or used for bona fide heritage or religious purposes.

Thus the proviso to Section 67-B applies as an exception to all the three sections, i.e.
Sections 67, 67-A and 67-B. The first sub-clauses are in exactly the same wording while in
the second sub-clause in Section 67-B, the word heritage is included. These exceptions are
in view of the cultural heritage of India where some pieces of art and painting are specimen
of the rich culture of the country and thus, they are kept out of the purview of obscenity law
whether in the virtual or in real world.
Section 293 IPC, however, is in series of sections relating to obscenity and hence, it
can be said that at that time, contacting young people under 20 years of age in respect of
obscene material was itself considered an offence.
The section reads thus,
293. Sale, etc., of obscene objects to young person.Whoever sells, lets to hire,
distributes, exhibits, or circulates to any person under the age of twenty years any
such obscene object as is referred to in the last preceding section, or offers or
attempts so to do, shall be punished on first conviction with imprisonment of either
description for a term which may extend to three years, and with fine which may
extend to two thousand rupees, and, in the event of a second or subsequent
conviction^ with imprisonment of either description for a term which may extend to
seven years, and also with fine which may extend to five thousand rupees.
Thus a perusal of the section shows that it provides for serious punishments and
compared to Section 292., the punishment is an enhanced one. Thus selling, distributing,

exhibiting obscene material to the underage is regarded as an offence. Even if today, a case
is registered under Section 67-B of the IT Act and such obscene material in electronic form
is distributed to the persons under 20 years of age then the punishment can be met with
Section 67-B read with Section 293 IPC.
Apart from Sections 67, 67-A and 67-6, Section 66-E also relates to obscenity which
is the result of violation of privacy. Section 66-E talks of physical privacy and the projection
of any physical part of a person without his or her consent. The section makes it an offence.
Section 66-E(e) also describes as to what is violation of privacy as follows:
The expression "under circumstances violating privacy" means circumstances in
which a person can have a reasonable expectation that he or his physique is not under public
eye or general surveillance.
The section, however suffers, from one lacuna and that is the phrase without his or
her consent denotes that if such depiction of his or her physique is done with consent then it
will not be an offence. This interpretation would lead to undesirable result as firstly, such
depiction with consent would be rendered lawful which is surely not the intention of the
legislature, and secondly, the consent merely for formality may be obtained unlawfully.
Thus, the section needs an amendment so that the condition of consent could be removed
and the phrase would read as with or without consent.
Child pornography as different from mainstream pornography is somehow connected
with social issues and hence, it receives stringent legal treatment101 even in most advanced
societies like the US and UK, and the growth of the Internet has provided child
pornographers with a distribution vehicle which is perceived to be relatively anonymous.102
Thus, not only legal reforms in this area but even other steps are taken to tackle it. In July
1995, the British police were involved in Operation Starburst, an international
investigation of a pedophile ring who used the Internet to distribute pictures of child
pornography. Some 37 men were identified worldwide and arrests were made in UK, US,
Europe, South Africa and the Far East.103

101

S.K. Verma & C Raman Mittal (Eds.), Legal Dimensions of Cyberspace (Indian Law Institute, New
Delhi 2004) 238
102
Ibid.
103
Yaman Akdeniz, The Regulation of Pornography and Child Pornography on the Internet (1997) 1
Journal of Information, Law and Technology

In India, some positive steps have been taken in this direction. The Bombay High
Court Committee gave its recommendations in its report on 30 January 2002 which was in
pursuant to a letter sent to the Hon'ble Chief Justice of the Bombay High Court. 104 The issues
before the committee resolved themselves into two broad categories: Regulatory and
Educational.105 In the Educational category, the committee deals with awareness among
Internet users through e-mail, newsletters, online content, hotlines and help desks. In the
Regulatory category, there are the ISPs, cyber cafes and online portals which provided
communication services.106 The committee made the following recommendations to protect
children from pornographic sites on the Internet:
i. blocking of sites;
ii. preventing minors from accessing unsuitable material from cyber cafes; and
iii. preventing the publication or propagation of pornography from cyber cafes.
In Ranjit D. Udeshi v. State of Maharashtra,107 the Supreme Court of India declared
Lady Chatterleys Lovers written by D.H. Lawrence as obscene book and publication. The
Court held that there is difference between obscenity and pornography. Precise
definitions are not possible. However, obscenity is any material, which tends to corrupt,
cause annoyance, something of horror, indecent, immoral or with sexual tendency.
Pornography means any material in writing, picture or other form, which is intended to
arouse sexual desire. Both are against public morality and decency.
In K.A. Abbas v. Union of India,108 the Chief Justice of Supreme Court M.
Hidayatullah held regarding film censorship that our freedom of speech and expression is not
absolute rather limited by reasonable restrictions under Art. 19 (2) in the interest of general
104

The letter was treated as suo motu writ petition. The Internet Users Association of India (IUAI)
was permitted to intervene in the matter. On 28-9-2001, a Division Bench of the High Court passed
an order (order of the High Court, 13-2-2002 passed in WP No. 1611 of 2001,
<http://www.cyquator.eom/highcourt/2.html>) appointing a committee to suggest and recommend
ways, measures and means to protect/shield minors from access to pornographic and obscene
material on the Internet. S.K. Verma & Raman Mittal (Eds.), Legal Dimensions of Cyberspace (Indian
Law Institute, New Delhi 2004) 239
105
Ibid
106
The committee was of the view that it was inherently impossible or, at the very least, impractical to
evolve a common set of regulations governing all classes of service providers. Each type of service
provider has its unique combination of techno-economic capabilities and limitations. For e.g. online
portals that provide communication platforms and solutions (e-mail, messaging and chat) cannot assume the same responsibilities as an ISP, which provides access to the Internet and, thereby to all of
its protocols including those provided by online portals. Ibid.
107
Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881; (1965) 2 Cr LJ 8
108
(1970) 2 SCC 780

public to maintain public decency and morality. Therefore, film censorship has full
jurisdiction in the field of cinematograph film to prevent and control obscenity and
pornography.
In Jayesh S. Thakkar v. State of Maharashtra,109 the petitioners wrote a letter to the
Chief Justice of the Bombay High Court, about pornographic websites on the internet. The
letter was treated as suo motu writ petition. The Bombay High Court passed an order to
appoint a committee to suggest and recommend ways of preventive and controlling measure
and means to protect children from access to pornographic and obscene material on the
internet.
In Delhi Police School and Multimedia Message Service (MMS) Clip Case,110 a Delhi
Public School boy allegedly filmed his girlfriend in an act of oral sex with him on his cell
phone camera which is to be called as MMS clip. This video clip was then forwarded by him
to his friends, and then his friends sent it to others. The clip was copied to VCD (Video
Compact Disk) for sale and distribution. One IIT Kharagpur student named Ravi Raj put that
MMS clip of 2.37 minutes for auction on the Baazee.com which was Indias top auction
website and owned by e-Bay. The Delhi police arrested DPS student, Mr. Ravi Ray Singh
and the portals CEO, Mr. Avnish Bajaj. The counsel for the boy contended that the charge
against his client is totally false and it is very difficult to prove who was that particular
person because there was no visual of his face in the clip and he prayed for bail u/s 12 of the
Juvenile Justice Act, 2000 though he was arrested u/s 293, 294, 201 of the IPC, 1860 and
Section 67 of the IT Act, 2000. Thus, Delhi Public School scandal was not only the issue of
child pornography but also MMS clip in cyberspace.
The National Crime Record Bureau of the Home Ministry said that out of 179 cyber
crime cases registered in the year 2005, 88 were related to cyber pornography; 50% of 88
cases were related to transmission of child pornographic images and video clips.111

109

Bombay H.C. Writ petition No. 1611 of 2001, 28th September


www.rediff. com/news/2004/ dec/15ekhan.htm-21k. Chennai online News Service, 18th
December, 2004
111
Cyber Pornography on Rise, 6th October 2006, 00.52 hrs 1ST, Times news network
110

CONCLUSION
New multimedia technology is being misused and abused by criminals in cyberspace.
Cyber pornography, online child pornography, cyber spamming etc. are increasing every
moment. Cyber pornography is not only national but also international legal challenge which
needs intensive study, research and world-wide awareness.
We require more teeth to the law to cope up with the situation. We need to adopt
specific and clear definition of cyber crime, cyber pornography, and child pornography in
cyberspace. There is need of teaching and training to law enforcing agencies, judiciary,
intermediaries, Internet Service Providers, cyber cafes, Government sectors, private sectors,
teachers, students, parents and general public to be aware about effect of this dangerous
threat to society. Banning mobile phone within the premises of educational institutions is
one firm way to prevent cyber-pornography within these institutions.112
There is great need to impose more responsibilities on the Internet Service Providers
and cyber cafes. They must use filter system, firewall software, regular virus scanning
system and verify all detail identifications of users i.e. with photo, address, date and time of
use of particular computer by particular user and the like.
Young users are very much interested to download objectionable materials and
access those materials. Therefore cyber as well as parents at home must keep a watch while
children are using computer. They should not use it privately.
Any person who wishes to protect their right to privacy in the cyberspace should
adopt encryption process. Encryption process is a tool to cyber crime and protection of
privacy in cyberspace. This is a process of self-protection or self-defense. There are 2 main
key systems in encryption process and these are (i) public key and (ii) private key. When any
one writes messages with encryption technique, such encryption turns that message into
gibberish so that specific person to whom any one wishes to disclose or transfer his private
information, that particular person only can access and read said information by using proper
112

Dr. Raghunath Patnaik, Vulnerability of Children through Cyber crimes, Central India Law
Quarterly, 2003, p. 269

key of the key pair. We can adopt the process which South Korea adopted in July 2004
making cell phone manufacturer mandatory to install a beep audible within a radius of 10
feet before using the camera mobile phone.
The situation can be curbed by the law enforcement agencies, more so police by regular
track, search, seizure process, frequent visit of those suspected places to nip in the bud. With
this people of India must contribute in the process of prevention and control of cyber
pornography.
The Internet is being recognised as a modality of cultural transmission. It is,
however, opposed to regulation. But the effects of the online world are felt in the offline
world where we live. Regulation must be given a chance and legal acumen must come forth
to extend the arms of law to the jungle of lawless abode called cyberspace. The Net power
has weakened the force of law and a mammoth legal response to the cybercrimes, in the first
instance, may not be so promising, but it will give a constructive start. Fraud, forgery and
obscenity are the cybercrimes which constitute a substantial percentage of online crimes. In
UK, though as seen above, there is sufficient response to it under the traditional provisions
yet the efforts are still continuing. The proposed possession offence will not be a real success
unless the technological hardships are also given due consideration. 113 In a squeamish society
like India, obscenity is the most intolerable offence as it erodes the highly sensitive moral
ethos of traditional culture. Keeping a watch on the technological fallouts which are being
faced by countries with high connectivity and convergence and at the same time, reporting
and prosecuting the infringers in this area would fetch positive results. Where humans
survive, law must reign supreme else we will all perish.

113

Ibid, 109

BIBLIOGRAPHY
BOOKS:
1. Cyber Law, Dr. Talat Fatima
2. Law Relating to Computers, Internet & E-Commerce, Nandan Kamath
3. Commentary on Information Technology Act, Lexis Nexis
4. Computers Internet and New Technology Laws, Lexis Nexis
5. Bound and Gagged: A Secret History of Obscenity in Britain, Profile Books,
London
ARTICLES:
1. Jacob Rowbottom, Obscenity Laws and the Internet: Targeting the Supply and
Demand (Cri L Rev, Sweet & Maxwell, London 2006)
2. Nandan Kamath, Dealing with Cyber Crime, Chartered Secretary, July, 2003
3. S.T. Viswanathan, The Indian Cyber Laws with Cyber Glossary, 2001
4. H. Mongomery Hyde (1964) A History of Pornography
5. M.K. Nagaraja, Cyberporn Crimes: An Analytical Approach to Investigation,
CBI Bulletin, July 2000
6. Basil Mitchell, Law, Morality, and Religion in Secular Society, Oxford
University Press, London
WEBSITES:
1. Rediff News www.rediff. com/news/2004/ dec/15ekhan.htm-21k. Chennai online
News Service, 18th December, 2004
2. Wikipedia
3. Chartered Secretary
4. Times News Archives