Name of the author: Abhinav Pandey

E-mail address: abhinavpandey327069@gmail.com

Contact Number: +91-8920429498, +91-8745984459

Designation: Student, 3rd year B.A. LL.B.(Hons.).

Name of the Institution: Faculty of Law, Jamia Millia Islamia, New Delhi.

Name of the Co-author: Md. Maaz Alam

E-mail address: alammaaz1998@gmail.com

Contact Number: +91-9123254275, +91-7091397559

Designation: Student, 2nd year B.A. LL.B.(Hons.).

Name of the Institution: Faculty of Law, Jamia Millia Islamia, New Delhi.

Name of the Co-author: Aayushi Bana

E-mail address: aayushibana98@gmail.com

Contact Number: +91-8826468847, +91-8800874408

Designation: Student, 3rd year B.A. LL.B.(Hons.).

Name of the Institution: Faculty of Law, Jamia Millia Islamia, New Delhi.
NATIONAL CONFERENCE ON TECHNOLOGICAL DEVELOPMENT & CHANGING DIMENSIONS OF LAW

Abstract

Title: Mobile Phones: An Emerging Accessory for Cyber Obscenity

The introduction of the mobile phones to youth has been a worldwide marvel as of recent years.
It is currently a fundamental piece of people's day to day lives and is for the dominant part, the
most well known type of electronic device. The cell phone has changed from a mechanical
instrument to a social device. Since the beginning of this decade, a standard cell phone has gone
from being close to a basic two-route pager to become a cell phone, GPS route gadget, an
embedded internet browser and tool, and a handheld gaming device. The smart phones have
inbuilt highlights/abilities of cameras, diversions, recordings, map, recording, send/get email,
worked in applications, remote web, Bluetooth and considerably more. With this kind of
advancement in compatible device is leading to many serious cyber crimes. The applications in
mobile phones are providing an easy way to create and share obscene content on internet. Due
to the introduction of high speed internet connection in mobile phones, the usage of mobile
phones in cyber crimes has drastically increased. According to the data provided by different
authorities it is evident that mobile phones are being used to share and create obscene content
and many other crimes. The sharing applications allow sharing content within seconds and make
it difficult to trace the source of content. With the advancement in technology of mobile phones,
the publication and consumption of obscene materials have increased drastically which has led
to the growth in crime rates. This paper would mainly focus on the misuse of mobile phones and
how the device has led to the increment in cyber obscenity through different examples, data, and
case laws, legal remedies available and how this situation can be restrained by means of law.

Keywords; Accessory, Cyber, Data, Obscenity, Technology

INTRODUCTION

With the advent of modern technology across the globe the word CYBER SPACE brought the
whole world under one roof. The views, expression, thoughts, feelings, emotions, knowledge,
culture, belief and tradition flow from one corner of world to another in just blink of an eye.

I don’t feel that present matter needs to be addressed on the point that how should cyber
obscenity be curbed rather what is far more important is that what actually cyber obscenity is!! .
It is evident that there is no precise definition of obscenity and the definitions so formed have
drastically failed to stand on standards of other countries with different cultural values. There is a
major culture difference between west and east side of world. We are believer of spiritual living
against the believer of materialistic one’s.

At this point of time it is necessary that term cyber obscenity/ pornography should be understood
in widest possible amplitude.

CYBER SPACE

The term cyberspace was initially introduced by William Gibson in his 1984 book,
“Neuromancer.” Gibson criticized the term in later years, calling it “evocative and essentially
meaningless.” Nevertheless, the term is still widely used to describe any facility or feature that is
linked to the Internet. According to many IT specialists and experts, including F. Randall Farmer
and Chip Morningstar, cyberspace has gained popularity as a medium for social interaction,
rather than its technical execution and implementation.1

Cyber Space is online world of computer networks and especially the Internet.2

In simple words, cyber space is an online world with no territorial barriers defining it. It is space
where one can share any material anywhere without actually entering that territory.

OBSCENITY/PORNOGRAPHY

1
https://www.techopedia.com/definition/2493/cyberspace.
2
https://www.merriam-webster.com/dictionary/cyberspace.
The word Obscene finds its origin from Middle French obscène (16c.), from Latin
term obscenus "offensive," especially to modesty, originally "boding ill, inauspicious," of
unknown origin; perhaps from ob "in front of" (see ob-) + caenum "filth." Meaning "offensive to
modesty or decency" is attested from 1590s.3

The term pornography is derived from the Greek words: Porne meaning prostitute
and graphos meaning written. 4

Pornography can be defined as showing sexual acts through books and films for the purpose of
sexual excitement. There is a difference between pornography and obscenity, and I strongly
suggest that obscenity is a problem which should be punishable.

The matter of what is obscene depends on the question of morality and morality changes with
time.

Professor Lon. L. Fuller, a morality of duty is one which when obeyed calls for no praise from
the community but when disobeyed calls for community sanction ; a morality of aspiration is one
which when obeyed calls for praise from the community but when disobeyed calls for no
community sanction. The former is termed law and the latter conventional morality5.

LEGAL DEFINITIONS AND REGULATIONS

There is no existing definition of Obscenity which is exhaustive enough to deal with all the
matters related to it. But we can trace the intentions of legislators through various enacted
legislatures.

Sec 2(c) defines “indecent representation of women” means the depiction in any manner of the
figure of a woman, her form or body or any part thereof in such a way as to have the effect of
being indecent, or derogatory to, or denigrating, women, or is likely to deprave, corrupt or injure
the public morality or morals;6

3
https://www.etymonline.com/word/obscene.
4
https://www.etymonline.com.
5
Lon Fuller, Morality of Law (1962).
6
The Indecent Representation of Women (Prohibition) Act, 1986.
Section 11(iv)(v)(vi) of the act defines - A person is said to commit sexual harassment upon a
child when such person with sexual intent,-

(iv)Repeatedly or constantly follows or watches or contacts a child either directly or through

electronic, digital or any other means; or

(v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film
or digital or any other mode, of any part of the body of the child or the involvement of the child
in a sexual act; or

(vi) entices a child for pornographic purposes or gives gratification therefore.7

Section 292(i), IPC: Sale etc., of obscene books etc- For the purposes of sub-section (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 person, who are likely, having regard to all
relevant circumstances, to read, see or hear the matter contained or embodied in it.8

The Cable Television Networks Regulation Act, 1995 prohibits telecast of obscene acts on
television.

Section 4 and Sec 5A of the Cinematograph Act, 1952 provides for the examination of films
before release.

The Young Persons Harmful Publication Act, 1956 prohibits publications which can corrupt a
child.

The Information Technology Act, 2000 sec 67 defines - "Whosoever publishes or transmits or
causes to be published in the electronic form, any material which is lascivious or appeals to be
published in the electronic form, any material which is lascivious or appeals to the prurient
interest or it 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 an imprisonment of either description for a term which
7
POCSO Act, 2012.
8
Indian Penal Code, 1860.
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."9

The Information Technology Act punishes the online transmission or publication of sexually
explicit acts. The Post Office Act prohibits transmitting obscene materials by post.

JUDICIAL DEFINITIONS

The test for obscenity was first laid down in the famous case of Regina v. Hicklin 10as a

“tendency to deprave and corrupt those whose minds are open to such immoral influences
andinto whose hands a publication of this sort may fall”.

Lord CJ Cockburn in his opinion in the Hicklin case explained that the danger of prurient
literature was that it “would suggest to the minds of the young of either sex, and even to persons
of more advanced years, thoughts of a most impure and libidinous character”.

In Indian scenario definition of Obscenity has been evolved from Ranjit Udeshi v. State of
Maharashtra where the unexpurgated version of Lady Chatterley's Lover (by D. H. Lawrence)
was held 'obscene' as it had, according to the Court, a tendency to "deprave and corrupt by
immoral influences" certain persons into whose hands the book was "likely to fall"11.

The Supreme Court of India, in the case of K. Abbas v. The Union of India & another made a
distinction between “Sex” and “obscenity” and has observed that, it would be wrong to perceive
nudity & sex as essentially obscene, indecent or immoral. “Sex”& “obscenity” are not always
synonymous.”12

In the case of Abbas the Court stated:

9
IT Act 2000.
10
L.R.3Q.B.360 (1868).
11
1965 AIR 881
12
1971 AIR 481.
Parliament has left this task to the Central Government and, in our opinion, this could be done.
But Parliament has not legislated enough, nor has the Central Government filled in the gap.
Neither has separated the artistic and the socially valuable from that which is deliberately
indecent, obscene, horrifying or corrupting. They have not indicated the need of society and the
freedom of the individual. They have thought more of the depraved and less of the ordinary
moral man. In their desire to keep films from the abnormal, they have excluded the moral. They
have attempted to bring down the public motion picture to the level of home movies13.

In the ruling of Aveek Sarkar Vs. State of West Bengal and Ors14, Supreme Court of India has
declined to accept Hicklin’s test which was further followed by Indian judiciary in series of
subsequent case as discussed above and held that: “A picture of a nude/seminude woman, as
such, cannot per se be called obscene unless it has the tendency to arouse feeling or revealing an
overt sexual desire...Only those sex-related materials which have a tendency of “exciting lustful
thoughts” can be held to be obscene, but the obscenity has to be judged from the point of view of
an average person, by applying contemporary community standards.”

The Bombay High Court restrained the police from arresting the comedians, remarking that
although the AIB’s much publicized roast of Bollywood actors Arjun Kapoor and Ranveer
Singh was vulgar, it was not obscene.

So, what is difference between obscene and vulgar and what is the line of demarcation?

We can see that the view of the apex court has changed in the last 30 years, what was considered
obscene than is now vulgar or say it’s no more punishable. Obscenity is most evolving concept
and the problem law making authorities face is striking balance between Right to speech and
their duty to protect society from content which can manipulate minds of other.

The judgment of Abbas case is much more acceptable than that of Udeshi. In Udeshi court
emphasized on content but in Abaas court emphasized on the presentation of content.

So we see that obscenity has been defined in various judgements and test for obscenity has also
been provided but in absence of any definition given by legislature it create doubt in mind of

13
K. Abbas v. The Union of India & another, 1971 AIR 481.
14
(2014) 4 SCC 257.
people as to what is OBSCENE! And such doubt gives space for arbitrariness and there are very
few chances of Justice in presence of arbitrariness.

Duty of legislature is to not just define obscenity but to keep it updated in passage.

Various other definitions also face the problem that they are not amended with change passage of
time. Recent examples are sec 377 and 497 of IPC.

MOBILE PHONE – AN ASCESSORY

According to The Law Dictionary Cyber Crime is defined as Crime that takes place through the
use of computers, computer technology or the Internet. And as per the Information Technology
Act, 2000:

‘Computer means any electronic, magnetic, optical or other high-speed data processing device
or system which performs logical, arithmetic and memory functions by manipulations of
electronic, magnetic or optical impulses, and includes all input, output, processing, storage,
computer software or communication facilities which are connected or related to the computer
in a computer system or computer network.’ 15

A Smart phone is a mobile phone that performs many of the functions of a computer, typically
having a touch screen interface, Internet access, and an operating system capable of running
downloaded apps16. If we look at the definitions we can say that smart phones can be included in
computers.

Mobile phones now work as computers and have storage capacity more than laptops and
desktops. All the works are now being done with the help of mobile phones, whether it is a small
calculation or a bank transaction. With the advancement of technology there is a high risk of
security.

15
Sec 2(i) of IT Act 2000.
16
https://en.oxforddictionaries.com/definition/smartphone.
Cases of cyber obscenity are increasing day by day as the mobile phones have become a very
easy tool to produce obscenity and to circulate it. Every networking site is attached to the mobile
phones. We can see that many free apps can be easily downloaded and making it easier for
people to download and use it.

There were a total of 404 million smart phone users in India till 2017 and it is expected to double
in five years taking the number to 829 million17. According to a report in economic times by
2022, the smart phone data consumption will increase by five times in India which proves the
dominance of smart phones as the communications hub for social media, video consumption,
communications, and business applications, as well as traditional voice.18

First we need to understand how obscene materials are produced. The major obscene materials
come in the form of videos, audios, animated video clips and pictures. Mobile phones have HD
cameras and it has given a new dimension for creating obscene materials. Pseudo-photographs
are also being used to create obscene images. It is defined as an image, whether made by
computer graphics or otherwise, however which appears to be a photograph. 19 The mobile
phones can be carried anywhere without any restriction. Previously if the videos or pictures had
been taken by the phone it could be seen by others but now with the security locks in the phones,
videos and pictures can be hid in the phone and no person other than the one who has made the
obscene content can see it.

Mobile phones now have different apps where people can edit videos and create obscene content.
Video editing includes cutting segments, re-sequencing clips and adding transitions and other
special effects20.This can make a different video into a totally new video. Picture morphing and
editing are also widely used as a tool for creating obscene material. In morphing special effects
are added to a picture and made it into a new picture. Almost everyone having a smart phone in
their pocket anytime can create an obscene content.

SHARING CONTENT

17
https://www.financialexpress.com/industry/smartphone-users-in-india-to-double-to-829-mn-by-2022-
report/1402409/.
18
https://economictimes.indiatimes.com/tech/hardware/india-to-have-over-800-million-smartphone-users-by-2022-
cisco-study/articleshow/66917976.cms.
19
https://www.lawinsider.com/dictionary/pseudo-photograph.
20
https://en.wikipedia.org/wiki/Video_editing.
An obscene video or picture is not just restricted to a creator. Whoever creates an obscene
content always shares it with others. Mobile phones have made it very easy to share content from
one device to another. Sharing using mobile phones is an easy task using Bluetooth, Wifi and
hotspot and internet.

Bluetooth is now understood as primitive method but new emerging applications may provide
fast wireless transfer using Bluetooth in coming time. Presently Wi- fi and hotspot allows
sharing GBs of data in minutes and makes it easy to transfer big files which were much difficult
in using Bluetooth. More ever, wireless transfer does not require any other setup so they are
compatible and much more efficient. This method of sharing is still not that harmful because this
type of data transfer remains confine to the creator, his friends or relatives. But mobile phone are
also equipped with browser and internet which allows users to upload content online and once
content is uploaded it becomes a hard task to remove such data because the viewers across the
globe had accessibility to such data and there are chances that they may have saved that obscene
content.

There are various applications which provide users to share any content without uploading it on
any particular site allowing user to upload obscene content anonymously.

VIEWING CONTENT

Mobile phones are well equipped to replace computer, they have inbuilt video player to play
videos of all resolutions. After introduction of 4G in India browsing on internet is easy and much
faster than traditional system.

Mobile phones also have inbuilt browser which provide easy advisability to view download
content and to hide it. Browsers also provide to open any site in mobile view so as to provide
users accessibility to every available site on internet which were earlier available only to desktop
users.

Mobile phones also have high storage space and number of applications to hide any such content.
And when such devices are confiscated in such matters, it requires high level of technical
knowledge to get access in phones. They also provide for cloud storage so one can easily store
content without saving it in his/her phone and to get easy access after login from their registered
account.

So we see can easily conclude that mobile phones in matter of cyber obscenity are weapons of
mass destruction.

CONCLUSION AND SUGGESTIONS

It is evident that the definition of obscenity is necessary for dealing with cases of obscenity. The
current definition provided by the legislature in pieces through different acts need to be
concluded and made exhaustive. The usage of mobile phones is also drastically increasing and
there is no stopping to it. With the growth in technology accompanied with latest inventions it
will become an impossible task to curb obscenity in cyber space.

A mobile phone is like a gun; it can protect you from devil but if it is used against you it has
capacity to destroy you. It is upon the people who possess it, to use it cautiously. Mobile Phones
are of very complex nature and are vulnerable to illegal activities. It is strong medium for illegal
activities specially Cyber Obscenity. The criminals are using mobile phones as a medium to
create obscenity in cyber space.

It is submitted by the author that although Fundamental rights are supreme in nature and what
people do within four walls is matter of privacy but when that content is available to general
public and is able to cause harm to minds of people, it becomes matter of policy and should be
dealt by state as an exceptional case.

Suggestions:

 Inform people regarding penalties of sharing obscene content.

 Restriction should be placed on social sites regarding content that are shared.
 Only the registered users should be allowed to upload obscene content on porn sites and
the sites not following these norms should be banned.
 Sites providing space to upload age restricted content (video, audio, text or animation)
should be made mandatory to collect data of person uploading the content.
 The police must be made aware about the matters pertaining to cyber crimes and trained
to deal with cyber obscenity. General public must be made aware about the misuse of
mobile phones and destruction it causes in the life of victims.