Child Pornography:- National And Global Prespective, A Menace

INTRODUCTION
Child pornography is publishing and transmitting obscene material of children in electronic form. In recent years child pornography has increased due to the easy access of the internet, & easily available videos on the internet. Child pornography is the most heinous crime which occurs and has led to various other crimes such as sex tourism, sexual abuse of the child etc. [1]

Child pornography laws provide severe penalties for producers and distributors in almost all Western societies, usually including incarceration, with shorter duration of sentences for non-commercial distribution depending on the extent and content of the material distributed. Convictions for possessing child pornography also usually include prison sentences, but those sentences are often converted to probation for first-time offenders.[2]

INTERPOL has cited Germany as one of the major producers of child pornography, with the Netherlands and the United Kingdom as the major distribution centres. United States is one of the largest markets of demand for child pornography, though more interest has shifted to South East Asia in recent years. The development of child pornography is fuelled by mainly two factors, the inception and availability of home movies, videos, digital cameras, computers and software, which made the making of child pornography relatively cheap and secondly, the development of Internet technology, which has increased ease of production and distribution of this material to amazing heights.[3]

There is constant debate as to how the child pornography industry can be stopped. One of the major aspects of the debate is answering seemingly simple question: how does one define the age of a minor? This is because; different countries set different age for “hardcore” pornography and “soft-core” pornography.[4]

INTERNATIONAL TREATIES ON CHILD PORNOGRAPHY
The Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography is a protocol to the Convention on the Rights of the Child and requires states to prohibit the sale of children, child prostitution and child pornography.

The Protocol was adopted by the United Nations General Assembly in 2000[1] and entered into force on 18 January 2002. As of April 2011, 142 states are party to the protocol and another 24 states have signed but not yet ratified it.

Article 1 of the protocol declares that states must protect the rights and interests of child victims of trafficking, child prostitution and child pornography, child labour and especially the worst forms of child labour.

The remaining articles in the protocol outline the standards for international law enforcement covering diverse issues such as jurisdictional factors, extradition, mutual assistance in investigations, criminal or extradition proceedings and seizure and confiscation of assets as well.

It also obliges nations to pass laws within their own territories against these practices “punishable by appropriate penalties that take into account their grave nature.”

According to the preamble, this protocol is intended to achieve the purposes of certain articles in the Convention on the Rights of the Child, where the rights are defined with the provision that states should take “appropriate measures” to protect them.[5]

CHILD PORNOGRAPHY NATIONAL LAWS OF SOME COUNTRIES

Australia:– The maximum penalty is 10 years jail and/or a $120,000 fine.[6]

Canada:- Canadian law forbids the production, distribution, and possession of child pornography. Prohibitions cover visual representations of sexual activity by persons (real or imaginary) under the age of 18, depiction of their sexual organ/anal region for a sexual purpose, or any written material or visual representation that advocates child pornography offenses against a person under 18.[7]

Japan:- Child pornography is illegal in Japan since the establishment of the Act on Punishment of Activities Relating to Child Prostitution and Child Pornography, and the Protection of Children in 1999. Providing child pornography to unspecified persons shall be punished up to 5 years of imprisonment with work and/or 5 million yen of fine.[8]

Malaysia:- Malaysia does not have specific legislation about child pornography. However, the offense of rape and other forms of child sex abuse are punishable under Section 376 and Section 376B of the Penal Code, as well as the Child Act 2001. The age of consent for sexual activity in Malaysia is 16 years and above for both males and females.[9]
Sweden:- Presumed illegal prior to 1971. Legal from 1971-1980. Now still illegal. The National Library of Sweden experienced a dispute regarding the alleged collection due to their legal obligation to archive all material printed on Swedish soil.
United Kingdom:– In the United Kingdom, it is illegal to take, make, distribute, show or possess an indecent image of a child. In the context of digital media, saving an indecent image to a computer’s hard drive is considered to be “making” the image, as it causes a copy to exist which did not exist before. Indecency is to be interpreted by a jury, who should apply the recognised standards of propriety. A child is a person who has not reached the age of 18.[10]
United States:– In the United States, child pornography is illegal under federal law and in all states. Although child pornography may also be obscene, a legal term that refers to offensive or violent forms of pornography that have been declared by decisions by the US Supreme Court to be outside the protection of the First Amendment regarding free speech,[20] it is defined differently from obscenity. Federal Sentencing Guidelines regarding child pornography differentiate between production, distribution and purchasing/receiving, and also include variations in severity based on the age of the child involved in the materials, with significant increases in penalties when the offense involves a prepubescent child or a child under the age of 12.[11]

CHILD PORNOGRAPHY IN INDIA
Child pornography is a crime in India. Information Technology Act, 2000 & Indian Penal Code, 1860 provides protection from child pornography. Child is the person who is below the age of 18 years.[12]
In February 2009, the Parliament of India passed the Information Technology Bill which made creation and transmission of child pornography illegal. The newly passed Information Technology Bill is set to make it illegal to not only create and transmit child pornography in any electronic form, but even to browse it. The punishment for a first offence of publishing, creating, exchanging, downloading or browsing any electronic depiction of children in “obscene or indecent or sexually explicit manner” can attract five years in jail and a fine of Rs 10 lakh.[13]
Section 67 of the existing act deals with “publishing obscene information in electronic form”. It is a generally worded section that does not specifically define “pornography” or make it an offence, and does not mention “child pornography” at all. But in its amended avatar, Section 67B proposes specifically to punish involvement in sexually explicit online or electronic content that depicts children. It will also be an offence to “cultivate, entice or induce children to online relationship with other children for a sexual act.”[14]
Punishment for first conviction with imprisonment which may extend to 3 years & fine which may extend to 5 lakhs rupees. And for subsequent offence imprisonment which may extend to 5 years & fine which may extend to 10 lakhs rupees. Section 292 of the Indian Penal Code, 1860 does not per se deal with obscenity online.[15]

CONCLUSION
Developing a precise definition for the term ‘obscenity’ is difficult. What may be considered as obscene in one country may not be considered as obscene in another. It mainly depends on the moral and ethical values of the people who belong to a specific country. However, the generic definition of obscenity refers to an act or speech or item that is likely to corrupt the morality of the general public because of its indecency or lewdness in content or form. The exhibition of something offensive to modesty or decency or expression of unchaste or lustful ideas or being indecent or lewd is considered to be obscene, in most countries. In my opinion to control child pornography in India we should completely ban porn sites. This stringent action can solve the problem to a larger extent. This would give us time to think and plan some new ways to eradicate child pornography from India. Depiction of minors, both real and virtual, as well as adults appearing to be minors, in electronic child pornography should be prevented by Indian law. Stringent measures must be taken to combat such heinous abuse.


[1] Retrieved From<http://www.indianchild.com/childlaws/child-pornograhy-laws-in-india.htm>, Last Visited On 18/04/2011, at 19:17 IST.

[2] Akdeniz, Yaman (2008), Internet child pornography and the law: national and international responses. Ashgate Publishing, Ltd.. p. 11.

[3] Retrieved From<http://works.bepress.com/cgi/viewcontent.cgi?article=1002&context=dyutimoy_mukherjee>, Last Visited On 18/04/2011, at 19:25 IST.

[4] Id.

[5] Retrieved From<http://www2.ohchr.org/english/law/crc-sale.htm>, Last Visited On 18/04/2011, at 19:52 IST.

[6] Retrieved From<http://libertus.net/censor/laws/celaws.html>, Last visited On 18/04/2011, at 20:08 IST.

[7] Retrieved From<http://www2.parl.gc.ca/Content/LOP/ResearchPublications/843-e.htm>, Last Visited On 18/04/2011, at 20:12 IST.

[8] Retrieved From<http://en.wikipedia.org/wiki/Child_pornography_laws_in_Japan>, Last Visited On 18/04/2011, at 20:30 IST.

[9] Retrieved From< http://www.interpol.int/Public/Children/SexualAbuse/NationalLaws/csaMalaysia.pdf>, Last Visited On 18/04/2011, at 20:43 IST.

[10] Retrieved From< http://www.cyber-rights.org/reports/ukcases.htm>, Last Visited On 18/04/2011, at 20:58 IST.

[11] Retrieved From< http://www.justice.gov/criminal/ceos/citizensguide_porn.html>, Last Visited On 18/04/2011, at 21:15 IST.

[12] Retrieved From< http://www.indianchild.com/childlaws/child-pornograhy-laws-in-india.htm>, Last Visited On 18/04/2011, at 21:24 IST.

[13] Retrieved From< http://wapspell.com/t19105p1-New_Cyber_Law_In_India.html>, Last Visited on 18/04/2011, at 21:38 IST.

[14] Id.

[15] Retrieved From< http://www.indianchild.com/childlaws/child-pornograhy-laws-in-india.htm> Last Visited On 18/04/2011, at 21:45 IST.

 

Article by-

Ankush Bhargava

Student, LL.M 1st Year

Rajiv Gandhi National University of Law, Patiala

 

By Competition2011 on April 19, 2011 · Posted in Criminal Law

16 Comments | Post Comment

sandeep says:

i liked this article.

Posted on April 19th, 2011

Poorvi Poddar says:

wow……this article is too good….. i like it…..

Posted on April 19th, 2011

Abhishek says:

definitely good work..

Posted on April 19th, 2011

Rohit says:

Nice Job……Very Gud !!!

Posted on April 20th, 2011

sanjay says:

it’s a good article. it seems u have studied the matter well.

Posted on April 20th, 2011

Indra Deo Goyal says:

it’s a good article. it seems u have studied the matter well.

Posted on April 20th, 2011

sanjalp says:

seems u have worked hard. Is India a signatory in the UN Protocol or not

Posted on April 20th, 2011

ankush says:

yes India is one of the signatory of this protocol

Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution
and child pornography

Adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/54/263
of 25 May 2000, entered into force on 18 January 2002

Posted on April 20th, 2011

Neeraj Gahlot says:

liked that…..

Posted on April 23rd, 2011

Sachin Bhargava says:

Nice & Informative article with Indian & other country law details on Child Pornography.

Posted on April 24th, 2011

Ashish Kumar says:

Awesome article…..is critically acclaimed by many people with their precious Reviews….

Posted on April 24th, 2011

atul verma says:

nice article……..your hard work is reflected in this article…

Posted on April 24th, 2011

Mahendra Bhandari says:

Good article. Thought provoking.

Thanks for taking up a good topic.

Posted on April 25th, 2011

VIDYA NAIK says:

Dear Ankush,

I work with your brother, Akshay and am glad that he shared your very Informative article.
We,live in a society and are very ignorant about what goes on in and around us. We only speak up when the damage is done to ourselves and our near and dear ones only.

The worst part is our ignorance of our laws. You have shared a lot and thanks for the information. Wish you all the luck.GOD BLESS YOU!

VIDYA

Posted on April 25th, 2011

siddharth says:

a very good article. But stringent laws in India cannot combat this evil. Indian laws says even browsing is a crime,bt i think everyone,alomost 99 percent of ppl does that. Watching is no crime.People in denmark think that watching porn helps them to improve their sex lives.
But sir, i really appreciate your delve into the issue of child pornography.

Posted on May 14th, 2011

JOHN Q. CITIZEN says:

Recruiting new children into the Global Child Sex Trafficking/Pornography Industry, worth trillions of dollars worldwide, works this way in the United States (especially in the corrupt New York City Family Courts):

A Prostitute, usually coming from this same industry, entraps and has a child with a wealthy but naive father who she then divorces and makes him pay a fortune in mandatory Child Support, about 21% of his income a year for 21 years.

All the while, she provokes and instigates him repeatedly until he reacts and she can then obtain Orders of Protection against him, so he can never even see his own kids, but still pays a fortune in support.

Usually some type of Domestic Violence Women’s group will represent that con-artist woman/prostitute for free, said group routinely staffed with Pedophiles and Sexual Deviants who also support and actively partake in the Global Child Sex Trafficking Industry. Some of these “agencies” even are so bold as to have a “wing” of their organization devoted to “stopping or preventing child sex trafficking.” (The Lady Doth Protest Too Much – William Shakespeare) to further obfuscate and cover their tracks and true intentions.

This is all the while the poor SOB Father has to pay hundreds of thousands of dollars for lawyers who always lose, owing to the above, and the following:

The Family Court Judges in New York City and the Law Guardian chosen in these child custody cases (and the Court Appointed Forensic Psychologists) are also Perverts, Pedophiles, and they support and participate in the Global Child Sex Trafficking/Pornography Industry, and may even be willing and active participants.

The Family Court Judge and Law Guardian are literally hand picked by the “Domestic Violence Women’s Lobbying Group” to ensure that those kids never ever see their Fathers (who can protect them) again, by repeatedly and consistently disallowing those Fathers to see their children, with less and less time, until finally the Father’s Parental Rights are terminated for good, leaving those poor defenseless children in the sole custody of that vile, drug addicted, alcoholic, violent, deranged, descendent of the child porn industry prostitute mother, who now, free to do so without any prevention by the estranged and removed Biological Father – SURPRISE! sells those kids off to the highest bidder in the Global Child Sex Trafficking/Pornography Industry, again, worth trillions of dollars a year.

And then the cycle repeats itself a generation later with those “sold off children” doing it to their own kids, their souls having been lost forever.

Meanwhile the FBI, ICE, DHS, and other Federal and State Law Enforcement Agencies do absolutely nothing (many of them may be pedophiles, partaking of this child sex industry as well).

These “law enforcement agencies” will tell you “it’s not in their Mandate” or “there’s nothing we can do,” and will tell you to refer it to the Administration for Childrens Services (“ACS”) which is equally if not more corrupt, also staffed with incompetents and corrupt caseworkers, and at the higher levels perverts and pedophiles, and also just as beholden and owned by the Global Child Sex Trafficking/Pornography Industry as the specially selected Family Court Judges and Law Guardians.

All ACS ever does is sweep legitimate allegations and complaints about the above under the rug, while attacking and vilifying the Complainant.

In other words, there is a Grand Conspiracy of Global Child Sex Trafficking, completely fool proof and airtight, and no one can (or will) do a goddamned thing about it.

If you try and complain about it, or try and launch an investigation into it, both you and your world will be crushed by the awesome money, power, political connections, lobbying groups, and “professionals” in charge of maintaining and preserving this “industry.”

Count on it.

Posted on May 23rd, 2011