Child Pornography:- National And Global Prespective, A Menace

Article for Blog Post Writing Competition 2011 | by Ankush Bhargawa


April 19th, 20116:49 pm


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

 

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