Wednesday, August 12, 2015

The great debate on porn-ban: my views

August, 2015 started with some not so surprising news with the government of India banning around 800 websites who were allegedly having porn contents, and then again relaxing the ban. The government clarified that now the ban would be strictly for those websites who distribute child porn materials. Finally the Supreme Court of India came down with its unique observation that neither the government, nor the courts can dictate what to do for adults who watch porn contents within the four walls of their own houses.  This is indeed a unique observation from the Supreme court especially from the perspective of privacy rights of adults. Debates ran in several media including the electronic media regarding banning the porn sites, which directly hit a crucial privacy right: right to watch contents within the four corners of one’s own home. I was asked by some regarding views. Yes. I support banning porn sites. But only when, the websites have failed to stick to their due diligence policies. Regarding whether individuals should be allowed to view porn contents in private: I would still say, No they should not be if the contents are violate  laws. I say this, because if the courts make it punishable to watch every porn content at home, then millions including you and me would be indicted irrespective of why we got to watch it. A very simple example: how many of you had received gang rape videos asking for identifying the accused? If you have watched it even for a few seconds and circulated the same, then tell me, why and how the content stands apart from contents which may be categorised as porn contents which violate basic human rights? If such video/s came to you via WhatsApp or Facebook , would you consider asking the government to ban it ? In one of the conferences I expressed my concern in this regard and urged every one present in the conference to not to circulate to any friend/s, groups etc except to the police any such videos even to identify the accused. Nonetheless, I was heavily criticised.
          India had probably world’s first civilisation where watching erotica or creating erotica by way of sculptures and documenting about erotica were considered absolutely legal .but neither Kamasutra, the ancient book on erotica, nor any erotic sculpture advocated for abusing  any living being including men, women and children and even animals for driving sexual pleasure. With the advent of time and technology, human psychology in regard to consumption of erotica faced a drastic change. With colonial rules, came the period where slaves were used in inhuman ways for deriving sexual pleasure. I have documented some of such incidences in my article titled “Online Victimization of Andaman Jarawa Tribal Women: An Analysis of the ‘Human Safari’ YouTube Videos (2012) and its Effects”( Halder D., & Jaishankar, K. (2014), British Journal of Criminology, 54(4), 673-688. (Impact factor 1.556). DOI: 10.1093/bjc/azu026.) With this, the historians, sociologists, legal researchers and criminologists could frame up how human being were abused  for sexual pleasure, which were ethical and legal for some and unethical and illegal for many. Came the era of cinemas and televisions and the production/distribution of the erotica contents became even easier. There were cinemas with “A” signs which were produced only to cater the needs of adults. But in no time these movies found their ways to personal television sets where not only adults, but children also could see such erotica of course secretly. Point to be noted here is, after several attempts, none could ban production and distribution of such films. On the other hand, several stakeholders started realising  that awareness creation among parents and children may yield better results to make them understand why such contents should not be consumed for home viewing purpose, especially when there are growing children around.  But could this actually stop children from becoming over matured in regard to understanding sex related issues? Perhaps no. during my teenage days I got to see many of peers borrowing books which had erotica contents as parts of the text. We were not allowed to carry such books or pictures to the schools. But I know many of my friends secretly enjoyed those materials just how their elders may do . slowly I understood that this is because our inquisitiveness regarding sex was suppressed right at the time when we should have been told about this by our teachers or elders .
          Then came the internet era. One of the worst forms of violence against women took place in the cyber space when women were abused to create erotica contents for the porn markets.  Children were neither spared. But because children need more care and protection, their cause was highlighted more. Some of the websites did cater child porn materials with children as actors. The stakeholders who wanted to bring a blanket ban on porn sites not only wanted to emphasise upon the fact that child actors may be abused for creation of such contents, but also that such porn contents may encourage others including adults and children to take up similar measures to abuse other children.  Laws were created in both Information technology Act (S.67B)and as well as Protection of children from sexual offences Act (POCSO)(s.13) whereby such creation and distribution and also consumption were prohibited. These laws actually extended their scopes to the websites who would be hosting such contents as well. However, the websites are already armed with their own due diligence policies which stem out from US laws. Hence in India also websites were given an advantageous position whereby their own mechanism can detect the illegal contents, remove it from public viewing and block the uploader from uploading any such content again. It was only when that they fail to take notice of the reports made by the victims themselves, observers who feel that such contents are objectionable and the criminal justice administration, that websites can be indicted  and the veil of exemption from being directly liable is lifted (S.79, Information Technology Act). In this regard several rules are also created as intermediary guideline rules.  But adults were also given consideration while creating laws against porn or obscenity. S.67 of the information Technology Act 2000( amended in 2008) prohibits creating/publishing/distributing obscene materials in the electronic form and S.67A prohibits publishing/distributing sexually explicit materials in the electronic media.  It must be noted that when we speak about adults, no law recognises the term “pornography” as an offence or part of any offence. There is no legal definition as such of the term. What does it mean then? Is creating/ distributing/ producing pornography legal? Are the websites who are created solely for the purpose of catering pornography legal? Is watching pornography legal ?  No! it may not be legal when pornography is understood in the meaning of sexually explicit object.  It is neither legal when the content so created involves other privacy issues including voyeurism, revenge porn, sextortion etc.  Some of the Indian laws do recognise the above issues, some remain un recognised. The question is, are consumers/viewers and the websites liable for consuming/ catering such contents as adult porn materials? it is interesting to note that  if the content is erotica, does not fall within the category of Ss. 292 IPC(sale etc of obscene books, pamphlets etc), 354C IPC( voyeurism), 66E( violation of privacy), 67 and 67A, 67B of the Information Technology Act,2000(amended in 2008). As the Supreme court has observed, the viewers are not responsible when they view these contents in private.  But yes, viewers may be liable only when it amounts sexual harassment within the meaning of various laws in India including sexual harassment of women at workplace (prevention, prohibition and redressal)  Act, 2013 etc. it may also amount to an offence if the viewer forces the partner or spouse to watch the same against his/her wish. Of course, in the later situation, the burden of proof lies much upon the complainant if he/she wants to establish the fact that such activities were done in a course of mental torture and domestic violence  to the spouse. It must be noted that the websites are neither responsible if they have observed due diligence.  
But then how should we manage the huge growth of porn industry which is largely dependent upon the contributors of home-made porn and consumers? I feel here comes the question of  society’s and not the court’s  or the government’s lone responsibility . Thousands of porn contents are fed in the websites every minute. These sites include exclusive adult sites, social media like Facebook, You Tube etc and also mobile messaging services like WhatsApp.  When we speak about amateur porn contents, we may note that majority of such contents are actually voyeur porn, revenge porn and sexted contents which got leaked due to various reasons.  When an adult prefers to watch porn content, he would definitely not know whether the same is a legal content or an illegal content.  Just because the content is catered through adult sites, the content may not become offensive. Similarly, just because the content is catered through social media like Facebook or YouTube, it may not become a legal content. Consider the gang rape videos. It does not make legal to watch or circulate such videos just because they are circulated to identify the accused. Even if the victim is not shown, the video harms the privacy of the victim in the same fashion as it may do if it would have shown the victim.  In that case, can the government block Facebook or YouTube or WhatsApp because such videos were circulated through them?  They can not. There is a procedure to make the websites take down these contents. Further, what would be the effect of banning if only Indian viewers in India would be barred from viewing some contents but contributors staying abroad upload  revenge porn, voyeur videos  from foreign IP addresses ? Would that not be more victimising for victims whose privacy has been violated? Such contributors would not be able to show such contents to Indian viewers, but the contents can be visible anywhere else in the world. In such cases, how would the victim be able to prove the case if he/she is provided only with the link and that does not work within Indian jurisdiction? we need to understand that in all over the world, police still needs sensitisation to deal with cyber crimes especially against women and in such cases, the victims are bound to face secondary harassment in the hands of police as well.   By saying this I argue that websites as organisations must share the social responsibility to stop victimisation of women, men and children. Websites thrive in the market because of its contributors and consumers.  It is only when that the websites take a strong note on contribution of contents which are violative of laws as well as privacy of individuals that the illegal contribution may be brought down. Coming to the consumption, it would be wrong to say that all consumers of porn contents are perverts. Porn contents may be used as sexual stimuli and this factor has been noted by medical researchers especially in sexology, reproduction science etc. But such stimuli should be used for healthy sexual relationships and purposes. Not for violating rights. I completely agree with the views that porn contents do affect youth who get indulged in rape or sexual molestation just to experience direct pleasure from similar situations in real life. Who are responsible for letting the youth consume such contents  for unhealthy reasons? Definitely the  elders, the teachers who never explained about sex education and basic  guidelines to respect the privacy of women, men and children  in schools and homes , and the peers who seek to share the forbidden pleasure.  
We need to understand that blanket ban on porn sites would never be effective to stop victimisation of women, men and children either in real life or in cyber space. Instead of blanket ban or blocking the traffic for certain websites to all the broadband network consumers, the government should consider  taking up policies to detect the rackets who are spreading such contents to the websites, the faulty websites who are failing in practicing due diligence and of course to train the criminal justice organisation to be able to handle to reports of the victimisation within shortest time. We need to understand that porn contents are spread not only through adult websites, but also through every day accessible mechanisms such WhatsApp or even a simple MMS. That is because the contents may be stored in the personal devices and law can not enable any official to screen every device to detect whether porn contents are stored  and what types of contents are stored.  This would again bring debates about government surveillance and privacy. Truly, you can not shoot messenger, but can declare war against the devils that use the messenger for destructing peace.
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