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.
Please Note:
Do not violate copyright of this blog. If you would like to use informations
provided in this blog for your own assignment/writeup/project/blog/article,
please cite it as “Halder D. (2015), “The Great Debate on Porn
Ban: my views”, 12th August,
2015 , published in
http://debaraticyberspace.blogspot.com/
