Content on the Net should be monitored?

S. Farman Ahmad Naqvi, Advocate

THERE’S a debate raging over the banning of certain sites on the Internet. The
Computer Emergency Response Team (CERT) estimates that in 2001 there were 530
million internet users worldwide and this number may rise to 1 billion in the 2006. The
emergence of computer technology has created new ways to access even information that
may be offensive or harmful.

But with the continuing growth thousands of unscrupulous sexually explicit & obscene
websites coming into existence, there are serious concerns about the impact of the Net
on society. An unsuspecting user of the Internet can chance upon obscene porn sites
perchance or sometimes as pop-up advertisements.
The argument is those not interested need not click on such sites but this liberty does not
automatically allow someone to float such sites in the first place.

The Information Technology Act, 2000, came into existence to check cyber crimes, as
well to place India on the global network to control such crimes. It adopted all the
hallmarks of world market concerns about cyber crimes relating to financial
transactions, but somewhere down the line, failed to touch the traditional Indian
concerns, relating to building a moral character of society relating to women, children
and obscenity. The Act showed genuine concern towards the business transactions.

While dealing with cyber crimes relating to obscenity under Section 67 of the
Information Technology Act, 2000, the panel used the word ‘obscenity’ in its heading
only in the following manner—Publishing of information which is obscene in electronic
form.

One fails to understand why the word obscenity was not properly defined in the
definition clause or in the Section itself to lay a clear guideline in this respect, like for
other aspects great details were laid down in the Act. It is also strange that obscenity was
not defined in the Indian Penal Code also, although it proposes punishment for
publication of obscene books, selling obscene object to young people and obscene acts &
songs in public places, under Sections 292, 293 & 294 etc.

Considering the fact that the Indian Penal Code has not defined the meaning and scope
of obscenity, the framers of the IT Act, 2000, had greater responsibility upon their
shoulders to protect the citizens by having a broader vision of things.

The dictionary meaning of word ‘obscene’ is “which offends or wounds the imagination
in sexual matters” or “is offensive” or “revolting”. Obscenity means the state or quality of
being obscene. At the stage when the IPC came into existence, the morals were such that
the dictionary meaning of the word ‘obscenity’ was understood in its simplest terms as “a
thing or act which is vulgar and lascivious and its effect is such that it may corrupt mind
or body”.

The IT Act came into existence in 2000, although prior to that, we all came to know that
porn sites were easily available on the information highway.
The same can very well be demonstrated from the following data in the US. There are
currently more than one lakh sexually explicit websites showing obscene materials. In
the US, 65 per cent of the teenagers, below the age of 14, visited porn websites in 2000
alone, according to the Net Value Report on Minors Online, Dec. 2000. The FBI of US
had registered 4,000 cases of online child pornography.

The financial interest of any country is the prime concern of every person and its
protection is also needed by applying all means and resources available with the country.
In the age of globalisation and free trade the financial interests of foreign partners are
necessarily to be protected by us to protect our own interest and to gain further markets
and profits.

Obscenity was well-defined in one of the famous US Supreme Court cases of Miller vs.
California (413 U. S. 15 (1973). Miller was convicted after a jury trial under the California
Penal Code of knowingly distributing obscene material. The US Supreme Court
enunciated a three-part test with 5-4 majority judgments. The three points ‘Miller’ test
defined ‘obscenity’ as;
1.If it arouses ‘Prurient Interest’ that does not match “contemporary community
standards”.
2.If it is “patently offensive”.
3.If it “lacks serious literary, artistic, political or scientific value”.

By applying these three Miller tests, can it be said that in any circumstance an obscene
material on a porn website, showing hard core sex, e.g. anal, child, oral etc. can qualify
these tests? The Information Technology Act, 2000, is silent about this aspect and lays
down no definition of obscenity but provides punishment under Section 67 for
publishing obscene material in electronic form.

It will be appropriate to place the provisions of two other acts which also deal the
indecent display of women, prostitution, indecent representation of women & obscenity
etc. namely the Immoral Traffic (Prevention) Act, 1956 & the Indecent Representation of
Women (Prohibition) Act, 1986. Under Section 2 (a) of the Immoral Traffic (Prevention)
Act, 1956, the 'brothel' had been defined as a house, room ([conveyance) or place or any
portion of any house room [conveyance] or place, which is used for purposes of sexual
exploitation or abuse for the gain of another person or for mutual gain of two or more
prostitutes.
Under Section 2 (f) of the Immoral Traffic (Prevention) Act, 1956, the word 'prostitution'
had been defined as the sexual exploitation or abuse of persons for commercial purposes,
and the expression prostitute was to be understood accordingly.

The statement and object of the Indecent Representation of Women (Prohibition) Act,
1986, it is said that the law relating to obscenity had been codified in sections 292, 293 &
294 of the IPC, but in spite of these provisions, there is a growing tendency of indecent
representation of women or reference to women in publications and advertisements, etc.
which have the effect of denigrating women and are derogatory to women under Section
2 (c) of the Indecent Representation of Women (Prohibition) Act, 1986, the words
‘indecent representation of women’ had been defined as 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
effect of being indecent, or derogatory to, or denigrating, women, or is likely to deprave,
corrupt or injure the public morality or morals'.

Taking into account to the definition of prostitution, public place, indecent presentation
of women & brothel it is clear that the people who indulge in the business of floating
porn & obscene sites by sexual exploitation of persons for commercial purposes on the
information highways are indulging in prostitution and the places where these sites are
being shot and shown are simply the ‘brothels’.

(The writer is an advocate at Allahabad High Court)