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Legal implications of certain online action and content

Most users neither know nor understand the impact or the possible consequences of some of their online activities. Teaching them ethical and moral behavior in general, and an awareness of children’s rights can create empathy for the victims of their communication and may address some problems such as cyberbullying, humiliating comments. However, they also need to be made aware about the legal implications of some of their online actions.

Children may also show extra bravado because they have the illusion that their actions online are anonymous and that “nobody will ever know”.

Please note that the following are legal offences: Details of offences and the relevant sections of different legislation have been provided here for the information and knowledge of the programme planners. These will need to be incorporated according to the evolving capacities of children and young persons and their age appropriate information requirements. These can also be suitably adapted for the different adult stakeholders.

Voyeurism and violation of privacy

Section 354C, the Indian Penal Code (IPC) 1860: Viewing and/or capturing the image of a girl or woman going about her private acts, where she thinks that no one is watching her is a crime. This includes a woman, using a toilet, or who is undressed or in her underwear, or engaged in a sexual act.

It may not be a crime if a girl or woman agrees to taking of her private photos, it can certainly be risky. However, if she expects them to remain with only certain people, then sharing them is a crime. She must expressly consent to both, watching/taking pictures as well as sharing them, for it to not be an offense. The offender in such cases of voyeurism can be punished with three to seven years of imprisonment and a fine. While this section of the IPC can only be used by girls and women, the Information Technology Act, 2000 is gender neutral.

Video voyeurism

Section 66E, IT Act, 2000: Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding Rupees two lakh or with both.

Explanation: For the purposes of this section,

  1. “transmit” means to electronically send a visual image with the intent that it be viewed by a person or persons:
  2. “capture” with respect to an image, means to videotape, photograph, film or record by any means
  3. “private area” means the naked or undergarment clad genitals, pubic area, buttocks or female breast
  4. publishes” means reproduction in the printed or electronic form and making it available to public
  5. “under circumstances violating privacy” means circumstances in which a person can have a reasonable expectation that
    • he or she could disrobe in privacy, without being concerned that an image of his private area was being captured; or
    • any part of his or her private area would not be visible to the public, regardless of whether that person is in a public or private place.

Stalking

Section 354D, IPC, 1860: Continuously following a woman or contacting her, either online or in person, and where she has clearly shown that she does not want the attention is a criminal offence. It is punished by three years for a first offense, and five years for repeat offenses. The only exception is when a person is stalking a woman as a legal duty.

Sending obscene material without the consent of the recipient

Section 354A, IPC, 1860 (sexual harassment): it includes the act of showing pornography against the will of a woman.

Section 67, IT Act, 2000: It punishes sharing obscene material in electronic form. The punishment can be jail for five years and a fine of Rs 10 lakhs.

Section 67A, IT Act, 2000: It punishes sharing material containing sexually explicit act in electronic form with jail for seven years and a fine of Rs 10 lakhs. The provisions of the Information Technology Act are not gender specific and apply to everyone.

Use of child for pornographic purposes

Section 13, Protection of Children from Sexual Offences (POCSO) Act, 2012: Whoever, uses a child in any form of media (including programme or advertisement telecast by television channels or internet or any other electronic form or printed form, whether or not such programme or advertisement is intended for personal use or for distribution), for the purposes of sexual gratification, which includes:

  • representation of the sexual organs of a child;
  • usage of a child engaged in real or simulated sexual acts (with or without penetration);
  • the indecent or obscene representation of a child, shall be guilty of the offence of using a child for pornographic purposes.

Section 14, POCSO Act, 2012:

  1. Whoever, uses a child or children for pornographic purposes shall be punished with imprisonment of either description which may extend to five years and shall also be liable to fine and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also be liable to fine.
  2. If the person using the child for pornographic purposes commits an offence referred to in section 3, by directly participating in pornographic acts, he shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.

Section 67, IT Act, 2000 (Publishing or transmitting obscene material in electronic form):

Whoever,

  • publishes or transmits or causes to be published in the electronic form,
  • any material which is lascivious or appeals to the prurient interest or
  • if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it,

shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to Rs 10 lakh.

Section 67A, Information Technology Amendment Act (ITAA), 2008 (Punishment for publishing or transmitting of material containing sexually explicit acts):

Whoever,

  • publishes or transmits or causes to be published or transmitted in the electronic form
  • any material which contains sexually explicit act or conduct

shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to Rs 10 lakhs and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to Rs 10 lakhs.

Section 67B, IT Act, 2000 (Transmitting material depicting children, including nude or sexually explicit pictures of self, if a child):

Whoever,

  • publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct or
  • creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner or
  • cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource or
  • facilitates abusing children online or
  • records in any electronic form own abuse or that of others pertaining to sexually explicit act with children,

shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with a fine which may extend to Rupees ten lakh and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to Rupees ten lakh:

Sexual harassment

Section 11, POCSO Act, 2012: A person is said to commit sexual harassment to a child when such person with sexual intent;

  • utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or
  • makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or shows any object to a child in any form or media for pornographic purposes; or
  • shows any object to a child in any form or media for pornographic purposes; or
  • any other means; or repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or
  • threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or
  • entices a child for pornographic purposes or gives gratification therefor.

Section 12, POCSO Act, 2012: Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable for fine.

Section 354A, IPC, 1860: It provides for punishment of jail between one and three years for making a demand for sexual favors and making sexually colored remarks towards a woman

Section 509, IPC, 1860: It deals with word, gesture or act which intends to insult the ‘modesty’ of a woman.

Section 509 can also be applied for intrusion of privacy intending to insult the modesty of a woman if a person obtains a woman’s contact details and tries to contact constantly against her will. The IPC is not very clear about the meaning of “modesty of a woman” but the Courts usually make the determination based on the circumstances surrounding the incident. The Supreme Court referred to ‘modesty’ as “feminine decency” and a virtue that women possess due to their sex. For Section 509 to apply, the offender should have uttered any word, made a gesture or sound, or exhibited any object, or intruded on the privacy of a woman, with the intention that this should be seen and heard by the woman. The punishment can be a term of simple imprisonment up to three years.

In addition to the above-mentioned provisions in the IPC that that apply only to females, there are other laws which apply generally. Section 294 of the IPC punishes any obscene words uttered in a public place. Section 295A of the IPC punishes words, either written or spoken, which insult someone’s religions or religious beliefs. Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act deals with caste-based abuse. Section 503 of the IPC deals with threats to injure any person, their reputation, or their property and Section 506 of the IPC provides for a jail term of seven years and a fine as punishment for criminal intimidation.

Revenge porn

Victimizing by way of revenge porn has become a common phenomenon in India now. This is often also practiced by children below 18 years of age. It may be described as “an act whereby a perpetrator satisfies his anger and frustration for a broken relationship through publicizing false, sexually provocative portrayal of his/her victim, by misusing information that he may have known naturally and that he may have stored on his computer, or phone, or may have been conveyed to his electronic device by the victim herself, or may have been stored in the device with the consent of the victim herself; and which may essentially have been done to publicly defame the victim.”

While revenge porn essentially creates sexual violence against girls and women, it necessarily involves voyeurism, hacking, stalking, and violation of privacy. There is no specific law for revenge porn but the offences can be regulated by applying Section 354C, IPC (Voyeurism), Section 66E, IT Act (violation of privacy) and Section 509, IPC (harming the modesty of women). Revenge porn should also be seen in the perspective of indecent representation of women.

Hacking of account or creating a fake account in someone else’s name

Section 66C, IT Act, 2000 which deals with identity theft, provides for jail for three years a fine of Rupees one lakh if it is shown that someone stole or dishonestly used another person’s password, digital signature, or any other unique identifying feature. Section 66D provides similar punishment for cheating by personation by using a computer source, i.e., if someone creates a fake social media account in someone else’s name and cheats anyone through it.

Identity theft, Section 66C IT Act, 2000: Whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique identification feature of any other person, shall be punished with imprisonment of either description for a term that extends up to three years and shall also be liable to fine which may extend to Rupees one lakh.

Section 66D, IT Act (Impersonation), 2000: Whoever, by means of any communication device or computer resource cheats by personation (assumes the identity of someone else with the intention of fooling or deceiving the person) shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to Rupees one lakh.

Section 66B, IT Act, 2000 (Stolen Computer): Whoever dishonestly receives or retains any stolen computer resource or communication device knowing or having reason to believe that the same to be a stolen computer resource or communication device, shall be punished with imprisonment of either description for a term which may extend to three years or with fine which may extend to Rupees one lakh or with both.

Video and audio piracy

Watching movies on copied DVDs or downloaded from Torrent sites may not currently be a crime in India, it certainly is in many countries as such acts constitute infringement of copyright.

In the wake of messages that several internet service providers posted on their websites, the Bombay High Court ruled that “the offense is not in viewing, but in making a prejudicial distribution, a public exhibition or letting for sale or hire without appropriate permission copyright-protected material.” The messages by the ISPs, displayed when users try to open blocked websites, said, “Viewing, downloading, exhibiting or duplicating an illicit copy of the contents is punishable as an offence under different sections of the Copyright Act, 1957.”

Downloading movies, music and copyright content from the internet is against the Indian copyright law, as are uploading copyright content to the web. By the way, saving images off the web, uploading them elsewhere like Reddit, making memes out of them, using them in your projects, etc are illegal too. That image does not belong to you; its copyright belongs to someone else, so you can’t profit from it without their permission.

Source : NCPCR's Being Safe Online - Guideline and standard content for raising awareness among children, parents, educators and general public.



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