Beware! Even Private Obscene Messages Online Could Land One In Jail : Know About IT Act Offences

A recently exposed Instagram group by the name of 'Bois Locker Room' has taken social media by storm. The private group on Instagram reportedly consisted of several teenage boys from schools in Delhi-NCR region. It is stated that the group was being used to share photos of minor girls and young women, after which group member(s) would engage in making lewd & derogatory comments about the girls/women depicted in the pictures so shared. Mostly, the group and the exchange of messages in it has been condemned for its toxic nature, as also for normalizing the sexual objectification of women. An FIR has already been registered by the Delhi Police for commission of offences under both the Indian Penal Code, 1860 (hereafter the IPC) as well as the Information Technology Act, 2000 (hereafter the IT Act). This attribute of criminality, however, is being questioned on various grounds - it was, after all, a private group; the conversations were not accessible to the public; the images shared were per se not objectionable, and in all likelihood, they had been obtained by simply visiting the profile of the persons in question. Furthermore, there is no information about any physical harm being done to any girl or woman. Then what is the offence that is committed? Cases of this nature where certain kinds of private communications put the criminal law in motion have been rather infrequent till now. Being a new area of law, there are several questions that have not yet been considered by any court of law. Therefore, through this article we foray into identifying such legal issues by correlating them with the relevant provisions of penal law. Towards the end, we also raise some concerns about the criminalization of certain kinds of consensual private communications, merely because they take place over the internet. Is it an offence to share or post obscene content on an online platform, including through a private message? Yes, section 67 of the IT Act does indicate so. Its title states 'punishment for publishing or transmitting obscene material in electronic form'. Though the provision does not use the word 'obscene', it expresses the offence in the same terms as the word 'obscene' is defined under section Section 292, IPC. The provision, thus, penalizes the publishing or transmitting (or causing to publish or transmit) any material in the electronic form which is lascivious, or it 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. Given that this may be a subjective assessment, the courts have, over the years, attempted to provide some standards for interpreting these expressions. Initially, the courts in India were following the archaic Hicklin test, according to which a material that tended to deprave and corrupt those whose minds are open to such immoral influences and into whose hands the material may fall was obscene, regardless of its artistic or literary merit.[1] More recently, the Supreme Court has shifted to a 'community standards test', according to which a particular material would be obscene if it is suggestive of a depraved mind and it is designed to excite sexual passion in persons who are likely to see, hear or read it, as the case may be.[2] Is it punishable to share on the internet a picture or a video depicting a sexual act? What about a video or a picture depicting nudity? Yes, section 67A of the IT Act punishes the publishing or transmitting (or causing to publish or transmit) in the electronic form any material which contains 'sexually explicit act or conduct'. The expressions 'sexually explicit act' or 'sexually explicit conduct' have not been defined. Till now, these expressions have not been the subject of any comprehensive judicial interpretation, except for some brief discussion by the Bombay High Court in a bail matter[3]. However, it can hardly be doubted that this section does intend to cover within its scope pornographic content which is graphic in its depiction of any sexual activity. As far as nudity is concerned, the Bombay High Court in Jaykumar Bhagwanrao approved the applicability of both sections 67 & 67A to a case concerning the sending of an image of an erect penis via electronic communication to the complainant. The Court reasoned that 'sexually explicit activity' under section 67A would necessarily be lascivious or of prurient interest; and furthermore, that it may even be a unilateral activity, and need not be only a bilateral activity. Therefore, even material depicting nudity can form the basis for the offence under sections 67 & 67A to be made out. However, there is no straight-jacket formula. A stand-alone picture or video which is dominant in its depiction of nudity would stand at a greater risk of meeting ...

Beware! Even Private Obscene Messages Online Could Land One In Jail : Know About IT Act Offences

Tanima Kishore & Anuj Kapoor

Tags