Introduction
We live at a time when access to the internet has been declared as a fundamental right.[1] A Kerala High Court decision also elevates it to the position of basic human rights through one of the founders of the internet, Vinton G Cerf opposes this idea.[2] In the last couple of years, India was one of the countries which faced one of the highest number of Internet shutdown in the country citing national security issues. At the same time, adding to the abuse of internet facilities on these grounds, many other restrictions have also come into the function to regulate the internet space. The Information Technology Act 2000, was the first step towards achieving this goal. The 2008 amendment to the Information Technology Act and the 2011 IT rules reinforced the government’s power. This article discusses the legal aspects of certain websites that could be watched online, which is pornography and pirated videos.
Pornography
India is the third-highest consumer of porn in the world. This is despite the porn already in place in India. The Department of Telecom in 2015 had ordered internet service providers to bring down 857 websites in order to control crimes. [3]The question here is watching these porn sites is legal.
Indian Legal Framework
The India Penal Code, 1860 is the main criminal law code in India. As it was framed at a time when the internet was nonexistent, there is nothing regarding it. But it does mention in section 354A which makes showing porn forcibly an offense as it may outrage the modesty of a woman.[4]
The major act governing pornography is the IT Act 2000, which was amended once in 2008. In section 67 of the said act, publishing or transmission of obscene material in electronic form is considered to be an offense and 67 A mentions the punishments regarding this.
Section 67B of the IT Act makes a stronger point. It not only says that the transmission and publication of porn depicting children as punishable but also goes on to make creating even texts, collecting, downloading, or even browsing on child pornographic material in any electronic form shall be punishable.[6]
What is legal and what is not?
From this, we can conclude that watching porn is not illegal in India looking at it plainly[7]. But forcing another to view porn or transmitting porn even by a simple WhatsApp message can be illegal. While watching child porn may not seem an offense, but collecting or browsing such porn is a punishable offense with imprisonment up to 5 years and fine which may extend to 10 lakh rupees. Hence, it makes it more very difficult to avail of a source and hence making it equal to being illegal. Children shall be anybody under the age of 18 for the purpose of the act.
Further, there is no difference even if pornographic material is textual, image, or video. Also transmitting or publishing pornographic material in a different country where it is legal, India can take no action against them but can block the access to websites in the country. This is all subject to an exception for bona fide use like for sex education or for religious purposes.
Internet Piracy
‘Udta Punjab’, ‘Nerkonda Parvati’, ‘Paanch’ are some of the movies which leaked online before its formal release in theatres. The act of acquiring, reproducing, copying, and then distributing media, without having any license is considered as piracy of media. The movie industry is critically affected due to piracy.
Indian Legal Framework
Movies are protected by copyright law. The Copyright Act of 1957, guarantees protection of cinematograph films, artistic works, etc. under section 13.[8] The Cinematograph Act of 1952 lays out that the attempt to record a movie in the theatres or transmission of it to be an offense punishable by imprisonment, fine or both.
The recent Mumbai High Court decision was a landmark that helped to remove ambiguity regarding this. Justice G Patel in his order clearly stated that viewing a pirated copy would not be considered as an offense under any of the present statutes.[9]To balance this, the courts have usually been very liberal in providing blocking orders to piracy websites.[10]
Conclusion
Considering this, we can find that viewing any content on the internet is not usually crime in India unless it of grave nature like that of child porn, which is even backed by International treaties like the optional Protocol on the Sale of Children, Child Prostitution and Child Pornography’.It has been pretty liberal in this aspect and has been more vigilant on blocking website hosts rather than restricting users. Also, measures are in place for restricting transmission of unauthorized or sexually objectionable files.
A loophole here arrives is the use of a Virtual Private Network (VPN) to bypass the restriction. Though simply using a VPN is legal, using it for the purpose of doing an illegal activity may be illegal. Also, it is ambiguous whether accessing a site blocked by the government by VPN is illegal or not. It needs further development in the coming era.
References
[1]PTI, ‘Access to the Internet is a fundamental right, rules Supreme Court’ (The Hindu Business Line, 10 Jan 2020) https://www.thehindubusinessline.com/news/right-to-access-internet-is-a-fundamental-right-rules-supreme-court/article30531490.ece/amp/> accessed on 30 May 2020
[2]Krishnadas Rajagopal, ‘SC has no views on if ‘access to Internet’ is a fundamental right’ ( The Hindu, 10 Jan 2020)https://www.google.com/amp/s/www.thehindu.com/news/national/sc-has-no-views-on-if-access-to-internet-is-a-fundamental-right/article30536065.ece/amp/ accessed on 30 May 2020
[3] John Ribeiro, ‘Indian Government orders ISPs to block 857 porn websites’ (Network World, 2 August 2015)<https://www.networkworld.com/article/2955834/indian-government-orders-isps-to-block-857-porn-websites.amp.html> accessed on 30 May 2020
[4]Indian Penal Code 1860, s 354A
[5]Information Technology Act 2000, s67,67A
[6]Information Technology Act 2000, s 67B
[7]Ankur Singhal, ‘Legal Status of Pornography in India’ (2018) 1(1) IJLMH< https://www.ijlmh.com › Leg…PDF
Legal Status of Pornography In India – International Journal of Law Management …>accessed on 31 May 2020
[8]Indian Copyright Act 1957, s13
[9]Eros International and Another v BSNL & Others, Notice of Motion (L) No. 2147 Of 2016 in Suit (L) No. 751 OF 2016.
This article is written by Junaid Muhammad Anshad student of 1st year, B.A.LL.B at National Law University Odisha
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