Cyber Laws: Publishing Obscene Information in Electronic Form

The Internet is a boon to most of us. However, have you noticed that parents and teachers worry about the way it can be misused by young kids? In fact, the Internet becomes a perilous place for those who are either too young to enter and access many of its sites and for those who break cyber laws so that they can tamper or misuse it for illegal reasons.

The following cyber crimes are  increasing drastically:

• hacking
• tampering
• intercepting
• cyberstalking
• publishing obscene information

Remember, in India, publishing or transmitting obscene information in electronic form is a serious, punishable offence. A person who is found guilty of this offence is likely to get a jail term for up to five years and a fine of maximum one lakh rupees.

Cyber Laws: Legal Scope of the Word ‘Obscenity’

Although the word ‘obscene’ is not defined in the Indian Penal Code, the court distinguished obscenity from art and literature that contains sex and nudity by stating that it is necessary to decide whether the obscene information is lascivious and may deprave minds who find pleasure in such things. Also, the court decided that when it becomes difficult to distinguish something on the basis of art and obscenity, the artistic part must be clearly dominant or the obscene part so trivial that it can be easily overlooked.

Cyber Laws: Test of Obscenity

Under Indian cyber laws, the Supreme Court adopted the famous Hicklin’s test (an early English standard of obscenity) in the leading case of Ranjeet D. Udeshi v. State of Maharashtra 3L.R.Q.B 360,370 (Q.B. 1868).

The Hicklin’s test states that a governing body may prohibit anything that "depraves and corrupts those whose minds are open to such immoral influences and into whose hands a publication of this sort might fall."

In another case, Jagdish Chavla v State of Rajasthan, 1999 CR LJ 2562 (Raj), the accused had been caught watching an obscene film on the VCR and a case was registered against the accused under section 292, IPC. The accused stated that being in possession of such a film does not make him guilty under section 292 unless it is proved that he had kept it with the purpose of selling, distributing or hiring it for others to view. The proceedings against the accused were thus quashed because the IPC excludes mere possession without any intention to sell or distribute from liability under section 292.

Cyber Laws for Cyber Cafe Owners

If a customer who visits an Internet café downloads any obscene material for personal viewing on the terminal that is assigned to him and the café owner is aware of this, it is a serious offence that the owner can be held liable for under section 292 of the IPC, read with section 67 of the IT Act.

It is advisable for cyber café owners to set up some effective hardware or software that prevents customers from accessing or viewing any obscene websites. Further, display clear disclaimers that inform customers about this policy. Customers should be made aware that obscenity is an offence which is taken seriously and is punishable with imprisonment under Indian cyber laws. If customers persist in viewing and downloading obscene materials despite adequate warning, they will be personally responsible and the café owner will not be considered liable.

Cyber Laws: Punishments for Obscenity

For an offence under section 292, IPC, it is usually imprisonment (simple or rigorous) on the first conviction for a term that may comprise up to two years, and with fine. If this is a second conviction or more than that, it will be most likely imprisonment (simple or rigorous) for about five years, with fine.

For an offence under section 67 of the IT Act on first conviction, the punishment is imprisonment (simple or rigorous) for up to five years, with fine. In second or other convictions, the imprisonment (simple or rigorous) can extend up to ten years, also with fine.