A landmark judgement for child safety

The Supreme Court ruling that watching child pornography over the internet even without downloading constitutes a punishable offence under the Protection of Children from Sexual Offences (POCSO) Act is a landmark judgment. The Supreme Court also set aside the Madras High Court judgement that said that mere storage or possession of any child pornographic material does not amount to an offence under the Act. The SC judgement will strengthen the law to protect children from sexual abuse and online predators. Strengthening technological and institutional measures, as recommended by the “Ad-hoc committee of the Rajya Sabha to study the alarming issue of pornography on social media and its effect on children and society as a whole,” are critical to strictly enforcing the law. The apex court has also set a new benchmark in dealing with child pornography cases by ruling that failure to report child pornographic content even when it is received unknowingly constitutes an offence. The POCSO Act enacted in 2012 was amended in 2019 to include the definition of child pornography. Section-15 of the Act provides for punishment to any person who stores or possesses pornographic material in any form involving a child but fails to delete, destroy, or report the same to the designated authority, with an intention to share or transmit child pornography, shall be liable to a fine not less than Rs. 5000, and in the event of a second or subsequent offence, the fine shall not be less than Rs. 10,000. This section also provides that any person who stores or possesses pornographic material in any form involving a child for commercial purposes shall be punished on the first conviction with imprisonment of either description, which shall not be less than three years, which may extend to five years, or with a fine, or with both, and in the event of a second or subsequent conviction, with imprisonment of either description, which shall not be less than five years, which may extend to seven years, and shall also be liable to be fine. Even after the provision of such stringent punishment, the country has been witnessing an alarming rise in cases of child pornography and online predators grooming children to sexually exploit them. The SC suggested to the Union Government to seriously consider bringing about an amendment to the POCSO for the purpose of substituting the term “child pornography” with “child sexual exploitation and abuse material” (CSEAM) by way of an ordinance with a view to reflecting more accurately on reality of such offences. It also directed the courts to notice that the term “child pornography” shall not be used in any judicial order or judgement, and instead the term CSEAM should be endorsed. “One must also be mindful of the fact that the term “child pornography” is a misnomer that fails to capture the full extent of the crime. It is important to recognise that each case of what is traditionally termed “child pornography” involves the actual abuse of a child. The use of the term “child pornography” can lead to a trivialisation of the crime, as pornography is often seen as a consensual act between adults,” states the 200-page-long judgment. The Rajya Sabha panel recommended the National Commission for Protection of Child Rights (NCPCR) be designated as the nodal agency to deal with the issue of child pornography and empowered suitably to deal with the added responsibilities. The capabilities required in the NCPCR should include technology, cyber policing, and prosecution, recommended the committee. States empowering the SCPCR on the same line will go a long way in curbing CSEAM. Internet service providers and social media platforms companies must play the crucial role of curbing CSEAM by extending prompt and full cooperation to law-enforcing agencies and taking pro-active measures to block all such content and report immediately so that perpetrators of such heinous crimes can be immediately booked. The SC judgement clarified that a social media intermediary cannot claim exemption from liability under the provisions of the Information Technology Act for any third-party information, data, or communication link made available or hosted by it unless due diligence is conducted by it and compliance is made of these provisions of the POCSO. The apex court held the view that such due diligence requires the social media platforms to not only remove child pornographic content but also make an immediate report of such content to the authorities. Social media platforms complying with this directive is crucial to prevent abuse of the internet for sexual exploitation of children. The SC judgement has empowered the IT authorities, NCPCR, and law-enforcing authorities to take legal action against any social media platform that refrains from reporting CSEAM and removing such harmful content. Efforts to curb CSEAM must include building awareness to protect children from all kinds of abuse and exploitation.