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

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 the requirements for the offences, as compared to the fleeting depiction of nudity in film where such a scene is not intended to titillate the viewer^[4].

Also Read : No Law To Make Whatsapp Group Admins Liable For Messages By Group Members

Does the law distinguish in its treatment of publishing or transmitting of sexual content available on the internet content depicting adults and minors?

Yes, while section 67A is a general provision targeted at material which contains sexually explicit act or conduct, section 67B is a special provision aimed at penalizing such material depicting children (i.e. persons below 18 years of age). Being so, section 67B is even wider in its coverage. It addition to penalizing the publishing or transmitting of material which depicts children engaged in sexually explicit act or conduct, it also punishes any person who:

(i) 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; or

(ii) 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

(iii) facilitates abusing children online, or

(iv) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children.

Is it possible to commit any of these offences by transmitting or publishing only text which is sexually graphic or obscene?

Yes, it is possible. The key word in this regard in all three provisions (i.e. sections 67, 67A & 67B) is 'any material'. There is no indication in these provisions to conclude that for the offence in question to be made out, the material is required to be of any particular nature or type. In fact, section 67 explicitly speaks of the possibility of the matter contained or embodied in the material being capable of being read, seen or heard. Similarly, even sub-clause (b) of section 67B refers to creation of text as one of the ways by which material in electronic form can be used to depict children in obscene or indecent or sexually explicit manner. Thus, there appears to be no doubt that these sections could be applied even where the obscenity or sexually explicit act or conduct is contained only in text, devoid of any pictures or video.

Are there any exceptions to the acts which are punishable under sections 67, 67A & 67B of the IT Act?

Yes, the proviso to section 67B carves out exceptions to acts punishable under these three provisions. The proviso stipulates that if the publication of such content in electronic form is justified as being for the public good on the ground that it is in the interest of science, literature, art or learning or other objects of general concern; or if it is kept or used for bona fide heritage or religious purposes.

For instance, images in electronic form of a naked body shown for a medical or educational purpose, or images of the sexually graphic sculptures at Khajuraho temples would fall under the scope of the exceptions.

Is it still an offence if the recipient of an obscene or sexually explicit material on private chat has no objection to receiving such material?

Yes, it would still be an offence. Criminal culpability under these sections is not precluded on the ground that the recipient does not object to such obscene or sexually explicit material. Notably, even the exceptions stipulated in the proviso to section 67B are limited to what may be justified for the public good. This means that technically, even a sexually explicit private conversation between two consenting adults could be labelled criminal, if the messages are sent in an electronic form.

Can the same act be punishable under both the IT Act as well as the IPC?

No. This question has already been answered by the Supreme Court in Sharat Babu Digumarti v. Govt. (NCT of Delhi).^[5] The Court after considering section 81 of the IT Act - which stipulates the Act to have overriding effect notwithstanding any inconsistency with any other law - ruled that an act which is covered by the special provisions contained in the IT Act would get out of the net of the IPC. Thus, publishing or transmitting any material in the electronic form which is punishable under sections 67, 67A or 67B would exclude application of section 292, IPC.

Is constant monitoring of someone's social media profile punishable under law?

This conduct is probably more common in today's age of social media. A person may repeatedly visit and view the social media profile of another - depending upon the access allowed by the latter's privacy settings. However, even this innocuous conduct may - at least textually speaking - come within the ambit of the offence of 'stalking' as defined in section 354-D, IPC. The section, inter alia, penalizes the monitoring of the use by a woman of the internet, email or any other form of electronic communication. The scope and ambit of this kind of 'stalking' has not been the subject of any precedent yet.

Is the act of sharing a person's pictures from their social media profile on a private group punishable under law?

None of the provisions of the IT Act or the IPC seem to cover such instances. However, intellectual property law, as also the user agreements in specific cases with the relevant social media platforms, might have a bearing on the legal implications of such acts.

Can a passive member in a group on social media be punished for his membership of the group, if such group is used to share obscene and/or sexually explicit material? Is seeking, browsing or downloading of such material also an offence? What about the criminal culpability of the group administrators of such groups?

As far as sections 67 & 67A are concerned, the answer to all these questions is in the negative for the simple reason that these provisions only penalize the act of 'publishing' or 'transmitting' ('or causing to publish or transmit'). A person who is a passive recipient, or a browser, or even a person who merely seeks and downloads such prohibited material is not fastened with any criminal liability. The possession in electronic form of material that is obscene or that depicts sexually explicit act or conduct of anyone has not been penalized under sections 67 & 67A.

The answer in relation to section 67B is however, different. Being broader in its ambit, the section penalizes even seeking, browsing or downloading such material that depicts children in an obscene, indecent or sexually explicit manner.

In this context, it is pertinent to note that each of the three provisions penalizes not only the activity of publishing or transmitting, but also 'causing to publish or transmit'. Therefore, arguably even a person who instructs, coerces, incites, encourages or prompts another to publish or transmit material that is punishable may be committing an offence under these provisions.

With respect to the criminal culpability of a group administrator for merely being so, it may be noted that under criminal law, unless specifically provided for, there cannot be any vicarious criminal culpability.^[6] The Delhi High Court has already ruled against attaching any liability to a group admin in a civil suit for defamation.^[7]

Concluding observations and concerns

From the above discussion, we notice that in the absence of authoritative judicial pronouncements, the scope of operation of sections 67, 67A and 67B of the IT Act is still unclear. This applies to section 354-D, IPC as well. Nonetheless, the enlarged scope of Section 67B appears to be justified since the offence deals with depiction of children.

However, for sections 67 & 67A - a glaring aspect that emerges is that these provisions criminalize even what may be an obscene or sexually explicit conversation exchanged privately between two or more consenting adults. On the other hand, the law does not forbid persons from having an identical conversation, if it takes place without the involvement of any electronic medium. Notably, even the IPC in its creation of obscenity-offences (sections 292 to 294) does not impinge on conduct which is innately private; the field of operation of these offences is restricted to commercial exploitation of such obscene material.

The absence of elements of consent and privacy from sections 67 & 67A of the IT Act also raises some other fundamental questions:

• Is such criminalization going overboard, by forbidding speech that is within an individual's (and maybe even a group's) realm of privacy?
• If none of the group members intend to make their conversations (containing obscene and/or sexually explicit material) public, but it is so done by a non-member, then is it justifiable to punish the group members?
• Do any legal implications follow if a person publishes on a public platform (electronic or otherwise) obscene and/or sexually explicit conversations exchanged between two or more persons, privately & consensually?
• Can the IT Act's criminalization of certain kinds of private communications (in electronic form) be justified as a reasonable restriction under Article 19(2) of the Constitution in the interests of 'decency' and/or 'morality'? Would the right to privacy and the other reasons which necessitated decriminalization of adult consensual homosexual acts, hold relevance in this discussion?

The courts may get to engage with these questions in the litigation arising from the 'Bois Locker Room' controversy. We can only hope that the values of privacy and consent, would find their due place in the jurisprudence that so develops.

(Both the authors are Advocates-on-Record at the Supreme Court of India. The authors may be reached at anujkapoor.law@gmail.com & tanima.kishore@gmail.com)