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Pornography under the Information Technology Act, 2000

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1. Introduction

In the digital era, the internet has made it very easy to share photos, videos, and messages across the world. However, this also led to the misuse of technology — especially in the form of pornographic material, which includes obscene and sexually explicit content shared through social media, websites, and mobile applications.

To regulate and control this misuse, the Information Technology Act, 2000 (IT Act) includes special provisions that punish online pornography and protect women and children from digital exploitation.

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2. Meaning of Pornography

The word ‘pornography’ comes from the Greek word “pornographos”, meaning “writing about prostitutes.”

In modern terms, pornography refers to:

Any material (video, image, audio, writing, animation, or drawing) that depicts sexual acts or nudity in an explicit manner with the intention to arouse sexual desire.

However, the IT Act does not directly define “pornography.”
Instead, it uses the terms “obscene material” and “sexually explicit acts” under Sections 67, 67A, and 67B to cover pornography and related offences.

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3. Legal Provisions on Pornography under the IT Act, 2000

The IT Act specifically deals with three types of pornographic offences:

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(A) Section 67 – Publishing or Transmitting Obscene Material in Electronic Form

If a person publishes, transmits, or causes to be transmitted any material that is lascivious (sexually suggestive), appeals to prurient interest, or tends to deprave or corrupt viewers, they are punishable.

Punishment:

• First conviction: Up to 3 years imprisonment and/or fine up to ₹5 lakh.
• Second conviction: Up to 5 years imprisonment and/or fine up to ₹10 lakh.

Example: Uploading or sharing adult videos, obscene photos, or sexual messages through WhatsApp, Telegram, or websites.

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(B) Section 67A – Material Containing Sexually Explicit Acts

This section deals with hardcore pornography, i.e., any sexually explicit video or image that shows sexual acts or behavior in a graphic way.

Punishment:

• First conviction: Up to 5 years imprisonment and/or fine up to ₹10 lakh.
• Subsequent conviction: Up to 7 years imprisonment and/or fine up to ₹10 lakh.

Example: Circulating pornographic videos, MMS clips, or sex tapes over the internet.

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(C) Section 67B – Child Pornography

This is the most serious form of cyber offence under the IT Act. It deals with depiction of children in sexual acts or child sexual abuse material (CSAM).

Acts covered:

• Publishing or transmitting child porn.
• Creating, collecting, or browsing such content.
• Soliciting or encouraging children to engage in sexual acts online.

Punishment:

• First conviction: Up to 5 years imprisonment and/or fine up to ₹10 lakh.
• Second conviction: Up to 7 years imprisonment and/or fine up to ₹10 lakh.

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(D) Section 67C – Preservation and Retention of Information

Intermediaries like social media platforms, websites, and internet service providers (ISPs) must retain user information and logs for investigation.
Failure to do so is punishable under the Act.

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4. Objectives of the Law

The main purposes of these provisions are:

1. To stop the misuse of internet platforms for spreading pornographic and obscene content.
2. To protect women and children from sexual exploitation online.
3. To preserve public morality and decency in cyberspace.
4. To ensure responsible use of freedom of speech under Article 19(1)(a) of the Constitution.
5. To give investigative power to authorities for tracing and punishing offenders.

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5. Distinction Between Obscenity and Pornography

Aspect	Obscenity	Pornography
Nature	Any material offending decency or modesty	Explicit sexual content meant to arouse desire
Coverage	Broader concept – includes vulgar jokes, messages, etc.	Narrower – focused on sexual acts or nudity
Example	Lewd comments, obscene messages	Sexually explicit videos or images
Punishment	Section 67	Section 67A and 67B

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6. Role of Intermediaries (Section 79)

Intermediaries such as YouTube, Facebook, X (Twitter), Telegram, etc., are not automatically liable for pornographic content if they act quickly to remove it once they are informed by the court or government authority.

They must:

• Remove illegal content within 36 hours of notice.
• Follow the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

Failure leads to loss of safe harbour protection under Section 79.

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7. Judicial Interpretation and Case Laws

(i) Avnish Bajaj v. State (Bazee.com Case, 2005)

Facts: A pornographic MMS of two minors was sold through Bazee.com. The MD, Avnish Bajaj, was arrested.
Held: He was not personally liable unless he had knowledge or control. The company could be prosecuted.
Significance:

• First major cyber pornography case in India.
• Led to reforms in intermediary liability under Section 79.

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(ii) State of Tamil Nadu v. Suhas Katti (2004)

Facts: The accused posted obscene messages about a woman and her phone number on Yahoo groups.
Held: Convicted under Section 67 IT Act and 509 IPC.
Significance:

• First conviction under the IT Act.
• Demonstrated effective enforcement against cyber obscenity.

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(iii) Kamlesh Vaswani v. Union of India (2013)

Facts: PIL filed to ban porn websites for promoting obscenity and crime.
Held:

• Watching adult pornography in private is not illegal.
• But publishing, distributing, or hosting obscene content is punishable.
  Significance:
• Drew a line between private liberty and public morality.
• Government ordered to block child porn sites.

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(iv) Shreya Singhal v. Union of India (2015)

Facts: Section 66A (offensive messages) challenged as unconstitutional.
Held:

• Section 66A struck down for being vague.
• Sections 67, 67A, 67B upheld as valid restrictions on obscenity under Article 19(2).
  Significance:
• Upheld reasonable limits on freedom of speech to curb obscenity.

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(v) Aveek Sarkar v. State of West Bengal (2014)

Facts: A German magazine showed a nude photo of tennis player Boris Becker with his fiancée.
Held: Not obscene — it was artistic and social commentary, not meant to arouse lust.
Significance:

• Introduced the community standards test for judging obscenity.
• Helps differentiate artistic expression from pornography.

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8. Challenges in Regulating Pornography

1. Jurisdiction Issues: Servers may be located outside India, making control difficult.
2. Freedom vs. Morality: Difficult to balance free expression and public decency.
3. Anonymity of Offenders: Use of VPNs and fake accounts hides identity.
4. Technological Growth: Constantly evolving apps and websites make tracking difficult.
5. Private Consumption: Hard to regulate what people view privately in their homes.

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9. Recent Developments

• IT Rules, 2021: Mandate removal of obscene or pornographic content within 24–36 hours.
• Government Blocking Orders: The Indian government regularly blocks websites hosting child porn or revenge porn.
• Cyber Police Cells: Established in all major cities to handle cyber porn and related crimes.
• Revenge Porn Cases: Sharing private images or videos without consent is treated as criminal intimidation and defamation under both IT Act and IPC (Section 354C, 354D, 509 IPC).

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10. Conclusion

Pornography on the internet raises serious legal, moral, and social issues. The Information Technology Act, 2000 provides a strong legal framework to punish those who create, distribute, or promote such content, especially child pornography and revenge porn.

However, the law must maintain a delicate balance between freedom of expression and protection of public morality.

Courts have emphasized that private viewing may not be illegal, but public dissemination and exploitation through cyberspace is a punishable crime.

Thus, while technology connects the world, legal awareness and digital ethics are essential to ensure cyberspace remains safe and respectful for all.

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Case Law Analysis: Pornography and Obscenity under the IT Act, 2000

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1. State of Tamil Nadu v. Suhas Katti (2004)

Facts:

This was the first case in India to result in a conviction under the Information Technology Act, 2000.
The accused, Suhas Katti, posted obscene, defamatory, and harassing messages about a divorced woman in a Yahoo message group. He even shared her phone number, causing her to receive obscene calls from strangers.

Issue:

Whether publishing obscene material and harassing a woman online amounts to an offence under Section 67 of the IT Act and Section 509 of IPC?

Judgment:

The Metropolitan Magistrate Court, Chennai, found the accused guilty.
He was convicted under:

• Section 67 IT Act, 2000 – for publishing obscene content online, and
• Section 509 IPC – for insulting the modesty of a woman.

Punishment:

The accused was sentenced to 2 years of rigorous imprisonment and a fine.

Significance:

• This was the first conviction in India under the IT Act for cyber obscenity.
• The case demonstrated that cyber harassment and obscene publication can be successfully prosecuted.
• It gave confidence to women victims of online sexual harassment to approach cyber police.

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2. Avnish Bajaj v. State (Bazee.com Case, 2005)

Facts:

A pornographic MMS video involving two minors (a Delhi school sex scandal) was uploaded for sale on the e-commerce platform Bazee.com. The website’s Managing Director, Avnish Bajaj, was arrested under Section 67 of the IT Act and Section 292 IPC (obscenity).

He claimed that he had no personal knowledge or involvement in the sale or posting of the MMS clip.

Issue:

Can the Managing Director of an online platform be held criminally liable for pornographic content uploaded by users?

Judgment:

The Delhi High Court held that:

• Avnish Bajaj could not be personally held liable unless it was shown that he had knowledge or control over the uploaded material.
• However, the company (Bazee.com) could be prosecuted for transmitting obscene material.

Significance:

• This case introduced the concept of intermediary liability in India.
• It led to the amendment of Section 79 of the IT Act, introducing the “safe harbour” rule, which protects online platforms from liability if they act promptly to remove objectionable content after notice.
• It became a landmark for cyber pornography and e-commerce regulation.

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3. Kamlesh Vaswani v. Union of India (2013)

Facts:

A lawyer, Kamlesh Vaswani, filed a Public Interest Litigation (PIL) in the Supreme Court seeking a ban on pornographic websites, arguing that they promote sexual violence, immorality, and crime, especially against women and children.

Issue:

Whether access to or hosting of pornographic websites should be completely banned in India?

Judgment:

The Supreme Court observed that:

• Watching pornography in private does not amount to a crime under the IT Act or IPC.
• But publishing, transmitting, or distributing pornographic content is a punishable offence under Sections 67, 67A, and 67B of the IT Act.
• The Court directed the Government of India to block websites hosting child pornography and sexually explicit material violating Indian laws.

Significance:

• The judgment maintained a balance between individual freedom (Article 19(1)(a)) and public morality (Article 19(2)).
• It was a major step toward combating child pornography and illegal adult sites.
• It led to government actions to block thousands of porn sites under Section 69A IT Act.

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4. Shreya Singhal v. Union of India (2015)

Facts:

Section 66A of the IT Act (punishing offensive online messages) was challenged as unconstitutional, as it was being misused to arrest people for expressing opinions on social media.

The petitioners argued that the section violated freedom of speech and expression guaranteed under Article 19(1)(a).

Issue:

Whether Section 66A of the IT Act violated the constitutional right to freedom of expression?

Judgment:

The Supreme Court struck down Section 66A as unconstitutional for being vague and overbroad.
However, the Court upheld Sections 67, 67A, and 67B, saying they deal specifically with obscenity and pornography, which are reasonable restrictions under Article 19(2).

Significance:

• Reinforced that the IT Act protects public decency without curbing free speech.
• Differentiated between offensive messages (now decriminalized) and obscene or pornographic material (still punishable).
• Strengthened the constitutional protection of expression while ensuring cyber morality.

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5. Aveek Sarkar v. State of West Bengal (2014)

Facts:

A German magazine published a nude photograph of tennis player Boris Becker with his fiancée, aimed at promoting interracial relationships.
A complaint was filed in India under Section 292 IPC, alleging that the photograph was obscene.

Issue:

Whether a nude image, when published for a social or artistic message, amounts to obscenity?

Judgment:

The Supreme Court held that the image was not obscene, as it was intended to promote social acceptance of interracial love and not to arouse sexual desire.
The Court applied the “Community Standards Test” rather than the outdated Hicklin Test.

Significance:

• Established that context and intent are crucial in judging obscenity.
• Adopted the modern test based on contemporary community values.
• Helped courts distinguish between artistic expression and pornography.

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6. Bobby Art International v. Om Pal Singh Hoon (Bandit Queen Case, 1996)

Facts:

The film Bandit Queen depicted the real-life story of Phoolan Devi, including scenes of sexual assault. The film was challenged as obscene and vulgar.

Issue:

Whether showing sexual violence in a movie amounts to obscenity under Indian law?

Judgment:

The Supreme Court held that the film was not obscene, as it portrayed social realities and the oppression of women.
The purpose was educational and reformative, not to arouse sexual passion.

Significance:

• Reinforced that realistic portrayal of social evils is not pornography.
• Differentiated between artistic expression and indecent entertainment.
• Influenced the later interpretation of obscenity in cyber content and digital films.

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7. Regina v. Hicklin (1868) — The Hicklin Test

Facts:

This English case concerned the sale of an allegedly obscene pamphlet titled “The Confessional Unmasked.”

Judgment:

The Court held that:

Material is obscene if it tends “to deprave and corrupt those whose minds are open to such immoral influences.”

Significance:

• Established the Hicklin Test, focusing on the effect on vulnerable minds, not on the whole work.
• Followed in India for many years, but later replaced by the Community Standards Test.
• Provided the early foundation for obscenity laws still reflected in the IT Act.

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8. Ranjit D. Udeshi v. State of Maharashtra (1965)

Facts:

A bookseller was prosecuted for selling the unexpurgated version of “Lady Chatterley’s Lover” by D.H. Lawrence, which contained explicit sexual content.

Issue:

Whether selling a literary work containing sexual scenes amounts to obscenity?

Judgment:

The Supreme Court upheld the conviction, applying the Hicklin Test, saying that material appealing to prurient interests and likely to corrupt readers is obscene.

Significance:

• One of the first Indian cases to apply the Hicklin Test.
• Laid the foundation for Section 292 IPC and influenced interpretation of Section 67 IT Act.

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9. Conclusion

The Indian judiciary has evolved from the Hicklin Test (strict and moralistic) to the Community Standards Test (modern and contextual).

Through cases like Suhas Katti, Avnish Bajaj, and Kamlesh Vaswani, courts have ensured that:

• The IT Act protects society from pornography and obscenity,
• But still respects freedom of expression and artistic creativity.

Today, Sections 67, 67A, and 67B of the IT Act remain crucial in punishing online pornography, child abuse, and digital exploitation, while maintaining a fair balance between morality, liberty, and technology.

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