THE CONTEXT: The Supreme Court’s landmark verdict on child sexual exploitative and abuse material (CSEAM) marks a pivotal moment in India’s fight against online child exploitation. This ruling not only clarifies the legal framework but also sets a new standard for addressing the complex challenges posed by digital-age crimes against children.
BACKGROUND: The case originated from an appeal filed against a Madras High Court order that had quashed criminal charges against a young man prosecuted for viewing and storing video clips depicting sexual exploitation of children.
KEY DETAILS:
- Police had booked the man after receiving information from the National Crime Records Bureau that he had downloaded such material on his mobile phone.
- Charges were filed under Section 67B of the Information Technology Act and Section 15(1) of the Protection of Children from Sexual Offences (POCSO) Act.
- The Madras High Court quashed the case, ruling that mere possession or storage of pornographic material was not an offense under POCSO.
- The High Court also held that Section 67B of the IT Act only criminalized transmission, publication, or creation of such material, not private viewing or downloading.
- An alliance of NGOs appealed this ruling in the Supreme Court, arguing it compromised child welfare.
KEY ARGUMENTS AND REASONING
The Supreme Court overturned the High Court’s decision, providing the following key arguments:
- Comprehensive interpretation of POCSO: The Court clarified that Section 15 of POCSO, as amended in 2019, provides for three distinct offenses related to child sexual abuse material.
- Failure to delete, destroy, or report such material.
- Transmitting, propagating, displaying, or distributing it.
- Storage or possession for commercial purposes.
- Concept of “constructive possession“: The Court invoked this concept to expand the scope of possession beyond physical control. It held that viewing, distributing, or displaying such material online, even without downloading, amounts to “possession” if the person exercises a degree of control over it.
- Intent and harm: The Court emphasized that the desire to exploit children sexually is inherent in the act of watching such material. It noted that increased viewership triggers a demand-supply cycle, leading to greater exploitation of children.
- Violation of children’s rights: The Court held that such material violates children’s fundamental rights, especially the right to dignity. It causes lasting psychological trauma that can persist into adulthood.
- Terminology: The Court suggested replacing the term “child pornography” with “child sexual exploitative and abuse material” (CSEAM) to better capture the exploitative nature of the crime.
DATA AND FACTS
- India accounts for the most online child sexual abuse imagery globally, according to the US National Center for Missing and Exploited Children.
- A 2019 New York Times investigation found that tech companies reported over 45 million online photos and videos of children being sexually abused in a single year.
- Studies show that 9 out of 10 boys and 6 out of 10 girls are exposed to pornography before age 18, with the average age of first exposure for boys being 12.
IMPLICATIONS AND RECOMMENDATIONS
- The verdict clarifies that viewing, downloading, and storing such content are all offenses under POCSO.
- It directs courts across India to use the term CSEAM instead of “child pornography” in judicial orders.
- The Court recommended implementing comprehensive sex education programs to create awareness and prevent harmful sexual behaviors.
- It emphasized the obligation of social media intermediaries to report such cases to local authorities as specified under POCSO.
- The judgment recognizes that viewing CSEAM perpetuates child exploitation: “The sexual abuse of a child is just the beginning of their victimization, and the recording, circulation, and viewing of these acts in cyberspace perpetuate the trauma.”
- It addresses the demand-supply cycle by criminalizing viewing and possession, the ruling aims to reduce demand, thereby impacting the production and distribution of CSEAM.
- The Court emphasized the lasting psychological impact on victims: “Victims of such heinous exploitation often endure profound psychological trauma that can manifest as depression, anxiety, and post-traumatic stress disorder (PTSD).”
- The ruling aligns India with international standards in combating online child exploitation.
- It calls for comprehensive sex education to prevent youth from engaging in harmful sexual behaviors, including the distribution and viewing of CSEAM.
THE WAY FORWARD:
- Comprehensive Sex Education Programs: Implementing comprehensive sex education programs in schools can help prevent child sexual exploitation by educating children about consent, healthy relationships, and online safety. The Netherlands, which has one of the most comprehensive sex education programs globally, has one of the lowest teen pregnancy rates in the world at 4.27 per 1,000 girls aged 15-19 (compared to 17.4 in the US).
- Parental Education and Involvement: Educating parents about online risks and encouraging their involvement in their children’s online activities can significantly reduce the risk of exploitation. The ThinkUKnow program in Australia provides parental resources and has reached over 1.5 million children and 130,000 parents since its inception.
- Enhanced Reporting Mechanisms: Improving and simplifying reporting mechanisms for child sexual exploitation material (CSEM) can lead to faster removal of such content and better protection for children. INHOPE, a global network of hotlines, processed 1 million CSEM reports in 2020, removing thousands of images and videos. The Internet Watch Foundation’s reporting system in the UK led to the removal of 153,383 web pages containing CSEM in 2020.
- Technological Solutions: Implementing advanced technological solutions can help detect and prevent the spread of CSEM online. Microsoft’s PhotoDNA technology has been used to detect, report, and remove millions of CSEM images. It’s now used by over 150 organizations worldwide. Facebook reported 20.3 million instances of child sexual abuse material in 2020, demonstrating the scale of the problem and the importance of technological solutions.
- Support Services for Victims: Providing comprehensive support services for victims of child sexual exploitation is crucial for their recovery and reintegration. The UK’s National Society for the Prevention of Cruelty to Children (NSPCC) provided 8,841 counseling sessions related to child sexual exploitation in 2019/20. The Canadian Centre for Child Protection’s Project Arachnid sent over 10 million takedown notices for CSEM and supported numerous victims.
- International Cooperation: Enhancing international cooperation in combating child sexual exploitation can lead to more effective prevention and prosecution. INTERPOL’s International Child Sexual Exploitation database has helped identify 23,564 victims worldwide as of 2020. The WeProtect Global Alliance, a multi-stakeholder initiative, has 98 countries, 53 companies, and 61 civil society organizations working together to combat online child sexual exploitation.
THE CONCLUSION:
This far-reaching judgment strengthens child protection laws by invoking the concept of “constructive possession” and recommending the use of the term CSEAM instead of child pornography to emphasize the exploitative nature of such content.
UPSC PAST YEAR QUESTIONS:
Q.1 What are the different elements of cyber security? Considering the challenges in cyber security, examine the extent to which India has successfully developed a comprehensive National Cyber Security Strategy. 2022
Q.2 Discuss different types of cybercrimes and measures to be taken to fight the menace. 2020
MAINS PRACTICE QUESTION:
Q.1 The Supreme Court’s verdict on online sexual material involving children has significant implications for child protection laws in India. Critically examine the key aspects of this judgment and discuss how it strengthens the legal framework against child sexual abuse.
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