By Tanushree Dubey
Published on: October 19, 2023 at 12:29 IST
The Information Technology (Amendment) Act of 2008 has significantly shaped the legal landscape concerning sexually explicit content on the internet in India. The core of this legal framework is Sections 67 and 67A, which address the matter of obscene and sexually explicit material online. In this article, we will understand the intricacies of these provisions, defining sexually explicit content under the IT Act, and exploring their implications within the context of the digital age.
What does sexually explicit mean?
“Sexually explicit” pertains to any material that overtly portrays or implies sexual activities. This includes depictions of sexual acts, and content that may be derogatory or offensive. It extends to images, videos, or written text that explicitly showcase or allude to sexual behavior.
Furthermore, “sexually explicit” encompasses instances of nudity, inappropriate comments, and subtle suggestions, whether visually or verbally, insinuating sexual actions. It is very important to acknowledge that the interpretation that constitutes sexually explicit content is subjective and can differ based on cultural, social, and personal perspectives. This highlights the explicit and potentially offensive nature of such material, whether in the form of images, text, or spoken words, designed to elicit, describe, or suggest sexual activities and may involve derogatory or offensive tones.
What constitutes sexually explicit under IT Act?
Sexually explicit content, defined under the Information Technology Act, encompasses elements that are deemed explicit or offensive in the context of sexual material. To provide a more exhaustive understanding, here are the various components that constitute sexually explicit content under the IT Act:
- Explicit Descriptions: This category includes content that explicitly describes sexual activities, behaviors, or acts. It covers written or spoken text that provides graphic details of sexual encounters or conduct.
- Visual Depictions: Sexually explicit content also comprises visual representations of sexual acts or explicit material. This can encompass images, photos, or videos that visually depict sexual activities, nudity, or related subjects.
- Derogatory or Offensive Tone: Material that adopts a derogatory or offensive tone when discussing or portraying sexual matters falls within the purview of sexually explicit content. This can include content that uses offensive language, slurs, or degrading terms in a sexual context.
- Nudity: The inclusion of nudity, especially in a sexually suggestive or explicit manner, is a key component of sexually explicit content. It involves visual depictions of sexual body parts or nudity in a sexual context.
- Lewd Comments: Sexually explicit content may involve lewd comments, which can be written or spoken remarks of a sexually suggestive or explicit nature. These comments contribute to the overall explicitness of the content.
- Innuendo: Innuendo implies sexual acts or conduct, either visually or verbally, without providing explicit descriptions. It relies on subtle or indirect suggestions to convey sexual content.
- Potential for Harm: The IT Act considers content sexually explicit when it has the potential to be offensive, harmful, or depraving when disseminated in electronic form. This criterion accounts for the impact of the material on individuals who may encounter it.
It’s necessary to recognize that the interpretation of sexually explicit content can vary, and determining what precisely falls under this category may involve subjective judgment. This subjectivity in interpretation can give rise to challenges in legal enforcement and disputes regarding the boundaries of explicit material under the IT Act.
Legal framework under the Information technology act.
The legal framework established within the Information Technology Act, with specific regard to Section 67 and Section 67A, addresses concerns related to explicit and sexually suggestive content in the digital realm.
Section 67 of IT Act
Punishment for publishing or transmitting obscene material in electronic form. -Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or 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, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.
The section pertains to the penalties for sharing explicit content in digital form. In simpler terms, it targets the act of publishing or transmitting material through electronic means that is sexually explicit or offensive, with the potential to corrupt or morally degrade individuals who might come across it.
For a first conviction, if someone is found guilty of such an offence, they could face imprisonment for up to three years and a significant fine reaching up to five lakh rupees. In cases of repeat offences, the penalty becomes more severe, with the possibility of imprisonment for up to five years and a higher fine of up to ten lakh rupees.
In essence, Section 67 aims to discourage and penalize the distribution of explicit content in the digital realm. However, it has been criticized for its vagueness and lack of clear definitions, particularly concerning terms like ‘published’ and ‘transmitted.’ It also raises questions about its approach to consensual content, where material is recorded with consent but later shared without consent.
Section 67A:
Punishment for publishing or transmitting of obscene material in electronic form
Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.
The section relates to the penalties for sharing explicit content in electronic format. In simpler terms, it addresses the act of publishing or transmitting material through digital means that involves sexual acts or behaviour.
For a first conviction, if someone is found guilty of this offence, they could face imprisonment for up to five years and a significant fine, which may go up to ten lakh rupees. In cases of repeated convictions, the penalty becomes more severe, with the possibility of imprisonment for up to seven years and a higher fine of up to ten lakh rupees.
In essence, this section aims to discourage and penalize the dissemination of explicit content involving sexual acts in the digital realm. However, it is also criticized for its vagueness and lack of clear definitions, particularly concerning terms like ‘published’ and ‘transmitted.’ This provision also raises questions about its approach to consensual content, where material is recorded with consent but later shared without consent.
These legal provisions serve the purpose of regulating and penalizing explicit content in digital form. Notably, Section 67A prescribes stricter penalties for sexually suggestive material when compared to Section 67. It is crucial to understand that these sections aim to strike a balance between shielding individuals from explicit content and safeguarding the freedom of expression and legitimate forms of content. The legal framework also contains clauses exempting content that contributes to the public good or is employed for heritage or religious purposes. As digital technology advances, these sections retain their significance in addressing the evolving challenges associated with explicit material on the internet.
Shortcomings under the Act.
Sections 67 and 67A of the Information Technology Act, which focuses on supervising and managing explicit digital content, reveal several noticeable deficiencies and shortcomings that warrant careful consideration.
- Undefined Terms: One of the key issues with these sections lies in the use of terms such as ‘published‘ and ‘transmitted‘ without offering precise definitions within the law. This absence of clarity creates ambiguity, making it challenging to determine the exact actions that qualify as offences under these provisions.
- Ambiguity in Intent: The intention behind what constitutes an offence under Section 67, in particular, can be rather ambiguous. For instance, it might not be immediately evident whether sharing explicit content with a single person, as opposed to the public, would fall under this section. This ambiguity raises questions about how the law is to be interpreted.
- Vagueness in Comparison: A notable contrast can be observed when comparing Sections 67 and 67A with Section 66E (which talks about punishment for violation of privacy) of the IT Act, which provides a more precise definition of the term ‘transmission.’ The presence of an adequately defined term in one section and its absence in others underscores the vagueness present in Sections 67 and 67A.
- Criminalizing Consent: Section 67 fails to comprehensively address the pivotal issue of consent. Take, for example, the scenario where an explicit video is recorded with the consent of all involved parties but later disseminated without that consent. In such cases, it’s the act of publication that is subjected to legal penalties, while the act of recording itself does not inherently incur any legal consequences. However, due to the ambiguity within Section 67, both the act of production and publication are often treated as potentially punishable offenses. This intricacy in the law implies that consensual recording may not be the primary focus of the legislation.
- Potential for Arbitrary Application: The lack of specific definitions and clarity in these sections can potentially lead to arbitrary application. Individuals may find it challenging to discern whether their actions might be in violation of the law due to the ambiguity present, thereby raising concerns about the consistency of legal application.
- Constitutional Concerns: Importantly, the inherent ambiguity and vagueness within these sections may raise constitutional concerns. In particular, the principles of legal clarity and precision are essential elements of a just legal system. The presence of vague terminology in legal provisions may cast doubts on their compliance with these principles.
These various shortcomings underscore the necessity for a more precise and well-defined legal framework that can effectively address explicit content in the digital realm while simultaneously safeguarding individual rights and freedoms. Clarity and precision in legal language are crucial not only to protect individuals from unjust application but also to uphold the principles of a just legal system.
How the sections are being misused.
Section 67 and 67A of the Information Technology Act were originally enacted with the intent of regulating explicit content in the digital era, seeking to protect individuals from offensive, obscene, or harmful material on the internet. However, with time, their misuse has brought to light a range of significant concerns that warrant in-depth consideration:
- Suppression of Political Dissent: Perhaps one of the most concerning aspects of the misuse of these sections is their application to stifle political dissent. Individuals who express their opinions, question authorities, or criticize political figures on social media have found themselves facing charges under these sections. The allegations often revolve around the dissemination of offensive content, resulting in the suppression of crucial political discourse.
- Uneven Application: Observers have noted a distinct pattern in the application of Sections 67 and 67A. These sections are more frequently deployed against individuals who dare to criticize or question authorities and public figures. This apparent bias in enforcement raises questions about selective application, prompting concerns about potential misuse to silence opposition or critique.
- Ambiguity in Interpreting the provisions: A issue with these sections lies in the ambiguity of key terms such as “obscene” or “sexually explicit.” The lack of clear, universally agreed-upon definitions leaves ample room for subjective interpretation. What one person might perceive as offensive, another may not. This subjectivity opens the door to arrests and legal actions that appear arbitrary and reliant on the personal views of those enforcing the law.
- Impact on Freedom of Expression: Misuse of Section 67 and 67A has far-reaching consequences for freedom of expression. The prospect of legal repercussions, including imprisonment and fines, can cast a chilling effect on individuals who fear consequences for expressing their opinions or engaging in political discourse online. This chilling effect can significantly curtail the free exchange of ideas, which is fundamental in any democratic society.
In conclusion, while Sections 67 and 67A of the Information Technology Act were instituted with the honourable goal of regulating explicit content in the digital space, the rampant misuse of these provisions has brought to the vital questions regarding their impact on freedom of expression and digital rights. Striking a balance that effectively safeguards individuals from offensive content while upholding the cherished value of freedom of expression is a complex challenge. Addressing these concerns is essential to create a just and equitable legal framework suitable for the digital age.
NOTABLE CASES
- Esrar Nazrul Ahemad v. State of Maharashtra, 2022
In the case, the Bombay High Court made a significant legal interpretation regarding the applicability of Section 67-A. The case involved the transmission of a 44-year-old married woman’s nude video by the accused, Esrar Nazrul Ahemad, following the termination of their consensual sexual relationship.
Ahemad had sought anticipatory bail, contending that forwarding a nude video did not fall within the purview of ‘sexually explicit’ under Section 67-A of the Act. However, the court rejected this argument, emphasizing the court’s stance on the matter. The court asserted that the intention of the legislature in introducing Section 67 was not restricted by construing the term ‘sexually explicit’ to only showing an activity of being indulging in sex.
The bench of Justice Smt. Bharati Dangre said, “The intention of the legislature in introducing Section 67, being publishing or transmitting obscene material in electronic form, cannot be restricted by construing the term ‘sexually explicit’ to only showing an activity of being indulging in sex”.
While the court acknowledged that the interpretation of ‘sexually explicit activity’ might depend on the specific video’s content, it deemed the accusations against Ahemad as serious and requiring custodial interrogation. As a result, the court rejected Ahemad’s plea for anticipatory bail.
This case underscores the legal importance of Section 67-A in addressing the transmission of explicit material in electronic form, even when the content may not explicitly depict sexual activities. This case primarily talks about the court’s commitment to preventing the exploitation of individuals, particularly women, in the digital space.
- “College Romance” Case, 2023.
The Hon’ble Supreme Court of India scrutinizes whether the use of vulgar language in a YouTube web series called “College Romance” amounts to a “sexually explicit act” under Section 67A of the Information Technology Act. A bench of Justices A.S. Bopanna and M.M. Sundresh considered whether the term “act” within Section 67A included spoken language.
In March, the Delhi High Court found that the language used in the said web series, which was streamed on an over-the-top (OTT) platform, was profane and vulgar, potentially influencing young minds. The High Court even reinstated Section 67 of the Information Technology Act, which pertains to publishing or transmitting obscene material in electronic form, against the creators of the web series, despite the Sessions Court having dropped the charge earlier.
Senior advocate Mukul Rohatgi, representing the web series makers who appealed the High Court verdict, argued that the case was about vulgar language and not obscenity. He contended that the series depicted youngsters using rough language.
Regarding the charge under Section 67A, Rohatgi claimed that there was no depiction of a sexually explicit physical act on screen, and thus, the offence under Section 67A did not apply.
However, Justice Sundresh expressed doubts about Rohatgi’s interpretation of Section 67A. He pointed out that “ Your interpretation is technical. You are claiming that a sexually explicit act is restricted to a physical act. The High Court has held that even words spoken would fall within the ambit of a ‘sexually explicit act’ under Section 67A,”
The case revolved around the use of vulgar language in a web series and raised important questions about the interpretation and application of Section 67A of the Information Technology Act in cases involving explicit content. this case is still ongoing, and a final verdict has not yet been reached by the court.
Conclusion
The inappropriate utilization of Sections 67 and 67A within the Information Technology Act has given rise to significant concerns regarding their potential repercussions on freedom of expression, the ability to voice political dissent, and the broader landscape of digital rights.
The inconsistent enforcement, subjective interpretation, and stifling effect on expressive freedom underscore the critical necessity for unequivocal legal guidance and equitable application. Striking a harmonious balance between shielding individuals from offensive content and safeguarding the right to express oneself remains a paramount challenge in the digital era. It is of utmost importance to address these issues comprehensively to establish a legal framework that respects the fundamental rights of individuals while upholding the principles of democracy.