The origin of the word ‘obscenity’ comes from Ancient Greek theatre, which excluded sexual and violent scenes from being performed on stage. Hence the Greek word ob skein,standing for obscene.
The report talks about the conflicted history of the meaning of the word ‘obscenity’. Courts around the world have had a difficult time in defining what constitutes obscenity. The English case of Regina vs Hicklin (1868) or the Hicklin test, became a defining marker of what constitutes obscenity. In other words, obscenity was what ‘reasonable men’ thought would corrupt public morals or order. The Point of View study asserts that the test of the ‘reasonable man’ in itself is subjective and questions if these colonial words have a place in today’s world.
Morality and Immorality are constantly changing because of evolving societies
Who decides morality?
1) Church
2) Imperialism
Obscenity is basically the state of being indecent and something that is not in consonance with the laws of morality. In the case of India, morality was decided by the former imperialists, the British who were able to portray their connotation of moral code and thus their code of conduct of morality was implemented in our own country.
To study the social media disruption of the laws of obscenity, there is a need to brief the readers about what the Law says about obscenity and social media and the their crossovers:
According to Section 292 of the Indian Penal Code, whoever—
(a)sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or
(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or
(c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or
(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or
(e) offers or attempts to do any act which an offence under this section is, shall be punished.
According to Section 294 of the Indian Penal Code, whoever, to the annoyance of others—
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment which may extend to three months, or with fine, or with both.
"Any person who sends, by means of a computer resource or a communication device
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine."
After reviewing the Indian Penal Code, one conclusion that we come to is that there is no legal definition for obscenity. So, one of the questions this paper raises is that How can the State punish someone on the grounds of obscenity without even legally defining what it is and what are the grounds for its definition?
As mentioned in the Article 294 in the IPC, whoever does any obscene act in a public space shall be imprisoned or fined or both, so is there any distinction between a public space, say a park, and a social networking site, say Facebook? If there is a distinction, then what are the grounds for it and does it cause violation of Article 19(1)(a) which clearly states that All citizens have the right to freedom of speech and expression?
Section 66A provides punishment for sending offensive messages through communication services. These messages may be any information created, transmitted or received on a computer system, resource or device including attachments in the form of…
• Text
• Images
• Audio
• Video
• Any other electronic record which may be transmitted with the message
The law targets messages that…
• Are grossly offensive or menacing
• Proffer false information intending to cause annoyance, inconvenience, intimidation, insult, obstruction, etc.,
• Are intended at deceiving the addressee about the origin of the message.
Section 67 of the It Act states that “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.”
In the online world, Section 67 of the IT Act covers similar offences as IPC Section 292. However, the penalties under IPC Section 292 and Section 67 are different. While the jail term and fine under IPC Section 292 for first time offenders are two years and Rs 2000 respectively, under Section 67, it is five years and Rs 5 lakh. The jail term and fine on second conviction is three years and Rs 5000 under IPC Section 292, but five years and Rs 10 lakh under Section 67.
A BBC Investigation reported 100 images that appeared to breach Facebook's own rules on nudity and obscenity using the company's reporting system. Eighty-two stayed up because they "didn't breach community standards".
Facebook gave the following statement:
“We have carefully reviewed the content referred to us and have now removed all items that were illegal or against our standards. This content is no longer on our platform. We take this matter extremely seriously and we continue to improve our reporting and take-down measures. Facebook has been recognized as one of the best platforms on the internet for child safety.
“It is against the law for anyone to distribute images of child exploitation. When the BBC sent us such images we followed our industry’s standard practice and reported them to CEOP. We also reported the child exploitation images that had been shared on our own platform. This matter is now in the hands of the authorities.”
So, clearly a large amount of obscene content is being circulated on Facebook and although it has vowed to look into it the question that arises is Until when can we protect the minors from the corrupt and immoral content on these sites and what are the actions being taken up by the State and the organizations themselves to remove this content? Some of it gets reported to while others still remain for the general public to see. Given that even kids below the required age of 18 are signing up for Facebook, thereby breaching the legality of the site, such content is likely to corrupt the minds of the youth.
Posting and circulating obscene material online would make a person liable to be prosecuted under the Information Technology Act and not the general criminal law that is the Indian Penal Code (IPC), the Supreme Court has ruled.
The Supreme Court did try to narrow down the offenders but there is still a vague situation for the general public because the offenses are still no clear.
I would like to conclude my paper with a simple yet complicated question:
What is obscenity and what grounds are people going to get punished for it?
Bibliography:
1) “Is Facebook Failing to Remove Obscene Content from Its Pages.” BBC News, BBC, 7 Mar. 2017, www.bbc.com/news/av/technology-39189436/is-facebook-failing-to-remove-obscene-content-from-its-pages.
2) Verma, Sonali. “Route 67: How the IT Act's Section on Obscenity Is Being Misused to Violate Digital Freedom.” The Wire, 29 Nov. 2017, thewire.in/gender/victorian-censorship-research-finds-section-67-act-grossly-misused.
3) Times, Bhadra Sinha Hindustan. “Those Posting Obscene Content Online Will Be Tried under IT Act, Not IPC: SC.” Https://Www.hindustantimes.com/, 20 Dec. 2016, www.hindustantimes.com/india-news/those-posting-obscene-material-online-will-be-tried-under-it-act-not-ipc-sc/story-KWm0KUGNrakwbcXcU6pNtO.html.