Gautam Jha & Pankaj Kumar
1. Bringing up a child, in any setting or at any point in time, has never been an easy task. The advent of technology has made it more difficult in many senses. One of the most important ways in which this problem has manifested itself in recent times is the issue of easy availability of child pornography on the web and even easier access of children to that content. There is more and more child pornography on the Internet circulating through various social media such as Twitter, which has become a very profitable business, with a worldwide market value estimated at billions of dollars.
2. Statistics for cyber child pornography are difficult to find. Their estimated numbers may be beyond imagination. There is a life-long consequence of child pornography for the victims. Interpol published in their recent report (Sep 2020) on the Threats and Trends: Child Sexual Exploitation and Abuse, COVID-19 Impact, that [sic] “information from multiple sources including Interpol member countries indicate a significant increase in the sharing of online Child Sexual Abuse Material (CSAM) through the use of peer-to-peer networks during the COVID-19 pandemic” [sic].
3. In India on December 12, 2019, Chairman, Rajya Sabha announced the formation of an Ad hoc Committee in the Rajya Sabha to study the alarming issue of pornography on social media and its effect on children and society as a whole. The Committee after due deliberations with various stakeholders including Tech Majors namely Google, Facebook & Wats app, Bytedance & Tik Tok, Twitter, Share-chat, and Ministries such as the Ministry of Women and Child Development (MWCD), Ministry of Electronics & Information Technology (MeitY), Ministry of Home Affairs (MHA), Telecom Regulatory Authority of India (TRAI) and also the National Commission for Protection of Child Rights (NCPCR), has come out with few recommendations.
4. In brief, some of the recommendations made by the Committee included: to broaden the definition of child pornography to Include provision on cyber-grooming and to have safeguards for minors engaged in sexting and selfies; to prepare Code of Conduct for social media platforms for strict adherence and in furtherance to the code of conduct, it requires reporting by intermediaries to Indian and not just to foreign authorities. The Committee also recommended the addition of another requirement in the Information Technology (IT) Act (Intermediaries Guidelines) Rules 2011, that the intermediary shall report CSAM to and also share information relating to missing children with Indian law enforcement authorities at the Central and State levels. The Committee stressed that there should be a non-violable time frame specified for reporting and taking down the CSAM. The Committee recommended Penalties for the violations of this time frame.
5. The aforementioned Committee recommended modifying the IT (Intermediary Guidelines) Rules 2011 to include after Section 12, the following provision: a) Intermediaries shall be responsible for all measures to proactively identify and remove Child Sexual Abuse Material (CSAM) as well as report it to Indian authorities under the National Cybercrime Portal. Gateway ISPs must bear a significant liability to detect and block CSAM websites. b) Intermediaries shall also be responsible to report to the designated authority IP addresses/identities of all those searching/ accessing child porn/ CSAM keywords. c) All search engines must ensure that CSAM websites are blocked during the search and should be obligated to report any website along with gateway ISPs to the appropriate authority.
6. The Apex body of protection of Child Rights in the country, the National Commission for Protection Of Child Rights (NCPCR), headed by Shri Priyank Kanoongo, has taken cognizance of the matter and recently issued a Notice to Google, Twitter and WhatsApp to highlight its concern over increased traffic for child pornography from India through these platforms during the lockdown. In the notice to Twitter India, NCPCR states, [sic] 'It is seen that as per your standard terms and conditions, a person of 13 years and above is eligible to open an account on Twitter. If you are allowing children at the age of 13 to open an account, the commission is of the view that you can't allow the other users to publish, propagate pornographic material, links etc. on Twitter.' [sic]. NCPCR has also raised its concern about the easy accessibility of pornographic material to children through these links on Twitter, in its Notice.
7. Since no action was taken by concerned Ministries/authorities even after the service of Notices by the NCPCR, the Commission issued Summons to DCP Delhi Police for Non-Compliance of its Earlier Direction to Register FIR against Twitter on 25.06.2021. NCPCR has reported 420 cases of child sexual abuse from 1st March 2020 till 31st August 2020 via online portals, helplines and other media.
8. The Government of India has taken significant and meaningful steps in relation to online sexual abuse that includes child pornography. The Central Government has taken several measures to fast-track investigations in cases of child sexual abuse. These steps include a mechanism for online reporting of child sex abuse cases, accessibility of reported incidents concerning Law Enforcement Agencies (LEAs), improving cyber forensic facilities, training of Law Enforcement Officers/Judges/ Public Prosecutors, spreading awareness etc. However, it is imperative to understand and appreciate that in matters of this scale, magnitude and importance, the Government and its agencies cannot achieve the desired result unless the Tech Major like Twitter create a more robust mechanism of filtration/blocking of content unsuitable for young minds. These companies must redesign their business models and/or sacrifice some revenue if that’s what it comes down to, but they must not allow any pornographic content to reach our young children and pollute their minds forever. There is a famous saying that ‘children are great imitators. So, give them something great to imitate.’ Nobody can deny the positive impact of technology on children in today’s time and age. However, protecting them from their vices is also very essential.
9.Time and again in the recent past Twitter, hiding behind the cloaks of its intermediary role, has given a complete go bye to the Indian Laws. The Provisions Of the Indian Constitution and Indian Laws shall always Prevail Over Twitter’s Internal Policy & Terms And Conditions. Constantly Twitter India has failed to report (CSAM) with Indian law enforcement authorities. There is even a Writ Petition pending in the Supreme Court Of India [W.P. (Civil) 177/2013] on the issue of child pornography, in which several connected and important issues has been raised, and as and when an authoritative judgment from the Apex Court on this issue comes, it will go a long way in tackling the menace of child pornography in our country.
( GAUTAM JHA is the Advocate On Record, Supreme Court of India.
&
PANKAJ KUMAR is the Former Expert on Mission to the United Nations High Commissioner for the Refugees and Advocate, Supreme Court of India.)
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