Crime tag when viewing child pornography: Reporting to police is required for unintentionally opening a link

If anyone unintentionally opens a link leading to child pornographic content, he or she should immediately report the matter to the police so that a complaint can be filed under Section 15 of the Pocso Act against the sender.

TT Office, New Delhi, 24.09.24: The Supreme Court on Monday ruled that watching “child pornography” will now be a punishable offence under the Protection of Children from Sexual Offences (Pocso) Act, punishable by three to seven years in prison.

“We are of the view that where a person engages in an activity such as viewing, distributing or exhibiting, etc., in relation to child pornographic material without actually possessing or storing it in any device or in any form or manner, such act would still amount to ‘possession’ in terms of Section 15 of the Pocso Act if he exercises an immutable degree of control over such material, by applying the aforesaid doctrine of constructive possession,” said Justice JB Pardiwala, who wrote the 200-page judgment.

This means that a person who views child pornography can be prosecuted unless he or she can prove that there was no intention to view or watch the content sent to his or her mobile phone or other electronic device. If a person unintentionally opens a link that leads to child pornography content, he or she must immediately report the matter to the police so that a complaint can be filed under Section 15 of the Pocso Act against the sender.

A bench comprising Chief Justice DY Chandrachud and Justice Pardiwala delivered the verdict while hearing appeals filed by Just Rights for Children Alliance, a coalition of five NGOs working together to combat child trafficking, sexual exploitation and other related crimes, and another organisation challenging the conflicting judgments of various high courts on what constitutes an offence under the child pornography laws.

High courts have taken differing views on the ingredients required to constitute an offence under Section 15 of the Pocso Act and Section 67B of the IT Act. The Kerala High Court held that mere possession or viewing of pornographic material relating to a child does not fall within the purview of Section 15 of Pocso. The court held that the actual act of transmitting or sharing child pornography should be made punishable.

Bombay High Court held that under the Pocso Act, storing child pornography and the consequent failure to remove the content or report the matter is punishable. Clicking on the link once without knowing what it contains is not an offence, the court said.

With regard to Section 67B, both the Karnataka High Court and the Kerala High Court have held that intentionally viewing or transmitting child pornography, and not merely possessing such material, is a punishable offence.

Section 15(3) of the Pocso Act provides that any person who stores or possesses pornographic material relating to a child for commercial purposes shall be punishable with imprisonment for a term which may extend to five years and with fine. Subsequent offences shall be punishable with imprisonment for a term which may extend to seven years and with fine.

The Supreme Court on Monday made the following suggestions to the government in general and the Ministry of Women and Child Development in particular:

◙ Parliament should seriously consider bringing an amendment to the Pocso Act to replace the term “child pornography” with “child sexual exploitation and abuse material” to more accurately reflect the reality of such offences. The Centre may consider bringing in such an amendment through an ordinance

◙ The term “child pornography” should not be used in a court order or judgment; instead, the term “child sexual exploitation and abuse material” should be endorsed.

◙ Implementing comprehensive sexuality education programs that include information about the legal and ethical implications of child pornography can help deter potential perpetrators. These programs should address common misconceptions and give young people a clear understanding of consent and the impact of exploitation. It is essential to provide support services for victims and organize rehabilitation programs for perpetrators

◙ Raising awareness of the reality of child sexual exploitation material and its consequences through public campaigns can help reduce its prevalence.

◙ Schools can play a critical role in early identification and intervention. Implementing school programs that teach students about healthy relationships, consent, and appropriate behavior can help prevent problematic sexual behavior.

◙ To give meaningful effect to these suggestions and work out necessary modalities, the government may consider setting up an expert committee tasked with devising a comprehensive programme or mechanism for health and sexuality education and raising awareness about the Pocso Act among children from an early age. This will ensure a robust and informed approach to child protection, education and sexual well-being.