It’s a Crime: Supreme Court Clarifies Online Child Sexual Abuse Content

The clear delineation of criminal consequences of obtaining or storing sexual material of children by the Supreme Court of India is fully in keeping with the letter and spirit of the Protection of Children from Sexual Offences (POCSO) Act. Showing an enlightened approach to the societal issues arising out of the proliferation of online content involving sexual exploitation of children, a three-judge bench not only clarified the law but also emphatically drew attention to the intention of the legislature to presume the culpable mental state of a person accessing and viewing such material. The Court also urged that the term ‘child pornography’ should be avoided both in law and in judicial pronouncements as it seems to trivialize the enormity of the offence of exploiting children to create and distribute sexual material to gratify the perversions of a few. Instead, the Court suggested that such content be described as ‘Child Sexual Exploitative and Abuse Material’ (CSEAM). The verdict also puts to rest doubts about what exactly certain provisions of the Information Technology Act, 2000, and the POCSO Act say on the subject, as High Court rulings differ on their exact implications. The case arose out of a Madras High Court judgment which quashed a criminal case against a person for viewing sexual content relating to children, on the grounds that the Act only criminalised the creation and distribution of such content, and not just viewing it in private. The Supreme Court has now quashed the High Court’s order.

Invoking the doctrine of “constructive possession”, it held that any act of viewing or displaying such material on the internet without actual possession or storage on a device also amounts to “possession”, punishable under Section 15 of POCSO, provided the person has some degree of control over such material. Further, an intention to share or transmit such material can also be inferred from failure to remove, destroy or report such material. It cautioned courts against narrow interpretation of certain provisions, lest the legislative intention to punish cyber offences affecting children is defeated. It drew attention to Section 67B of the IT Act and termed it as a “comprehensive provision” to punish various electronic forms of exploitation and abuse of children online. The Court reminded platforms and intermediaries that they have a duty to remove such content and report it to the concerned police units. The recommendation to governments to implement comprehensive sex education programs that include the legal and ethical implications of child sexual abuse material deserves immediate attention.