OBSCENITY AND CYBER WORLD Obscenity means offensive or outrageous to accepted standards of decency or mode sty. It is derived from the Latin word, obscenus which means inauspicious. Obscenity refers to words, images or actions that offend the sexual morality of its viewers. This could range from simple profanity to offensive pictures or vid eos. Under the U.S. law, the Supreme Court has found that, when used in the cont ext of the First Amendment and free speech, obscenity must refer to materials th at are of a sexual nature. Cyber World:It is the world of computers and communications. Cyber world can be defined as follows:1. An online world where users have the mechanisms in place to transact any busi ness or personal activity as easily and freely as they can transact them in the physical world. 2. An environment for sophisticated online computing. 3. The futuristic online world of computing. The Miller Test For something to be considered "obscene," the Supreme Court uses what is known a s "The Miller Test." Developed in 1973 in the case Miller v. California, the Sup reme Court determined that the following types of works are not protected by the First Amendment and, therefore, can be prohibited. If the average person finds that when viewed as a whole, a work: ⢠Appe Appeal als s to to the the "pr "prur urie ient nt" " int inter eres est t (i. (i.e. e., , an an unh unhea ealt lthy hy and and deg degra radi ding ng inte intere rest st in in sex) ⢠Depi Depict cts s or or desc descri ribe bes s sex sexua ual l cond conduc uct t in a pat paten entl tly y off offen ensi sive ve way, way, and and ⢠Lack Lacks s seri seriou ous s lite litera rary ry, , arti artist stic ic, , poli politi tica cal l or sci scien enti tifi fic c valu value. e. All three parts of the Miller Test must be met before a material can be found to be obscene under the law. If just one of the parts is not met, the material wou ld not be considered obscene under law and, in turn, would be constitutionally p rotected under the First Amendment. The most controversial portion of the test i s the question of creative or scientific value. Even though some pornography may appeal to an average person's prurient interest and depict sexual conduct in an offensive way, if some contend it holds an artistic or literary value, it fails the Miller Test and is not deemed obscene. PORNOGRAPHY & OBSCENITY: The Indian laws nowhere deal with the term â Pornographyâ. Neither any legislation in Uni ted States nor United Kingdom has tried to give legal connotation to this term. Further it would be also impossible to find any definition of this term in the m ulti-national environment of the internet. The reason being simple that where th ere exists no uniform standard of moral culture and ethics there cannot exist an y fixed and uniform standard of law. The literal meaning of the term 'Pornograph y' is "describing or showing sexual acts in order to cause sexual excitement thr ough books, films, etc." Thus, in the light of the above definition it is understood that the crux of th e matter, the acid test is not 'Pornography' but 'Obscenity', This is a sad stat e of affair that majority is of the misconception that pornography should be reg ulated, but on the contrary, what is obscene or detrimental to public decency sh ould be checked not pornography in toto. Pornography itself does not constitute offence/crime but pornography which is ob scene, immoral, against public policy and detrimental to public welfare is an of fence / crime under any Indian legislation. The literal meaning of the term obsc
ene is "words, thoughts, books, pictures, etc. indecent, esp. sexually; disgusti ng and offensive, likely to corrupt. Further the Supreme Court has stated that o bscene means "offensive to modesty or decency, livid, filthy, and repulsive". As to the test of what matter is obscene it has been categorically laid down by Cockwin C.J. in Hicklin's case: "The test of obscenity is this, whether the ten dency of the matter charged as obscene is to deprave corrupt those whose mind ar e open to such immoral influences, and into whose hands a publication of this so rt may fall." Thus in the light of above laid down test it may be easily concluded that every obscene material is pornography but every pornographic material is not obscene. OBSCENITY & THE STATUTORY PROVISIONS (1) Indecent Representation of Women (Prohibition) Act The title of this Act makes it very clear that the intention of the legislature is to prohibit "indecent representation". Pornography, which amounts to "indecen t representation", is an offence. Now the point to be determined is as to what m ay amount to indecent representation. Section 2(C) of the Indecent Representatio n of Women (Prohibition) Act defines indecent representation of women as "the de piction in any manner of the figure of a woman, her form or body or any part the reof in such a way as to have the effect of being indecent, or derogatory to, or denigrating, women, or is likely to deprave, corrupt or injure the public moral ity or morals. This again makes the situation very clear that the legislature intends to crimin alize only pornography that is obscene rather than pornography in toto. This Act provides for a punishment up to 5 years for publishing and distributing any pho tograph containing indecent representation of women in any form. (2) Indian Penal Code, 1860 The Indian Penal Code vide section 292 defines the term obscene and provides for punishment for distributing any such object. Section 292 (1) defines obscene as follows: " a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more di stinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely having regard to all re levant circumstances to read, see or hear the matter contained or embodied in it ." Further subsection (2) provides for the penal consequence in the following ma nner. âshall be punished on first conviction with imprisonment of either description for a term which may extend to two thousand rupees, and, in the event of a 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 up to five thousan d rupees.â Ordinarily the obscene material on the net would not fall under the ambit of sec tion 292. But when section 292 is read with section 29 'A' of this Act, it can b e easily deduced that a computer screen can be constructed to be a document with in the meaning of Section 29. It follows that if any pornographic material, whic h is obscene, if visible on the computer screen, then an offence under section 2 92 of the I.P.C., is committed. (3) The Information Technology Act, 2000 The dusk of the 20th century witnessed the emergence most high-tech medium, whic h completely metamorphosised the conception of Information Technology. With the growth of the I.T. it was strongly felt by the world community to bring in some legislation to regulate this high tech. medium. Based on the UNCITRAL model Indi
a enacted the Information Technology Act, 2000. Section 67 of the I.T. Act is the most serious legislative measure against porno graphy. This section reads as follows "Whosoever publishes or transmits or cause s to be published in the electronic form, any material which is lascivious or ap peals to be published in the electronic form, any material which is lascivious o r appeals to the prurient interest or it its effect is such as to tend to deprav e and corrupt persons who are likely, having regard to all relevant circumstance s to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with an imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of either de scription for a term which may extend to ten years and also with fine which may extend to two lakh rupees." Applying this definition, it is apparent that if a web-site is disseminating obs cene material, then the domain name owner, the technical and administrative cont acts of the domain name and the creator of the pornographic material that is bei ng disseminated will be liable under section 67.
HOW IS OBSCENITY ON INTERNET REGULATED? In the case Nitke v. Gonzales, the Supreme Court affirmed the constitutionality of a federal ban on internet obscenity. The case involved Barbara Nitke, a photo grapher whose sexually explicit photos containing sadomasochistic poses were pla ced on the Internet, to supplement a gallery display. Nitke, along with the Nati onal Coalition for Sexual Freedom (NCSF), challenged the obscenity portion of th e 1996 Communications Decency Act which, among other things, prohibits the distr ibution of obscenity via the Internet to anyone believed to be under the age of 18. A special panel of the Second Circuit of Appeals in New York unanimously disagre ed with Nitke and the NCSF. The panel stated that they failed to show that the A ct was substantially overbroad. In other words, Nitke and the NCSF did not succe ssfully show that the ban was veering towards censorship. This ruling seems to indicate a change in course from past Supreme Court rulings . In 1997, the Supreme Court struck down the portion of Communications Decency A ct that prohibited the transmission of indecent material online. Since then, the Supreme Court has also ruled against the Child Online Protection Act, which tar gets commercial Web sites that make sexually explicit material available to thos e under 18; and the court nullified portions of the 1996 Child Pornography Preve ntion Act, which barred images of children appearing to be under the age of 18 a nd engaged in sexually explicit conduct. In 2003, however, the Supreme Court did uphold the Children's Internet Protectio n Act, which requires public and school libraries that receive government Intern et discounts to install filters on their computers that block pornography. The Internet has made the law of obscenity much more convoluted. Federal obsceni ty laws apply to interstate and foreign issues, such as distribution; intrastate issues are mostly governed by state law. , the Miller Test is based on what is offensive in a certain "community," not the United States as a whole. For exampl e, what's offensive to someone from New York City may differ from what offends a person in Topeka, Kansas. But, the Miller Test's basis of "community" becomes b lurred with the advent of the Internet; a state can define a community as the st ate as a whole, a county, a city or another geographic area. The geographic area of the Internet, however, is nonexistent, and geographic boundaries are essenti al to the "community" definition for the Supreme Court's Miller Test. As technology redefines our communities and our world, the Internet will more th
an likely be the source of more obscenity trials landing in front of the Supreme Court. The majority opinion now is that the Court may have to challenge the current sta te of the Miller Test as it relates to electronic obscenity. CONCLUSION Obscenity is more of a social evil than crime (i.e. illegal). It is not through legislation that we can check or curb it. The only possible way out is by increa sing and spreading awareness among the masses. Further, 'Pornography' per se is not obscene and illegal, but 'pornography' which is obscene is illegal and immor al. There is a dire need to change our outlook & try to understand this very bas ic demarcation between 'pornography' and 'obscene'. We feel that this is what th e root problem is and it is here only where the solution to this problem lies. The technology has improved the quality of governance and general administration by empowering people and bringing in speed, transparency and accountability. Ho wever, bigger the power, bigger is the responsibility. The people using the tech nology have to the aware of the banes of technology. The same technology, which has so many advantages, has brought with it certain disadvantages. It has facili tated the online frauds and other criminal activities such as obscenity, pornogr aphy, phishing and violence etc. The biggest adva ntage for the offender committing online crimes is that they can remain anonymou s. This possibility to remain anonymous has made the investigation into these ac tivities difficult. After investigation, the courts also face the problems conce rning conflict of law relating to jurisdiction and application of appropriate la w. Given these difficulties of the legal regime, it becomes the responsibility o f the people to be aware of the disadvantages of the technology so as to wane aw ay cheating and other issues. People should be equipped to protect their rights in online activities. They should be able to differentiate between the relevant and non-relevant information in this era of information flooded society. BIBLIOGRAPHY 1) Jacob Werrett, Aligning Cyber-World Censorship with Real-World Censorshi p, (Connecticut Public Interest Law Journal, Volume 9, Number 2, Spring 2010, 35 7) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1350511 2) Pornography, Community And The Internet â Freedom Of Speech And Obscenity On The Internet, Yuval Karniel And Haim Wismonsky 3) http://www.thefreedictionary.com/obscene (last visited on 1-08-2012, 09. 00 P.M) 4) http://www.osixs.org/V2_Meun_CyberWorld.aspx(last visited on 03-08-2012, 10.00 P.M) 5) http://www.legalzoom.com/us-law/freedom-speech/how-is-obscenity-regulate d (last visited on 1-08-2012 , 10.30 P.M)) 6) http://www.naavi.org/pati/cyberobsceneity.html (last visited on 02-08-20 12, 09.30 P.M)
