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    Automatic Download of Child Pornography That Hasn’t Been Transmitted Not an Offence Under IT Act and POCSO ACT: Kerala HC

    The Kerala High Court recently held that automatic or accidental downloading of content involving child pornography without a specific intention to transmit the material is not an offence under Section 67B of the Information Technology Act, 2000, according to a report by Bar and Bench.

    Justice A Badharudeen was hearing a petition filed by 27-year-old Sebin Thomas against a May 16 order by a Fast Track Court in Thrissur that accused him of committing an offence under Section 15(2) of the Protection of Children from Sexual Offences Act (POCSO Act) and Section 67(B)(b) of the IT Act, 2000. Thomas was accused of allegedly downloading, storing, and possessing pornographic materials involving children through Telegram.

    Section 15(2) of the POCSO Act criminalises storage of child pornographic material. It states:

    “Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting, as may be prescribed, or for use as evidence in court, shall be punished with imprisonment of either description which may extend to three years, or with fine, or with both.”

    Section 67(B) of the IT Act lays out punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form. Section 67(B)(b) states that the punishment applies to whoever “creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner”.

    What did the Kerala High Court observe?

    The Court emphasised examining the specific criteria that constitute offenses under the aforementioned provisions of law. It relied on past judgements made by the Kerala HC in similar issues, where the Court sought to specifically look at the intention of downloading offensive content, and whether such content was then transmitted by the user.

    As per the Court’s order, the petitioner’s counsel argued that mere storing or possessing pornographic materials by itself is not offence.

    “In order to bring home an offence under Section 15(2) of the POCSO Act, there should be materials to show that the accused stored or possessed pornographic materials for the purpose of transmitting or propagating or displaying or distributing the same,” advocate VA Johnson noted.

    He also noted that in the case ‘Manuel Benny v. State of Kerala & Anr’ the Court had noted that in order to attract offence under Section 67(B), it should be established that the material was intentionally downloaded by the user, as there’s a possibility that the contents transmitted via Telegram can be automatically downloaded in one’s mobile phone by default.

    Taking these points into consideration, the Kerala HC observed that:

    “In the present case, the materials collected during investigation would show that some pornographic messages, which would depict children engaged in sexually explicit act or conduct were found in the devise of the accused. But there are no materials to show that the petitioner intentionally downloaded or browsed or recorded the same. More particularly there are no materials to show that the petitioner had either shared or transmitted or propagated or displayed or distributed the same in any manner.”

    Madras High Court’s observations:

    In January 2024, the Madras HC also held that child pornography stored on an electronic device without being transmitted elsewhere wouldn’t constitute an offence under either India’s IT law, or POCSO Act. The Court had quashed criminal proceedings filed against a 28-year-old petitioner for having child pornography downloaded on his phone.

    In his order, Justice N. Anand Ventakesh made critical observations about tackling addiction to pornographic content:

    “Porn addiction, like other substances or “things” that people can become addicted to, can be understood through principles of “operant conditioning”. This is where a certain behavior, watching porn in this case, is “reinforced”, or rewarded, which in turn makes you want to do it again (and again). Lots of different things can be reinforcing, and thus influence our behavior, but porn can be especially reinforcing because the reward taps into a very basic instinctual drive – sex. Therefore, it is very easy to become addicted to porn – it is accessing a fundamental (and very enjoyable) natural drive. It is also much easier to obtain than going out and finding a “mate” to fulfill this drive…The Generation Z Children are grappling with this serious problem and instead of damning and punishing them, the society must be mature enough to properly advice [sic] and educate them and try to counsel them to get rid of that addiction…In the light of the above discussion, the continuation of the proceedings against the petitioner will amount to abuse of process of Court. That apart, it will be a stumbling block for the petitioner’s career in future. Therefore, this Court is inclined to quash the proceedings…”

    Also Read:

    The post Automatic Download of Child Pornography That Hasn’t Been Transmitted Not an Offence Under IT Act and POCSO ACT: Kerala HC appeared first on MEDIANAMA.

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