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18 December 2007

Obscenity Can Byte

Having Vulgar E-Mails, SMSes Or MMS Clips In Your Inbox Could Get You Into As Much Trouble As Sender: Experts

Swati Deshpande | TNN


Mumbai: Beware! You may not be intending to harass someone, but that obscene SMS or e-mail you just sent could land you in a lot of trouble. In fact, just receiving it and not deleting it from your inbox could also get you arrested. Since it’s a non-bailable, cognisable offence, be prepared to also spend at least a night in jail before the judge lets you out.

In India, a person could be charged for simply possessing alleged obscene content due to the wide scope of the Information Technology (IT) Act. So if a friend sends a dirty MMS that the police find in your cell phone, you could be as liable as him for prosecution under the IT Act, say legal experts.

Any obscene or vulgar SMS, MMS, or even an audio clip from boyfriends, girlfriends, colleagues, spouses or acquaintances can prove costly for the sender and receiver. “As far as an SMS is concerned, it too is an electronic record since a mobile phone is a ‘computer’ under Section 2 of the IT Act,’’ said Pavin Duggal, a leading cyber law expert in India.

The IT Act dictates that an obscene SMS, which may cost the sender as little as 30 paise, should lead to a fine of Rs 1 lakh and up to five years in jail. A second-time offence can land the convict in prison for up to 10 years and a fine of up to Rs 2 lakh. “Harassment is of no consequence. The fact that it is obscene content is enough for the law to apply,’’ noted Duggal. However, the harsher penalties are rarely handed out because of poor implementation of the law, Duggal said. First of all, few obscenity cases are filed in which no one is harassed. One such case involved an MMS clip showing two Delhi students having sex and which was put up for sale on a website. Secondly, even in the case of harassment, there is reluctance by victims to report offences to the police, much less take the matter to court.

Interestingly, the fact that the state can act without an official complaint from a member of the public, including the harassment victim, has not aided prosecution. Duggal noted that Mumbai is an exception, where the police’s cyber crime cell is active. But by and large across India the police are reluctant to register cyber crimes—obscenity via SMS is a concept they are still grappling with.

In fact, since the inception of the sevenyear-old IT Act, there have hardly been any convictions for cyber crimes. Duggal said a 2003 on-line cheating case in Delhi is believed to be the first conviction under the Act. The first conviction for obscenity, under Section 67 of the IT Act, was last year in Tamil Nadu where a boy had morphed his girlfriend’s face onto a nude body and sent it to their friends on the internet. The MMS student sex case is still pending in court.

There are numerous cases involving obscene SMSes used to harass people, but most times people don’t report the matter as this would mean more embarrassment and the hardship of proving the case in court. Duggal noted that it’s not easy to get a conviction under Section 67, primarily because one has to prove that the obscene information is attributable to the accused. One has to prove the records of service providers, which are sometimes unavailable.

Forget prosecution, even investigation is a problem, said internet guru Vijay Mukhi. When sex siren Mallika Sherawat complained in 2005 that an obscene video-clip doing the rounds featured her lookalike and not her, the police were faced with a difficult task. As it turned out, said her lawyer Vibhav Krishna, the MMS was found to feature a Brazilian girl and the probe ended there.
Mukhi said, “The problem is that the servers hosting the offensive content are usually located on foreign shores, and even if the origin is a local cyber cafe, the lack of records is a roadblock during a police probe.’’

An expert committee appointed a few years ago by the Bombay High Court said it was difficult to have system-based firewalls at cyber cafes to curb the presence of online pornography.

Another IT law expert Amit Desai said the IT Act has some, but not all answers. There is no provision, for instance, for cyber stalking in the present law. This is a huge lacuna as most complaints relate to the harassment faced by a continuous inflow of non-obscene messages or mails, said lawyers. Nor is child pornography specifically dealt with under the Act.

Recommendations to make child porn a serious and specific offence with enhanced punishment were made to the government last year by an expert committee.

Counsel Rajiv Kumar said, “In the last few years, technology has developed to such an extent that it is capable of being misused and abused. But there is no specific legislation to deal with doctored electronic data.’’

Privacy in the electronic age also remains a crucial issue. Any form of electronic communication which tends to “outrage the modesty’’ of a person, or infringes on personal relationships, is an invasion of privacy.

INFOTECH ACT CASTS A WIDE NET

  • Section 67 of the Information Technology (IT) Act deals with the ‘publishing of information which is obscene in electronic form’

  • Under Section 2 of this Act a mobile phone is also a computer, so obscene SMSes and emails attract the same penalties

  • Section 67 covers obscene publishing of electronic content, transmitting obscene content and causing such obscene electronic information to be published

  • Legal experts say that merely possessing obscene content could be as much an offence as transmitting such content due to the wide net the Act casts

  • It is not necessary to intend to harass the recipient either for the law to apply

  • A conviction can invite imprisonment of up to 5 years and a fine of upto Rs 1 lakh. A second conviction invites imprisonment of upto 10 years and a fine of upto Rs 2 lakh

  • An arrest could guarantee a night in the lockup as only a judge can grant bail under the cognisable offence, not the police

  • The police can also apply these sections of the Indian Penal Code: Section 209 (obscene act in public place), Section 354 (outraging a woman’s modesty by assaulting her) and Section 509 (outraging a woman’s modesty by word or gesture or act). These offences are punishable with jail terms ranging from 3 months to 2 years

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