12 July 2019

#FOEIndiaSeries | 11. Explicit Content: Choice, Consent and Coercion

Free Speech in India

This is one of 14 articles (available via this page) through which I hope to share a sense of free speech and content law in India. Part I of this series considers the socio-legal basis of free speech law in India, Part II explores what regulation, both legal and social, says and, in some cases, what it should perhaps say while Part III, finally, looks at the processes through which free speech regulation is implemented in India.

Wherever possible, I've tried to avoid mention of matters I've been involved in myself. I've also tried to ensure that the series is accessible to non-lawyers.

The terms ‘child pornography’ and 'revenge porn' have been used simply because of how common they are, both in popular discourse and occasionally at law, even though neither term is accurate. 'Child porn' refers to indecent images of children and, where real children feature, is evidence of child abuse in and of itself. 'Revenge porn' generally refers to the non-consensual release of explicit imagery of a woman by a former partner of hers. It, too, is a manifestation of abuse, and is far more an expression of power than an expression of pornography.

Of course, none of the content of these articles is professional advice and it should not be relied on for any purpose. It is tinged with personal opinion, may not be accurate, and is incomplete.  

Posts in the Series

Part I.    The Foundations of the Law

1.    The Parameters of Indian Discourse    
2.    The Backbone of the Law    
3.    Legislative and Other Input

Part II. Regulating the Substance of Speech    

4.    Creative Content and Trade    
5.    Reputation and Honour    
6.    Keeping the State Functional    
7.    Maintaining Law in a Plural State    
8.    Women’s Existence in Patriarchy
9.    Sexual Abuse and Reportage
10.    Privacy and Rights-Based Legislation    
11.    Explicit Content: Choice, Consent and Coercion    
12.    State Paternalism and Public Interest

Part III.  The Processes of the Law    

13.    Keeping Track of Others’ Content
14.    The Mechanics of Regulation


Part II. Regulating the Substance of Speech



11. Explicit Content: Choice, Consent and Coercion


At the heart of questions about whether explicit content should be legally publishable lie issues of gender and of class, of autonomy and of exploitation, which are not always easy to 'solve'. Traditionally, the legality of explicit content has usually been seen through the lens of obscenity, and the publication of content deemed to be obscene has been criminalised through provisions in a number of colonial-era laws, some of which have been echoed by more recent statutes.

Section 292 of the 1860 Penal Code, and the 1986 Indecent Representation of Women (Prohibition) Act are two of the main laws which deal with explicit content. The Penal Code, inherited in large part from the Raj, treats content as being obscene ‘if it is lascivious or appeals to the prurient interest’ or if its effect is ‘such as to tend to deprave and corrupt’ its likely audience taking all the relevant circumstances, along with the content in its entirely, into consideration. Thus, the understanding of obscene content in the Code itself reveals that the law does view all explicit content as necessarily being obscene. Instead, it focusses on the effect explicit content might have on the consumers of that content.

Although the offences defined by the Penal Code and the Indecent Representation of Women (Prohibition) Act, a later law, are slightly different, it is, in essence, a criminal offence to sell, let to hire, distribute, publish, publicly exhibit or otherwise circulate prohibited explicit content. It is also an offence to make, produce, possess, or knowingly import or export obscene content for any of these purposes, to take part in or receive profits from businesses engaged in such practices, or to advertise any of these acts under the Penal Code, while the Indecent Representation of Women (Prohibition) Act adds that it is an offence to publish or cause to be published advertisements which contain indecent representations of women.

The law's understanding of what constitutes obscene content is not labour-rights centric: it does not so much as glance at the modes of production of content or at who might feature in the content. It is only concerned with the finished product, so to speak, and the possibly adverse effects it may have on those who are exposed to it.

It doesn’t matter to obscenity law that pornography is probably one of the few forms of content where, of all those involved right from its making to its viewing, it is its audience which needs the least protection from its effects unless, of course, that audience has been forced into viewing it. In such cases, the law (albeit not so much through this particular colonial obscenity law but through later additions to the Indian corpus juris) rightfully recognises that forcing another to view pornography is illegal and provides the means to address such conduct of the perpetrator. In the case of children, it goes a step further, and states that ‘showing any object to a child in any form or media for pornographic purposes’ is a crime.

The exceptions contained in the 1860 Penal Code say that explicit content will not usually attract the penal provisions of criminal law if it is kept or used for bona fide religious purposes, or if it is for the public good and is in the interest of science, literature, art of learning or other objects of general concern. Also, it doesn’t treat content as being obscene if it is in the form of a representation such as a sculpture or engraving either on or in a legally-recognised ancient monument, or any temple, or on any car used kept or used for religious purposes including to convey idols.

Comparable exceptions are found in the 1986 Indecent Representation of Women (Prohibition) Act which, like the Penal Code, restricts speech which contains what it describes as indecent representation of women. Subject to the exceptions which broadly facilitate academia, the observance of religion, and the preservation of heritage, the statute defines indecent representations of women as being depictions of women’s figures, their bodies, or any part of their bodies in a manner which has the effect of being indecent, or being derogatory to women, or which denigrates women, or which is likely to deprave, corrupt or injure public morality or morals.

What is interesting is that there is two lines of thought present in the definition of what constitutes indecent representation of women: one of them considers the effect of the imagery on women and the other considers the effect of the imagery on the general public. The rationale which appears to underlie the definition, and the consideration of effects in the alternative, indicate that the law does not believe that if an image were to denigrate women, it automatically follow that the image would necessarily vitiate public morality.

The delinking of the possible adverse effects of explicit content is worth noting since, in many legal initiatives to ban online pornography, the claim that porn leads to rape has been repeatedly made and has largely been unchallenged despite its not being backed by concrete evidence. There has, in fact, been the suggestion in at least one study that easy access to pornography could conceivably decrease violence against women in spheres unrelated to it, although this suggestion seems to fly in the face of lived experience which indicates that there is a correlation if not a causal link between pornography and men’s perpetration of sexual violence.

Focussing on ‘indecent representation of women’ as defined by statute, if one were to closely examine the definition, it would emerge that the effect of the imagery would have to be ‘indecent, or derogatory to, or denigrating, women’ in the plural. As such, although one may refer to the 1897 General Clauses Act to construct an argument that the plural includes the singular, the bare text of the statute indicates that it is not so much concerned with the effect on individual woman who may feature in explicit imagery but with the effect on women as a collective.

From analysing the construction of the definition of indecent imagery of women, it doesn't take long leaps to go on to think of images of non-individualised generic women, to have those images metamorphose into the image of Woman idealised by the collective, and to suspect that the legal definition of indecent imagery is the antithesis of the image of the Ideal Woman. This Ideal Woman of the collective imagination is, of course, usually not considered to be an autonomous sexual being, and, that being the case, it is easy to see how any sexual representation of any woman (unless she clearly doesn't fit into the societal understanding of a Good Woman) could be considered indecent.

Due to this, both the provisions of the Penal Code and the statute against the indecent representation of women could be considered to be laws which protect what is perceived as public morality as conceived of and supported by patriarchy; the protection of the rights of individuals who may be depicted in an obscene manner appears to be incidental. Protecting the existing social order seems to be the law's priority.

A person convicted of an offence under either Section 292 of the Penal Code or under the Indecent Representation of Women (Prohibition) Act may be punished with imprisonment of up to two years and a fine of up to two thousand rupees on first conviction, as well as with an enhanced punishment in the event of a second or subsequent conviction. And, as far as the Penal Code is concerned, to be convicted of an offence under Section 292, it would not matter if the accused person had successfully committed an act which the provision it considered an offence of if he had merely tried or offered to do so.

Young persons are treated with particular consideration and the penalty for selling, hiring, distributing, or circulating obscene objects to persons under the age of twenty years, or trying or offering to do so would be met with a penalty more stringent that engaging in the same acts with reference to a person over the age of twenty. Under Section 293 of the Penal Code, such conduct is punishable with imprisonment of up to three years on first conviction and with a fine of up to two thousand rupees, while second or subsequent convictions are liable to be punished even more harshly.

This consideration for young people is also echoed by the 1956 Young Persons (Harmful Publications) Act although that statute deals not with obscene content specifically but with content relating to the commission of offences, violence or cruelty, incidents of a repulsive or horrible nature in such a way that it could, in its entirety, ‘tend to corrupt a young person into whose hands it might fall’ in any manner including by inciting or encouraging him to commit offences, or to act in a cruel or violent manner. A person who commits an offence under the statute may be punished with imprisonment of up to six months, and with a fine.

Remarkably, as far as shielding young persons from obscenity is concerned, the law treats persons under the age of twenty as being ‘young’ and needing protection. The age of consent is eighteen in India, and so, one can legally engage in sexual activity quite a bit before the law considers one to be mature enough to be treated as an adult for the purpose of viewing explicit content. Obviously, this inconsistency makes provisions like those contained in the Young Persons (Harmful Publications) Act seem like anachronisms.

One positive change, however, has been that even if the focus of the law hasn’t entirely shifted away from purported hazards of viewing explicit content for young adults, its scope has at least widened to take into consideration the effect which being featured in explicit content has on minors. Under the 2012 Protection of Children from Sexual Offences Act, enticing a child for pornographic purposes or giving gratification therefor constitutes sexual harassment.

‘Merely’ storing pornographic material involving children is a crime if it is for commercial purposes. Further, actually using a child in any form of media, regardless of whether it is for personal use or for distribution, for the purposes of sexual gratification is a criminal act. Section 13 of POCSO clarifies in a non-exhaustive list that this includes representing the sexual organs of children, using them in either real or simulated sexual acts, or representing them in a manner which is indecent or obscene, while Section 14 stipulates that the punishment for using children in pornography is up to five years’ imprisonment, and a fine not quantified by the statute for the first offence. For second or subsequent convictions, the term of imprisonment may extend to seven years. Further, if the person who uses a child for pornographic purposes participates in pornographic acts himself, he is liable to be punished with imprisonment of not less than six years and a fine – the term of his prison sentence depends on the nature and mode of the act in which he participates.

The 2000 Information Technology Act also has provisions which criminalise dealing in child pornography to the extent that it is a crime to view child pornography.

It is not, however, usually a crime to merely access pornography which features adults. Those who are enthusiastic about free speech often go back to instruments such as the European Convention on Human Rights which, inapplicable though it is to India, says, in Article 10(1): “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” The argument then goes that the right to free speech is not simply a right to impart free speech but also a right to receive speech, even if that speech happens to be pornography.

The argument that the consumers of explicit material have the right to access pornography doesn’t necessarily take into account the right of the people who feature in pornography to choose whether or not they want to do so. It quite simply does not speak of whether consent has been obtained for the filming or photographing of explicit content, or whether the content has been disseminated with the consent of those who feature in it.

Also in the picture is so-called ‘revenge porn’ — although the term implies that it is porn which is created in revenge, the reality is that it is invariably nothing but the spiteful dissemination of explicit images of women by former partners out to make life difficult for them. The practice of releasing such pictures has been notoriously difficult to address through the law, and, although a number of jurisdictions are now specifically attempting to address it through new laws, there are times when it has been the case that copyright law has been one of the few reliable ways to counter the dissemination of such content. After all, under copyright law, those who feature in filmed ‘revenge porn’ could be considered to be performers, and the dissemination of content featuring them without their consent would be illegal.

In India, of course, the dissemination of ‘revenge porn’ is, in any case, illegal due to laws against obscenity being in force. Additionally, it may be possible to assail such content through Section 354C of the Penal Code which deals with voyeurism and under which a convicted person is liable to be punished with imprisonment for between one and three years and a fine the first time he is convicted, and for an increased term of between three and seven years upon a second or subsequent conviction in addition to being fined.

Amongst other things, the anti-voyeurism provision criminalises capturing or disseminating the image of a woman ‘engaging in a private act’ in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator of the offence. The law recognises that to avoid criminal liability, consent must be obtained for both the acts of capturing and dissemination; an explanation to the provision clarifies that the dissemination of an image would be considered to be an offence if the woman who featured in it had agreed to its being captured but not to its dissemination.

However, an impediment to applying the 354C anti-voyeurism provision to ‘revenge porn’ although a court could easily interpret it to do is the fact that it applies where a woman usually has an expectation of not being observed, and it isn’t at all obvious that a woman would usually have an expectation of such privacy if the explicit content which constituted ‘revenge porn’ featured another person along with her. That said, the provision does also explain that a private act includes an act where the victim ‘is doing a sexual act that is not of a kind ordinarily done in public’ which, for all practical purposes means any sexual act, so the concern that Section 354C of the Penal Code may exclude ‘revenge porn’ from its ambit at the threshold — that is to say, right at the initial stage where it defines the offence — may be unfounded.

Further, Section 66E of the 2000 Information Technology Act states that ‘whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both’, while Sections 67, 67A and 67B of the statute prohibit the transmission of obscene and sexually explicit material including child pornography.

Acknowledging the necessity of those who feature in pornography to have granted consent for the filming and dissemination of content in order to have the content itself be considered legitimate is only a first step. Considering the dynamics of the industry, and how exploitative it can be, consent alone is nowhere near enough, and those who feature in porn should be able to enjoy minimum standards of safety as a matter of right.

Unfortunately, it is extremely difficult to talk about the labour rights of those who feature in pornography especially since the content it is generally considered to be obscene and anyway illegal. Due to this, for the most part, its making and production is entirely beyond the scope of the law in practice.

There are questions of class involved which vitiate the issue of how explicit content is perceived, and one person’s art could quite easily be considered another person’s porn. Into this mix come ‘activist’ statements possibly in the form of art, performance or otherwise, where women may choose not to use sanitary products while menstruating, or use menstrual blood as ‘paint’ to the consternation of large sections of society who consider such speech obscene and undignified.

Although the law does not prohibit all explicit imagery, it does prohibit vast swathes of explicit imagery by labelling it obscene. Questions of what constitutes obscenity are, however, negotiable, and this negotiability means that there is the possibility of content once considered to be obscene and hence legally punishable to shift to being non-obscene and legally publishable.

The law may also implicitly view the legitimacy of content through the lens of what constitutes criminal sexual activity. Imagery tending to the obscene may not be legally publishable if it features a crime. There is no way to simulate crimes (such as bestiality) for which liability does not hinge on consent — the commission of the crime depends of whether the act takes place, not on whether consent was obtained before the commission of the act.

This means that even if the humans who feature in explicit content consent to its being recorded and disseminated, if the content features certain acts which are crimes, consent would be irrelevant. For example, consider non-simulated snuff porn which involves the death of at least one of the people who feature in it: the content would almost certainly not be defensible on grounds of ‘consent’ as there is absolutely no legal precedent to suggest that one may consent to being murdered for the entertainment of others.

This can take one into grey areas such as how porn featuring BDSM that involves physical violence should be treated. There are good arguments to be made to the effect that regardless of the nature of the activity, if it results in the causation of grievous hurt (as defined by the law) or worse, it should not be legally defensible by claiming that consent was from the person who has been hurt. That said, this is not an area of law which the judiciary has dealt with in any depth, and, when it comes to pornography which features such acts, the fact that the content would, in any case, likely be illegal due to obscenity laws makes any conversation about how the law should be structured to address such content almost always pointless.

Nonetheless, even without viewing explicit content through the lens of obscenity, it is possible to argue that content which features any non-consensual conduct is or should be illegal. Of course, this argument runs into trouble once one acknowledges that the rape which is associated with pornography and other explicit content is of two forms: the first being real rape as pornography, and the other being simulated rape in pornography.

In relation to real rape as pornography, a subset of which is so-called trophy porn, no valid argument supports its legitimacy. At the very least, it involves the perpetrators of the rape engaging in criminal conduct, as well as those who film, distribute, and deal in such content committing criminal acts. However, in relation to simulated rape in pornography, although the content may be assailed on the ground of obscenity, with relation to consent — assuming, of course, that consent has been obtained for the act, its filming, and its dissemination — it becomes difficult to assail the content through the laws against rape and sexual abuse.

Being difficult challenge legally does not necessarily mean the content is legitimate. Regardless of what the content of pornography is, and regardless of whether or not consent has been formally and fully obtained from those who feature in it, it is inescapable that even where consent is granted, it is often granted in situations which are so deeply inequitable that they should call into question whether or not the societal acceptance of such consent is conscionable. It is not, for example, free and voluntary consent where that consent is obtained as a result of a person’s having no other way to make a living. It is possible that the law would not question such consent, but it does not follow that society should see it as being acceptable.

Further complicating the issue is the fact that it is impossible for the average consumer of pornography to be aware of the conditions it was produced under. In other words, consumers have no way to know if they are watching filmed rape or coerced photography when they access pornography.

There is anecdata available which suggests that there are consumers of pornography who specifically go out looking for porn featuring real rape but, despite its occasionally being spoken of by the press, it is impossible to ascertain the extent of the problem. What seems to be clear, however, is that the dissemination of filmed rape has led some women to commit suicide after films featuring themselves have been circulated online or via messaging services.

The difficulty in determining under what conditions explicit content is produced is not just limited to pornography but can also extend to advertisements which pertain to sex work and may include explicit imagery. Even though a sex worker may not be liable per se to punishment under criminal law, a number of acts which are commonly associated with sex work such as trafficking and pimping are illegal.

When it comes to advertisements placed, perhaps online, for the provision of escort and other allied services, from the point of view of the consumer — even if the ads are not illegal in and of themselves, which is far from clear — there is no way to ascertain whether their being posted is a manifestation of the exercise of choice by the relevant sex worker or the infliction of coercion by someone else. This obviously raises ethical questions of what one is supporting should one choose to respond to such an ad or, for that matter, even view explicit content online without being certain of the mode of production and the permissions obtained for dissemination.

There is, however, a great deal of resistance to having engagement with explicit content be restricted on the grounds that it could be a visible result of exploitation — apparently, in the eyes of those who consume pornography, the supposed free speech right to receive information can supersede the right of individuals not to be subjected to rape and other coercive practices. Because, of course, it can be too much trouble to find out how explicit content is made available, if comments one hears are anything to go by, and horror of horrors! it could decrease the quantum of explicit material which the consumers of pornography manage to convince themselves they have both the legal and ethical right to access.

Asking for explicit content to at least be consensual does not consider the labour and allied rights of those who feature in the content beyond a point. The mere requirement of consent does not set up minimum assured standards of health and safety for those who feature in pornography, for instance.

Even assuming desirability of the normative legality of all explicit content, a consent-based model through which legality is assured does not necessarily ensure that consumers of explicit content do not have access to content which features people being sexually abused. This is simply because there is no guarantee that consent-based legality would take into consideration the circumstances in which consent is obtained. Due to this, to ensure that the law, should it ever completely legalise explicit content featuring adults, does not inadvertently make access to filmed sexual abuse legal, it is important that consent is coupled with a bill of rights for the benefit of those who feature in explicit content by whatever name it is called.

Hoping to have explicit material be produced and disseminated with the consent of those who feature in it is what could be considered to be the lowest possible requirement. Consent alone is not enough.

(This post is by Nandita Saikia and was first published at IN Content Law.)

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