Laws On Cybercrime In India

Child rights are enshrined in the Constitution and protected through specific laws and regulations against cybercrime. In the Indian context, child rights are protected by various provisions of the Constitution of India as well as specific laws such as the Protection of Children from Sexual Offences (POCSO) Act, Information and Technology Act 2000 and Indian Penal Code, Data Protection Act 2021. The Indian Constitution provides that certain laws and regulations should be passed to protect children. Special laws should be made by the state to protect children. India has several laws related to the protection of children and their internet rights. Although India does not have any specific law to protect the rights of children in this digital age, being a signatory to the Convention and after ratifying it in the year 1992, India is constantly making efforts to protect children from all forms of exploitation and ensure the protection of their rights. In this regard, India has enacted several laws to protect the rights of children in the physical world as well as in the cyber world. These laws are described here as follows:-

A) Information Technology Act 2000

One of the most important laws providing security for internet activity is the Information Technology Act 2000. This Act has several provisions to deal with various types of cyber crimes. It prescribes penalties for unauthorized access to data and damage caused to computers due to malware, phishing, botnets, viruses and other cyber attacks.

Section 67B of this Act has a dedicated provision aimed at protecting children on online platforms. “Section 67B: Punishment for publishing or transmitting material depicting children in sexually explicit acts or conduct in electronic form is mentioned as under:

1. Any person who publishes, transmits or causes to be published or transmitted material in any electronic form which depicts children indulging in sexually explicit acts or conduct.

2. Those who create text or digital images, collect, search, browse, download, advertise, promote, exchange or distribute material in any electronic form depicting children in an obscene, indecent or sexually explicit manner.

3. Persons who develop, entice or induce children into online relationships for sexually explicit acts or in a manner offensive to a sane adult on computer resources.

4. Those who promote online abuse of children.

5. Persons who record their own or others’ abuse in any electronic form relating to sexually explicit acts with children. Offenders can be punished with imprisonment up to five years and a fine of ten lakh rupees for the first time conviction. Section 66C explicitly addresses cybercrimes relating to identity theft. It lays down penalties for individuals who knowingly and fraudulently access personal information of others, such as passwords or electronic signatures. Under Section 66E, capturing, transmitting or disseminating images of private body parts without the consent of the individual is considered punishable. Those found guilty can face a maximum imprisonment of three years and/or a fine of up to Rs 2 lakh.

B) POCSO Act, 2012

The Protection of Children from Sexual Offences Act, 2012 is a law designed to protect children below the age of 18 years from all forms of sexual offences including sexual assault, sexual abuse, sexual harassment and child pornography. Section 1120 of the POCSO Act provides for sexual harassment. Some examples related to electronic media are:

1 . A person displaying pornographic material to a child with sexual intent through any electronic medium shall be deemed to be sexually harassing a child.

2. A person who persistently contacts a child through any electronic media is said to be sexually harassing. If a person through any electronic medium threatens a child to use any body part of the child or the child involved in a sexual act, whether real or fabricated, he commits sexual harassment. He entices a child for pornographic purposes. Sexual harassment is punishable under Section 1221 of the POCSO Act. Any person committing the offence of sexual harassment may be punished with a jail term of up to three years and also with a fine.

Section 1322 of the POCSO Act prohibits the use of children for pornographic purposes under the law. It states that any person who uses a child for his sexual gratification through any electronic media, whether for personal use or for distribution, is deemed to be exploiting a child for pornographic purposes. This includes pornographic depiction of a child, exhibition of sexual organs of a child, and depiction of a child engaged in sexual activity. Section 1423 of the Act lays down punishment for using a child for pornographic purposes. Under Section 13, offenders face a minimum imprisonment of five years with a fine. The minimum imprisonment period is increased to seven years on subsequent conviction, with a fine again imposed. In addition, if the person concerned also commits an offence under Section 3, Section 5, Section 7 or Section 9 by personally engaging in obscene acts, he shall be punished under Section 4, Section 6, Section 8 or Section 10 respectively in addition to the punishment mentioned in Section 14.

Section 1524 of the Act provides for punishment for storing obscene material relating to children. If a person is found storing or possessing such material with the intent to transmit or distribute it without informing the authorities, he shall be fined not less than Rs 5,000 on first conviction and not less than Rs 10,000 on subsequent conviction. If the material is stored or possessed for broadcast, display or distribution in a manner not prescribed by law for reporting, the offender may face imprisonment of up to three years, fine or both. Those who store or possess the material for commercial purposes face a minimum of three years imprisonment, which may extend to five years, or a fine, or both. The imprisonment period for subsequent convictions may range from five to seven years, with the possibility of a fine, or both. According to Section 1625 of the Act, it is illegal to aid and abet the commission of any of the above acts.

C) Indian Penal Code

The Indian Penal Code (IPC) covers various offences, including those committed online such as criminal intimidation, hate speech and defamation. Section 153A26 of the IPC addresses hate speech, and defines it as any act promoting enmity between different groups on various grounds, which is prejudicial to social harmony. Section 41927 deals with cheating by impersonation, and prescribes imprisonment of up to three years, fine or both for offenders. Section 354D28 specifically deals with stalking of women, which prescribes imprisonment of up to three years with fine for first conviction and imprisonment of up to five years with fine for subsequent conviction. Defamation falling under Section 50029 also includes cyber stalking and is punishable with simple imprisonment of up to two years, fine or both. Criminal intimidation, as specified in Section 50630, is punishable by up to two years in prison, a fine, or both.

Section 29231 prohibits possession, sale, etc. of obscene material. Although the IPC does not specifically address crimes against children, these provisions can still be applied in such cases.

D) National Cyber Security Policy

2013 The Government of India enacted the National Cyber Security with several goals in mind. Prevention and proper investigation of cyber crimes, especially crimes against minors, is one of the goals of the policy. It provides an appropriate legislative framework to improve enforcement capabilities. It aims to increase public awareness about cyber security. This measure also protects the data of citizens, prevents violation of their privacy, and protects them from financial losses due to cyber crimes such as data theft that occur as a result of violation of privacy.

E) Digital Personal Data Protection Act, 2023

This Act provides several safeguards to maintain the privacy of children. The most important of this section is that consent should be given by the age of 18 years. The Act provides that data fiduciaries must obtain permission from parents before processing a child’s personal data. It also suggests mandatory registration with data protection authorities for data fiduciaries dealing only with matters pertaining to minors. Processing children’s data and providing services to them is seen as an eligibility criterion for identifying a significant data fiduciary. Significant data fiduciaries are subject to additional requirements outlined in the law. It is against the law for data fiduciaries to follow or monitor children’s data or handle personal information in a manner that may endanger children.

Loopholes in Indian laws

Despite the fact that many crimes against children are illegal in India, some acts are not recognised as crimes. Cyberbullying, which is illegal in many other countries, is still a serious offence in India. Sexting also works in a similar fashion. Since Indian law has no legal mechanism for punishment of cyberbullying and sexting, these acts are not considered significant crimes there. Trafficking children for the purpose of using them for sexual exploitation is illegal, but trafficking children for the purpose of creating pornographic or obscene content is not specifically covered under the law. It also says nothing about cybergrooming, which is another crime committed against children in our country at an alarming rate, which can ultimately lead to their death. Cybergrooming is done with the intent of sexual exploitation. Both the IT Act 2000 and the POCSO Act 2012 need amendments.

1. An amendment to the POCSO Act of 2012 that makes it illegal to promote or counsel sexual activity with a person under the age of 18 in any written document, graphic depiction, audio recording or portrayal.

2. In relation to this, the IT Act, 2000 was amended to provide punitive measures against persons providing access to pornography to minors and those obtaining, creating or disseminating information on child sexual abuse.

3. Accountability of agencies receiving actionable intelligence: This will allow local police departments and law enforcement agencies across international borders to share intelligence to guarantee investigations.

4. Speedy legal redress through investigation and disposal: The addition of a thorough definition of child pornography and amendments to the POCSO and IT Act will provide the necessary redress by speedy investigation and disposal of the case. Since cyber crimes against children have increased a lot, this growing threat needs special attention. Speedy hearing and subsequent prosecution can be a deterrent to current and future offenders. As a result, not all aspects of children’s internet safety are covered under Indian law. This is still an area that requires development and legislation as well as comprehensive protection for children’s interests online.

Judicial View

The Indian government has passed several laws to protect the rights of children both offline and online. Unfortunately, we lack a child-specific law similar to the United States, and the regulations that exist are inadequate to protect children’s online privacy rights. To protect children’s rights and privacy in this digital age, the Indian judiciary interprets cyber laws and establishes recommendations in this regard. In Jayesh S. Thakkar v. State of Maharashtra, in response to a letter from the petitioners regarding the abundance and accessibility of pornographic websites on the Internet, the Chief Justice of the Bombay High Court treated the letter as a writ petition.

The division bench issued an order establishing a committee to provide views and proposals to prevent, manage and protect minors’ access to pornographic websites and other objectionable content on the Internet.In the Air Force Bal Bharati School case, a 16-year-old student had created a pornographic website to take revenge for being teased for his blemished face. On a pornographic website, he posted photographs of his professors and classmates, which were scanned and altered. The youth was prosecuted under the Indecent Representation or Women Act, Sections 292, 293 and 294 of the IPC and Section 67 of the Information Technology Act, 2000.

However, the juvenile court granted bail to the child. Also, in another case, in Mumbai, a Swiss couple gathered some children from a slum area and then forcefully clicked their nude photographs. Later they uploaded these photographs on the website. The Mumbai police arrested them for the offence of cyber pornography under Section 67 of the IT Act and Sections 292 and 509 of the IPC. Child pornography was not a factor in the case of Aneesh vs State of Kerala, 2023, held by the Kerala High Court. While the Kerala High Court and the Supreme Court of India have concluded that viewing adult pornography in private is not illegal under Section 292 of the IPC, downloading sexually explicit material for children is unquestionably illegal under the IT Act. A complaint was filed against activist Rehana Fathima for uploading a video showing her children, who are aged between 8 and 14 years, panting in their pants under various provisions of the Juvenile Justice (Protection) Act, the POCSO Act and the IT Act. The Kerala High Court rejected her request for bail, rejecting her argument that she was teaching her children about sex education. In the case of S. Harish v. Inspector of Police, the Madras High Court recently quashed the legal proceedings, declaring that downloading child pornography was not illegal under Section 67B of the Information Technology (IT) Act, 2000.

Conclusion

The increasing growth of cybercrime poses a major threat to children who are increasingly being exposed to the internet. Despite the myriad benefits it offers, the digital space also poses several risks. Cybercriminals exploit the vulnerabilities of online platforms to commit various forms of harm against children, including cyberbullying, grooming, sextortion and online exploitation. Although laws such as the Information Technology Act, the POCSO Act and the Indian Penal Code aim to tackle cybercrimes, there remains a glaring gap in the legal framework dealing with the specific protection of children in cyberspace.

In the absence of specific legislation, children’s rights to internet safety and privacy are compromised and they become more vulnerable to abuse. Concerted efforts from policymakers, law enforcement agencies, educators and civil society organisations are required to address this serious issue. There is an urgent need to enact comprehensive laws that specifically target cybercrimes against children, provide clear guidelines and stringent punishments for offenders. By bridging the gap between law, enforcement and awareness, we can create a safer digital environment for children, and ensure that they can benefit from the wide opportunities of the Internet, without falling prey to its darker aspects. Protecting our children from cybercrime is not only a legal imperative but also a moral obligation that requires collective action and commitment from all stakeholders.

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