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Legal side of Pornography and Erotic Content

Raj Kundra has a record of coming on news but not for the good reasons. His recent spite with the Mumbai police has led to discussions on legality of pornography under cybercrime. He was arrested on several charges including cheating, making pornographic films etc. The Mumbai Police received complaints from more than one woman of being into starring in adult content for Raj Kundra’s app called Hotshots. He was a former owner of this app and he sold this app to his brother-in-law based in UK.

The charges under which Raj Kundra has been booked under several sections including section 420 (cheating), section 34 (common intention), section 292, section 293 and other sections of the IT Act and the Indecent Representation of Women (Prohibition) Act. Provisions of the Information Technology (IT) Act 2000, the Indian Penal Code (IPC) and the Protection of Children from Sexual Offences (POCSO) Act 2012 talk about pornography.

Section 292 of the Indian Penal Code says anything that appeals to the sexual interests through lustful means shall be deemed as obscene. And, if anyone takes part in it knowingly or receives profit from any business in which such obscene objects are produced or conveyed to public then they shall be punished.

Section 67 in the IT Act says anyone who publishes or transmits in the electronic form, any material which is obscene and they tend to deprave and corrupt other persons through the same content, then they shall be punished.

The Indecent Representation of Women (Prohibition) Act 1986 says that no one shall indirectly or directly publish or show any advertisement which indecently represents women.

In short, viewing porn privately is legal in India whereas publishing or monetizing porn is illegal in India. One should note that the Government of India has blocked many such content on the internet. Even shooting such content is banned in India but there hasn’t been any official prohibition of porn content on the internet by the government. Raj Kundra claims that his app is not indulged in porn but erotica content.

In spite of Pornography being illegal in India, there exists a budding app-based erotica industry in the country. There are several apps which create films and TV shows showing explicit scenes, ranging from soft porn with skin show to full frontal nudity. Their audience also comes from Tier-1 but majorly from Tier-2 and 3 cities. Especially in COVID-19 pandemic, this industry has seen a viewership boom as lockdowns restricted people inside their homes and kept them glued to smartphones.

The movies are then published via mobile apps which offer subscription models like any other OTT platform. Some of these apps use servers outside India to broadcast their content. This is where Kundra has come under the scanner.

Many models have come in support of Kundra saying there is a difference between erotica and porn. They said that it is okay even if it is porn because that at least saves them from prostitution and trafficking. Various OTT platforms welcome and publish such content. One of the famous- Alt Balaji, Ullu App, MX Player etc. has such series. The only difference between them and Raj Kundra’s Hotshots is Hotshots is not a registered app. They therefore had no regulatory unlike Alt Balaji, which made their case more vulnerable.

Interestingly, according to a report, porn market is nearly of 100 million dollar, which is 740 crore in Indian currency which is similar to the Pakistan’s annual budget for a year. There are 2.5 lakh porn websites all over the world. If statistics are to be believed, with this amount of porn income, 408 lakh poor people can be given food on a daily basis. Moreover, of all the other websites, porn websites are 12% which means in every 100 websites in the world, 12 websites are porn websites. On an average, the porn websites are watched for 10 minutes and 13 seconds everyday per person. On the other hand, in India this average time per person on porn websites is 8 minutes approximately.  This is not all, out the total internet traffic, 30% internet traffic comes on porn websites, which is one third of the total internet traffic.

However, there are several websites who claim that they are earning huge amount from these websites. A famous porn website claims that they have 4.4 billion paid viewers and they get 34 crore unique visitors every month. The people are so much engrossed on the porn websites that according to a data, the top four porn websites are on highest search number than Wikipedia or any other similar searches.

In the pandemic, the average time spent by Indians on OTTs soared by 40-60% since March 2020. India has the cheapest internet data rates and the technological advancements through low-cost 4G data and deepening of high-bandwidth internet penetration have widened the scope for OTTs. Every other app is launching online streaming services, with most of them creating original content. With the spread and ease of OTTs, consumption has further increased.

There has to be stricter regulation in this matter. It needs to be made sure that not anyone and everyone can access the content. A way of verification of age must be adopted, without which nothing can stop the industry from being accessed by children. As it is porn has been a subject of hush hush in our society, too much of restrictions on individuals would be a boomerang effect. So, a line needs to be drawn between what is potentially harmful and what is not.

(Adv Vedika Chaubey can be reached on vedikachaubey@gmail.com)

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