Illegality of Sex Advertisements

Recent times have experienced a significant increase in the number of cyber-users.  India was listed to have the second-highest internet users across the world. Recently, the Raj Kundra case on Pornography highlighted various issues that need immediate action, one such being, Advertisements related to sex. 

Advertisements Related to Sex and Sex Determination

 In 2017, Justice Dipak Mishra weighed the right to use the internet possessed by every citizen of the country. The Supreme Court while deciding the case Sabu Mathew George v Union of India & Ors {Writ Petition (Civil) No.341/2008} elaborated the scope of “freedom to speech and expression” under Article 19 of the Constitution of India and stated that every citizen is entitled to access the internet, however, the concept of pre-censorship is mandatory to prevent unforeseen constitutional disaster. The case imposes a ban on the web search engines such as Google, Yahoo and Microsoft to take measures to restrict and prohibit any advertisements that directly or indirectly relate to the “sex-determination tests” and any web search on similar key phrases must also be banned completely. It was also issued that a “Warning Message” or an “auto-block feature” must be implemented by these Web Search Engines for any related key-phrase for “sex selection or pre-natal sex determination.” The Honorable Court while deciding the matter also referred to Voluntary Health Association of Punjab vs. Union of India and Others (2016) (10 SCC 265)  that laid emphasis on metamorphosing the legal postulates to protect women dignity and any unethical act committed to humiliating women in any manner. 

Right to Privacy and Advertisements Related to Sex

Due to the pandemic outbreak, as the number of users of the cyber world is increasing, cybercrime has shot up to its graph pretty high, one such crime being the publication of obscene activities. Advertising is deemed to be a marketer’s weapon, via which one can not only sell their products but also reach the appropriate market and its customers. However, there are certain restrictions on the advertisers. 

The landmark judgment of  Justice K.S.Puttaswamy(Retd) vs Union Of India & Ors. {Writ Petition (Civil) No.494/2012} widened the scope of the “right to privacy.” The term “right to privacy” was magnified. Every human being under Article 21 of the Constitution of India has the right to live a dignified life. Likewise, if any information that is sensitive or extremely personal in nature such as gender, sexuality, sexual relationships, etc. are not supposed to be publicized and privacy ought to be respected.  

There are various statutes that strictly investigate the publication of obscene content such as advertisements related to sexual content. The legal provisions are as follows:

• Information and Technology Act,2000

1. Section 66E- Violation of Privacy and its Punishment:  Any transmission of an individual’s private parts attracts imprisonment for a period of three years and a fine of up to two lakhs or both. It must be noted that, in this section, the transmission includes both transmissions with or without consent.

2. Section 67, 67A and 67B- Transmission of Obscene Material via electronic medium and its Punishment:  The section defines obscene material as any material that overtly reveals sexual interest or tends to defame or corrupt the individuals and the society at large will be held punishable a term of three years (for first conviction) which may extend to five years over subsequent conviction. The offence under this section also attracts a fine of five lakhs on the first conviction and on any subsequent convictions; the fine may extend to a sum of rupees ten lakhs.

• Indian Penal Code, 1860

1. Section 509- Any act, word or gesture to outrage or insult a women’s modesty: Any person who by any act, word or gesture exhibits to intrude a women’s modesty would be held punishable under Section 509, IPC. The section attracts a simple punishment for a term of one year and/or fine as may deem fit by the court.

2. Section 499 and 500-Defamation: Any visible defamatory statements that harm the reputation of the person shall be punishable with simple imprisonment of two years and/or fine as may deem fit by the court.

• Protection of Children from Sexual Offences Act, 2012

1. Section 14 and 15-Child Pornography and its Punishment: Any person who is guilty of generating sexually explicit content of an actual child shall be imprisoned for a term exceeding five years with a fine.

Conclusion

Controlling and monitoring the data available online is the need of the hour. Due to the ever-increasing and evolving technologies, the government and lawmakers have to invest extra efforts to strictly implement the existing laws. The investigation processes by the Cyber Crime Cell and the State Police have effectively increased but the goal is yet to be achieved. 

By: Khushboo Garg

{LLB, UILS, Ludhiana}