COLD SHOULDER TO CHILD RIGHT PROTECTION : INCOMPREHENSIVE CYBER LAW IN INDIA

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Background:

India is recognised as the country with some of the highest rates of child abuse both online and offline. The National Crime Records Bureau (NCRB) registered 1540 cases of online child abuse between 2013‐ 2015.[1] In August 2017 Interpol experts have raised concern on the increase in the content featuring Indian children suffering sexual abuse being uploaded on the internet.[2] This assumes significance as the country is not yet a signatory to Interpol’s international child sexual exploitation (ICSE) image database,[3] which enables cross-border cyber protection in such situations.

UNICEF India in 2016 launched the Child Online Protection in India Report which provides an overview of the current risks and threats faced by children when using the internet and social media. It said, “Globally, child protection online, is a much recognised and discussed agenda but sadly India is a little late to realise it.”

Lacunae:

Considering the growing menace of cyber-crimes targeting children, the National Commission for Protection of Child Rights (NCPCR), last year, enhanced the scope of e-complaint called “POCSO e-box” to handle cyber bullying, cyber stalking, morphing of images and child pornography.[4] Still India has not addressed the concern relating to protection of children in cyberspace in its National Policy of Children. Moreover, India has failed to shed light on online grooming and cyber-bullying. Grooming involves “psychological manipulation that is usually very subtle, drawn out, calculated, controlling, and premeditated” with the goal of establishing an emotional connection with a child to lower the child’s inhibitions.[5] Any legislation inadequately protects children when it includes sexual grooming of children in its definition of “sexual exploitation,” as it fails to provide specific language regarding ICT-facilitated sexual grooming with prescribed penalties. The Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse[6] in its Article 9 addresses online grooming offences. Same disregard is given to cyber-bullying. Thus, India needs to view ‘online grooming’ and ‘cyber-bullying’ as specific offences and not just wash off its hand by including them in the definition of sexual abuse or exploitation.

There exists limitation in policy and laws of India, many of which includes:

1. Lack of uniformity in terminology: Universal terminology on online abuse of children is considered imperative for effective communication and public discourse on the issue as well as in the interpretation and application of law and the framing of comprehensive protection through policy. Disagreements regarding the actual meaning of terms have created confusion and challenges for policy, legislation, interventions and public advocacy.[7]

Similarly, the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, the leading international instrument prohibiting sexual exploitation of children, does not criminalise live-streaming of child sexual abuse or online sexual grooming.

The new global terminology guidelines under Luxembourg Guidelines,[8] which are now available to all major child protection agencies and organisations around the world, as well as lawmakers and the media, have introduced standard interpretations of terminology.[9] India can look up to these guidelines for comprehensive outlook on relevant definitions.

2. Juvenile and Cyber Crime: How persons below the age of 18 years accused of cyber offences are to be treated by law in view of the proliferation of laws dealing with related issues, needs to be subjected to a thorough enquiry. Such cases have not yet appeared in the public domain but are entirely plausible as the Information Technology Act, 2000 is silent about the definition of a child except when the child is a victim of sexual exploitation. The recently amended Juvenile Justice (Care and Protection) Act, 2015 states that if a child below 18 years of age but above 16 years of age commits heinous crimes, he or she may be tried as an adult upon the recommendation of the Juvenile Justice Board.[10] However, it is silent about cyber offences committed by children.

The NCRB data shows that 98 juvenile offenders were apprehended under the IT Act; 52 juveniles under IPC; and 2 juveniles under Special and local laws in 2015.[11] Many children have been using social networking sites even when there are age restrictions with respect to their usage.[12]

States of the US such as Vermont and Utah have tried to define the blurred lines between adult and juvenile cybercrime. Ohio has a pending legislation attempting to have milder consequences for minors who take part in sexting with other minors.[13]

3. Low rate of reporting cases: There has been a large number of unreported cases of sexual harassment in the cyberspace. As per the report of the DCP (Cyber Cell) only three cases involving children and cyberspace have been registered in the past two years.[14] The reasons for this can be summarised as: People don’t want unnecessary media publicity; the current process is very slow; there is low confidence in the ability of the system and many important cyber-crimes like cyber bullying has not been recognised.[15]

Way Forward:

There is a need for three-pronged strategy: A-3 approach — Amend, Advocate and Aware.

1. Firstly, there is need for amendment of the POCSO Act, 2012 to make it more cyber space oriented.

2. Secondly, Improper crime resolving mechanism deters reporting of cases. As has been mentioned about low reporting of cases, there is need that the government provides appropriate mechanism for investigation and trials. Same can be done by equipping the police with expertise in cyber crimes.

3. Lastly, awareness remains sine qua non for success of legal mechanism. Lack of awareness is catalysed by absence of empirical study by government in this field. Signing of Interpol’s ICSE can enable collection of data and consequently, legal awareness program at key target areas.

[1] National Crimes Record Bureau, Ministry of Home Affairs, Crimes in India 2015 Compendium, Available at http://ncrb.nic.in/StatPublications/CII/CII2015/FILES/Compendium-15.11.16.pdf (Last Visited on August 13, 2018).

[2] Sudha Numbudiri & Disney Toml, India facing online child abuse threat, TOI (Aug 20, 2018, 7:59 AM), https://timesofindia.indiatimes.com/city/kochi/india-facing-online-child-abuse-threat/articleshow/60140105.cms (Last visited August 17, 2018).

[3] Interpol, Crimes against children, available at: https://www.interpol.int/Crime-areas/Crimes-against-children/Crimes-against-children (Last visited August 18, 2018).

[4] POCSO e-box, National Commission for Protection of Child Rights (NCPCR), Ministry of Women and Child development, Govt. of India, available at:http://ncpcr.gov.in/index2.php(Last visited August 21, 2018).

[5] Family and Community Development Committee, Betrayal of Trust: Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations, Parliament House, Australia, 2013, available at: https://www.parliament.vic.gov.au/images/stories/committees/fcdc/inquiries/57th/Child_Abuse_Inquiry/Report/Inquiry_into_Handl ing_of_Abuse_Volume_1_FINAL_web.pdf (Last visited August 23, 2018).

[6] Council of Europe, Council of Europe Convention on the Protection of children against sexual exploitation and sexual abuse, 12 July 2007, CETS No.: 201, available at: http://www.refworld.org/docid/4d19a904615b.html (last visited 17 August 2018).

[7] Flavia Agnes, 360 Degrees: What porn is doing to us?, DECCAN CHRONICLE, (Feb 17, 2017, 12:58 AM), available at: http://www.deccanchronicle.com/opinion/op-ed/170217/360-degree-what-porn-is-doing-to-us.html (Last visited August 27, 2018).

[8] Terminology and Semantics, Terminology Guidelines For The Protection Of Children From Sexual Exploitation And Sexual Abuse, Interagency Working group on Sexual Exploitation of Children, available at:http://luxembourgguidelines.org/ (Last visited August 27, 2018).

[9] Human Dignity Foundation, Luxembourg Guidelines’ on Terminology a Step Forward in the Fight Against Sexual Exploitation and Sexual Abuse of Children, Interagency Working Group, available at: https://www.human-dignity-foundation.org/luxembourg-guidelines-on-terminology-a-step-forward-in-the-fight-against-sexual-exploitation-and-sexual-abuse-of-children/ (Last visited August 26, 2018)

[10] JJ Act, Supra note 20, Section 15.

[11] Supra at 1.

[12] Kesavamoorthy, R., Legal Study on the Protection of Children in Social Network: Special Reference to Indian Law, OSR Journal of Humanities and Social Science (IOSR-JHSS), Volume 15, Issue 1, Sep. — August. 2013.

[13] Joseph Sarpong, Juveniles, the Internet, and Cybercrime, University of Nevada Las Vegas, available at: http://www.sheldensays.com/cybercrime.htm (Last visited August 29, 2018).

[14] Somya Lakhani, Why cases go unreported: Outdated laws and tedious search for justice, INDIAN EXPRESS (Aug 20, 2017, 4:42 AM), available at: http://indianexpress.com/article/india/why-cases-go-unreported-outdated-laws-and-tedious-search-for-justice-4804691/ (Last visited August 30, 2018).

[15] Id.

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