CSAM and Child Pornography

POCSO Act, CSAM and Child Pornography in India: Law, Punishment, Cyber Crime and Child Safety Child Sexual Abuse Material (CSAM), commonly referred to as child pornography, is one of the most serious forms of child sexual exploitation and cybercrime. In India, offences involving children and sexually explicit material can attract serious criminal consequences under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and the Information Technology Act, 2000 (IT Act). With the rapid growth of smartphones, social media, messaging applications, cloud storage, online gaming communities and AI-generated content, the risk of children being targeted online has increased. Parents, schools, companies and internet users should understand what CSAM is, what the law provides, how children can be protected, and what should be done if suspected child sexual abuse material is encountered. What is CSAM? CSAM stands for Child Sexual Abuse Material. CSAM refers to material that depicts or otherwise involves a child in sexually explicit or sexually exploitative circumstances. It may exist in different forms, including: ☞ Photographs ☞ Videos ☞ Digital images ☞ Recorded livestreams ☞ Digitally created or manipulated material ☞ Other electronic material involving the sexual exploitation or abuse of a child The term CSAM is increasingly preferred over “child pornography” because the material represents the sexual abuse or exploitation of a child rather than consensual adult sexual activity. What is Child Pornography? The term child pornography is commonly used to describe sexually explicit material involving children. However, from a child-protection perspective, the term Child Sexual Abuse Material (CSAM) is more appropriate because it highlights the abuse and exploitation involved. In India, activities involving such material may attract provisions under the POCSO Act, Information Technology Act and other applicable criminal laws depending on the facts of the case. What is the POCSO Act? The Protection of Children from Sexual Offences Act, 2012, commonly known as the POCSO Act, is a special law designed to protect children from sexual assault, sexual harassment and sexual exploitation. Under POCSO: A child means a person below 18 years of age. The Act contains specific provisions dealing with the use of children for pornographic purposes and the storage or possession of child pornographic material. POCSO Section 13 – Using a Child for Pornographic Purposes Section 13 of the POCSO Act deals with the use of a child for pornographic purposes. A child may be considered to have been used for pornographic purposes where the child is involved in the creation or production of pornographic material through different forms of media or technology. Depending on the circumstances, issues may arise regarding: ☞ Creating photographs or videos involving a child ☞ Producing sexual content using a child ☞ Recording sexually explicit material involving a child ☞ Using electronic technology to exploit a child ☞ Involving a child in the preparation or production of pornographic material The exact applicability of the provision depends on the facts and evidence of the particular case. POCSO Section 14 – Punishment Section 14 of the POCSO Act provides punishment for using a child for pornographic purposes. First Conviction The punishment may include: Imprisonment of not less than 5 years and fine. Second or Subsequent Conviction The punishment may include: Imprisonment of not less than 7 years and fine. Where the child is subjected to pornographic activity along with other sexual offences, additional provisions of the POCSO Act may become applicable depending upon the facts. Therefore, using a child to create sexually explicit material can result in serious criminal liability. POCSO Section 15 – Storage or Possession of Child Pornographic Material Section 15 of the POCSO Act is particularly important in cases involving the storage or possession of child pornographic material. The law provides different levels of punishment depending upon the circumstances, including the purpose for which the material was stored or possessed. It is therefore incorrect to assume that: “I did not create the material, so there cannot be any legal issue.” The investigation may examine how the material came onto the device, whether the person had knowledge of it, whether the person exercised control over it, the purpose for which it was retained, and whether there was an intention to transmit or distribute it. Section 15(1) POCSO Where a person stores or possesses child pornographic material in circumstances covered by Section 15 and fails to delete, destroy or report it as required, with the relevant intention to share or transmit it, punishment may arise under the provision. For a first offence, the law provides for a minimum fine of: ₹5,000 For a subsequent offence: ₹10,000 minimum fine The precise application depends on the statutory requirements and facts of the case. Section 15(2) POCSO Where child pornographic material is stored or possessed for the purpose of: ☞ Transmitting ☞ Propagating ☞ Displaying ☞ Distributing the material, except for legally permitted purposes such as reporting or use as evidence, punishment may extend to: Up to 3 years imprisonment, or fine, or both. Section 15(3) POCSO – Commercial Purpose Where child pornographic material is stored or possessed for a commercial purpose, the punishment can be significantly more serious. First Conviction 3 to 5 years imprisonment, or fine, or both. Second or Subsequent Conviction 5 to 7 years imprisonment and fine. Commercial exploitation, selling, distribution or financial benefit connected with CSAM can therefore attract severe criminal consequences. Information Technology Act Section 67B In online child pornography and CSAM cases, Section 67B of the Information Technology Act, 2000 is also highly important. Section 67B deals with electronic material depicting children in sexually explicit or otherwise prohibited circumstances and covers several activities depending on the facts. These may include: ☞ Publishing ☞ Transmitting ☞ Creating certain electronic material ☞ Collecting ☞ Seeking ☞ Browsing ☞ Downloading ☞ Advertising ☞ Promoting ☞ Exchanging ☞ Distributing The provision also addresses electronic facilitation of sexual exploitation or abuse of children. Punishment Under IT Act Section 67B For a first conviction, Section 67B may provide: Up to 5 years imprisonment and fine up to ₹10