INTRODUCTION

We have looked into our countries legislative and judicial measures that is present in our system
to regulate pornography , we got to understand that total ban on pornographic content isnot a
possibility , here we could aim for the regulation of the same. the gap that we could ananylse the
absence of proper regulatory framework. Al though we have IT Act and rules for intermediaries
the extend of applicability of the same comes to questioning point because of the absence of
strect regulation or working mechanism of these Acts

We also have come across many test laid by judiciary round the world describing the world
obscenity. We can only go for regulating something if we could evidently provide it for being as
obscene now in interestingly defining the same isnot easy and it changes from person to person
and community to community . even the concept has a great variable difference when it occurs in
India and some other country. So we could find that the term obscenity doesnot have specific
ingredient

In this chapter we will focus how different nations regulate obscene content by using legal
measures. We are going to check the situation in US , UK , Canada and china .

UNITED STATES

The status was nearly identical in the United States and the United Kingdom. Since there were
no laws in place before the 19th century, there were no known convictions for simple obscenity.
In 1821, the state of Vermont issued a law outlawing the distribution of pornographic literature,
and other states soon followed. Production and dissemination of pornographic content were
illegal in much of the United States by the middle of the 19th century. When Anthony Comstock
passed away in 1915, he proudly declared that he had fought for greater restrictions on
pornography by saying

“I have convicted persons enough to fill a passenger train of 61 coaches, sixty coaches
containing 60 passengers each and 61st almost full. I have destroyed 160 tons of obscene
literature.”1

1
0. Attorney General’s Commission on Pornography, Final Report 234 (1986) available at pornreport.com., at 244.
When the Supreme Judicial Court of Massachusetts declared Theodore Dreiser's book An
American Tragedy to be obscene in 1930, this marked a significant advancement in the realm of
obscenity legislation. The Court further ruled that the book's seller had no right to assume that
any children who might have access to it would not read the offensive passage or, even if they
did, would keep reading until the tragic conclusion of the story weakened or eliminated the bad
effects of the offensive passages. The basis for legislation prohibiting the distribution of
pornography to children was laid forth in this case, which reflected the attitude of the American
judiciary about such distribution.2

Since 1873, laws in the United States have aided judges by defining what is forbidden content.
Such materials were qualified by the Comstock Act, which was passed in 1873. The Comstock
Act's provision is now found in 18 USC 9 (1978) as section 1461. According to this clause, any
object that is obscene, lewd, lascivious, indecent, filthy, or nasty is prohibited from being sent by
the mail, delivered from a post office, or picked up by a letter carrier. It is also deemed to be
non-mailable content. Actually, the dissemination of pornographic material is the foundation of
this concept. Under this understanding, mere possession of pornography does not constitute a
crime.

There is a trend whereby bogus profiles are used to publish pornographic images of women to
social networking sites. The criminals download images of the victims from their accounts and
combine them using photo-mixing software. It appears to show the person whose picture was
downloaded from his profile engaging in sexual activities in a degrading setting. The criminals
begin requesting money from the victims for their immoral acts after building false victim
profiles. This has evolved into organized crime and serves as an entry point for other crimes like
the creation of pornographic videos, MMS, and human trafficking.

In the Paris Adult Theater v. Slaton3 decision, the Supreme Court of the United States ruled that
the prohibition of obscenity might be justified on the grounds that "public exhibition of obscene
material or commerce in such material has a tendency to harm the community as a whole to
engender the public safety." As a result, it is illegal to openly display any type of obscene
material, including pictures, images, movies, or videos, and doing so may result in legal action if

2
Commonwealth v. Friede, 171 NE 472 (1930).
3
413 US 49 (1973)
it is determined that doing so appeals to the prurient interests of the person who brought the
material with them.

The United States Supreme Court has also said about personal harm caused to pornographic
actors by the dissemination of pornographic photos as justification for prohibiting photographic
pornography.Because it legitimizes and glorifies the illegal behavior of which they have been
victims, pornography causes anxiety in women, especially in those who have experienced rape or
other forms of sexual abuse. There are further causes for the dehumanization ofall those filthy
videos are women at work. One of them is that these recordings serve as a permanent record of
the sexual acts people perform for the camera. Their sexual misconduct is enjoyed by someone
else.

Judge Easterbrook agreed that showing subordination promotes subordination in the case of
American Book Sellers Association Inc. v. Hudnut 4 The negative impacts of pornography extend
beyond the performers' health and have an impact on job, social standing, and education. The
abuse that women experience from their spouses at home is made worse by this. They are forced
to experience rape and sexual assault outside of their homes.

In US The Communications Decency Act of 1996 has two sections that aim to shield children
from hazardous content online. Knowingly sending "obscene or indecent" messages through
interstate or international communications to any person under the age of 18 is against the law,
according to 47 USCA 223(a). Any message "that, in context, depicts or describes, in terms
patently offensive as measured by contemporary community standards, sexual or excretory
activities or organs" is expressly forbidden from being sent or shown to anyone under the age of
18 according to Section 223(d). A fine and/or up to two years in prison may be imposed for
violating either condition.

Prior to this Act US courts have strived to find the meaning of obscenity , the Roth test and
miller test evolved from US. But now the issue Numerous examples in the United States
demonstrate that national criteria, not local norms, should be used to judge whether a substance
is forbidden. A piece of content needs to be evaluated in light of the nation's history,
development, and moral understanding. Local morality is subject to change and is never

4
475 US 1001 (1986).
constant. Therefore, considering national standards would aid the jury in determining obscenity
rather than considering local norms in the United States.

From tracing to the US we could find that how different test were formulated by the courts in
different situations. Earlier the issue faced by US was that of the first amendment and will
pornographic or obscene content fall or is restricted under the first amendment The right to free
speech is guaranteed under the First Amendment of the United States Constitution, and this
protection extends to forms of expression including art, literature, and even some forms of
pornography. Therefore, the majority of pornographic content is regarded as protected
expression. And in the current scenario , adult people viewing of pornography in their private
premise is legal and pornography in total is not banned in the country but interestingly they have
legal solution to make sure that the young adult and teenagers cannot access to the same.

The publication of pornography also doesn’t comes under any legal ambit in US , The only
regulation that could be found in us is the Age restrictive barrier which is to make sure that the
person suing the adult content or purchasing such content need to be major.

CHINA

The rules and regulations of china are mostly unknown to the public,Pornography is strictly
prohibited in China, and there are several barriers to accessing graphic adult content. The "Great
Firewall of China," a complex system of internet censorship and content management maintained
by the Chinese government, is used to track and restrict access to numerous websites and online
resources deemed unacceptable, including pornography.

the following are some ways china regulate pornography:

1. Internet censorship: The Chinese government actively monitors and restricts access to
websites and online services that provide explicit adult material or other items deemed to
be detrimental to society. This includes social networking sites and websites from other
countries that include pornographic material.
2. Anti-Pornography Campaigns: To combat the creation, dissemination, and consumption
of pornography, the Chinese government periodically launches anti-pornography
 campaigns. These efforts frequently include stringent enforcement actions and targeted
repression of people and groups engaged in the dissemination of sexual content.
3. Legal Prohibitions: Pornography production, distribution, possession, and consumption
are all outright illegal in China. Serious penalties, including as fines, incarceration, and in
extreme circumstances, the death penalty, can be imposed for violations.
4. Content Control: The Chinese government actively polices the online world and holds
internet service providers to tight standards about what is acceptable. The removal of any
content that can be construed as sexual or otherwise inappropriate is required of websites
and platforms.
5. Strict Penalties: Those found guilty of creating or disseminating pornographic content
may be subject to severe penalties, such as hefty fines and protracted jail terms.
6. Cultural and Moral Requirements: The Chinese government's efforts to uphold traditional
Chinese values and shield society from what it sees as negative influences are also
reflected in the country's prohibition of pornography.

it is common for the authorities in the People's Republic of China (China) to launch sporadic
"strike-hard" campaigns to combat particular kinds of illegal activity. The police and other
government agencies conduct waves of enormous operations on the targeted activities during
these campaigns, leading to a significant number of arrests, legal actions, convictions, and the
imposition of punitive punishments. The Chinese government has carried down a number of
"strike-hard" efforts against online pornography during the past two years.

Early in 2009, seven ministries and government departments jointly launched a campaign against
"vulgar" internet content with the goal of purging the Internet of "vulgar" material that could
seriously harm youngsters. The initiativeIn terms of scope and duration, it turned out to be
unprecedented. For a second phase of the campaign to stop "obscene and vulgar content
transmitted online and via mobile phones," two more ministries and government departments
joined in late 2009. At the time that this conference paper was being written, China was still
subject to a protracted campaign against online pornography.

During this Campaign, 19 websites that operate in China, including well-known portals and
search engines like Sina, Sohu, Netease, Google, and Baidu, were criticized for not doing
anything to halt the dissemination of "vulgar" information.Many of these websites came under
fire for having numerous "vulgar" images of attractive young ladies andfemale movie stars, as
well as for not promptly deleting them.In example, it was claimed that Google.cn included a
significant number of connections to pornographic and offensive websites in its search results
and even after being warned by the China Internet Illegal Information Reporting Center
(CIIIRC), did not take any action to address the issue. 5 Although after obtaining complaints
regarding the websites they were not ready to take down the vulgar matter. This lead to the
situation where the campaign which was earlier started for a period of 4 months lasted for more
time period.

Google.cn was once more singled out for harsh criticism for failing to conduct the oversight
demanded by Chinese laws and regulations, and it was claimed that a significant volume of
foreign pornographic content entered China through the Google website.Google.cn was a
business operating in China, the director of the CIIIRC pointed out, and as such should be
subject to Chinese rules and regulations even though its headquarters were in the United States. 6
Although this was the scenario but by the mid of 2009 china made sure that all websites in china
was suitable for minors.

As part of the same campaign a regulation was bought out called as “green dam – youth escort”
The declared objectives were to consolidate the gains established by the 2009 Campaign, to give
teenagers with a healthy environment, to safeguard them against "undesirable" internet
information, and more.

Critical issue occurred when ,the word "undesirable"wasnot defined. It's unclear whether
"undesirable" content encompasses more than just "vulgar" content. The Green Dam serves a
number of purposes, such as filtering "undesirable" websites, banning pornographic content, and
setting online time restrictions. In addition, the gadget may record the websites the computer user
has visited and can black out the screen every three minutes if it notices that they are being used
to access illegal websites.

5
[China Shuts Down, in Accordance with the Law, 1,250 Obscene, Pornographic, Vulgar Websites], XINHUA, Jan.
21, 2009, available at http://news.sohu.com/20090121/n261890817.shtml.
6
https://www.theguardian.com/world/2009/jul/02/china-green-dam
To the end of the year 2009 this specific campaign laid its focus on the mobile phones
targetting“obscene, pornographic and vulgar content transmitted online and via mobile phones”

Protection of children remained a top priority. However, if users of text messaging services—
even if they were adults—were discovered to be transmitting pornographic material,
telecommunications providers were compelled to suspend those users' access to the service. the
2009–2010 Campaign, released a lengthy order outlining a 14–month strategy to limit "obscene
and pornographic content" on mobile phones, which would extend for the entirety of 2010.

By February 2010, it was announced that the nation's three existing basic telecommunications
operators, China Telecom, China Mobile, and China Unicom, had all done a good job by: a)
finishing a thorough inspection of roughly 1.8 million websites and shutting down more than
136,000 ones that weren't registered or licensed; b) inspecting all 743 ISPs and shutting down
126 for failing to comply with Internet access registration requirements; and c) finishing a
thorough inspection of about 1.8 million7

Three major areas of law are involved in China's regulation of online pornography: a) the State
Council's and relevant government departments' rules governing website ownership, operation,
and online security and content; b) the Law on Administrative Punishments for Public Order and
Security (LAPPOS), which allows the police to administer administrative punishments for
crimes of a relatively minor nature.

For the first time, China created legislation outlining tight regulation of internet content in 1997
(the 1997 Regulation). The 1997 Regulation, issued by the Ministry of Public Security, identifies
nine kinds of internet content that is forbidden, including obscene and pornographic
content.Violence and terror, which were regarded as "vulgar" elements in the 2009 campaign, are
also outlawed.

Whereas coming towards the criminal law in chinaThe CL's Chapter 6 addresses behaviors that
undermine social order, and Section 9 of this chapter outlines offenses related to the transmission
of pornographic materials.Profit-making operations are covered by Article 363, whereas non-

7
8 China Says Over 15,000 Porn Websites Blocked in 2009, BBC MONITORING ASIA PACIFIC – POLITICAL, Jan. 12,
2010, available in LEXIS NEXIS.
profit distribution is covered by Article 364. Three tiers of penalties are listed in Article 363(1)
for profit-making activities involving offensive items.

The law states that anyone who creates, copies, publishes, sells, or distributes obscene material
with the intent to profit is subject to a fixed-term prison sentence of no more than three years,
criminal detention, or control and supervision, and a fine; for serious offenses, a fixed-term
prison sentence of three to ten years and a fine; and, for especially serious offenses, a fixed-term
prison sentence of more than ten years or both.

Because of the campaigns against internet pornography that have been ongoing for the previous
two years, websites in China are considerably cleaner and allegedly healthier for kids in the
beginning of 2011. The country's definition of online pornography, which can range from
"undesirable" or "vulgar" to obscene, is still incredibly nebulous and imprecise. Furthermore,
there is no explicit distinction between indecency and obscenity in Chinese rules and regulations,
and there is no categorization system of any type for print, broadcast, or online content. Two
completely different possibilities have evolved.

We could here witness that china being one of the most developed nation has made it positive
remark on controlling pornography to make sure that every minor could access internet without
being at the threat to expose to sexual content. Although there was been different critic related to
these program of china as they still don’t have any specific definition as to what is indecent , or
vulgar. There are also critique to the green dam software that they created is mainly to make sure
that politically debated contents shouldn’t be allowed in the feed of the people. But leaving the
critical aspect if we consider the rest of their scenario we could say that china has t succeed in
their regulation.

BANGLADESH

We know that Bangladesh is or neighboring country and is one of the developing nation.
Bangladesh is one of the countries that has made anti pornography law in its legal system. The
Pornography Control Act-2012, which was passed in the nation, is quite strict and makes it
illegal to store, distribute, sell, show, or advertise pornographic materials. A fine of Tk 100,000
and two years of hard labor can be imposed on the perpetrator.
More harsher penalties apply to the creation of porn, coercing others into acting in porn, sexual
harassment using porn, and displaying and disseminating porn on the internet and other
electronic devices. The Daily Star investigated the popularity of a number of search phrases that
Bangladeshi people use on Google to visit porn sites using Google Trends, which analyzes the
popularity of top search queries in Google Search in a given region or country. "Sex Video,"
"Porn," "XXX Video," "Bangla Sex Video," etc. are examples of these phrases. Google predicts
user locations even when they utilize a virtual private network (VPN) or incognito mode to
browse the internet, which is why Google Trends was chosen.8

A scale from 0 to 100 is used by Google Trends to gauge search interest. If the value is 100, the
search term is the most popular; if it is 50, it is just half as popular; and if it is 0, there is not
enough information available on the term .According to the data, Bangladeshis frequently search
for terms associated to porn on Google.For instance, since 2017, the phrase "Bangla Sex Video"
has regularly had a value greater than 70. It has frequently exceeded the value of 90 and has
reached its highest popularity of 100. This term's popularity score for the month of September
this year was over 75.

The Dhaka Metropolitan Police's Cyber Crime Investigation Division is in charge of monitoring,
preventing, identifying, and looking into cybercrime in the city. They agreed that data on the
pattern of pornographic consumption, including preferred viewing times, user demographics,
etc., should be gathered. Then, with the use of artificial intelligence, it is possible to determine
which networks are most frequently utilized for watching videos at a given moment. By doing
this, the agencies will gather some vital data that might pave the road for strong actions to end
pornography.9

The pornography control law of 2012

the Pornography Control Bill 2011 was passed by Parliament and subsequently enacted into law.
The legislation prohibits the production, preservation, transportation, and marketing of all forms
of pornographic materials. The main objective behind this law was to safeguard the younger

8
https://www.bbc.com/news/world-asia-16385812
9
https://www.thedailystar.net/backpage/news/pornography-spreads-amid-futile-govt-ban-2016313
generation from potential moral decline. As per the law's stipulations, pornography is defined as
any explicit content involving vulgar dialogue, actions, body gestures, nudity, or partially nude
dancing that incites sexual arousal and lacks any artistic or educational value. This definition
also extends to encompass sexually stimulating obscene books, periodicals, sculptures, fictional
structures, cartoons, or leaflets.

The creation of this Act was because of response to several celebrity female-related sex tape
controversies. Victims claimed that their recordings had been altered or secretly taped in order to
damage their reputations.Because they claimed that the law did not allow them to bring charges
against those responsible for creating and disseminating such movies, the police frequently did
nothing to stop the offenders.10

UK

The United Kingdom's approach to obscenity and its censorship has its roots in its historically
conservative past. Unlike some countries, the UK lacks a specific Bill of Rights or written
documentation detailing the individual rights of its citizens, particularly regarding freedom of
speech and expression. Consequently, the country has developed a legal system primarily
influenced by prevailing societal norms.

Over 300 years ago, England established the common law offense of obscenity, prompted by an
incident involving Sir Charles Sedley exposing himself in public on a tavern balcony. Initially,
obscene literature was only subject to punishment within the spiritual courts. However, in 1727,
it was officially recognized as a common law offense for the first time. 11

In 1857, Lord Campbell introduced the first statute aimed at regulating obscene materials. This
law allowed for the search, seizure, and destruction of explicit books and materials, making their
possession for sale or distribution a misdemeanor.12

In 1868, Lord Cockburn, in the case of Regina v Hicklin 13, established a test to determine
whether a material was obscene or not under the aforementioned statute. The test, which endured
as the guiding principle in various Commonwealth courts, stated that the key question was
10
https://www.bbc.com/news/world-asia-16385812
11
R v. Curl (1727) 2 Stra 788 KB
12
. 20 and 21 Vict C 83.
13
whether the material had the tendency to corrupt and deprave the minds of those who might be
exposed to such immoral influences.

This test remained in use for a long time despite apparent flaws, such as the subjective nature of
terms like "deprave and corrupt" and the focus on the reader rather than the participants in
production or those potentially harmed by the material's influence. The test was criticized for
basing the definition of obscenity on the vulnerability of a specific group, namely those with
susceptible minds. One significant criticism was that it reduced the treatment of sexual content to
the standards suitable for a child's library. Additionally, even an entire work could be deemed
obscene if just one passage, taken out of context, met the Hicklin test.

Currently UK doesn’t prohibit viewing porn in ones own personal space. The UK government
has implemented comprehensive safeguards to prevent pornography from negatively impacting
the general public, especially individuals under 18 years old. These protective measures are part
of a broader government initiative aimed at censoring harmful content across the Internet and
other platforms. This effort targets various materials, including copyright infringements,
defamatory communications, depictions of animal abuse, terrorist propaganda and literature, as
well as other extreme text, images, videos, and audio files. Extreme pornography is considered
illegal in UK , this came into the laws in the year 2009.

Government restrictions on 'extreme pornography' were established to safeguard both the general
public from its harmful effects and those involved in producing such content, even if they
consented to it.

Under the Criminal Justice and Immigration Act 2008, possessing an 'extreme pornographic
image' became a criminal offense. According to the Crown Prosecution Service (CPS), such an
image is one that is explicitly sexual in nature and is grossly offensive, disgusting, or otherwise
obscene. It must portray acts that threaten a person's life, result in serious injury to specific body
parts, involve necrophilia or bestiality, or depict non-consensual sexual acts (rape or assault).

In any legal case related to extreme pornographic images, the judge or jury is responsible for
determining whether an image falls under this classification. The defendant's intentions are not
considered relevant to the proceedings, meaning that any claims of not fully understanding the
image's content or making excuses about their intentions would not affect the case's outcome.
The Digital Economy Act 2017, also known as the 'Porn Law,' was enacted in the UK,
encompassing various aspects of electronic communications and copyright. However, it gained
widespread attention mainly due to its proposals to restrict access to online pornography.

The main provision of the law involved the creation of an age verification system to prevent
individuals under 18 years old from accessing commercially operated pornography websites.
This system would empower regulators to levy fines of up to £250,000 (or up to 5% of a
website's turnover) and issue blocks or cease-and-desist orders to non-compliant websites.

The implementation of this age verification system sparked considerable controversy and
became one of the most heavily criticized aspects of the Porn Law. Critics expressed serious
privacy concerns due to the collection of user data, and they believed that the system could be
easily hacked or bypassed using virtual private networks (VPNs) or anonymous browsers,
rendering the law ineffective in practice. The extensive criticism ultimately led the government
to temporarily suspend the age verification blocks14

By analyzing the trend in UK we could find out that , earlier the situation of obscenity wasnt
even recognized under the country. Later by different case laws the concept evolved over time
period and hicklin test was born, which happen to be oldest test to determine if anything is
obscene or not. This test is not in trend in now because of the critical effect of it as it doesn’t take
the content as whole instead only check into specific portion of any material whether to find it as
obscene. In the current scenario of digital era the country has provided acess to online
pornography to people who watch it in private space and also strict regulation on child
pornography is also existing. Similar to US , UK also have the regulation where the
pornographic content is not allowed to be seen by children under the age or 18 years. They also
have strict regulation when it comes to extreme porn. But the question that arise again is , it is
the judiciary to decide whether the matter come under purview of extreme pornography or not.

INDIA : An analysis

14
https://www.stuartmillersolicitors.co.uk/guide-pornography-laws-uk/
Regulation of pornography in India is similar to that of UK and US. We have the definition of
obscenity provided under Sec 292 of IPC . The definition provided under our penal code is
borrowed from the hicklin test of UK and also from the Roth test of US .

Section 292 of the law allows the production of pornographic material for personal use. For
instance, creating explicit images of one's spouse is not considered an offense under this section.
However, if the same explicit material is produced with the intention of selling, distributing,
renting, or publicly exhibiting it, then it becomes an offense under section 292. The burden of
proof lies with the prosecution to demonstrate the intent to sell when charging someone with this
offense.

The term "obscene" was defined by the Madras High Court in the case of Public Prosecutor v.
Sabapathy15 as anything offensive to chastity or modesty, presenting ideas that delicacy, purity,
and decency forbid to be expressed. It includes impure language, indecent pictures, and anything
suggesting unchaste and lustful concepts. In 1965, the Supreme Court of India defined
"pornography" as libidinous writing or anything with a strong erotic effect.16

In the case of State v. Kunjilal 17, the Allahabad High Court clarified the distinction between
obscenity and pornography. It stated that pornography refers to writings, pictures, etc., designed
to arouse sexual desire. While both obscenity and pornography offend against public decency
and morals, pornography is considered a more severe form of obscenity. The Court was
unequivocal in stating that pornography would undoubtedly be deemed obscene under section
292 of Indian law. Therefore, it is evident that all pornographic material is prohibited under
section 292 in Indian law.

Not just IPC but the IT Act 2000 also have regulation with relation to obscene materials, which
is said under SEC 67 ,67A , 67B and section 79. Which provides about the prohibition in
publication of obscene matters onlines.

15
AIR 1958 Mad 210.
16
Ranajit Udeshi v. State of Maharashtra, AIR 1965 SC 881
17
AIR 1970 Al 64
Considering to the situation of India along side with , UK , US, China and Bangladesh , we could
see our legislative measures more similar to that of UK and US whereas comparatively we don’t
have strict age restrictive measure that they use to make sure that minors arenot viewing the
same. the age restriction we provide is mere buff to pass the test.at the same time we do have
provision explicitly saying for prohibition of obscene content in the digital world. But this
provision insot successfully managed , the inefficiency of the IT Act could be witness. We could
say that an Effective IT Act would help us to achieve the situation of Bangladesh or china.

Pornography is considered a crime based on the definition of crime as stated in the Halsbury
Laws of England, which defines crime as an unlawful act or default that goes against the public's
interests and leads to legal punishment for the individual committing the act or default. While a
crime may also cause harm to private individuals, who can seek recourse through civil action, it
primarily involves actions or defaults that disrupt the order, peace, and overall welfare of society.
Pornography qualifies as an offense against the public because it can inflict both moral and
physical harm on members of society, thereby endangering the well-being of the community.
Due to these harmful effects, various laws punish pornography as a crime rather than viewing it
as a right.