A. Introduction

A recent survey in India found that 60% of children in urban areas spend up to 3 hours daily on social media and gaming platforms.[1] This exponential increase in the usage of internet for a multitude of activities ranging from recreational purposes like online gaming, usage of social media, OTT (Over-the-Top) platforms, to more serious tasks like schoolwork and research has highlighted the urgent need to regulate online exposure and ensure proper protection for children against dangers like cyberbullying and online sexual exploitation.

This edition of Nota Bene delves into the vulnerability of children to online victimisation, while also focussing on the crime of child pornography. In doing so, it shall make a detailed reference to a recent judgement of the Supreme Court in Just Rights for Children Alliance & Anr. v. S. Harish & Ors.,[2] where the Court laid down the law pertaining to offences under Section 15 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter also referred to as the “POCSO Act”) and Section 67B of the Information Technology Act, 2000 (hereinafter also referred to as the “IT Act”). The Court advocated for replacing the term ‘child pornography’ with ‘CSEAM’, raising awareness about child protection laws, and holding Internet Service Providers accountable for reporting abuse. The article calls for a balanced approach between punishing offenders and supporting child victims' reintegration into society.

B. Who is a ‘Child’?

The definition of a ‘child’ in international law under Article 1 of the United Nations Convention on the Rights of the Child, is “every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier”.[3]

In Indian law, Section 2(1)(d) of the POCSO Act defines the term ‘child’ as any person below the age of 18 years.[4] Therefore, the term under the POCSO Act is both, gender neutral and gender fluid.[5] Similarly, the Juvenile Justice (Care and Protection of Children) Act, 2015[6] and the Information Technology Act, 2000[7] also maintain the same age of majority, i.e., 18 years.

India, being a signatory to the aforementioned Convention has duly enacted laws in consonance with the obligations imposed by it. Significant domestic legislations have been enacted in alignment with these international commitments, thereby ensuring uniformity for children in the criminal justice system.

C. Analysing victimisation of children on the internet with special focus on ‘Adolescence’

Data suggests that in January, 2023, internet users in India alone were 692 million, out of which 30.4% happen to be children.[8] Children are amongst the most vulnerable groups of people prone to online victimisation to crimes like cyber bullying, cyber stalking, sexual exploitation and grooming. A recent study conducted at the University of Edinburgh concludes that as many as 12.6% of the world’s children are “victims of nonconsensual talking, sharing and exposure to sexual images and videos in the past year, equivalent to about 302 million young people.”[9] This vulnerability is often attributed to their immaturity, trusting nature and curiosity.

The United Nations Committee on the Rights of the Child describes adolescence as “a life stage characterised by growing opportunities, capacities, aspirations, energy and creativity, but also significant vulnerability.”[10] However, given this vulnerability and the increasing availability of the internet, it becomes imperative to ensure that such usage is properly regulated to prevent exposure to individuals who may exploit or victimize children. This is important because the internet affords anonymity to predators, acting as a shield for their identity and protecting them from being revealed to potential victims. Moreover, social media platforms enable predators to engage in conversations with children and expose them to harmful content, including sexually abusive and exploitative material, violent scenes and other inappropriate content, which can be easily re-shared and amplified.

‘Adolescence’, a recent Netflix series, quickly secured a spot among the ‘Top 10 Most Watched English Series’ of all time in just three weeks from its release. It raises important questions on the influence exuded by social media on teenagers. Centered around the intersection of law, social media, and adolescence, the series revolves around a 13-year-old boy who falls victim to cyberbullying, leading to his exposure to the digital ‘manosphere’ (a collection of data on the internet promoting misogyny, toxic masculinity and opposing feminism), ultimately resulting in him committing a crime.

The Netflix series, ‘Adolescence’ is centred on the profound impact that social media and the internet have on children and the consequences of excessive exposure to inappropriate content available online. In the series, Jamie, a 13-year-old boy stands accused of murder after allegedly stabbing another teenager. As the plot unfolds, the focus shifts to Jamie's family and their harrowing journey through grief, shedding light on the difficulties faced during their navigation towards leading a normal life.

The primary focus of the series is on the compelling factors which push Jamie to stab a classmate. The investigation also revolves around social media communications between the accused and the victim, which help the investigating agency unravel the dynamics between the two.

At the start, viewers perceive Jamie as innocent and unaware of the crime he is accused of. However, by the second episode, the show reveals the prevalence of ‘incel culture’ and the interpretation of common emojis among teens. It also delves into the 'manosphere', promoting toxic masculinity and misogyny, along with socially harmful concepts like the 80-20 rule (i.e., 80% women are attracted to 20% men and the consequent blaming of women for rejecting men). In the third episode, Jamie’s conversation with a psychologist unravels the unsettling truth about his exposure to toxic masculinity, offering an insight into his thought process which drove him to commit the crime. Towards the end, the series takes an emotional turn, highlighting the guilt and agony experienced by Jamie’s family as they grapple with the consequences of his actions.

‘Adolescence’ brings to the forefront, the far-reaching impact which social media has on the vulnerable minds of children, thus highlighting a pressing need to regulate exposure to social media. By exploring complex issues like cyberbullying, toxic masculinity, and the influence of harmful digital spaces, the series serves as a poignant reminder of the dangers lurking online, especially among the youth. The impact of the show has been felt globally, sparking conversations about the responsibility of both- society and technology in protecting children, leaving viewers with much to reflect on in regard to the digital age’s effect on youth.

D. Legislative framework around sexual offences relating to children

The POCSO Act is the principal legislation which affords statutory protection to children against sexual offences. Enacted to address gaps in existing laws and to specifically criminalize sexual offences against children, the POCSO Act reflects the country's commitment to upholding child rights, as outlined in the Constitution (notably Articles 15 and 39) and the United Nations Convention on the Rights of the Child (UNCRC). The Act broadens the scope of protection by categorizing sexual offences into three key chapters: Chapter II defines and punishes crimes such as penetrative sexual assault, aggravated sexual assault, sexual harassment, and sexual abuse; Chapter III penalises use of children in pornography; and Chapter IV criminalizes attempts to commit these offences and their abetments.

The POCSO Act criminalizes the sexual exploitation of children in any form, including the representation of their sexual organs or involvement in real or simulated sexual acts or any indecent or obscene representation of child.[11] Penalties for such offences start at a minimum of five years of imprisonment for the first conviction, with subsequent convictions carrying a minimum of seven years.[12] A significant amendment to Section 15 of the Act in 2019 further strengthens protections by criminalizing the storage and transmission of child pornography, including possession for commercial purposes or with the intent to distribute or display such material.

In addition to the POCSO Act, the Information Technology (Amendment) Act of 2008 introduced Sections 67A and 67B, which specifically address the rising concerns of online sexual exploitation of children. These provisions impose enhanced penalties for the transmission, creation, possession, and consumption of child pornography, recognizing the growing vulnerability of children in digital spaces.[13] The Act not only penalises the “electronic dissemination of child pornographic material, but also the creation, possession, propagation and consumption of such material as-well as the different types of direct and indirect acts of online sexual denigration and exploitation of the vulnerable age of children”. Together, these legislative efforts provide a robust framework aimed at protecting children from sexual abuse, both offline and online, and underscore the legal system’s increasing focus on tackling the exploitation and degradation of minors in the digital era.

E. Just Rights for Children Alliance & Anr. v. S. Harish & Ors.

In Just Rights for Children Alliance & Anr. v. S. Harish & Ors., the Supreme Court emphasised the necessity to protect children from social evils like child pornography. The case dealt with storage and possession of child pornographic material in the mobile phone of an accused person without any transmission or publication to a third person.

The Supreme Court was faced with two major issues-

The Court delved upon the definition of a ‘child’ under Section 2(1)(d) of the POCSO Act as any person below the age of 18 years. It made use of the criterion of ‘subjective satisfaction’ while expanding the interpretation of a ‘child involved in pornography’ to “any visual depiction of a sexually explicit act which any ordinary person of a prudent mind would reasonably believe to prima facie depict a child or appear to involve a child.”

While deciding the scope and ambit of the offence under Section 15 of the POCSO Act, the Supreme Court delved into the concept of an ‘inchoate crime’, which means a crime which is done in preparation for another crime. These are ‘incomplete’ offences, and show mens rea for a further crime. These acts are criminalised to avoid further damage which may be caused by actual commission of crime, and that the mens rea for the commission of such an offence is to be gauged from the actus reus. Section 15(2) stipulates a situation where such storage or possession of child pornographic material is for further transmission, propagation, display or distribution. The court held that the doctrine of constructive possession would apply to situations where a person indulges in viewing child pornographic material, and that any form of intangible possession would also amount to ‘possession’ under Section 15 of the POCSO Act, and that a failure or omission to report the same would constitute an offence under Section 15(1).

With regard to the interpretation of Section 67B of the IT Act, the Court held that it is a provision to cater to electronic abuse and exploitation of children. The section has a sweeping reach, and includes creation, possession, propagation, consumption and transmission of child pornographic material. The provision must be interpreted in a manner which gives effect to the legislative intent behind enacting it, i.e., penalising cyber-offences which exploit children through obscene or pornographic material involving children.

In essence, the decision of the Court was that mere storage and possession of child pornographic material would also constitute a punishable offence. While considering the legislative intent behind the aforementioned enactments, the Court held that sexual exploitation of children is a pervasive issue and needs to be combated, keeping in mind the ultimate objective, i.e., welfare and protection of the child. The decision reflects a strong commitment to protecting children from sexual exploitation, emphasizing that such acts must be addressed proactively to ensure the welfare and safety of children in the face of growing online threats.

F. Strategic steps for strengthening child protection and combating online exploitation

While deciding Just Rights for Children Alliance & Anr. v. S. Harish & Ors., the Supreme Court emphatically held that the term ‘child pornography’ tends to trivialise the crime, and that it has a tendency to imply consensual acts between people. The Court deemed the term ‘Child Sexual Exploitation and Abuse Material (CSEAM)’ as an appropriate alternative, which also displays the true nature of the crime. The Court also stressed upon the necessity of imparting timely and positive sex education including the concepts of consent, gender equality and healthy relationships to children to promote safer practices amongst children.

Sections 43 and 44 of the POCSO Act obligate the State to disseminate information and awareness about the statute and to monitor appropriate implementation. The State must ensure to undertake awareness generating sessions in all regional languages across the country. In addition, the State must undertake two sets of measures to curb crimes which exploit children sexually- the first being measures which are traditionally aimed at protecting the child, and measures which are aimed at the reintegration of the child against whom a crime has been committed back into society.

With regard to internet service providers (also called ‘ISPs’), there is an increasing need to enforce mandatory reporting of online child sexual abuse, in alignment with the IT Act and the POCSO Act. This has to be done without relieving the ISPs of their obligations to conduct regular due diligence. Recently, Meta (formerly, the Facebook company) announced that additional measures would be taken to safeguard Instagram Teen Accounts, so as to render them unable to go live or turn off protections from receiving obscene images in messages without approval of the teen’s parents. It was also announced that similar accounts would be created on Facebook and Messenger, thus adding automated protections to children’s accounts. While it is important to ensure that those guilty are punished, it is also important to afford adequate social support through welfare mechanisms undertaken by the State, so as to ensure their reintegration into the society. However, a balance must be struck between the best interests of child victims for reintegration into society and punishing perpetrators of such offences.

G. Concluding remarks

The intersection of law, technology, and the protection of adolescents in cyberspace highlights the pressing need for a comprehensive approach to safeguarding young people from virtual violence. As technology continues to evolve and digital spaces become increasingly integral to daily life, it is essential that legal frameworks keep pace with these changes to effectively address complexities of online exploitation, cyberbullying, and other forms of digital harm. The responsibility lies not only with lawmakers but also with tech companies, educators, and parents to ensure that the internet remains a safe space for adolescents to learn, grow, and interact. Ultimately, a collaborative effort is required to create an online environment that prioritizes safety and well-being of children while fostering a healthy digital culture.

This Update has been prepared by Astha Sharma, Mantika Haryani, Pratibha Yadav and Panistha Bhatt who can be reached at [email protected], [email protected], [email protected] and [email protected] respectively. This Update is only for informational purposes and is not intended for solicitation of any work. Nothing in this Update constitutes legal advice and should not be acted upon in any circumstance.

[1] The Hindu Data Team, Social media, OTT, online gaming usage rises: 60% urban kids spend 3 hours daily| Data, The Hindu (September 28, 2023, 3:36 PM)  http://thehindu.com/data/social-media-ott-online-gaming-usage-rises-60-urban-kids-spend-3-hours-daily-data/article67352974.ece.

[2] Just Rights for Children Alliance & Anr. v. S. Harish & Ors., 2024 INSC 716.

[3] United Nations Convention on the Rights of the Child, Article 1.

[4] Protection of Children from Sexual Offences Act, 2012.

[5] Just Rights for Children Alliance & Anr. v. S. Harish & Ors., 2024 INSC 716.

[6] Juvenile Justice (Care and Protection of Children) Act, 2015, § 2(12), Act No. 2, Acts of Parliament, 2016.

[7] Information Technology Act, 2000.

[8] Protection of Children from Sexual Offences Act, 2012, § 2(1)(d), Act No. 32 of 2012.

[9] Haroon Siddique and agency, more than 300m children victims of online sexual abuse every year, The Guardian (Apr. 6, 2025, 6:30 PM), https://www.theguardian.com/society/article/2024/may/27/more-than-300m-children-victims-of-online-sexual-abuse-every-year.

[10] Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.

[11] Protection of Children from Sexual Offences Act, 2012, § 13, Act No. 32 of 2012.

[12] Protection of Children from Sexual Offences Act, 2012, § 14, Act No. 32 of 2012.

[13] Information Technology Act, 2000, § 67, 67A, Act No. 21 of 2000.