Kundra case: Erotica is expression, but porn is exploitation, say cyber experts

The videos were erotica not pornrdquo actor Shilpa Shetty and wife of BritishIndian businessman Raj Kundra arrested in connection with the pornography film case is said to have told investigating officials who recorded her statement on FridayShettyrsquos stance and that of Kundrarsquos defence lawyer Abad Ponda who has rubbished police claims of the businessman churning out sexually explicit content has stoked fresh controversy about the legality of erotica and pornDuring the last couple of years the rise of OTT platforms which for long escaped censorship and regulation rules led to a growing and emerging market for erotic content Itrsquos only in November 2020 that these platforms were brought within the purview of the Ministry of Information and Broadcasting empowering the government to ldquoblock filter and take down content onlinerdquo or even turn off internet access completelyInvestigation officer Kiran Bidve said that the police has recovered several film scripts which established that the motive behind the shoots were to make porn clipsKundra has been accused of creating pornographic films which were sent to Londonbased company Kenrin Limited owned by his brotherinlaw Pradeep Bakshi Joint Commissioner of Police Crime Milind Bharambe had said that the videos were sent to London via WeTransfer as the same could not be uploaded from India on the mobile app Hotshot and taken down by Apple and Google Playstore in 2020 due to pornographic content on the platformWhile investigations are still on cyber experts believe that a video cannot be dubbed as porn unless it meets certain criteria And the line differentiating erotica and porn is fineNirali Bhatia a cyberpsychologist and psychotherapist describes erotica as a form of art ldquoIt emphasises on the aesthetics and storytelling around sexual themes while depicting human sexualityrdquoPornographyrsquos objective on the other hand is to depict sexually explicit scenes to sexually arouse the person who is watching it This also makes such a difference a subjective one because itrsquos entirely based on the viewersrsquo perceptionldquoThe classic example of erotica are the stone sculptures at the Khajuraho temples which have an aesthetic binding and serve an educational purpose to understand the human sexualityrdquo says BhatiaNirali Bhatia a cyberpsychologist and psychotherapist says that unlike erotica pornographyrsquos intent is to depict sexually explicit scenes to arouse the person who is watching itA more accurate word to refer to pornography is obscenity says Advocate Vaishali Bhagwat cyber lawyer ldquoThe ambiguity as to whether any content is obscene or otherwise and in violation of any law prevalent at the time was cleared by the Supreme Court in 1965 in connection with the case against author DH Lawrencersquos Lady Chatterleyrsquos Lover which had been banned in Indiardquo she says At the time it was held that the word obscene was only to be used in relation with content that is intended to arouse sexual desire and is so gross that it has the ldquotendency to deprave and corrupt those whose minds are open to such immoral influencesrdquo ldquoThe Supreme Court held that while applying the test of obscenity it has to be borne in mind that when obscenity and art are mixed art must dominate as to throw the obscenity into a shadow or make the obscenity so trivial and insignificant that it can have no effect and may be overlookedrdquoBhagwat says that every individual in India enjoys the freedom of expression even when creating content that includes sex and nudity as an art form But ldquowhen nudity is presented in a manner that violates the test or sense of public decency or moralityrdquo the abuse of law cannot be ignoredWhat makes pornography most problematic is the business angle to it ldquoErotica is expression whereas porn is exploitation It is mainly content production meant for salerdquo says BhatiaThis means that if sexually explicit content is distributed uploaded or downloaded on the Internet it is a penal offence as per Section 67 of the Information Technology Act ldquoBut the word lsquocreationrsquo is not mentioned under the Act which makes it a grey areardquo says cyber lawyer Puneet BhasinA classic example of erotica say experts are the stone sculptures at the Khajuraho temples which have an aesthetic binding and serve an educational purpose to understand the human sexualityIn the FIR filed by the crime branch Kundra has been slapped with Section 67 and 67A of the IT Act But his lawyer Ponda has argued that Section 67A a nonbailable offence did not apply in the case ldquoThe videos and photographs mentioned in the chargesheet fall under the category of lsquoashleelrsquo obscene the chargesheet itself says so I have seen the photographs and videos and there is no sexual penetration and hence this canrsquot be considered as pornographyrdquo Ponda had said in the court on Friday While investigation officer Kiran Bidve said that the police has recovered several film scripts which established that the motive behind the shoots were to make porn clips he didnrsquot counter the defence on sexual penetration not being seen in the videos ldquoThere are multiple scripts in Hindi included in the chargesheet and one can read them to get more clarity on whether there was any sexual penetration The court will deciderdquoHowever according to the Mumbai crime branch the case is not about pornography alone There are victims who have come forward alleging they were cheated and forced to do pornographic acts on the pretext of being provided roles on leading OTT platforms ldquoWe are not getting into the argument of erotica and pornography because we have already filed a chargesheet and the court has taken cognisance of the same In the chargesheet we have clearly mentioned that the porn films were shared in public domain by luring aspiring actorsrdquo said a senior crime branch officer on condition of anonymity