If you are stuck in such a situation, here is what to do.

A young freelance professional, Mr. Alok Verma, residing in the city of Prayagraj, found himself in a complex legal situation. He was engaged in remote work for an overseas entity named “Apex Creator Solutions,” an agency that manages online personalities on adult content platforms. Mr. Verma’s responsibilities included marketing and promotion on social media platforms like Reddit. This involved posting and circulating sexually explicit material provided by the agency to attract subscribers for their clients. The content, while explicit, involved consenting adults and was not of an illegal nature like child pornography.

Mr. Verma became increasingly concerned about the legal ramifications of his work under Indian law, as he was not the creator of the content but was instrumental in its distribution. He sought clarity on whether his role as a digital marketer for such an agency could expose him to legal risks and prosecution in India.

Advice in such cases

Navigating the legal landscape of online content, especially of an explicit nature, requires careful consideration. Here is some general advice:

• Review Your Agreement: Scrutinize your freelance contract or employment agreement with the agency. Look for clauses related to liability, indemnity, and governing law. Understand what protections, if any, the agency offers you in case of legal trouble.
• Document Everything: Maintain meticulous records of all your communications with the agency, including instructions, content provided, and payment records. This documentation can be crucial to prove you were acting as a service provider under their direction.
• Understand the Content: While you are not the creator, being aware of the content you are promoting is vital. Ensure it does not stray into illegal categories defined under Indian law, as ignorance is not a valid legal defense.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Applicable Sections of Law

The primary laws governing such activities in India are the Information Technology Act, 2000, and the Bharatiya Nyaya Sanhita (BNS), 2023.

• Information Technology Act, 2000:
  • Section 67: This section penalizes the publication or transmission of obscene material in electronic form. The punishment can extend to imprisonment for up to three years and a fine.
  • Section 67A: This is a more stringent provision dealing with material containing sexually explicit acts. It criminalizes the publication, transmission, or causing to be published or transmitted such material. The punishment for a first conviction can be imprisonment for up to five years and a fine.
• Bharatiya Nyaya Sanhita (BNS), 2023:
  • Section 206: This section, which replaces Section 292 of the IPC, deals with the sale, distribution, exhibition, or circulation of obscene objects. The term “obscene” is not explicitly defined and is interpreted by courts based on contemporary community standards, considering whether the work, taken as a whole, appeals to prurient interest and lacks serious literary, artistic, political, or scientific value.

The key issue is that your role as a marketer involves “transmission” and “circulation,” which are punishable acts under these laws if the content is deemed “obscene” by a court of law.

If you are the complainant

If you come across such explicit content and wish to file a complaint against the person or agency promoting it, here are the steps to follow:

• Gather Evidence: Take screenshots of the posts, note down the URLs, and save any relevant information about the user profiles or accounts involved.
• File a Complaint: You can file a complaint at your nearest police station or, more appropriately, on the National Cyber Crime Reporting Portal (www.cybercrime.gov.in).
• Provide a Detailed Statement: Clearly explain the nature of the content and why you believe it violates the law. Provide all the evidence you have collected.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

If you are the victim

If you find yourself in Mr. Verma’s position and are being investigated or have been accused, it is crucial to act cautiously.

• Do Not Panic or Delete Evidence: Deleting data from your devices could be interpreted as the destruction of evidence, which is a separate offense.
• Engage Legal Counsel Immediately: Do not speak to the police or any investigating agency without legal representation. Your lawyer will guide you on how to respond to notices and summons.
• Preserve Your Records: Compile all your contracts, emails, chat logs, and payment receipts related to your work. This can help establish the context of your engagement with the agency.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

How the police behave in such cases

When a complaint regarding obscene or explicit content is filed, the police, particularly the cyber cell, will initiate an investigation. Their approach typically involves:

• Issuing a Notice: You will likely receive a notice under Section 35 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (equivalent to Section 41A CrPC), requiring you to appear for questioning.
• Seizure of Devices: The police have the authority to seize your electronic devices, such as laptops, mobile phones, and hard drives, for forensic analysis to gather evidence.
• Investigation of Digital Footprint: They will work to trace IP addresses, analyze social media accounts, and examine financial transactions to link you directly to the promotion of the content.
• Registration of FIR: Based on the preliminary findings, if the police believe a cognizable offense has been committed, they will register a First Information Report (FIR), which formally begins the criminal case.

FAQs people normally have

• Is my work illegal even if the content is for adults and consensual?
  

  The legality is ambiguous and hinges on the interpretation of “obscenity.” While the content may involve consenting adults, if it is deemed obscene under Indian community standards and is publicly circulated, it can fall foul of the law. The defense that it was meant for a specific adult audience is a matter of trial.

  
  
• Can my foreign-based agency protect me?
  

  Indian laws apply to any offense committed within India, regardless of where the agency is based. While your contract might have an indemnity clause, enforcing it against a foreign company can be practically difficult and will not stop criminal proceedings against you in India.

  
  
• Does being a marketer, not a creator, provide a defense?
  

  No. The IT Act specifically penalizes “publishing” and “transmitting,” which directly covers the act of marketing and promotion. Your role as a distributor is sufficient to attract liability under the law.

  
  

What evidence is required?

In such cases, the prosecution will rely on digital evidence to build its case. This includes:

• Digital footprints, such as IP logs from websites and social media platforms.
• Forensic data recovered from your seized electronic devices.
• Screenshots, screen recordings, and URLs of the content you posted.
• Bank account statements showing payments received from the agency.
• Communications (emails, chats) between you and the agency regarding the work.

How long will the investigation take?

Cybercrime investigations are often time-consuming due to their technical nature.

• The initial investigation, including questioning and seizure of devices, can take a few weeks to months.
• The forensic analysis of digital devices can take several months.
• The police may take anywhere from 6 months to over a year to file a final report (chargesheet) in court.
• The subsequent trial process in court can extend for several years.

Advocate Sudhir Rao, Supreme Court of India