Porn Consumption and Privacy: A Legal Perspective

Does viewing porn in a private space morally harm the viewer? Which private acts may or may not be criminalised?

This is the second in a series of posts reporting on the day-long “Tangled, Like Wool” meeting held in New Delhi in January 2014. Through talks, presentations and discussions, the meeting explored the links between pornography, gender, sexuality and the freedom of speech.

Under current Indian law, the distribution and sale of pornographic content is a crime, whereas viewing or reading such content is not. In the past year, two petitions (one to the Supreme Court and the other to the Rajya Sabha) have proposed that watching porn should be criminalised. In response to this, one of the first things many of us may say, or think, is, “Isn’t what I do in the privacy of my home, well, in the privacy of my home?” In this post, we’ll look at some of the arguments made by the Alternative Law Forum on the freedom to watch porn as a part of an individual’s right to privacy.

Article 21 of the Indian Constitution affirms the right to life and personal liberty, which has been interpreted by the judiciary to include the right to privacy. What does this mean, in practice, for our ability to read, listen to or watch whatever we want, including pornography? In the US, where the right to privacy is enshrined within the First Amendment to the Constitution, a landmark ruling stated that “If the first Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch”. This monumental ruling is important to the debates around pornography we are having in India today, because a ban on the viewing of porn, it can be argued, infringes upon an individual’s right to privacy.

Here are some examples of rulings in India that have reinforced the right to privacy:

The right to privacy is the right to be left alone: In a 1975 case pertaining to surveillance, the presiding judge talks about “the sphere where [people] should be let alone” from the government. The viewing of porn, it can be argued, falls within this sphere.

The right to privacy includes the protection of intimate choices: In a 1976 case involving a Hyderabad district collector’s right to access documents in private, the court ruled that “privacy centres around values of repose, sanctuary and intimate decision”. When we talk about a person’s decision to view porn, it is also an intimate choice, which if the state were to interfere with, would constitute a violation of privacy.

Criminalising the consumption of pornography would be an invasion of individual autonomy: One of the most important, though now unfortunately defunct legislations pertaining to autonomy was the 2009 Delhi High Court ruling, also known as the Naaz judgement, on Section 377 of the IPC: a judgement that de-criminalised homosexual relationships. In this ruling the court held that “we all have a right to a sphere of personal intimacy and autonomy…without interference from the outside community”. In this way, the right to watch porn is part of an individual’s autonomy from society.

The right to privacy has not gone unchallenged by feminists. Certain forms of violence that women face, such as domestic abuse, were once relegated to the private sphere. But following feminist thought and intervention, the law changed and accepted that violence is violence, whether it takes place inside or outside the home. Which means that what people do or watch in their homes can’t simply be put down to privacy, because as the example of domestic abuse shows us, harm may occur.

Which private acts, then, may or may not be criminalised? Economist and moral theorist John Stuart Mill developed the idea of the “harm principle”. According to Mill, “the only purpose for which power can rightfully be exercised over any member of a civilised community, against his will, is to prevent harm to others”. If we see viewing porn as part of an individual’s right to privacy, the key question to ask is if the banning of porn is justified according to the harm principle, i.e., does watching porn harm anyone else, or is it essentially harmless?

Some feminists have argued that the harm of pornography is that it perpetuates violence. However, research shows that there is is no direct link between viewing porn – or, in fact, any form of media — and offline behaviour. So unlike in the case of abusive relationships existing in private spaces, consuming porn does not result in harm to anyone else, and does not violate Mill’s harm principle.

But does viewing porn morally harm the viewer? In India, there are several paternalistic laws that prohibit actions on the premise that harm to oneself is immoral. Examples include the criminalisation of personal drug use or of suicide attempts. One criticism of such laws is that they infantalise people by seeing them as generally incapable of making decisions in their own best interest. Additionally, there is no evidence that people who view porn are causing any harm to themselves, either mentally or morally.

Therefore, taking into account both Mill’s harm principle and the moral question of self harm, privately viewing porn is not grounds for legal intervention. The right to consume, read or view any material is closely bound up with the right to privacy, and when it comes to pornography, the same principles can and should apply.

Read the rest of the posts from “Tangled, Like Wool“.