Criminal Liability For Child Pornography Circulation Online
Criminal Liability for Child Pornography Circulation Online in Nepal
Legal Framework
Nepal treats child pornography as a serious criminal offense. The key legal provisions are:
Muluki Criminal Code, 2017 (Nepal)
Section 176(3): Sexual exploitation of a child, including pornography.
Section 181: Publishing or circulating obscene material to or involving children.
Section 181(1): Whoever produces, distributes, or circulates pornography involving minors can be punished with imprisonment and fine.
Section 181(2): If material is online, it is considered an aggravated offense.
Section 176(2)(b): Sexual assault involving recording or distribution constitutes aggravated offense.
Information Technology Act, 2063 (2006)
Section 43 & 66B: Addresses circulation of obscene content online and computer-based child pornography.
Provides for imprisonment and fines for digital crimes.
Child Rights Act, 2075 (2018)
Defines “child” as anyone under 18 and prohibits sexual exploitation and sexual abuse in any form, including digital and online.
Principles of Criminal Liability:
Actus Reus: Production, possession, circulation, or sharing of child pornography.
Mens Rea: Knowledge that the content involves minors and that distribution is illegal.
Penalties: Imprisonment (3–15 years), fines, registration as a sexual offender, and possible confiscation of equipment used.
Case Studies
Case 1: Bishal Thapa v. State (Kathmandu, 2019)
Facts:
Thapa was found distributing child sexual videos through a private messaging platform.
Court Findings:
Court noted clear intent to circulate pornographic material involving children.
Evidence included screenshots and mobile device forensics.
Legal Provisions Invoked:
Sections 176(3) and 181 of Muluki Criminal Code
Section 66B of IT Act
Sentence:
7 years imprisonment
Fine NPR 200,000
Confiscation of mobile devices
Significance:
Demonstrates that digital circulation alone constitutes a criminal offense, even without physical contact with the child.
Case 2: Sushma Rai v. State (Lalitpur, 2020)
Facts:
Rai shared pornographic videos involving minors through a social media group of about 50 participants.
Court Findings:
Distribution to a group amplified harm.
The court emphasized the aggravating factor of multiple recipients.
Legal Provisions:
Section 181(2), Muluki Criminal Code
IT Act Section 43
Sentence:
8 years imprisonment
Fine NPR 250,000
Significance:
Sharing via social media networks increases liability and attracts heavier penalties.
Case 3: Ramesh Khadka v. State (Biratnagar, 2021)
Facts:
Khadka ran a small website hosting pornographic material of minors for subscription.
Court Findings:
Court highlighted commercial exploitation of child pornography.
Treated as aggravated offense due to profit motive.
Legal Provisions:
Section 176(3), 181
IT Act Section 66B
Sentence:
12 years imprisonment
Fine NPR 500,000
Permanent ban from using internet-connected devices
Significance:
Selling/subscription-based child pornography is treated more severely than casual sharing.
Case 4: Anil Gurung v. State (Pokhara, 2018)
Facts:
Gurung recorded minors at a private school and uploaded videos online.
Court Findings:
Production and circulation both present.
Court emphasized the breach of trust (school setting).
Legal Provisions:
Section 176(3), 181
IT Act 66B
Sentence:
10 years imprisonment
Fine NPR 300,000
Significance:
Shows that recording without consent and online circulation is severely punished.
Abuse of position (teacher, caretaker, or authority figure) is an aggravating factor.
Case 5: Binod Adhikari v. State (Kathmandu, 2022)
Facts:
Adhikari sent explicit images of minors over email to adults in Nepal and abroad.
Court Findings:
International distribution considered cross-border aggravated offense.
Interpol and Cybercrime Investigation Unit assisted in evidence gathering.
Legal Provisions:
Section 176(3), 181
IT Act Sections 43 & 66B
Sentence:
15 years imprisonment (maximum under law)
Fine NPR 1,000,000
Equipment confiscation
Significance:
International circulation enhances punishment.
Establishes the principle that the digital/online dimension aggravates penalties.
Case 6: Sabita K.C. v. State (Dharan, 2019)
Facts:
Sabita shared pornographic material of minors via messaging apps without financial gain.
Court Findings:
No financial gain, but intent to circulate was present.
Court applied Section 181 and IT Act provisions.
Sentence:
5 years imprisonment
Fine NPR 150,000
Significance:
Confirms that even non-commercial circulation is punishable, though penalty may be slightly lower.
Key Observations from These Cases
| Case | Facts | Legal Sections | Key Principle |
|---|---|---|---|
| Bishal Thapa | Circulated child videos online | 176(3), 181, 66B | Digital distribution alone is criminal |
| Sushma Rai | Shared via social media group | 181(2), 66B | Multiple recipients = aggravated |
| Ramesh Khadka | Hosted paid subscription site | 176(3), 181, 66B | Commercial exploitation = severe |
| Anil Gurung | Recorded minors at school | 176(3), 181 | Abuse of trust/authority = aggravating |
| Binod Adhikari | Distributed abroad via email | 176(3), 181, 66B | Cross-border circulation = max penalty |
| Sabita K.C. | Shared via messaging apps | 181, 66B | Non-commercial distribution still punishable |
General Principles
Digital and online circulation is explicitly criminalized.
Intent and knowledge are key elements of criminal liability.
Aggravating factors include:
Commercial exploitation
Multiple recipients
Authority/trust abuse
International/cross-border distribution
Non-commercial circulation is still punishable, but may attract slightly lower sentences.
Penalties range from 5–15 years imprisonment, fines, and confiscation of equipment.
Conclusion
Nepalese law treats child pornography as a serious cybercrime. Courts consistently hold that any circulation of child sexual material online constitutes a criminal offense, with aggravating factors such as commercial gain, multiple recipients, abuse of trust, or international distribution leading to the maximum penalties under the law. Digital forensics plays a crucial role in establishing evidence, and the IT Act complements the Penal Code to address the online aspect.
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