Centre Directs Social Media Platforms to Remove Pornographic and Obscene Content

The Ministry of Electronics and Information Technology (MeitY) has issued an advisory directing social media platforms and intermediaries to proactively take down “pornographic” and “obscene” content, citing obligations under the Information Technology (IT) Rules, 2021

Key Directions Issued by MeitY

• Social media platforms must ensure that obscene, pornographic, sexually explicit, paedophilic, or otherwise unlawful content is not hosted or circulated on their platforms.
• Large platforms (those with over 50 lakh users) are specifically required to deploy automated technological tools to detect and remove such content proactively.
• Legal Basis: The Rule 3(2)(b) of the IT Rules, 2021, mandates intermediaries to make reasonable efforts to ensure users do not host or share prohibited content.
  • Platforms must remove or disable access to content depicting an individual in a sexual act or impersonation within 24 hours of receiving a complaint from the affected individual or their representative.
•  Regulatory & legal action: Non-compliance will lead to loss of “safe harbour” protection under Section 79 of the IT Act, 2000.

Legal Provisions on Obscenity in India

• Section 294, Bharatiya Nyaya Sanhita (BNS), 2023:
  • This provision penalises the sale, import, export, advertisement, or profit-making from obscene materials, including books, paintings, figures, and electronic content. 
  • Obscenity is defined as content that is lascivious, appeals to prurient interests, or is likely to deprave and corrupt viewers or readers.
  • A first-time offence attracts imprisonment up to two years with a fine up to ₹5,000, while repeat offences can lead to imprisonment up to five years with a fine up to ₹10,000.
• Section 296, Bharatiya Nyaya Sanhita (BNS), 2023:
  • This provision criminalises obscene acts committed in public places or the utterance of obscene words, songs, or ballads that cause public annoyance. 
  • The punishment prescribed is imprisonment up to three months, or a fine up to ₹1,000, or both.
• Section 67, Information Technology Act, 2000
  • This section addresses the publication or transmission of obscene content in electronic form. 
  • While the definition of obscenity is similar to that under the BNS, the punishment is more stringent. 
  • A first offence may result in imprisonment up to three years with a fine up to ₹5 lakh, and repeat offences can attract imprisonment up to five years with a fine up to ₹10 lakh.
• Indecent Representation of Women (Prohibition) Act, 1986
  • Section 4 of this Act prohibits the indecent or coarse representation of women in any form of publication, advertisement, or communication. 
  • For a first offence, punishment includes imprisonment up to three years and a fine of ₹2,000, while repeat offences can lead to imprisonment up to five years and a fine ranging from ₹10,000 to ₹1 lakh.
• Information Technology (Intermediary Guidelines and Digital Media Ethics) Rules, 2021
  • These rules impose legal obligations on digital intermediaries to exercise due diligence and make reasonable efforts to prevent the hosting or transmission of unlawful content, including obscene material and fake news, thereby strengthening content regulation in the digital space.
• Protection of Children from Sexual Offences (POCSO) Act, 2012
  • The Act Criminalises the creation, storage, access, and sharing of child sexual abuse material, especially online, with stringent penalties.
• Article 19(2) of the Constitution of India
  • The Constitution empowers the State to impose reasonable restrictions on the freedom of speech and expression on grounds such as public order, morality, decency, and security of the State.

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Supreme Court’s Observations on Obscenity

• Ranjit D. Udeshi v. State of Maharashtra (1964):
  • The Supreme Court applied the Hicklin Test, holding that material is obscene if it tends to corrupt and deprave susceptible minds, including children and individuals with morally weak dispositions.
• Aveek Sarkar v. State of West Bengal (2014):
  • The Court shifted from the Hicklin Test to the community standards test, quashing obscenity charges related to the publication of a nude image of Boris Becker, and emphasising that obscenity must be judged in its contemporary social context.
• College Romance Case (March 2024):
  • The Supreme Court quashed obscenity proceedings against the makers of the web series College Romance, clarifying that the mere use of profanity does not amount to obscenity.
  • The Court underscored that content can be termed obscene only if it has the tendency to arouse sexual thoughts, not merely because it contains coarse language or controversial expression.