The Union government has proposed amendments to the IT Rules, 2021 to formally define “obscene digital content”.

Background of the Regulatory Proposal

• India’s Got Latent Controversy:  The proposal arose from a viral video featuring a controversial joke that led to public backlash and judicial scrutiny. 
  • The incident emphasized the need for clear guidelines regarding what constitutes obscene content online.
• Supreme Court Direction:  The SC directed the government to frame rules regulating online content in a manner that does not infringe on Article 19(1)(a) (freedom of speech) but remains within the reasonable restrictions under Article 19(2). 
  • This prompted the formulation of the new guidelines.
• Existing IT Rules Framework:  Current IT rules already mandate platforms to block content that is obscene, pornographic, harmful to privacy, insulting to gender, or ethnically objectionable. 
  • However, these rules leave room for interpretation, particularly when it comes to the definition of obscenity.
• Need for Clarity: The new proposal aims to standardise definitions and codify “obscene digital content,” addressing interpretational gaps in current law.

Proposed Amendments to Define ‘Obscenity’

• Legal Basis: 
  • The proposal draws upon Section 67 of the IT Act, 2000, the Cable Television Networks (Regulation) Act, 1995, and relevant provisions of the Indian Penal Code (now replaced by the Bharatiya Nyaya Sanhita, 2023). 
  • It seeks to extend the provisions of the Cable TV Programme Code to the digital space.
• ​​Scope of Restrictions: 
• • Under a new “Obscenity” heading in the Code of Ethics, platforms will be required to avoid content that:
    • Offends “good taste or decency”
    • Contains indecent, vulgar, or repulsive themes
    • Presents criminality as desirable
    • Contains visuals/words reflecting slanderous or snobbish attitudes toward ethnic, linguistic, or regional groups
  • Overall, 17 specific prohibitions are listed for digital publishers, marking a significant regulatory expansion for platforms.
• Applicability: The proposal applies to Social media platforms, OTT streaming services, Digital news media.
• Compliance with Cinematograph Act: 
  • OTT platforms may be required to ensure that their content is fit for public exhibition as per the Cinematograph Act, 1952, potentially influencing content creation and regulation.
  • Ambiguity in Draft: Despite statements suggesting that the proposal only applies to OTT platforms, the draft amendment does not specify such a distinction, leading to concerns about the breadth of its application.

Legal and Judicial Precedents

• Aveek Sarkar v. State of West Bengal (2014): The government’s proposal invokes this landmark judgment, which adopted the community standards test to determine what constitutes obscenity. According to this test:
  • Content should not appeal to lustful or voyeuristic interests.
  • Content with literary, artistic, scientific, or political value should be exempt from the provisions.

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Criticisms and Concerns

• Vague and Broad Definitions: 
  • The provisions in the draft may label a wide range of online material as obscene, leaving significant room for interpretation and misuse. Terms like “good taste” and “decency” are subjective, which could lead to arbitrary censorship.
• Excessive Executive Power: 
  • Observers have noted that the government is expanding its regulatory authority through the IT Rules, bypassing proper legislative processes. This raises concerns about the growing influence of the executive in regulating free speech.
• Threat to Free Expression: 
  • The overreach of these rules may infringe upon the constitutional guarantee of free speech under Article 19(1)(a). 
  • Critics argue that such broad regulations could be used to curb dissent and suppress minority views under the guise of maintaining public decency.
• Impact on Creative Expression: 
  • The proposed regulations could lead to self-censorship by content creators, especially artists, filmmakers, and writers, who may avoid creating content for fear of violating these broad and ambiguous definitions.
• Concerns Over Overbreadth: 
  • Critics argue that the proposal, despite citing this community standards test, vastly expands the scope of what can be labeled as obscene, potentially stifling free expression.
• Replication of Cable TV Code:  
  • Experts argue that the proposal largely replicates the Cable TV Code, transferring the same restrictions to the digital ecosystem, which significantly expands regulatory oversight over online content.

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