Online content regulation: SC for autonomous monitor; Govt plans to rewrite digital obscenity rules with U/A, A ratings, bar on anti-national content

The proposals include rating of online content for different age groups and a bar on anti-national digital content. It said this was being proposed “in accordance with Article 19(1)(a) and the reasonable restrictions imposed under Article 19(2).”

The note said an insertion will be made in Rule 2 – “obscene digital content” means any digital content shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

The bench, also hearing a plea by M/s SMA (Spinal Muscular Atrophy) Cure Foundation accusing satirists Samay Raina, Vipun Goyal, Balraj Paramjeet Singh Ghai, Sonali Thakkar and Nishant Jagdish Tanwar of mocking persons with disabilities (PwDs) on their show, told Solicitor General Tushar Mehta: “Why don’t you think of a very stringent law which is on the same lines like SC/ST Act… where there is punishment if you demean them.” Mehta agreed that humour cannot be at the cost of the dignity of others.

During the hearing, the CJI, suggesting the use of Aadhaar to verify the age of the user, said, “Suppose there is a video… It has some adult content or whatever… where a warning comes and then the video starts immediately, that creates problems. By the time somebody understands the warning, the damage is done. Why can’t it be like for a few seconds… thereafter it demands particulars from the person, like give your Aadhaar card, give your income tax number, so that we verify your age, and then it opens… We are only saying illustratively, we are not experts.”

On the creation of an autonomous body to regulate content, the CJI said, “Self-styled bodies will not be effective… There has to be some impartial, autonomous body… which will be free from the influence of those who are exploiters of all these, and at the same time, the state also.”

Advocate Prashant Bhushan, appearing for a disabled person, pointed out that the Supreme Court had earlier directed that guidelines be drafted in active consultation with the News Broadcasters and Digital Association, and after considering viewpoints of other stakeholders but this had not been done so far.

He pointed out that in 2014, the government itself had brought out an order which said that all legislations, amendments and rules should invite pre-legislative consultations so that anybody interested in the issue can give inputs.

Mehta said, “Right now what we are dealing with is not just obscenity, but perversity. The content, only some have come before the court, it’s perverse. Something needs to be done… There is some lacunae in user generated content.”

He said the situation now is “I can have my own YouTube channel, I can have my own programme. I am not controlled by any of the statutory regulations or at least the self-imposed regulations.”

The CJI said, “It’s something very strange that I create my own channel… and I am not accountable to anyone, not answerable to anyone.”

Mehta said, “Freedom of speech is a valuable fundamental right, but it cannot lead to perversity, obscenity. The difficulty is children of 10 years, they are more tech savvy than us. They have easy access to all these. We cannot do anything and everything under the garb of freedom of expression.”

The CJI said, “There can be some mechanism where the fundamental right to free speech can also be protected.”

Senior Advocate Amit Sibal, representing the Indian Broadcasting and Digital Foundation, comprising broadcasters and publishers of online curated content like Netflix and OTT applications, said age classifications and warnings are already in place because there are guidelines in the form of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which are currently under challenge before the Delhi High Court.

In its note to the court, the I&B Ministry stated that the proposed changes say “Digital Content” meaning “Digital News & Current Affairs, Online Curated Content, User Generated Content…shall not: Offend against good taste or decency; deride any race, caste, colour, creed and nationality; contain attack on religions or communities or visuals or words contemptuous of religions groups or which promote communal altitudes; contain anything obscene, defamatory, deliberate, false and suggestive innuendos and half truths; tend to incite people to crime, cause disorder or violence or breach of law or glorifies violence or obscenity in any way; encourage or incite violence or contain anything against maintenance of law and order or which promote anti-national attitudes; present criminality as desirable; represent indecent, vulgar, suggestive, repulsive or offensive themes; criticise, malign or slander any individual in person or certain groups, segments of social, public and moral life of the country; contain visuals or words which reflect a slandering, ironical and snobbish article in the portrayal of certain ethnic, linguistic and regional groups; the creation sharing/accessing/uploading or depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to women (including objectification of women or perpetuation of harmful stereotypes), or is likely to deprave, corrupt or injure the public morality or morals.”

It shall also not “denigrate children; contain any bad language or explicit scenes of violence, if meant for children; denigrate the persons with disabilities; contravene the provisions of the Cinematograph Act, 1952; be unsuitable for unrestricted public exhibition; contain live coverage of any anti-terrorist operation by security forces, wherein media coverage shall be restricted to periodic briefing by an officer designated.”

It said “in order to ascertain whether a content has violated the Code or not, the ‘Community Standard Test’ prescribed by the Hon’ble Supreme Court in the case of Aveek Sarkar v. State of West Bengal may be used, which states that the content satisfies the test if a person, having contemporary community standard does not believe that the work appeals or pleases to the lustful or voyeuristic interest and this Code shall not be applicable to content which has literary, scientific, artistic or political value in its entirety”.

It also proposed to amend the Rules to rate content for different age groups. “All content transmitted or published or exhibited by a publisher of online curated content shall be classified, based on the nature and type of content, into the following rating categories, namely: Online curated content which is suitable for children as well as people of all ages shall be classified as “U” rating; online curated content which is suitable for persons aged 7 years and above, and can be viewed by a person under the age of 7 years with parental guidance, shall be classified as “U/A 7+” rating: online curated content which is suitable for persons aged 13 years and above, and can be viewed by a person under the age of 13 years with parental guidance, shall be classified as “U/A 13+” rating; online curated content which is suitable for persons aged 16 years and above, and can be viewed by a person under the age of 16 years with parental guidance, shall be classified as “UIA 16+” rating; and online curated content which is restricted to adults shall be classified as “A” rating,” it said.