Social Media Platform and Restrictions regarding

Obscenity and Pornography

---------------------------------------------------------------------------------------------------------------------

Submitted to – Dr. Vishal Mahalwar and Dr. Aparajita Bhatt

Submitted by – Deepika Parya, 35LLB16

National Law University Delhi

2021

1
Acknowledgment
I would like to thank Dr. Vishal Mahalwar and Dr. Aparajita Bhatt for their invaluable guidance
and contribution to this academic research paper. I truly appreciate their kindness and ability to
manage their duties perfectly during such hard times. All the information in the paper has been
correctly sourced and given full credit. This paper is free of any plagiarism to the best of my
knowledge.

Thank you

Deepika Parya

35LLB16

NLUD

2
Table of Contents

Acknowledgment 2

Synopsis 5

Introduction 5

Literature Review 7

Research Objectives 7

Hypothesis 8

Research Questions 8

Methodology 8

Chapter 1 - Legal Provisions in India against Sharing Of Obscene Content Online 9

The Information Technology (IT) Act, 2000 9

Section 66E – Punishment for violation of privacy 9

Section 67, 67 A, 67 B - Punishment for publishing or transmitting obscene material or

material containing sexually explicit act, etc. or material depicting children in sexually
explicit act, etc., in electronic form respectively 10

Protection of Children from Sexual Offences (POCSO) Act, 2012 10

Section 14 and 15 - Punishment for using child for pornographic purposes and for storage of
pornographic material involving child 10

Indian Penal Code 11

Section 354D – Stalking 11

Section 463, 465 and 471 – Forgery 11

Section 509 – Word, gesture or act intended to insult the modesty of a woman 11

Section 499 and 500 – Defamation 11

Chapter 2 - Obscenity as understood by Courts in India 12

Indian Courts on Obscenity: 12

3
 Ranjit D. Udeshi v. The State of Maharashtra 12

K.A. Abbas v. Union of India and Anr 13

Bobby Art International & Ors. v. Ompal Singh Hoon 13

Chandrakant Kayandas Kakodar vs The State of Maharashtra 13

Director General, Directorate General of Doordarshan & Others v. Anand Patwardhan and
Another 13

Maqbool Fida Husain vs Raj Kumar Pandey 13

State of Maharashtra v. Joyce Zee alia Temiko 14

Aveek Sarkar v. State of West Bengal 14

Obscenity and Art 14

Chapter 3 - Free Speech and the Regulation of Social Media Content 15

Obscenity and Censorship in the Digital Age 15

Obscenity as a product of colonial legal values 16

State regulation of the internet 17

Free Speech 17

Explicit Content and Private Actors 17

The New IT Rules regulating OTT platforms 18

Conclusion 21

Bibliography 23

4
Synopsis
Introduction
Definition of Pornography as per the Merriam-Webster Dictionary is “the depiction of erotic
behavior (as in pictures or writing) intended to cause sexual excitement; material (such as books
or a photograph) that depicts erotic behavior and is intended to cause sexual excitement; the
depiction of acts in a sensational manner so as to arouse a quick intense emotional reaction.”1
The Black's Law Dictionary describes Obscenity as “character or quality of being obscene,
conduct, tending to corrupt the public merely by its indecency or lowness.”2 As per Webster's
New International Dictionary, "obscene" means “disgusting to the senses, usually because of
some filthy grotesque of unnatural quality, grossly repugnant to the generally accepted notions of
what is appropriate.”3 The Federal Communications Commission (FCC) defines indecent speech
as “material that, in context, depicts or describes sexual or excretory organs or activities in terms
patently offensive as measured by contemporary community standards for the broadcast
medium.”4

Although governments of different nations have their own laws pertaining to these topics, social
media platforms and intermediaries present a unique set of problems that cannot be dealt with so
easily since they operate at a global level.
Social media can be defined as “a special class of web sites that provide users the ability and
tools to create and publish their own mini web sites or web pages. We become active participants
in creating, commenting, rating and recommending content rather than passive consumers of it.
Social media sites have 3 defining characteristics.
1. Majority of content is user generated
2. High degree of participation/interaction between users

1
“Merriam-Webster Dictionary” (Merriam-webster.com2021) <https://www.merriam-
webster.com/dictionary/pornography> accessed April 15, 2021
2
Garner, Bryan A., and Henry Campbell Black. Black's Law Dictionary. 9th ed. St. Paul, MN: West, 2009. Print.
3
Webster's Third New International Dictionary of the English Language, Unabridged. Springfield, Mass.: Merriam-
Webster, 2002.
4
“Obscenity, Indecency and Profanity” (Federal Communications Commission November 18, 2010)
<https://www.fcc.gov/general/obscenity-indecency-and-
profanity#:~:text=The%20Federal%20Communications%20Commission%20(FCC,standards%20for%20the%20bro
adcast%20medium.> accessed April 15, 2021

5
 3. Easily integrates with other sites”5
So social media platforms include “blogs (such as Blogger, Word Press, Type pad), social
networking (Facebook, LinkedIn), social bookmarking (Delicious, Stumble Upon) news sharing
(Dig, Yahoo! Buzz) and photo and video sharing sites (Flickr, Vimio and YouTube)”6 to give a
few examples.
The IT Act 2000 defines “intermediary” as “any person, who on behalf of another person
receives stores or transmits that record or provides any service with respect to that record and
includes telecom service providers, network service providers, internet service providers, web-
hosting service providers, search engines, online payment sites, online-auction sites, online-
marketplaces and cyber cafes.”7

In the given project we are going to be looking at restrictions on sharing porn and obscene
material online in two different ways. Every coin has two sides and so restrictions of this sort can
be both a good and a bad thing. Usually when such content is being shared online without the
consent of the parties involved or it is being shared in a way where it is largely harmful for the
society then it obviously seems like a good idea to ban such content. But sometimes putting up
such restrictions can also be seen as taking away people’s freedom of speech and expression. In
which case, ban on such content becomes more complex. Along with that, what material is
categorized as pornographic and what is categorized as artistic, informational or educational in
nature is a very important distinction to make. Labeling any content that contains nudity as
pornographic or obscene can be very harmful for society in the long run.

Therefore, in this research paper, we will start by looking at the legal provisions pertaining to
sharing obscene or pornographic material online in India. This chapter will mention how these
laws are helpful to people who have been wronged by having content of them that can be labeled
“pornographic or obscene” shared online in the public domain without their consent. The second
chapter will then explore judicial views on the same by examining a few cases regarding this
subject. The third chapter will deal with the other side of the argument about how such

5
“Social Media — a Definition – Amy Campbell’s Web Log” (Harvard.eduJanuary 21, 2010)
<https://blogs.harvard.edu/amy/2010/01/21/social-media-a-definition/> accessed May 15, 2021
6
ibid
7
Information Technology Act, 2000, s 2(1)(Ua)(W)

6
restrictions limit our freedom of speech and expression. This chapter will explore not just legal
restrictions but also the policies of social media platforms that regulate behavior in online spaces
and what that means for society in general. Along with that, it will criticize the new IT rules that
govern the OTT platforms in India. The project ends with the concluding chapter that gives my
final thoughts on the overall situation regarding the whole topic.

Literature Review
The literature that was read for this research paper examined a number of topics related to cyber
laws in India as well as internationally. The material dealt with many philosophical, sociological
as well as legal questions pertaining to the subject. The material also engaged with the nature of
social media and the corporate entities that control and regulate these social media platforms.
The literature delicately dealt with many questions regarding what governance might look like in
this new global and digital age. As we already know, in this era, most work can be done using
the internet including many businesses. Anyone can access the worldwide knowledge on the
internet from anywhere in the world. The literature for this research paper engages with the
internet technology and its implications in a lively manner. It acknowledges both the good and
the bad but puts focus on the bad because of the criminal aspect of the nature and how law deals
with such situations. Since Cyber laws mainly deal with cyber-crimes, the cyberspace and the
legal issues that come with it, the material tries to look at different ways in which this problem
has been tackled around the globe. Along with that, there is heavy discussion on freedom of
speech and expression, online privacy, security, and access to the facilities of the internet.

Research Objectives
1. To study how Indian Law deals with matters of pornography and obscenity on digital
platforms.
2. To analyze how Indian Judiciary’s way of dealing with cases relating to obscenity has
developed over the years.
3. To inspect the relationship between censorship and freedom of speech and expression in
this digital era.

7
Hypothesis
On one hand, leaving the online space unregulated in legal methods will lead to letting the
regulation power rest with the corporate companies that control social media platforms but on the
other hand, regulations via governments can lead to overkill and used for fascist purposes
themselves.
Research Questions
1. Whether the legal provisions relating to obscenity and pornography on digital platforms
are harmful or beneficial to the society in general?
2. Whether evolution of society’s view on obscene, pornographic or indecent behavior is
reflected in the judgments given by the Indian judiciary?
3. Whether the censorship (due to pornography or obscenity) im-proportionately affects
certain sections of the society in their fundamental right to freedom of speech and
expression?
Methodology
This project was done through doctrinal research by analyzing journals, articles, case laws,
statutes, legal provisions, books, judgments and such other primary and secondary sources in
order to compile, analyze and present this paper. After a careful study of all the listed resources, I
compiled the information in an orderly manner and carefully examined and studied it to reach
my own conclusions. As the author of the paper, I was very careful as to giving credit where
credit is due regarding any piece of information. This legal research paper has been crafted free
of any plagiarism to the best of my knowledge.

8
Chapter 1 - Legal Provisions in India against Sharing Of Obscene Content
Online

Every day the number of people who have access to the internet is growing in India and as a
result there is also an increase in the rate of cyber-crimes. Specifically cybercrimes related to
sharing obscene content online without the consent of women. The recent Bois Locker Room
case8 put that in focus. In this case, a couple of adolescent boys were sharing photo shopped
nude or seminude pictures of minor girls and passing derogatory and objectifying comments.
This was only one of the many cases that comprise a larger societal issue.9 We can understand
the bad effects of sharing pornographic and obscene material online through using this case as an
example. Legally speaking, the provisions that such an incident would attract would be sections
66E, 67, 67A and 67B of the IT Act, and sections 354D, 465, 471, 499, 500 and 509 of the IPC.
Since the girls were minors, sections 14 and 15 of the POCSO Act, 2012 would also apply. Let’s
look at these provisions below to understand the legal repercussions that a situation like this
would incur.

The Information Technology (IT) Act, 2000

Section 66E – Punishment for violation of privacy

This section punishes anyone “who, intentionally or knowingly captures, publishes or transmits
the image of a private area of any person without his or her consent”. This section forms a part of
the Right to Privacy which is now considered to be guaranteed as a fundamental right. It is
protected under the Right to Life Part III of the Indian Constitution. So violating this section
would also violate Article 21 of the Indian constitution.10

8
Nilashish Chaudhary, Bois Locker Room: Letter Petition Before SC Seeks Criminal Action, Live Law, (April 15,
2020, 6:58 PM), <https://www.livelaw.in/ top-stories/bois-locker-room-letter-petition-before-sc-seeks-
criminalaction-156262>
9
“The Moral Right of the Majority to Restrict Obscenity and Pornography Through Law | Ethics: Vol 86, No 3”
(Ethics2012) <https://www.journals.uchicago.edu/doi/abs/10.1086/291996?journalCode=et> accessed April 15,
2021
10
Information Technology Act, 2000, S 66E

9
Section 67, 67 A, 67 B - Punishment for publishing or transmitting obscene material or material
containing sexually explicit act, etc. or material depicting children in sexually explicit act, etc.,
in electronic form respectively

Section 67 punishes anyone who “publishes or transmits or causes to be published or transmitted

in the electronic form, any material which is lascivious or appeals to the prurient interest or if its
effect is such as to 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”.11 Section
67A is similar to section 67 except it punishes publication of “any material which contains
sexually explicit act or conduct”.12 Although these sections were intended to deter and punish
digital obscenity and voyeurism, in practice, it is very vague and constitutionally untenable. It
doesn’t take into consideration the consent of the parties involved and comes off very morally
paternalistic in its implication and there is lots of scope of misuse. Section 67B talks about
punishment regarding “material depicting children in sexually explicit act, etc., in electronic
form”.13

Protection of Children from Sexual Offences (POCSO) Act, 2012

Section 14 and 15 - Punishment for using child for pornographic purposes and for storage of
pornographic material involving child

Section 14 talks about punishing anyone who “uses a child or children for pornographic
purposes”.14 Section 15 punishes anyone “who stores or possesses pornographic material in any
form involving a child: (1) but fails to delete or destroy or report the same to the designated
authority, as may be prescribed, with an intention to share or transmit child pornography, (2) for
transmitting or propagating or displaying or distributing in any manner at any time except for the
purpose of reporting, as may be prescribed, or for use as evidence in court, (3) for commercial
purpose”.15

11
Ibid, s 67
12
Ibid, s 67 A
13
Ibid, s 67 B
14
Protection of Children from Sexual Offences (POCSO) Act, 2012, s 14
15
Ibid, s 15

10
Indian Penal Code

Section 354D – Stalking

This section punishes “Any man who follows a woman and contacts, or attempts to contact such
woman to foster personal interaction repeatedly despite a clear indication of disinterest by such
woman; or monitors the use by a woman of the internet, email or any other form of electronic
communication”.16 This section is not gender neutral and also provides for some exceptions in
the proviso.

Section 463, 465 and 471 – Forgery

Section 463 gives definition of forgery and covers “making any false document or false
electronic record or part of a document or electronic record with intent to cause damage or
injury” as an act of forgery.17 Section 465 defines punishment for forgery.18 Further, section 471
says “whoever fraudulently or dishonestly uses as genuine any document which he knows or has
reason to believe to be a forged document, shall be punished in the same manner as if he had
forged such document”.19 This means photo shopping someone into a pornographic image would
be covered in this ambit.

Section 509 – Word, gesture or act intended to insult the modesty of a woman

This section is used very commonly and is obviously not gender neutral. Any act, gesture or
speech that is suggestive of sex in the presence of a woman is covered in this section.20

Section 499 and 500 – Defamation

Victims whose pornographic or obscene material is shared without their consent can take action
under section 499 as it causes harm to their reputation.21 Section 500 gives the punishment for
the same.22

16
Indian Penal Code, s 354 D
17
Ibid, s 463
18
Ibid, s 465
19
Ibid, s 471
20
Ibid, s 509
21
Ibid, s 499

11
Chapter 2 - Obscenity as understood by Courts in India

This chapter will further look at how Indian Courts understand the terms ‘obscene’ and
‘obscenity’. Section 292 of IPC lists the kinds of material that come under the ambit of
‘obscenity’ but these words have not been clearly defined. Section 67 of IT Act also punishes
publication of obscene material in electronic form but doesn’t define it. Sections 2(c), 3 & 4 of
the Indecent Representation of Women Prohibition Act, 1986 also prohibit such instances.
Telecast of any obscene content is prohibited on television by The Cable Television Network
regulation Act, 1995. Films are also examined before their release for any obscene content by
Sections 4 and 5A of Cinematograph Act. There were two tests for obscenity: Hicklin Test and
Roth Test that were developed in English Law and US courts respectively. Hicklin Test allows
declaration of any work as obscene based on only isolated parts of it without considering the
context. Roth Test, on the other hand, was narrower than Hicklin and considered the full theme
of the complete material. It would look at the social value of the work and apply contemporary
community standards to judge whether it was obscene or not.

Indian Courts on Obscenity:

Ranjit D. Udeshi v. The State of Maharashtra 23

This was the first case in which the Indian courts defined obscenity. Any material that had the
tendency to corrupt anyone who can be easily affected by immoral influences was considered to
be obscene as long as it did not interfere with the constitutional right to freedom of speech and
expression. Therefore, in art and literature, sex and nudity alone cannot be the culpable factors
for it to be considered obscene without more evidence to its harmful nature.

22
Ibid, s 500
23
1965 AIR 881

12
K.A. Abbas v. Union of India and Anr 24

In this case, SC said that the right to freedom of speech and expression has an exception when it
comes to pre-censorship of content, although the artistic value of the content must be taken into
account as it may be good for society given the context.

Bobby Art International & Ors. v. Ompal Singh Hoon 25

The Supreme Court said that the scenes in the film Bandit Queen should not be seen in isolation
and the context of the whole film should be taken into consideration, which is about seeking
respect in society.

Chandrakant Kayandas Kakodar vs The State of Maharashtra 26

The Supreme Court acknowledged that the contemporary societal standards as to what is
considered inappropriate have changed vastly in the past quarter century. People of all ages now
have access to a wide variety of art and literature that contains depictions of love and sex,
therefore it cannot be said to have a corrupting effect on people.

Director General, Directorate General of Doordarshan & Others v. Anand Patwardhan and
Another 27

In this case, Doordarshan refused to telecast a documentary because it contained some scenes of
violence. The court said that depiction of violent scenes doesn’t necessarily promote violence,
rather it highlights the social injustices of the world and therefore it shouldn’t be denied
exhibition.

Maqbool Fida Husain vs Raj Kumar Pandey 28

Delhi High court held that a nude painting of ‘Bharat Mata’ is not obscene because nudity alone
does not constitute obscenity.

24
1971 AIR 481
25
1996 AIR 1846
26
1970 AIR 1390
27
1996 (8) SCC 433
28
2008 CRI. L. J. 4107

13
State of Maharashtra v. Joyce Zee alia Temiko 29

Bombay High Court held that any adult who goes to watch a cabaret show out of his own
volition cannot complain of annoyance.

Aveek Sarkar v. State of West Bengal 30

In this landmark judgment, the SC adopted the Community Standards test i.e. Roth Test and
disapproved of Hicklin’s test as Roth Test is more adaptable to a changing society given that
‘obscene’ and ‘obscenity’ are not defined in IPC. The case was about a picture which was
contested to be obscene. SC held that the context and the message behind the photograph is
important and must be examined as a whole. If given all of that, the matter is still depraving,
lascivious and corrupting to one who consumes it, only then will it be considered obscene.

Obscenity and Art

Indian judiciary has acknowledged that with changing times, the concept of obscenity has also
changed in the minds of the general public. The stringent standards of what is appropriate for the
consumption of our society have loosened up quite a lot as a result of progressive mindset of the
newer generations. Although a solid parameter for acceptable levels of obscenity in art, cinema
and literature still does not exist in India but the conversation is open. Obscenity should not be
equalized with sex or nudity because none of the latter things should be classified as an immoral
thing in order to have a healthy concept and relationship with human sexuality and bodies. From
old Indian statues to depictions of unconventional language or visuals in cinema, art can be
expressed in multiple forms and censoring it may devoid it of its meaning and social value.
Although it is necessary to get rid of social evils like child pornography or sexualizing people
without their consent, there needs to be a clear demarcation between these cases and the ones
that come under the ambit of art or education in order to truly carry out the purpose of the given
legislations.

29
(1975) 77 B. R. L. J. 218
30
(2014) 4 SCC 257

14
Chapter 3 - Free Speech and the Regulation of Social Media Content

In the last two decades, the popularity of social media sites like Facebook, Twitter, Instagram,
etc. has soared immensely and thus they have provided a new platform for people to express
themselves.31 Since these sites are global in nature, no one government has control over its
policies. In fact, the companies that run these sites form their own policies with regard to
regulating the behavior of their users. Since online platforms are an easy place for hate speech
and disinformation to spread, it has become a matter of serious concern for governments and
activists around the world to regulate how people interact with the world on these sites. Many
find the policies put in place by the online platforms themselves to be unsatisfactory since they
either do not do a good job of restricting harmful content or they end up banning potentially
valuable information.32 Another concern that comes with that is whether owners of such
companies who make these policy decisions have too much power in their hands since they
essentially regulate public behavior in the current digital age but they are not elected officials.
On the other hand, it can also be argued that it is the right of the business owners to run their
social media platforms how they see fit and any legal infringement would be a violation of their
right to exercise their own freedom. Social media sites can also be considered as their own
special class of industries like broadcast media and state can then interfere as a public policy
concern. But too much state interference can also lead to fascist governments using this control
to exploit these sites for their own agendas.33

Obscenity and Censorship in the Digital Age

The Indian government last year banned many apps including TikTok and India has also banned
many porn websites.34 This is a common occurrence in many south Asian countries. Not only by
governments, but a lot of content online is banned by the policies of the platform itself. Many of
these restrictions negatively affect marginalized communities and their mediums of expression.

31
Dillinger, Jessica. "List Of Countries By Internet Users." World Atlas, May 6, 2021, <worldatlas.com/articles/the-
20-countries-with-the-most-internetusers.html>
32
MANU/SCOR/27539/2017
33
Philip M. Napoli, “Social Media and the Public Interest: Media Regulation in the Disinformation Age”, Columbia
University Press, 2019.
34
Findlay S, “TikTok’s India Ban Should Be a Warning for Tech Companies” (@FinancialTimesApril 19, 2021)
<https://www.ft.com/content/2e1e437b-484d-4b9a-bb22-64705dde89c2> accessed April 15, 2021.

15
Many women and queer communities make posts exercising their sexual expression as a way of
reclaiming their narrative which is non-normative and it is labeled as dangerous, obscene or
pornographic.35 YouTube is known to be one of the internet platforms that censor content created
by LGBTQ+ creators.36 Same is the case with Instagram and Facebook. These restrictions are
meant to diminish any ‘sexual’ content because it is automatically categorized as harmful and
this unfairly affects content created by queer communities and women.37 This comes from the
taboo surrounding sex, sexuality and nudity and hence the association of ‘harm’ with
‘pornography’. And although there are definitely categories of porn that are truly harmful in
nature, putting an umbrella term of porn over every sexual material is very regressive and
ultimately makes for a bigger societal issue. This is part of a bigger debate that we won’t be
getting into in this research paper about the major feminist faultine as to whether porn can be
‘sex positive’ or ‘exploitative’ or both.38

Obscenity as a product of colonial legal values

The concept of obscenity in legal language originated in the colonial era when any expression of
sexual desires through actions or publication of material was criminalized, even if it was for
educational purposes. Colonial criminal law even went as far as to criminalize any sexual
activities done in private because they were considered ‘unnatural’.39 While no conclusive
studies have proven for sure that there is a causal link between porn and ‘harm’, this continues to
be a popular opinion.40 Law and policies that restrict sexual expression usually tend to censor
and regulate the sexuality and behavior of marginalized communities under the guise of
protection of children and women.

35
Hald, G. M., Seaman, C., & Linz, D., “Sexuality and pornography”, 2014.
36
Farokhmanesh M, “YouTube Is Demonetizing Some LGBT Videos — and Adding Anti-LGBT Ads to Others”
(The VergeJune 4, 2018) <https://www.theverge.com/2018/6/4/17424472/youtube-lgbt-demonetization-ads-
algorithm> accessed April 15, 2021.
37
Rimm H, “After Instagram Rewrote Its Rules, Sex Workers Had to Get Creative to Survive”
(Refinery29.comJanuary 21, 2021) <https://www.refinery29.com/en-us/2021/01/10273074/instagram-ad-guidelines-
onlyfans> accessed April 15, 2021.
38
Valtchanov BL and Parry DC, “A Porn of One’s Own” [2020] Sex and Leisure 109
39
Henkin, Louis. “Morals and the Constitution: The Sin of Obscenity.” Columbia Law Review, vol. 63, no. 3, 1963
40
Hay M, “Why Science Has No Idea Whether Porn Is Good or Bad for You” (InsideHookSeptember 15, 2020)
<https://www.insidehook.com/article/sex-and-dating/is-porn-good-or-bad> accessed May 5, 2021

16
State regulation of the internet
A common reason that governments have for wanting to control online spaces is that they want
to stop sexual material from being made and shared as it is against the good of the society. For
e.g., the sections of IT Act that we referred to in chapter one do not reference consent at all,
except section 66 E, which is more progressive than the other provisions. However, it does not
make up for an accurate depiction of what the Act stands for in its entirety. The Act pertains to
the language of paternalism and protectionism and forces public morality onto female sexuality.
This is also true for many policies that social media platforms themselves propagate.41

Free Speech
Although governments do get attention and flack for having too strict internet censorship policies
like in Russia and China, policies created by private actors need to be given the same reproach.
Slowly things are changing though. Facebook has been heavily criticized in recent years for
having questionable platform policies. The US senate has even had public hearings in which they
scrutinized the company and its owners for not taking good care of their corporate
responsibilities regarding human rights and the protection of their users. The most predominant
social media platforms are based in the United States and are owned by US corporations, so one
must look at them for a better regulation of the internet experience instead of governments in the
Global South. Because what are community guidelines if not another form of censorship. TikTok
is a great example of how content based platforms that originate from China are declared to not
be acceptable for not conforming to western ideas of regulation. TikTok also was an app that was
accessible and enjoyed popularly by lower classes, so such censorship also speaks to the
classicist approach of these policies.42

Explicit Content and Private Actors

Almost all major platforms do not allow any content that relates to sexual arousal or gratification
onto their servers, including YouTube and Twitter. Facebook bans adult nudity and sexual acts.
Facebook has detailed guidelines as to which body parts are considered to be sexually explicit.

41
Spencer Kass, 'Regulation and the Internet' (1998) 26 SU L Rev 93
42
Yuval Karniel, 'Freedom of Speech on the Internet' (1999) 1 Alei Mishpat 163

17
These guidelines essentially do the same work as the colonial era laws but in a digital era.43
These platforms have been criticized by the public because of the way they affect their daily
lives and the way they shape our society. #FreetheNipple campaign is a great example of how
these platforms are called out for their double standards and sexism.44 Instagram also flags down
educational posts showing female genitalia or anything that has to do with female reproductive
health because our society is yet to conceive of women’s bodies in a non-sexual manner. Tumblr
used to be the space where adult content was allowed to be shared but two years ago they banned
it as well. This category of ‘adult content’ included genitalia and female nipples. Many users
were outraged and disappointed.45 Many sex workers have also complained of structural
inequality that these regulations impose on their profession in online spaces.46 Queer people,
especially trans folks, have time and again complained about how these adult policy restrictions
heavily impact their communities as their educational and informational posts are either blocked
or shadow banned. Same is the case with sexual health educators, kink communities and other
marginalized communities, as more and more mainstream online platforms are corporatized.47
Therefore, it is important to remember that the battle against censorship contains multiple actors.

The New IT Rules regulating OTT platforms

A notification from the cabinet secretariat named Information Technology (Intermediary
Guidelines and Digital Media Ethics Code) Rules 2021 was introduced in order to put social
media platforms under the constitution and laws of India.48 This moves films, news, audio-visual
programs and current affairs available on online platforms under the scope of the IT ministry and
is now controlled by the Information and Broadcasting Ministry. Although this aims to control

43
Ibid, n. 39
44
Maria Massimo, Free the Nipple–Fort Collins and the Enduring Fight for Gender Equality, 61 B.C. L. Rev.
E.Supp. II.-430 (2020)
45
Renee Randazzo, Kaelin Farmer & Sharon Lamb (2015) Queer Women's Perspectives on Sexualization of
Women in Media, Journal of Bisexuality, 15:1, 99-129
46
Ibid, n. 37
47
Ibid, n. 45
48
“Notification Dated, the 25th February, 2021 G.S.R. 139(E): The Information Technology (Intermediary
Guidelines and Digital Media Ethics Code) Rules, 2021 | Ministry of Electronics and Information Technology,
Government of India” (Meity.gov.in2021) <https://www.meity.gov.in/content/notification-dated-25th-february-
2021-gsr-139e-information-technology-intermediary> accessed May 5, 2021

18
OTT providers like Amazon and Netflix and their shows that contain violence, sexual acts,
nudity and indecent speech, this goes further than that to regulate free media as well, which is a
much bigger problem.49

The new rules cover three separate sectors within digital media. These sectors are very different
from each other but the similarity is that they all function through ‘cloud storage’ and not cable
towers, etc. Therefore, they are called ‘over the top’ or OTT.50
1) Social media - Platforms like Twitter, Whatsapp, Instagram, etc. are included under this.
They are not content creators but intermediaries.
2) Online curated content - Players like Netflix, Hostar, Disney plus, Amazon Prime that
stream web series and movies.
3) Digital online news - Services like The Wire, Firstpost, The Quint, Scroll that are not part
of the mainstream media but print digital news very frequently. 51

The first sector, social media, is too big a space for the government to not feel threatened leaving
unsupervised. 3(1) (b) of the new rule dictates that social media platforms shall block content
that is “defamatory, obscene, pornographic, pedophilic, libelous…” This seems unnecessary
since these offences are already punishable under preexisting laws. Seems like this provision has
been put there to just force cooperation with the regime. While there is no action taken when
Whatsapp hate groups spread fake news and information. As per rule 3(1) (d), the government
can order public intermediaries like Facebook, Twitter and Instagram to remove ‘offending’
content within 36 hours, plus it allows the government to take other severe actions. Rule 4 (2)
allows the government to access the identity of news sources given that they relate to offences

49
Online F, “New Rules for OTT Platforms: Regulation or Restriction?” (The Financial Express March 5, 2021)
<https://www.financialexpress.com/opinion/new-rules-for-ott-platforms-regulation-or-
restriction/2207205/#:~:text=The%20new%20rules%20require%20OTT,itself%20through%20a%20grievance%20o
fficer.&text=OTT%20Platforms%20must%20deploy%20access,%2FA%2013%2B%20or%20higher.> accessed
May 5, 2021.
50
ibid
51
Rana L, “Analysis of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code)
Rules” (Mondaq.comMarch 9, 2021) <https://www.mondaq.com/india/media/1044644/analysis-of-the-information-
technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021> accessed May 5, 2021

19
that put the state’s security and sovereignty at risk. Clearly this is a ploy to use their power
against the opponents of the current right wing regime.52

The second sector of films and web series can be controlled by claiming that certain
entertainment content hurts the religious or cultural sentiments of a particular group and thus
should be blocked or censored. The third sector of online news is very different from the other
OTT sectors but it is also lumped in with them so as to control free media. While this looks like
soft self- regulation and is a bit wider than just obscenity and pornography, this is a very harmful
step in the direction of overkill and complete control. Right now, bypasses like VPN can be used
to access blocked or banned media content including pornography and avoid getting detected. So
it is not that easy to put these laws into practice. But we do need to look at the government’s
intentions and actions to make this happen.53

52
ibid
53
Amrita Nayak Dutta, “This Is How Modi Govt’s New Rules Will Regulate Digital Media and OTT Content”
(ThePrintFebruary 25, 2021) <https://theprint.in/india/this-is-how-modi-govts-new-rules-will-regulate-digital-
media-and-ott-content/611909/> accessed May 5, 2021

20
Conclusion
Although governments of different nations have their own laws pertaining to pornography,
obscenity, indecent speech, etc., social media platforms and intermediaries present a unique set
of problems that cannot be dealt with so easily since they operate at a global level. Every day the
number of people who have access to the internet is growing in India and as a result there is also
an increase in the rate of cyber-crimes. Indian judiciary has acknowledged that with changing
times, the concept of obscenity has also changed in the minds of the general public. The stringent
standards of what is appropriate for the consumption of our society have loosened up quite a lot
as a result of progressive mindset of the newer generations. Although it is necessary to get rid of
social evils like child pornography or sexualizing people without their consent, there needs to be
a clear demarcation between these cases and the ones that come under the ambit of art or
education in order to truly carry out the purpose of the given legislations.
In the last two decades, the popularity of social media sites like Facebook, Twitter, Instagram,
etc. has soared immensely and thus they have provided a new platform for people to express
themselves. Many women and queer communities make posts exercising their sexual expression
as a way of reclaiming their narrative which is non-normative and it is labeled as dangerous,
obscene or pornographic. The concept of obscenity in legal language originated in the colonial
era when any expression of sexual desires through actions or publication of material was
criminalized, even if it was for educational purposes. Colonial criminal law even went as far as
to criminalize any sexual activities done in private because they were considered ‘unnatural’.
Almost all major platforms do not allow any content that relates to sexual arousal or gratification
onto their servers. These guidelines essentially do the same work as the colonial era laws but in a
digital era.
Since online platforms are an easy place for hate speech and disinformation to spread, it has
become a matter of serious concern for governments and activists around the world to regulate
how people interact with the world on these sites. Many find the policies put in place by the
online platforms themselves to be unsatisfactory since they either do not do a good job of
restricting harmful content or they end up banning potentially valuable information. Another
concern that comes with that is whether owners of such companies who make these policy
decisions have too much power in their hands since they essentially regulate public behavior in
the current digital age but they are not elected officials. On the other hand, it can also be argued

21
that it is the right of the business owners to run their social media platforms how they see fit and
any legal infringement would be a violation of their right to exercise their own freedom. This
makes this an extremely complex topic of global importance which does not have an easy
solution.

22
Bibliography
1. “Merriam-Webster Dictionary” (Merriam-webster.com2021) <https://www.merriam-
webster.com/dictionary/pornography> accessed April 15, 2021
2. “Notification Dated, the 25th February, 2021 G.S.R. 139(E): The Information
Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 |
Ministry of Electronics and Information Technology, Government of India”
(Meity.gov.in2021)
3. “Obscenity, Indecency and Profanity” (Federal Communications Commission November
18, 2010)
4. “Social Media — a Definition – Amy Campbell’s Web Log” (Harvard.eduJanuary 21,
2010)
5. “The Moral Right of the Majority to Restrict Obscenity and Pornography Through Law |
Ethics: Vol 86, No 3” (Ethics2012)
6. Amrita Nayak Dutta, “This Is How Modi Govt’s New Rules Will Regulate Digital Media
and OTT Content” (ThePrintFebruary 25, 2021)
7. Aveek Sarkar v. State of West Bengal, (2014) 4 SCC 257
8. Bobby Art International & Ors. v. Ompal Singh Hoon, 1996 AIR 1846
9. Chandrakant Kayandas Kakodar vs The State of Maharashtra, 1970 AIR 1390
10. Dillinger, Jessica. "List Of Countries By Internet Users." World Atlas, May 6, 2021,
11. Director General, Directorate General of Doordarshan & Others v. Anand Patwardhan
and Another, 1996 (8) SCC 433
12. Farokhmanesh M, “YouTube Is Demonetizing Some LGBT Videos — and Adding Anti-
LGBT Ads to Others” (The VergeJune 4, 2018)
13. Findlay S, “TikTok’s India Ban Should Be a Warning for Tech Companies”
(@FinancialTimesApril 19, 2021).
14. Garner, Bryan A., and Henry Campbell Black. Black's Law Dictionary. 9th ed. St. Paul,
MN: West, 2009. Print.
15. Hald, G. M., Seaman, C., & Linz, D., “Sexuality and pornography”, 2014.
16. Hay M, “Why Science Has No Idea Whether Porn Is Good or Bad for You”
(InsideHookSeptember 15, 2020)

23
17. Henkin, Louis. “Morals and the Constitution: The Sin of Obscenity.” Columbia Law
Review, vol. 63, no. 3, 1963
18. Indian Penal Code
19. Information Technology Act, 2000
20. K.A. Abbas v. Union of India and Anr, 1971 AIR 481
21. MANU/SCOR/27539/2017
22. Maqbool Fida Husain vs Raj Kumar Pandey, 2008 CRI. L. J. 4107
23. Maria Massimo, Free the Nipple–Fort Collins and the Enduring Fight for Gender
Equality, 61 B.C. L. Rev. E.Supp. II.-430 (2020)
24. Nilashish Chaudhary, Bois Locker Room: Letter Petition Before SC Seeks Criminal
Action, Live Law, (April 15, 2020)
25. Online F, “New Rules for OTT Platforms: Regulation or Restriction?” (The Financial
Express March 5, 2021)
26. Philip M. Napoli, “Social Media and the Public Interest: Media Regulation in the
Disinformation Age”, Columbia University Press, 2019.
27. Protection of Children from Sexual Offences (POCSO) Act, 2012
28. Rana L, “Analysis of the Information Technology (Intermediary Guidelines and Digital
Media Ethics Code) Rules” (Mondaq.comMarch 9, 2021)
29. Ranjit D. Udeshi v. The State of Maharashtra, 1965 AIR 881
30. Renee Randazzo, Kaelin Farmer & Sharon Lamb (2015) Queer Women's Perspectives on
Sexualization of Women in Media, Journal of Bisexuality, 15:1, 99-129
31. Rimm H, “After Instagram Rewrote Its Rules, Sex Workers Had to Get Creative to
Survive” (Refinery29.comJanuary 21, 2021)
32. Spencer Kass, 'Regulation and the Internet' (1998) 26 SU L Rev 93
33. State of Maharashtra v. Joyce Zee alia Temiko, (1975) 77 B. R. L. J. 218
34. Valtchanov BL and Parry DC, “A Porn of One’s Own” [2020] Sex and Leisure 109
35. Webster's Third New International Dictionary of the English Language, Unabridged.
Springfield, Mass.: Merriam-Webster, 2002.
36. Yuval Karniel, 'Freedom of Speech on the Internet' (1999) 1 Alei Mishpat 163

24