What is obscene content? The government is working out a new answer to this old question.
According to a report published by the Hindu on 22nd November, the government wants to explicitly define “obscene digital content” and include it in the Code of Ethics part of the IT Rules 2021.
These are the rules that govern news platforms and streaming platforms like Netflix and Amazon Prime Video.
For streaming platforms, the proposed rule would require content to be compliant with the Cinematograph Act, 1952, and be fit for “public exhibition”.
“Obscenity” is any content that offends “good taste or decency”, presents “criminality as desirable”, shows “indecent, vulgar, suggestive, repulsive or offensive themes”, or has “visuals or words which reflect a slandering, ironical and snobbish attitude in the portrayal of certain ethnic, linguistic and regional groups”.
There are seventeen such restrictions, according to the story, reported by Aroon Deep.
The proposed rule draws from Section 67 of the Information Technology Act, 2000, the Cable Television Networks (Regulation) Act, 1995 and its rules, and the Indian Penal Code. Section 67 of the IT Act would also be the “legal basis” for this amendment, the paper said citing a draft document.
“To ascertain whether a piece of content has violated the Code or not, the new rule suggests using the ‘Community Standard Test’. This test was prescribed by the Supreme Court in Aveek Sarkar v. State of West Bengal. It states that content passes the test if a person, having contemporary community standards, does not believe that the work appeals or pleases to the lustful or voyeuristic interest.
This obscenity rule would not apply to content which has literary, scientific, artistic or political value in its entirety, the draft proposal reportedly says.
Background
- The proposal is being made in response to a legal case that followed the controversy around comedian Samay Raina, whose YouTube channel was the subject of intense backlash after a joke featuring an incestuous hypothetical dilemma in a paywalled part of Mr. Raina’s channel, made by the social media influencer Ranveer Allahabadia, went viral.
- At present there no rules in effect to rule on obscene digital content. Rules 9(1) and 9(3) of the IT Rules, which seek to enforce the existing code of ethics for streaming services and news platforms, have been stayed by the Bombay High Court, in a case that is now being heard in the Delhi High Court, along with other challenges to the IT Rules. The note by the Information and Broadcasting Ministry acknowledges that this judicial stay is still active.
In the U.S., one of the most important principles is the content discrimination principle. Under this principle, there are content-based laws and content-neutral laws:
- Content-based laws are those that treat different kinds of speech differently, depending on its content or subject matter.
- Content-neutral laws are those that do not target speech based on its subject matter or content, instead applying across the board to all types of speech.
Content-based laws are viewed with more suspicion than content-neutral laws. That’s because the First Amendment says the government should not be engaging in thought control or determining what are acceptable or unacceptable subjects or viewpoints. That is for the people to decide, not the government.
— Freedom Forum