There is no doubt that the digital revolution has fundamentally transformed the contours of free expression globally. However, the concerns revolving around proliferation of obscene, offensive or harmful material, particularly in User Based Content generation environment requires a careful navigation, while striking a fragile balance between Article 19(1)(a) and Public Morality. The fact that online social media platforms blur the boundaries between private speech and public broadcast, enabling the dissemination of content at an unprecedented speed, raises a regulatory challenge. The collision between free speech and online virality thus lies at the heart of the present issue, that harmful content must be suppressed, while meaningful expression must also be protected from becoming collateral damage in the quest for morality in the present user-based environment.
Obscenity vs. Modicum of Obscenity
The concept of obscenity is inherently context-dependent and culture-specific, varying from one fraction of society to another and evolving with changing social norms. As moral standards are subjective, defining obscenity with precision remains a daunting task. The prevalent test of obscenity in prasenti in India is the contemporary community standard test.
The lacuna of having a specific definition for obscenity has led to varied interpretations and has raised a question of what constitutes obscenity in Legal context. The Constitution Bench of the Hon’ble Supreme Court in the year 1965 has observed that, the world, is now able to tolerate much more than formerly, having become indurated by literature of different sorts. The attitude is not yet settled, the Penal Code does not define the word ‘obscene’ and this delicate task of how to distinguish between that which is artistic and that which is obscene has to be performed by courts.
As the time has evolved there has been a radical change by applying the “Community Standard test” rather than the “Hicklin test” Although, tests like Miller Test also exist - which enunciate the “Comparable Test” for determining whether materials are obscene, the trier of fact may rely on widespread availability of comparable materials to indicate that such materials are accepted by community and hence, not obscene.
{{/usCountry}}As the time has evolved there has been a radical change by applying the “Community Standard test” rather than the “Hicklin test” Although, tests like Miller Test also exist - which enunciate the “Comparable Test” for determining whether materials are obscene, the trier of fact may rely on widespread availability of comparable materials to indicate that such materials are accepted by community and hence, not obscene.
{{/usCountry}}Thus, modicum of obscenity is not unfamiliar in the current fabric of society. It represents a minimal, contextually justified degree of explicitness that may be both tolerable and, at times, necessary within certain forms of expression such as satire, protest, literature, and artistic performance. Judicial precedents have firmly established that vulgarity and profanities do not per se constitute obscenity. While a person may find vulgar and expletive-filled language to be distasteful, unpalatable, uncivil, and improper, that by itself is not sufficient to be “obscene”.
It is important to emphasize that Artistic or Poetic Freedom is not absolute or limitless and is subject to reasonable restrictions in the interest of public decency and morality and the same is also embodied in Section 292 IPC/293 BNS. Further, in the wake of modernization, it is feared that social responsibilities are seen receding from artistic consciousness.
While morality pertains more to conventions and customs that determine or govern behaviour, ethics itself is a complex and controversial subject due to the heterogeneous nature of society. It must be recognized that the mass is a faceless, large, heterogeneous and amorphous body of people with different ideologies, faiths, belief and attachments to dogmas.
Present Digital & Regulatory Posture
The architecture of the modern internet is built on a participatory model where users are not merely consumers of content but active creators on various digital platforms which are central to this digital ecosystem. This phenomenon, termed as user-based content or user-generated content. Further, what sets this user based content apart from traditional speech is its virality, the rapid and often uncontrollable manner in which content spreads across networks.
It is apparent from the current digital landscape that the boundary between content creator, curator, and consumer has become increasingly fluid. Thus, the question arises that since social media platforms offer content in a highly personalized and user-controlled environment, can content issue be resolved by enhanced scrutiny?
Content that is considered illegal offline will also be illegal online. Thus, content on digital platforms is not completely unregulated and is subject to applicable laws.
Section 67-A criminalizes the publication, transmission, or causing the publication or transmission of any material containing sexually explicit acts or conduct in electronic form. Although the terms “explicit,” “act,” and “conduct” are broad and open to interpretation, they must be understood in the context of “obscenity” as defined under Section 67.
The law pertaining to intermediaries provides all “intermediaries” with immunity from prosecution for carrying or transmitting user generated content, subject to the fulfilment of certain conditions. However, the true challenge lies in the user-driven nature of content creation today, where the sheer volume and spontaneity of posts make real-time monitoring extremely difficult.
In so far as Self-Regulation is concerned, the IT Rules 2021 provided the framework for the self-regulation of OTT content while establishing a three-tier grievance redressal system. However, a social media intermediary can lose its safe harbor if it does not comply with the IT Rules. Additionally, the MIB has assumed a supervisory role, overseeing compliance with the rules and handling user grievances.
Although intermediaries enjoy protection from direct liability for user-generated content, regulatory accountability for the creators of such content remains ambiguous. The challenge lies in reconciling the fundamental right to free speech with the necessity of curbing the proliferation of obscene or harmful material online. The inherently viral nature of user-generated content intensifies this issue, given its rapid dissemination and extensive reach, which amplify its potential impact.
Since platforms typically do not exercise editorial control over such content, they are generally not held liable, provided they comply with the safeguards under the Information Technology Act, 2000.
At present, the IT Amendment Rules, 2023, especially the provision allowing a government fact check unit to unilaterally declare content as “fake or misleading,” have been widely challenged and the matter is pending before the Hon’ble High Court of Delhi as per the directions issued by the Hon’ble Supreme Court.
Recognizing the unique nature of the internet as a medium of communication, the Hon’ble Supreme Court while striking down Section 66-A of the IT Act, 2000 had opined that there is an intelligible differentia between speech on the internet and other mediums of communication for which separate offences can certainly be created by legislation.
It is interesting to note that in the current legal landscape, criminal action is often initiated against content creators following the filing of a complaint, particularly when the content is perceived to be offensive. In one such case of Imran pratapgadhi, the Hon’ble Supreme Court held that, when an allegation is of the commission of an offence covered by the law referred to in clause (2) of Article 19, if sub-Section (3) of Section 173 BNS is applicable, it is always appropriate to conduct a preliminary inquiry to ascertain whether a prima facie case is made out to proceed against the accused, while noting that, “sometimes, we, the Judges, may not like spoken or written words. But, still, it is our duty to uphold the fundamental right under Article 19 (1)(a)”.
Conclusion
The Indian legal jurisprudence has long recognized that obscenity is a fluid and evolving concept and has largely remained unaffected by subjective moral panic. At the same time, the Courts have consistently upheld that the freedom of speech and expression is paramount.
In the present digital ecosystem, the legal framework is still grappling with the implications of online virality. The real dilemma lies not only in the pace of content dissemination but also in who decides the threshold of offensiveness, and at what point expression in the digital space may warrant criminal prosecution.
It may not be out of place to mention that social responsibility cannot be dissociated from artistic or digital expression. The core challenge stems from a decentralised, user-driven content ecosystem, which complicates regulatory oversight and increases the risk of both under and over regulation. This landscape points us towards the need for Self - Regulation by creators, platforms, and intermediaries alike. Ultimately, any regulation must strike a balance between accountability and autonomy, navigating a delicate legal and ethical tightrope that will define the future of free speech in the digital age.
Arjun Garg is an Advocate on Record of Supreme Court of India and Sagun Srivastava is an Advocate and Associate at Arjun Garg & Associates.