New Content Guidelines Proposed for Digital

Proposed Guidelines on Online Content Regulation in India

• Legal Context:

  • Proposed guidelines aim to define “obscenity” in digital content as part of the Information Technology Rules, 2021, which govern social media and OTT platforms.
  • The guidelines draw from the Cable Television Networks (Regulation) Act, 1995, and incorporate aspects of Section 67 of the IT Act, 2000 and the Indian Penal Code.
  • The proposal responds to a directive from the Supreme Court, emphasizing compliance with Article 19(2) of the Constitution, which allows reasonable restrictions on freedom of speech.

• Content Definitions and Restrictions:

  • The amendments propose explicit definitions of "obscene digital content" to be included in the Code of Ethics for social media, OTT platforms, and digital news.
  • Current restrictions on digital content include prohibitions against obscene, pornographic, and invasive content, along with prohibitions against content that is racially or ethnically objectionable or promotes criminal activities such as money laundering.
  • The revised Code of Ethics would introduce guidelines on avoiding impressions of "good taste or decency," presenting "criminality as desirable," and addressing the portrayal of ethnic, linguistic, and regional groups.

• Judicial Considerations:

  • Certain provisions of the IT Rules are currently stayed by the Bombay High Court; the cases related to these provisions are ongoing in the Delhi High Court.
  • These judicial challenges indicate potential constitutional issues regarding the expansion of executive powers through the IT Rules.

• Community Standards Test:

  • Content moderation may apply a "Community Standard Test," as referenced in the Aveek Sarkar v. State of West Bengal ruling. This test assesses if content appeals to base or voyeuristic interests and recognizes exceptions for content with literary, scientific, artistic, or political value.

• Public Consultation:

  • The proposal is set to undergo public consultation following Supreme Court feedback before implementation.

• Impact on OTT and Broadcasting:

  • The new rules would impose compliance for OTT platforms with the Cinematograph Act, 1952, requiring content to be suitable for public exhibition.

• Expert Critique:

  • Critics, including legal experts, argue that the proposed guidelines represent a significant regulatory tightening on digital content, reflecting broad and vague censorship standards that could infringe on fundamental rights.

This proposal indicates a sweeping shift in how digital content is regulated in India, aiming to balance regulatory measures with constitutional rights, amidst ongoing legal scrutiny and public discussions.