Applicability Of Indian Legislations To The Online Curated Content

5 min


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-Authored by:

Arunav Seksaria,
3rd Year Law Student at
ICFAI Law School, Hyderabad

Introduction:

It is quite unfortunate to mention out the fact that there is no legislation in India which primarily talks about the regulation of online curated content that is being circulated day and night without any proper check on its authenticity. Low Cost smartphones with unlimited mobile data and attractive subscriptions by online providers of content have made the way for the content to come. It was an incident last year that published online a video with a false message claiming a child was abducted and descriptions of the alleged abductor. The video created a significant mass violence for justice, resulting to 20 deaths. Various incidents just like this one has made the sovereign aware that there requires a greater law-making need so as to curb such online information relating to unlawful speeches and videos containing defamatory, indecent, threatening to the public order and hateful in nature. The shows that are streamed online through the mediums like Netflix, Amazon Prime does not go through any regulation in respect of its contents which are viewed by every age group. The recent web series which was broadcasted in Amazon Prime named “Pataal Lok” was criticised based on its contents which were based on communal differences. Such content of the show was never regulated and that infuriated the public for hurting the sentiments of the nation.[1]

Application of the laws of the country: 

Section 2(c) of the Cinematograph Act, 1952 which is primarily a medium specific legislation talks about the definition of cinematograph and what comes within it. In the case of Padmanabh Shankar v. Union of India,[2] the main issue that was before the Court was whether the broadcast of content through online platform comes under section 2(c) of the legislation or not. The Division Bench of the Karnataka High Court held that online content cannot be regulated under the Cinematograph Act, in the name of public exhibition.[3] However, it is important to mention out the fact that the Delhi High Court in the case of Super Casette Ltd. v. Board of Film Certificate and Ors,[4] held that the content of the DVDS’s and VCR’s does come under the above-mentioned legislation. The Karnataka High Court while delivering the judgement in the case of Padmanabh Shankar held that the online content in today’s generation is much different from DVD and VCR’s and there remains no rational nexus to mix the same.

The Cable Television Networks (Regulation) Act, 1995 also being a medium specific legislation does not include in its ambit the regulation of the online content. It applies to contents available only on cable television. Such legislations do not apply to online content regulation.[5]

Although there is no expressed legislation which primarily talks about the content regulation of the online , still the laws which are applicable to the offline medium it will also be applied to the online medium in matters of any threat to the country or matters of defamatory in nature. Section 124 of the Indian Penal Code prohibits the use of word either spoken or written or through gestures and sign tries to bring in hatred or disaffection shall be punished with imprisoned. This legislation primarily restricting anti India notion also regulates the contents of the online platform. However, the legislations flowing from the Information Technology Act, 2000 does not adhere to the “safe harbour” principle as India’s current intermediary liability regime does not make the intermediaries (service providers and online platforms) liable for the content they host and show it to the audience when they act as mere intermediary in the network

Section 13 of the Unlawful Activities (Prevention) Act, 1967 prohibits taking part in ‘unlawful activities.’ An ‘unlawful activity’ has been defined as any action taken by an individual or association whether by act or by words, either spoken or written, or by signs or by visible representation or otherwise, which is intended to bring about the cessation of a part of the territory of India, disrupts the sovereignty or territorial integrity of India, such content which also comes under the anti-India notion is also regulated under the legislation.[6]

However, the regulation of the online content must be done in accordance with the right to freedom of speech and expression mentioned under Article 19 of the Indian Constitution. The Supreme Court in the case of Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of Bengal[7] has observed that for ensuring the free speech right of the citizens of this  great country, it is necessary to mention that the citizens have the benefit of plurality  and multiplicity of views and a range of opinions on all public issues. A successful system of democracy posits an ‘aware’ citizenry. Diversity of opinions, views, ideas, creations and ideologies is essential to enable and make the citizens to arrive at informed judgment and reality on all issues toughing them.”

The digital exploitation of children has also grown profoundly in today’s generation with the growth of online mediums providing content generation. There have been various crimes such as online bullying, child pornography which has grown immensely with the growth of online content. The enactment of the POCSO Act, 2012 was done with the legislative objective of preventing such offences. The special law was brought in to protect children from offences of online sexual harassment, sexual assault and pornography. Section 14 and 15 of the legislation lays down the sanction for using the child under the pornography domain and to stop such pornographic videos going online. The government in such regard has blocked the websites containing extreme Child Sexual Abuse Material (CSAM) based on Internet Watch Foundation (IWF), UK List.

Section 354A and 354D of the Indian Penal Code, 1860 also prohibits the activity of online bullying and cyber stalking of women and depicts such offences as a grave and serious offence bringing in greater punishments. The recent approval of the scheme namely “Cyber Crime Prevention against Women and Children” by the Ministry of Home Affairs was constructed to enable the public to file direct complaint pertaining to child abuse, pornography etc.[8]

Conclusion – The Road Ahead:

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The various types of offences mentioned above and its brutality is known to every vigilant citizen of the country, the inadequate regulation laws of the internet medium has in fluxed such offences in the society. Although the fundamental right of freedom of speech and expression of the people needs to be upheld in every situation still there remains a reasonable restriction to curb such right when it threatens the national security of the country or it tries to hurt the communal feelings of the people. Therefore, it holds greater importance to bring in a law which will constantly supervise and regulate such contents as the internet is a worldwide portal with no physical limitations to uphold society's sanctity, security and peace.


[1] Legal Notice sent to Amazon and Director of Pataal Lok, OpIndia, May 29th 2020.

[2] Padmanabh Shankar v. Union of India W.P. No 6050/2019

[3] Ibid

[4] Super Casette Ltd. v. Board of Film Certificate and Ors W.P. No 2543 of 2007

[5] S.S. Rana, Minimum Modicum of Obscenity & Need of Online Content Regulation in India, Mondaq, September 10th, 2019.

[6] Discussion Paper: Online Curated Content Regulation, Nishith Desai and Associates, October 2019.

[7]  Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of Bengal AIR1995SC1236

[8] Digital Exploitation of Children, PIB Delhi, 18th July 2019


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