From Expression to Exploitation: The Legal Line Between Free Speech and Obscenity Online

The amplified usage of social media in the digital era has been sparking controversies between freedom of speech and its exploitation. Various social media platforms like Youtube, Facebook, Instagram, X (formerly known as Twitter), and TikTok had provided people a space for expressing themselves and also raised concern over their misuse, offensive and obscene content, and gaps in regulating such content-based platforms.

This discussion has been further stoked by the recent India's Got Latent (IGL) incident when Ranveer Allahbadia, a popular content creator, made a controversial remark about "parental sex" during an episode of IGL, which highlighted how internet platforms frequently straddle the thin line between content that may be harmful, deceptive, or vulgar and artistic expression. This blog examines the moral and legal implications of free speech in the digital sphere, relating it to India's current social media legislation, content moderation guidelines, and obscenity laws.

INDIA’S GOT LATENT CONTROVERY: 

The Maharashtra Cyber Police have charged Samay Raina, Ranveer Allahbadia, and others over alleged obscene content on India’s Got Latent. Following multiple FIRs, Allahbadia petitioned the Supreme Court under Article 321 for relief. The apex court has now sought the central government’s stance on regulating obscene content on YouTube and social media platforms.

FREEDOM OF SPEECH & EXPRESSION—A LIMB OF FUNDAMENTAL RIGHT:

Freedom of speech and expression is one of the essential fundamental right enshrined in Article 19(1)(a)2 of the Indian Constitution, which allows the citizens to exercise their right to uplift the spirit of democracy, which is embodied in the preamble of our constitution. However, the right to freedom of speech and expression is not an absolute right. Therefore, Article 19(2)3 of the Constitution specifies a few fair constraints that limit the right to freedom of speech and expression and prevent it from being an absolute right, such as public order, morality, and defamation. 

Obscenity meaning and its regulation in India:

The phrase "obscene" comes from the Latin word obscenus, which means unpleasant or revolting. Indian obscenity laws, particularly in digital media, have evolved over time. In the age of social media, obscenity is defined and punished under the Bharatiya Nyaya Sanhitha 2024, which replaces the IPC, and the IT Act 2000.

Section 67: Publication or electronic transmission of pornographic material is covered under this clause. Among the subsections are:

Section 67A4: This pertains to the distribution or circulation of any material that has explicit or graphic content.

Child pornography and associated offenses are covered under Section 67B.

Bhartiya Nyaya Sanhita (BNS) Section 353: 

Electronic communication has been added to the list of prohibited channels for disseminating false information that could disturb public order. It makes it possible for authorities to prosecute people who spread hate speech or encourage violence via social media or other online platforms, and it aids in strengthening enforcement against the growing problem of false news and online propaganda that can spark societal unrest. Additionally, Section 294 of the BNS specifically addresses broader definitions of pornographic content, such as electronically transmitted revenge porn. 

Section 292 of the IPC deals with the sale, distribution, and public exhibition of obscene books, pamphlets, and other materials. In addition to the above provisions Section-795 of IT Act, 2000 deals with the liability of intermediaries with respect to the storage, transmission of obscene content on their platforms.

Judicial Scrutiny on Freedom of Speech vs. Obscenity: 

The constitutional validity of Section 292 IPC was challenged in Ranjit D. Udeshiv. State of Maharashtra6. The Supreme Court noted that this fundamental freedom of speech is the foundation of our democracy and is meant to improve political or social conditions or advance human understanding, upholding the provisions of Section 292 and citing Article 19(1)(a). However, this freedom is subject to reasonable restrictions that may be judged necessary for the benefit of society as a whole; one such restriction is that imposed by public morality and decency.

In Aveek Sarkar v. State of West Bengal, the Supreme Court cited various English, U.S., and Canadian decisions before rejecting the Hicklin criteria for determining obscenity and upholding the "Community Standards Test" established by the Supreme Court of the United States.

A clear legal framework is required to designate undesirable content using a consultation process. Social media networks must be held accountable through independent supervision to ensure ethical compliance. Public awareness efforts should encourage digital responsibility and courteous conversation. While control is vital, excessive censorship threatens free expression. A balanced approach to content management that includes AI and transparent appeals systems can assist remove harmful information while protecting genuine discourse, ensuring a fair and open digital arena.

Maintaining positive social media takes collaboration. Policymakers must develop specific, adaptive legislation, platforms must impose stricter moderation using AI-powered technologies, and users must communicate ethically. Digital literacy in education can promote responsible online behaviour and courteous conversation.

References

1 Article 32, Indian Constitution1950

2 Article 19(1)(a), The Constitution of India, 1950

3 Article 19(2), The Constitution of India, 1950

4 Section 67A, The Information Technology Act,2000.

5 Section 79, The Information Technology Act,2000.

6 https://freelegalconsultancy.blogspot.com/2016/12/sections-292-and-294-of-indian-penal.html

This article is authored by N Aditya Sriram. He was among the Top 40 performers in the Corporate Law Quiz Competition organized by Lets Learn Law.