CENTRAL UNIVERSITY OF SOUTH BIHAR

SCHOOL OF LAW AND GOVERNANCE

CYBER LAW

PROJECT ON – Social Media Platform and Restrictions

regarding Obscenity and Pornography

SUBMITTED BY – SUBMITTED TO –
SHREYA DR. S.P. SRIVASTAVA SIR
BA LLB (H) PROFESSOR
EN. No - CUSB2013125110 SCHOOL OF LAW AND GOVERNANCE
7TH SEM (2020-2025) CENTRAL UNIVERSITY OF SOUTH BIHAR
SEC-B

1
 ACKNOWLEDGEMENT
At this point of time, I would like to express my gratitude to all those who gave me their support
to complete this project. I am grateful to S.P. SRIVASTAVA SIR, for giving me permission to
commence this project on the topic Social Media Platform and Restrictions regarding
Obscenity and Pornography, in the first instance and to do necessary study and research.

I want to thank my faculty members for all their professional advice, value added time, effort and
enterprise help, support, interest and valuable hints that encouraged me to go ahead with my
project. I am deeply indebted to my colleagues for their meticulous planning, layout, presentation
and above all for their consideration and time. My heartfelt appreciation also goes to seniors and
my classmate for their stimulating suggestions and encouragement which helped me at each level
of my research and in writing of this project.

Especially, I would like to give my special thanks to my parents, family members and God whose
patient love enabled me to complete this project.

SHREYA
CUSB2013125110

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 Table of Contents

INTRODUCTION 4

Chapter 1 - Legal Provisions in India against Sharing of Obscene Content Online 6

The Information Technology (IT) Act, 2000 6

Section 66E – Punishment for violation of privacy 6
Section 67, 67 A, 67 B - Punishment for publishing or transmitting obscene material or material
containing sexually explicit act, etc. or material depicting children in sexually explicit act, etc., in
electronic form respectively 7
Chapter 2 - Obscenity as understood by Courts in India 7

Indian Courts on Obscenity 8

Ranjit D. Udeshi v. The State of Maharashtra 8
Chandrakant Kayandas Kakodar vs The State of Maharashtra 8
Director General, Directorate General of Doordarshan & Others v. Anand Patwardhan and 8
Maqbool Fida Husain vs Raj Kumar Pandey 9
Aveek Sarkar v. State of West Bengal 9
Chapter 3 - Free Speech and the Regulation of Social Media Content 9

Obscenity and Censorship in the Digital Age 10

Explicit Content and Private Actors 10
The New IT Rules regulating OTT platforms 11
CONCLUSION 13
BIBLIOGRAPHY 14

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INTRODUCTION
Definition of Pornography as per the Merriam-Webster Dictionary is “the depiction of erotic
behavior (as in pictures or writing) intended to cause sexual excitement; material (such as books
or a photograph) that depicts erotic behavior and is intended to cause sexual excitement; the
depiction of acts in a sensational manner so as to arouse a quick intense emotional reaction.”1 The
Black's Law Dictionary describes Obscenity as “character or quality of being obscene, conduct,
tending to corrupt the public merely by its indecency or lowness.” 2 As per Webster's New
International Dictionary, "obscene" means “disgusting to the senses, usually because of some filthy
grotesque of unnatural quality, grossly repugnant to the generally accepted notions of what is
appropriate.”3 The Federal Communications Commission (FCC) defines indecent speech as
“material that, in context, depicts or describes sexual or excretory organs or activities in terms
patently offensive as measured by contemporary community standards for the broadcast
medium.”3
Although governments of different nations have their own laws pertaining to these topics, social
media platforms and intermediaries present a unique set of problems that cannot be dealt with so
easily since they operate at a global level.
Social media can be defined as “a special class of web sites that provide users the ability and tools
to create and publish their own mini web sites or web pages. We become active participants in
creating, commenting, rating and recommending content rather than passive consumers of it.
Social media sites have 3 defining characteristics.
1. Majority of content is user generated
2. High degree of participation/interaction between users
3. Easily integrates with other sites”4

1
“Merriam-Webster Dictionary” (Merriam-webster.com2021)
<https://www.merriamwebster.com/dictionary/pornography> accessed April 15, 2021
2 3
Garner, Bryan A., and Henry Campbell Black. Black's Law Dictionary. 9th ed. St. Paul, MN: West, 2009. Print.
Webster's Third New International Dictionary of the English Language, Unabridged. Springfield, Mass.:
MerriamWebster, 2002.
3
“Obscenity, Indecency and Profanity” (Federal Communications Commission November 18, 2010)
<https://www.fcc.gov/general/obscenity-indecency-and-
profanity#:~:text=The%20Federal%20Communications%20Commission%20(FCC,standards%20for%20the%20bro
adcast%20medium.> accessed April 15, 2021
4
“Social Media — a Definition – Amy Campbell’s Web Log” (Harvard.eduJanuary 21, 2010)

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So social media platforms include “blogs (such as Blogger, Word Press, Type pad), social
networking (Facebook, LinkedIn), social bookmarking (Delicious, Stumble Upon) news sharing
(Dig, Yahoo! Buzz) and photo and video sharing sites (Flickr, Vimio and YouTube)”6 to give a
few examples.
The IT Act 2000 defines “intermediary” as “any person, who on behalf of another person receives
stores or transmits that record or provides any service with respect to that record and includes
telecom service providers, network service providers, internet service providers, webhosting
service providers, search engines, online payment sites, online-auction sites, online marketplaces
and cyber cafes.”5
In the given project we are going to be looking at restrictions on sharing porn and obscene material
online in two different ways. Every coin has two sides and so restrictions of this sort can be both
a good and a bad thing. Usually when such content is being shared online without the consent of
the parties involved or it is being shared in a way where it is largely harmful for the society then it
obviously seems like a good idea to ban such content. But sometimes putting up such restrictions
can also be seen as taking away people’s freedom of speech and expression. In which case, ban on
such content becomes more complex. Along with that, what material is categorized as
pornographic and what is categorized as artistic, informational or educational in nature is a very
important distinction to make. Labeling any content that contains nudity as pornographic or
obscene can be very harmful for society in the long run.
Therefore, in this research paper, we will start by looking at the legal provisions pertaining to
sharing obscene or pornographic material online in India. This chapter will mention how these laws
are helpful to people who have been wronged by having content of them that can be labeled
“pornographic or obscene” shared online in the public domain without their consent. The second
chapter will then explore judicial views on the same by examining a few cases regarding this
subject. The third chapter will deal with the other side of the argument about how such restrictions
limit our freedom of speech and expression. This chapter will explore not just legal restrictions but
also the policies of social media platforms that regulate behavior in online spaces and what that
means for society in general. Along with that, it will criticize the new IT rules that govern the OTT

<https://blogs.harvard.edu/amy/2010/01/21/social-media-a-definition/> accessed May 15, 2021 6

ibid
5
Information Technology Act, 2000, s 2(1)(Ua)(W)

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platforms in India. The project ends with the concluding chapter that gives my final thoughts on
the overall situation regarding the whole topic.

Chapter 1 - Legal Provisions in India against Sharing of Obscene Content

Online

Every day the number of people who have access to the internet is growing in India and as a result
there is also an increase in the rate of cyber-crimes. Specifically, cybercrimes related to sharing
obscene content online without the consent of women. The recent Bois Locker Room case 6 put
that in focus. In this case, a couple of adolescent boys were sharing photo shopped nude or
seminude pictures of minor girls and passing derogatory and objectifying comments. This was only
one of the many cases that comprise a larger societal issue.7We can understand the bad effects of
sharing pornographic and obscene material online through using this case as an example. Legally
speaking, the provisions that such an incident would attract would be sections 66E, 67, 67A and
67B of the IT Act, and sections 354D, 465, 471, 499, 500 and 509 of the IPC.
Since the girls were minors, sections 14 and 15 of the POCSO Act, 2012 would also apply. Let’s
look at these provisions below to understand the legal repercussions that a situation like this would
incur.
The Information Technology (IT) Act, 2000

Section 66E – Punishment for violation of privacy

This section punishes anyone “who, intentionally or knowingly captures, publishes or transmits
the image of a private area of any person without his or her consent”. This section forms a part of
the Right to Privacy which is now considered to be guaranteed as a fundamental right. It is
protected under the Right to Life Part III of the Indian Constitution. So violating this section would
also violate Article 21 of the Indian constitution.7

6
Nilashish Chaudhary, Bois Locker Room: Letter Petition Before SC Seeks Criminal Action, Live Law, (April 15,
7
Information Technology Act, 2000, S 66E

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Section 67, 67 A, 67 B - Punishment for publishing or transmitting obscene material or material
containing sexually explicit act, etc. or material depicting children in sexually explicit act, etc., in
electronic form respectively.

Section 67 punishes anyone who “publishes or transmits or causes to be published or transmitted

in the electronic form, any material which is lascivious or appeals to the prurient interest or if its
effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant
circumstances, to read, see or hear the matter contained or embodied in it”.8 Section 67A is similar
to section 67 except it punishes publication of “any material which contains sexually explicit act
or conduct”.9 Although these sections were intended to deter and punish digital obscenity and
voyeurism, in practice, it is very vague and constitutionally untenable. It doesn’t take into
consideration the consent of the parties involved and comes off very morally paternalistic in its
implication and there is lots of scope of misuse. Section 67B talks about punishment regarding
“material depicting children in sexually explicit act, etc., in electronic form”.10

Chapter 2 - Obscenity as understood by Courts in India

This chapter will further look at how Indian Courts understand the terms ‘obscene’ and
‘obscenity’. Section 292 of IPC lists the kinds of material that come under the ambit of ‘obscenity’
but these words have not been clearly defined. Section 67 of IT Act also punishes publication of
obscene material in electronic form but doesn’t define it. Sections 2(c), 3 & 4 of the Indecent
Representation of Women Prohibition Act, 1986 also prohibit such instances. Telecast of any
obscene content is prohibited on television by The Cable Television Network Regulation Act,
1995. Films are also examined before their release for any obscene content by Sections 4 and 5A
of Cinematograph Act. There were two tests for obscenity: Hicklin Test and Roth Test that were
developed in English Law and US courts respectively. Hicklin Test allows declaration of any work
as obscene based on only isolated parts of it without considering the context. Roth Test, on the
other hand, was narrower than Hicklin and considered the full theme of the complete material. It

8
Ibid, s 67
9
Ibid, s 67 A
10
Ibid, s 67 B

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would look at the social value of the work and apply contemporary community standards to judge
whether it was obscene or not.
Indian Courts on Obscenity

Ranjit D. Udeshi v. The State of Maharashtra

This was the first case in which the Indian courts defined obscenity. Any material that had the
tendency to corrupt anyone who can be easily affected by immoral influences was considered to
be obscene as long as it did not interfere with the constitutional right to freedom of speech and
expression. Therefore, in art and literature, sex and nudity alone cannot be the culpable factors for
it to be considered obscene without more evidence to its harmful nature.
K.A. Abbas v. Union of India and Anr
In this case, SC said that the right to freedom of speech and expression has an exception when it
comes to pre-censorship of content, although the artistic value of the content must be taken into
account as it may be good for society given the context.
Bobby Art International & Ors. v. Ompal Singh Hoon
The Supreme Court said that the scenes in the film Bandit Queen should not be seen in isolation
and the context of the whole film should be taken into consideration, which is about seeking respect
in society.
Chandrakant Kayandas Kakodar vs The State of Maharashtra
The Supreme Court acknowledged that the contemporary societal standards as to what is
considered inappropriate have changed vastly in the past quarter century. People of all ages now
have access to a wide variety of art and literature that contains depictions of love and sex, therefore
it cannot be said to have a corrupting effect on people.
Director General, Directorate General of Doordarshan & Others v. Anand Patwardhan and
Another
In this case, Doordarshan refused to telecast a documentary because it contained some scenes of
violence. The court said that depiction of violent scenes doesn’t necessarily promote violence,
rather it highlights the social injustices of the world and therefore it shouldn’t be denied exhibition.

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Maqbool Fida Husain vs Raj Kumar Pandey 11

Delhi High court held that a nude painting of ‘Bharat Mata’ is not obscene because nudity alone
does not constitute obscenity.
State of Maharashtra v. Joyce Zee alia Temiko 12
Bombay High Court held that any adult who goes to watch a cabaret show out of his own volition
cannot complain of annoyance.
Chapter 3 - Free Speech and the Regulation of Social Media Content

In the last two decades, the popularity of social media sites like Facebook, Twitter, Instagram, etc.
has soared immensely and thus they have provided a new platform for people to express
themselves.11 Since these sites are global in nature, no one government has control over its policies.
In fact, the companies that run these sites form their own policies with regard to regulating the
behavior of their users. Since online platforms are an easy place for hate speech and disinformation
to spread, it has become a matter of serious concern for governments and activists around the world
to regulate how people interact with the world on these sites. Many find the policies put in place
by the online platforms themselves to be unsatisfactory since they either do not do a good job of
restricting harmful content or they end up banning potentially valuable information. 12 Another
concern that comes with that is whether owners of such companies who make these policy
decisions have too much power in their hands since they essentially regulate public behavior in the
current digital age but they are not elected officials. On the other hand, it can also be argued that
it is the right of the business owners to run their social media platforms how they see fit and any
legal infringement would be a violation of their right to exercise their own freedom. Social media
sites can also be considered as their own special class of industries like broadcast media and state
can then interfere as a public policy concern. But too much state interference can also lead to fascist
governments using this control to exploit these sites for their own agendas.13

11
Dillinger, Jessica. "List Of Countries By Internet Users." World Atlas, May 6, 2021,
<worldatlas.com/articles/the20-countries-with-the-most-internetusers.html>
12
MANU/SCOR/27539/2017
Philip M. Napoli, “Social Media and the Public Interest: Media Regulation in the Disinformation Age”, Columbia
13

University Press, 2019.

9
 Obscenity and Censorship in the Digital Age
The Indian government last year banned many apps including TikTok and India has also banned
many porn websites.14 This is a common occurrence in many south Asian countries. Not only by
governments, but a lot of content online is banned by the policies of the platform itself. Many of
these restrictions negatively affect marginalized communities and their mediums of expression.
Many women and queer communities make posts exercising their sexual expression as a way of
reclaiming their narrative which is non-normative and it is labeled as dangerous, obscene or
pornographic.15 YouTube is known to be one of the internet platforms that censor content created
by LGBTQ+ creators. 16 Same is the case with Instagram and Facebook. These restrictions are
meant to diminish any ‘sexual’ content because it is automatically categorized as harmful and this
unfairly affects content created by queer communities and women.17 This comes from the taboo
surrounding sex, sexuality and nudity and hence the association of ‘harm’ with ‘pornography’.
And although there are definitely categories of porn that are truly harmful in nature, putting an
umbrella term of porn over every sexual material is very regressive and ultimately makes for a
bigger societal issue. This is part of a bigger debate that we won’t be getting into in this research
paper about the major feminist faultine as to whether porn can be ‘sex positive’ or ‘exploitative’
or both.18

Explicit Content and Private Actors

Almost all major platforms do not allow any content that relates to sexual arousal or gratification
onto their servers, including YouTube and Twitter. Facebook bans adult nudity and sexual acts.
Facebook has detailed guidelines as to which body parts are considered to be sexually explicit.

14
Findlay S, “TikTok’s India Ban Should Be a Warning for Tech Companies” (@FinancialTimesApril 19, 2021)
<https://www.ft.com/content/2e1e437b-484d-4b9a-bb22-64705dde89c2> accessed April 15, 2021.
15
Hald, G. M., Seaman, C., & Linz, D., “Sexuality and pornography”, 2014.
16
Farokhmanesh M, “YouTube Is Demonetizing Some LGBT Videos — and Adding Anti-LGBT Ads to Others”
(The VergeJune 4, 2018) <https://www.theverge.com/2018/6/4/17424472/youtube-lgbt-demonetization-
adsalgorithm> accessed April 15, 2021.
17
Rimm H, “After Instagram Rewrote Its Rules, Sex Workers Had to Get Creative to Survive”
(Refinery29.comJanuary 21, 2021) <https://www.refinery29.com/en-us/2021/01/10273074/instagram-ad-
guidelinesonlyfans> accessed April 15, 2021.
18
Valtchanov BL and Parry DC, “A Porn of One’s Own” [2020] Sex and Leisure 109

10
These guidelines essentially do the same work as the colonial era laws but in a digital era. These
platforms have been criticized by the public because of the way they affect their daily lives and the
way they shape our society. #FreetheNipple campaign is a great example of how these platforms
are called out for their double standards and sexism. Instagram also flags down educational posts
showing female genitalia or anything that has to do with female reproductive health because our
society is yet to conceive of women’s bodies in a non-sexual manner. Tumblr used to be the space
where adult content was allowed to be shared but two years ago they banned it as well. This
category of ‘adult content’ included genitalia and female nipples. Many users were outraged and
disappointed. Many sex workers have also complained of structural inequality that these
regulations impose on their profession in online spaces. Queer people, especially trans folks, have
time and again complained about how these adult policy restrictions heavily impact their
communities as their educational and informational posts are either blocked or shadow banned.
Same is the case with sexual health educators, kink communities and other marginalized
communities, as more and more mainstream online platforms are corporatized.
Therefore, it is important to remember that the battle against censorship contains multiple actors.

The New IT Rules regulating OTT platforms

A notification from the cabinet secretariat named Information Technology (Intermediary
Guidelines and Digital Media Ethics Code) Rules 2021 was introduced in order to put social media
platforms under the constitution and laws of India. This moves films, news, audio-visual programs
and current affairs available on online platforms under the scope of the IT ministry and is now
controlled by the Information and Broadcasting Ministry. Although this aims to control OTT
providers like Amazon and Netflix and their shows that contain violence, sexual acts, nudity and
indecent speech, this goes further than that to regulate free media as well, which is a much bigger
problem.19

19
Online F, “New Rules for OTT Platforms: Regulation or Restriction?” (The Financial Express March 5, 2021)
<https://www.financialexpress.com/opinion/new-rules-for-ott-platforms-regulation-or-
restriction/2207205/#:~:text=The%20new%20rules%20require%20OTT,itself%20through%20a%20grievance%20o
fficer.&text=OTT%20Platforms%20must%20deploy%20access,%2FA%2013%2B%20or%20higher.> accessed
May 5, 2021. 50 ibid

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The new rules cover three separate sectors within digital media. These sectors are very different
from each other but the similarity is that they all function through ‘cloud storage’ and not cable
towers, etc. Therefore, they are called ‘over the top’ or OTT.
1) Social media - Platforms like Twitter, Whatsapp, Instagram, etc. are included under this.
They are not content creators but intermediaries.
2) Online curated content - Players like Netflix, Hostar, Disney plus, Amazon Prime that
stream web series and movies.
3) Digital online news - Services like The Wire, Firstpost, The Quint, Scroll that are not part
of the mainstream media but print digital news very frequently. 20
The first sector, social media, is too big a space for the government to not feel threatened leaving
unsupervised. 3(1) (b) of the new rule dictates that social media platforms shall block content that
is “defamatory, obscene, pornographic, pedophilic, libelous…” This seems unnecessary since these
offences are already punishable under preexisting laws. Seems like this provision has been put there
to just force cooperation with the regime. While there is no action taken when Whatsapp hate
groups spread fake news and information. As per rule 3(1) (d), the government can order public
intermediaries like Facebook, Twitter and Instagram to remove ‘offending’ content within 36
hours, plus it allows the government to take other severe actions. Rule 4 (2) allows the government
to access the identity of news sources given that they relate to offences that put the state’s security
and sovereignty at risk. Clearly this is a ploy to use their power against the opponents of the current
right wing regime.21

The second sector of films and web series can be controlled by claiming that certain entertainment
content hurts the religious or cultural sentiments of a particular group and thus should be blocked
or censored. The third sector of online news is very different from the other OTT sectors but it is
also lumped in with them so as to control free media. While this looks like soft self- regulation and
is a bit wider than just obscenity and pornography, this is a very harmful step in the direction of
overkill and complete control. Right now, bypasses like VPN can be used to access blocked or

20
Rana L, “Analysis of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules”
(Mondaq.comMarch 9, 2021) <https://www.mondaq.com/india/media/1044644/analysis-of-the-
informationtechnology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021> accessed May 5, 2021
21
Ibid

12
banned media content including pornography and avoid getting detected. So it is not that easy to
put these laws into practice. But we do need to look at the government’s intentions and actions to
make this happen.22

CONCLUSION
Although governments of different nations have their own laws pertaining to pornography,
obscenity, indecent speech, etc., social media platforms and intermediaries present a unique set of
problems that cannot be dealt with so easily since they operate at a global level. Every day the
number of people who have access to the internet is growing in India and as a result there is also
an increase in the rate of cyber-crimes. Indian judiciary has acknowledged that with changing
times, the concept of obscenity has also changed in the minds of the general public. The stringent
standards of what is appropriate for the consumption of our society have loosened up quite a lot as
a result of progressive mindset of the newer generations. Although it is necessary to get rid of
social evils like child pornography or sexualizing people without their consent, there needs to be a
clear demarcation between these cases and the ones that come under the ambit of art or education
in order to truly carry out the purpose of the given legislations.
In the last two decades, the popularity of social media sites like Facebook, Twitter, Instagram, etc.
has soared immensely and thus they have provided a new platform for people to express
themselves. Many women and queer communities make posts exercising their sexual expression
as a way of reclaiming their narrative which is non-normative and it is labeled as dangerous,
obscene or pornographic. The concept of obscenity in legal language originated in the colonial era
when any expression of sexual desires through actions or publication of material was criminalized,
even if it was for educational purposes. Colonial criminal law even went as far as to criminalize
any sexual activities done in private because they were considered ‘unnatural’. Almost all major
platforms do not allow any content that relates to sexual arousal or gratification onto their servers.
These guidelines essentially do the same work as the colonial era laws but in a digital era.
Since online platforms are an easy place for hate speech and disinformation to spread, it has
become a matter of serious concern for governments and activists around the world to regulate
how people interact with the world on these sites. Many find the policies put in place by the online

22
Amrita Nayak Dutta, “This Is How Modi Govt’s New Rules Will Regulate Digital Media and OTT Content”
(ThePrintFebruary 25, 2021) <https://theprint.in/india/this-is-how-modi-govts-new-rules-will-regulate-digitalmedia-
and-ott-content/611909/> accessed May 5, 2021

13
 platforms themselves to be unsatisfactory since they either do not do a good job of restricting
harmful content or they end up banning potentially valuable information. Another concern that
comes with that is whether owners of such companies who make these policy decisions have too
much power in their hands since they essentially regulate public behavior in the current digital age
but they are not elected officials. On the other hand, it can also be argued that it is the right of the
business owners to run their social media platforms how they see fit and any legal infringement
would be a violation of their right to exercise their own freedom. This makes this an extremely
complex topic of global importance which does not have an easy solution.

BIBLIOGRAPHY

1. “Merriam-WebsterDictionary”(Merriam-webster.com2021)
<https://www.merriamwebster.com/dictionary/pornography> accessed April 15, 2021
2. “Notification Dated, the 25th February, 2021 G.S.R. 139(E): The Information Technology
(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 |, Ministry of Electronics
and Information Technology, Government of India” (Meity.gov.in2021)
3. “Obscenity, Indecency and Profanity” (Federal Communications Commission November 18,
2010)
4. “Social Media — a Definition – Amy Campbell’s Web Log” (Harvard.eduJanuary 21, 2010)
5. “The Moral Right of the Majority to Restrict Obscenity and Pornography Through Law | Ethics:
Vol 86, No 3” (Ethics2012)
6. Amrita Nayak Dutta, “This Is How Modi Govt’s New Rules Will Regulate Digital Media and OTT
Content” (ThePrintFebruary 25, 2021)

14