Self-Regulation For Online Media Ineffective; Need Independent & Autonomous Body For Effective Regulation, Says Supreme Court

The Supreme Court on Thursday (November 27) stressed the need for a "neutral, independent and autonomous" body to regulate obscene, offensive or illegal content in online platforms, expressing dissatisfaction with the efficacy of the "self-regulation" model being followed by media entities.

A bench comprising Chief Justice of India Surya Kant and Justice Joymalya Bagchi was hearing the petitions filed by podcaster Ranveer Allahabadia and others challenging the FIRs related to the obscene content in the "India's Got Latent" show. Earlier, the bench had expanded the scope of the matter to consider guidelines against online obscenity.

Today, Attorney General for India R Venkataramani and Solicitor General for India Tushar Mehta informed the bench that the Union Government has proposed some new guidelines and is in the process of consultation with the stakeholders.

SG said that the issue was not just confined to "obscenity" but "perversity" in User Generated Content (UGC),  which are published by individuals in their own YouTube channels or other platforms. CJI Kant expressed surprise that such content creators have no regulation. "So I create my own channel, I am not accountable to anyone...somebody has to be accountable!" CJI Kant said.

"Freedom of speech is an invaluable right but it cannot lead to perversity," SG. "Right to speech has to be respected, suppose there is a programme, if it has adult content, so some warning in advance must be there," CJI said.

Senior Advocate Amit Sibal, representing the Indian Broadcast and Digital Foundation (comprising OTT platforms like Netflix), informed the bench that regulations are already in place in the form of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which are under challenge in a batch of petitions which have been transferred to the Delhi High Court. He further informed that despite the stay of some of the provisions of the Rules, the OTT platforms were voluntarily following the Digital Media Ethics Code, by labelling the nature of content and giving age classifications. He also informed that there is a body headed by Justice (Retired) Gita Mittal to deal with complaints against content.

At this juncture, CJI Kant expressed reservations about the self-regulatory mechanism and expressed the need for statutory regulation.

"Self styled bodies will not help..some neutral autonomous bodies which are free from the influence of those who exploit all of this and the state also is needed as a regulatory measure," CJI Kant expressed. If the self-regulation mechanism was so effective, why were instances of violations repeating, CJI asked.

Joining the CJI, Justice Bagchi said, "Where the content is perceived as anti-national or disruptive of society's norms, will the creator take responsibility for it? Will self-regulation be sufficient? The difficulty we are facing is the response time. Once the scurrilious material is uploaded, by the time the authorities react, it has gone viral, to millions of viewers, so how do you control that?"

Advocate Prashant Bhushan, appearing for a disability rights activist who has intervened in the case, raised concerns about the use of the word "anti-national", saying that the term is very vague and was capable of being misused against those criticising the government. "Forget shreds of anti-national, supposing there is a video which shows that this part is not part of India- what do you do about that?" Justice Bagchi asked.

CJI Kant expressed concerns about the rights of the poor and marginalised, whose rights might be infringed by offensive content. "If you allow everything to be aired and telecast then what will you do ....are you going on and expecting that innocent people will go and defend...there are millions and millions of victims of these kinds of ...the insult, humiliation on the kind of things are taking place!" CJI Kant said.

CJI also stated that the warnings and disclaimers in shows are not effective and said that there have to be age verification methods.

SG said that some of the statements made in the 'India's Got Latent' show were so disgusting and gross that he cannot repeat them in the Court.

The counsel for News Broadcasters and Digital Association requested that they also be consulted for the guidelines.

The bench suggested that the Government publish the draft of the guidelines and invite public comments, and then constitute an expert committee with domain experts and persons with judicial background to study the issue.

The bench recorded in the order the submission of the AG that the Ministry of Broadcasting is proposing certain guidelines which are to be brought in public domain for discussion. The matter was posted after four weeks.

"With respect to the evolution of effective mechanism, we are informed by the learned Attorney General that the Ministry of Information and Broadcasting is proposing certain guidelines which are to be brought in public domain to invite suggestions from the public at large. Post the matter for further consideration after four weeks," the bench stated in the order. The bench initially used the word "preventive mechanism" in the order; however, after Amit Sibal raised a concern that it might give an impression of pre-censorship, the bench changed it as "effective."

"We will not put our seal of approval on something which can gag somebody. We will only address the vaccum," CJI said.

The bench was dealing with 3 cases - two petitions filed by YouTubers Ranveer Allahabadia and Ashish Chanchlani for clubbing of FIRs lodged against them in connection with India's Got Latent controversy, and one petition filed by M/s SMA Cure Foundation.

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