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Delhi High Court directs IT Ministry to formulate law/guidelines for regulation of content on social media, OTT platforms

The Delhi High Court has directed the Ministry of Information and Technology to formulate laws or guidelines for the regulation of such content on social media and OTT platforms, in view of the use of vulgar language in public domain and on social media platforms, which were accessible to children and adolescents of impressionable age.

The Single-Judge Bench of Justice Swarana Kanta Sharma heavily criticised the language used in TVF web series ‘College Romance,’ observing that it does not pass the ‘morale decency community test’ of a common man and transgressed into the area of obscenity.

The High Court directed the Ministry to take steps for enforcing stricter application of its rules qua the intermediaries as notified in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, besides making any laws or rules for regulation of such content.

The Bench said the use of obscene words and foul language on social media platforms had to be regulated when it ‘crossed’ a particular line, as it could become a ‘true threat’ to impressionable minds and could not come under the ambit of free speech, as guaranteed under the Constitution.

While students could be punished for uttering or using profane speech in schools and offices, the authorities also need to regulate profanity, which ‘entered’ into the domain of indecent speech by a broadcast medium.

The High Court took in view the fact that the use of profanity was a moral issue and the society had to deal with it by its own means. 

However, when the content was shown through social media, the sheer enormous power of electronic media and its reach to people of all ages was liable to invite attention of the Court, law enforcement and law making authorities to regulate the same, it added. 

Justice Sharma said that one could not lean in favour of unrestricted, unfettered freedom of profane, indecent and obscene speech and expression by way of web series without classification of the same.

The Single-Judge Bench observed that the words and language used in the web series in question would certainly be found by many as naturally disgusting, dirty and sexual, which were not part of standard Hindi or any other Indian language.

It said that in Indian society, even today, swear words were not spoken in the presence of elderly, at religious places, or in front of women or children. Such linguistic decay of Hindi language would go beyond falling standards in society. 

The use of profanity and words which are taboo in general parlance in the web series on the pretext that this was how the new generation behaved, spoke or communicated, in this Court’s opinion, was not the mirror of such social realities and was certainly distorted. Though such web series may portray a certain part of society, the popular culture of this country still identified with and adopted the point of view of civil language, it added.

Stating that media could not be allowed to legitimise offensive language, including swearing and profane words in the garb of change of language with the passage of time, Justice Sharma noted that Indian cinema, which has now extended to social media and OTT platforms, was not the same as was in old films, where romance between two persons was symbolically depicted by showing two birds or flowers meeting on the screen.

“The limit regarding how much the society has changed will still have to be defined and seen in practicality. When examined in the practical light of common man, this Court reaches a conclusion that the majority of this country cannot be said to be using such vulgar, profane, indecent, swear words and expletives as projected in the web series in question in day-to-day spoken language with each other even in educational institutions,” it said.

Furthermore, the court said that the country’s constitutional jurisprudence and judiciary has always ensured that there was no man or situation which was without redressal and that the justice system remained strong and redressed the issue when someone approached the court.

“Though primarily the role of the judges in our country is to interpret and apply the law and ensure enforcement of constitutional rights and principles, when faced with a situation of unclear or incomplete laws, the Court has to exercise the power of taking recourse to constitutional values with care and objectivity by interpreting, reconciling and thereafter applying the law to the situation in hand. 

“Denying to do justice faced by such a situation will amount to permitting injustice to prevail and take shelter under advantage of unclear law and wearing the mask of false legality,” it said.

On the argument as to whether courts will be justified in deciding a case when the existing codified law does not specifically define certain words, the court said that judges cannot close their eyes to situations where the law may be silent or unclear.

“This Court by way of this judgment is not creating any new law, rather in the present situation, the Court wants to ensure that by way of rigorous process of legal reasoning and having regard to written provisions of available laws, case laws and societal affirmed values, it is able to point out the wrong doers and bring them within the ambit of law. This is not law making in the legislative sense, but essentially legitimate judicial work for which this Court is bound by its solemn oath to the Constitution of India. 

“Even if a judgment triggers a debate in the society about an issue at the heart of a societal problem, it will serve the ends of justice i.e. the ultimate goal of a judge,” the court observed.

The court also observed that it was not confusing morality with legality, but has to ensure its role of being answerable to the judicial conscience, which was not confused with personal conscience, but founded on its “commitment to oath of upholding rule of law.”

(Case title: Tvf Media Labs Private Limited & Ors vs State (Govt of NCT of Delhi) & Anr)

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