Does ‘obscenity’ on OTT and social media platforms need regulation?

It wasn’t the first time an august gathering has had to consider the subject of obscenity. Earlier yesterday, on 28 April, a public interest litigation seeking the regulation of obscene content on OTT platforms and social media had reached the Supreme Court, and the court, terming the plea of ‘important concern’ issued notices to the Union government and to almost all OTT and social media platforms in the country for a response.

At one point, when the advocate representing the petitioners spoke about how content circulated on social media without any form of regulation or checks, according to reports, one of the two judges on the bench, Justice Gavai, turned to Solicitor General Tushar Mehta. “Yes, Mr Solicitor? Justice Gavai told Mehta. “Do something…something legislative..”

Mehta in turn seemed to agree with the issue’s gravity. Some content was so perverted, Live Law reported the solicitor general as saying, that even two respectable men cannot sit together and watch them. Claiming that there shouldn’t be censorship, but some degree of regulation was necessary, he added, “There is some regulation in place, some is in contemplation.”

The issue of regulating content in the name of filtering out obscenity is a tricky issue. India has historically been a country where what we watch has been strictly controlled. This was already changing with the arrival of the internet, but it blew up once streaming giants and social media platforms arrived, making the idea of censored content obsolete. The censor board could have entire chunks of scenes from a film blurred, bleeped, or cut, but it had no powers over the internet’s landscape.

This is now changing as filmmakers and streaming platforms increasingly get hauled up. The filmmaker Onir, who often makes film on queer relationships, mentioned how the creeping threat of censorship on streaming platforms is already leading to these platforms making filmmakers seek a censor board certificate before being acquired by them. “If a film is not their own, an original, they prefer that it has a censor certificate to avoid complications. Especially they would want that from a film like ours, which are perceived as controversial,” he told a media outlet.

What exactly is obscene is also difficult to define. One person’s obscenity might be the favourite in another’s watchlist. What is obscene or not is also always changing in time. Legally too, how to look at this question of obscenity has evolved in our courts. In the past, courts used to judge cases based on the so-called Victorian-era Hicklin Test. Here, the test assessed obscenity by the standard of a hypersensitive individual. The judiciary in recent years has moved away from this concept to what is called the Roth Test. Obscenity is now to be evaluated through the lens of ‘contemporary community standards’, requiring courts to assess whether the average person, applying prevailing societal norms, would find that the material has the tendency to arouse feeling or reveal an overt sexual desire and excites sexual passion in persons who are likely to see it.

A few years ago, the case of a web series called College Romance came up before the Supreme Court. An FIR had been filed against the series’ makers for having vulgar and obscene language, and the Delhi High Court had refused to quash the FIR, noting that there was “excessive use of profanities and vulgar expletives” and clear “references to sexual acts” in the series. The Supreme Court turned down that ruling saying the High Court had erred in its decision. Ruling that profanity alone does not amount to obscenity, it said, “The high court has equated profanities and vulgarity with obscenity, without undertaking a proper or detailed analysis into how such language, by itself, could be sexual, lascivious, prurient, or depraving and corrupting”.

There is also an argument to be made about why anything should be deemed obscene at all. As long as mature content is not being made available to children, why should the state have any say in what an adult chooses to watch. If something objectionable comes on the television when two men are sitting together, surely one of them can switch it off.

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