Content Regulation / Censorship, Indecency / Obscenity, Licensing / Media Regulation
Mon’em Al-Turki v. Tunisian Internet Agency
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Petitioner Ajay Goswami filed a writ of petition to the Supreme Court of India, urging the Court to support his proposals to protect minors from sexually exploitative materials in the press. He proposed the government to issue a guideline to all newspapers regarding sexually prurient materials that may not be suitable for minors, and that if newspapers contain such materials, their existence must be boldly warned on the front page. In the alternative, the petitioner suggested creating an expert committee to suggest ways and means for regulating the access of minors to sexually exploitative materials.
The Court dismissed the petition for failure “to establish the need and requirement to curtail the freedom of speech and expression.” It held that there are already existing regulatory measures in the country to prevent the press from publishing obscene materials; they include the Press Council Act of 1978 and Section 292 of the Indian Penal Code. The Court also found that a publication alleged to contain an obscene material should be assessed as a whole and the material should be separately examined to determine whether it is grossly obscene and likely to deprave and corrupt. Lastly, the Court objected to imposition of “a blanket ban on the publication of certain photographs and news items” because it will lead to “a situation where the newspaper will be publishing material which caters only to children.”
Petitioner Ajay Goswami filed a writ of petition to the Supreme Court of India, seeking the Court to consider and accept his proposals on regulating publication of sexually exploitative materials by the press that can be harmful to minors. Goswami argued that the government must strike a fair balance between the freedom of press and the right to educate and protect children. According to him, “the nature and extent of the material having sexual contents should not be exposed to the minors indiscriminately and without regard to the age of minor.” [p. 2] He supported his position by offering a number of newspapers that allegedly contained sexually explicit messages. For example, he noted a 2005 edition of Time of India newspaper that contained an article titled “Porn In potter VI.” Goswami was of the opinion that while minors generally may not have any inclination to read the newspaper, after reading the article at issue “their mind would certainly wonder to an area which the author might not have even conceived.” [p. 2]
Goswami further argued that the right to live under Article 21 of the Constitution has been interpreted to include the right to education, and by necessity, “it shall also mean right to proper education which may be decided by the parents, teachers and other experts and newspapers cannot be allowed to disturb that by their indeterminately access of the offending article to the minors regardless of their age.” [p. 6]
In his petition, Goswami proposed the following measures: “(1) Guidelines in detail may be issued to all the newspapers regarding the matter which may not be suitable for the reading of minors or which may require parents or teachers discretion; (2) Newspapers should have self regulatory system to access the publication in view of those guidelines; (3) In case the newspapers publishe any material which is categorized in the guidelines the newspaper be packed in some different form and should convey in bold in front of newspapers of the existence of such material; and (4) This would give discretion to the parents to instruct the news vendor whether to deliver such newspaper or not.” [p. 7] In the alternative, he suggested the government to establish an expert committee to suggest ways and means of regulating the access of minors to sexually prurient materials.
Justice Lakshmanan delivered the opinion of the Supreme Court.
In considering the petitioner’s proposals, the Court first addressed the existing regulatory measures in the country relevant to the press and the protection of minors from obscene materials. It noted the Press Council Act of 1978, which established a regulatory body “to ensure on the part of newspapers, news agencies and journalists, the maintenance of high standards of public taste and foster a due sense of both the rights and responsibilities of citizenship.” [p. 13] Under Section 14, the Council is empowered to receive complaints concerning materials published by the press, and when it is necessary and in the interest of public, to require newspapers to publish in a manner that the Council deems fit.
The Court also noted Section 292 of the Indian Penal, which prohibits the sale, public distribution and exhibition of any obscene material defined as one that is “lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.” [p. 13-14]
Furthermore, the Court acknowledged that the country’s social interest ordinarily “demands the free propagation and interchange of views but circumstances may arise when the social interest in public order may require a reasonable subordination of the social interest in free speech and expression to the needs of our social interest in public order.” [p. 15] As such, the Court recognized that protecting public order in light of the constitutional right to freedom of expression requires the existence of a fair balance and that any imposition on speech must be “reasonable.”
As to the suppression of the press in publishing absence materials, the Supreme Court addressed India’s contemporary standards and took into account the U.S. case law on this issue. In Reno v. the American Civil Liberties Union, 521 U.S. 844 (1997), the U.S. Supreme Court struck down two provisions of the Communications Decency Act of 1996, which criminalized online transmission of “obscene or indecent” messages to any recipient under 18 years of age. In part, the Court reasoned that protecting children from harmful materials does not justify an unnecessarily broad suppression of speech addressed to adults. Accordingly, the Supreme Court of India found it necessary that “publication must be judged as a whole and the impugned should also separately be examined so as to judge whether the impugned passages are so grossly obscene and are likely to deprave and corrupt.” [p. 18]
The Court also enumerated broad principles to determine obscene speech that can validly be restricted under Article 19 of the Constitution. It noted that the term “obscenity” is most often used in the legal context to describe expressions that offend the prevalent sexual morality. However, a reference to sex or nudity by itself cannot considered to be obscene.
In addition, the Court was of the opinion that “imposition of a blanket ban on the publication of certain photographs and news items, etc. will lead to a situation where the newspaper will be publishing material which caters only to children and adolescents and the adults will be deprived of reading their share of their entertainment which can be permissible under the normal norms of decency in any society.” [p. 21] Lastly, the Court noted that the newspapers questioned by the petitioner for allegedly publishing sexually exploitative materials did not have any intention of catering to the prurient interest or harming minors and that certain regulatory measures are in place to ensure no objectionable material gets published.
Based on the foregoing analysis, the Court dismissed Goswami’s petition for failure “to establish the need and requirement to curtail the freedom of speech and expression.” [p. 21]
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