Content Moderation, Digital Rights, Indecency / Obscenity
Parler v. Amazon Web Services
On Appeal Contracts Expression
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The High Court of Delhi declined to quash the First Information Report (FIR) filed against the creators of the web series “College Romance,” produced by TVF Media Ltd., in response to complaints about explicit content, allegedly violating provisions of the Indian Penal Code (IPC) and Information Technology Act (IT Act). The petitioner, TVF Media Ltd., faced complaints regarding explicit content in Episode 05 of Season 01. Initially, the Additional Chief Metropolitan Magistrate (North), Rohini District Court, New Delhi ordered the registration of a FIR under multiple sections, but the Additional Sessions Judge (ASJ) later limited it to Section 67A of the IT Act. The High Court considered whether a prima facie case existed under Sections 67 and 67A of the IT Act and found that the content indeed contained explicit material, violating public decency standards. The court emphasized the importance of maintaining language standards and complying with IT Rules, concluding that the web series did not meet the test of public decency and upheld the ASJ’s order.
TVF Media Ltd., the Petitioner, is the owner of the web series “College Romance,” accessible through various platforms, including the YouTube channel “The Timeliners,” TVF Web Portal, and mobile applications. [para. 3] On September 6, 2018, Episode 05 of Season 01 of the series, titled “Happily fucked up,” was published and made available to viewers on YouTube. Several complaints were lodged against the Petitioner, alleging that the web series specifically Episode 05, contained explicit and indecent content, violating the provisions of Sections 292 &294 of the Indian Penal Code (IPC), Sections 67 and 67A of the Information, and Technology Act (IT Act), and Sections 2(c), 3, and 4 of the Indecent Representation of Women Prohibition Act. [para. 4] The complainants contended that the series lacked age restrictions on YouTube and failed to provide any legal disclaimer warning viewers of its explicit content, accusing it of promoting internet obscenity for financial gain. [para. 8]
On September 17, 2019, the Additional Chief Metropolitan Magistrate (North), Rohini District Court, New Delhi (‘ACMM’), found a prima facie case under Sections 292 and 294 of IPC and Sections 67 and 67A of the IT Act and instructed the police to register a First Information Report (‘FIR’) against the Petitioners following an investigation. [para. 10] Aggrieved with the ACCMM order, the Petitioners filed a Revision Petition before the Additional Sessions Judge (‘ASJ’). The ASJ altered the ACMM’s order, directing the police to register an FIR exclusively under section 67A of the IT Act while dropping the other IPC sections. [para. 11]
The Petitioner, aggrieved by the ASJ Order filed a Petition under Section 482 of the Code of Criminal Procedure seeking quashing of the FIR.
Status of the Content: The first season of the show was released on the YouTube Channel of TVF in August 2018. Later, it was also streamed by Sony Liv (Indian Streaming App). During the hearing, the content remained on the YouTube Channel and on Sony Liv. However, after the High Court decision, the whole series was removed from the YouTube Channel and Sony Liv. Currently, the Sony Liv stream only Season 2, 3 and 4.
Justice Swarna Kanta Sharma of the Delhi High Court presided over a case in which the primary issue revolved around determining whether a prima facie case existed against the Petitioners under Sections 67 and 67A of the IT Act. [para 19]
The Petitioners put forth several key arguments. Initially, they contended that the impugned orders should be invalidated due to an alleged failure to comply with Section 154(3) of the Criminal Procedure Code (Cr.P.C.). According to them, strict adherence to this section is a prerequisite before initiating any complaint under Section 156(3) of the CrPC. Additionally, they asserted that the order dated November 10, 2020, which acknowledged the applicability of Section 67A of the IT Act, lacked sufficient elucidation on how this section pertained to the unique circumstances of the case. The Petitioners emphasized that the content in question did not contain sexually explicit material, a necessary criterion for categorizing it under Section 67A of the IT Act, and thus did not meet the prescribed criteria for inclusion within its ambit.
On the contrary, the State argued that compliance with Section 154(3) of the Cr.P.C was mandatory, not optional. They contended that the impugned orders were well-founded and comprehensive, crafted diligently in accordance with legal principles. The State also stressed that the absence of a disclaimer regarding the content’s suitability for individuals above 18 years of age was irrelevant, with the primary issue being the explicit and potentially harmful nature of the content itself.
The Respondent/Complainant claimed that the web series “College Romance” misrepresented Delhi University’s student life and character, harming its reputation and promoting an obscene culture. They alleged that the Petitioners failed to include the required age warning on their content, violating YouTube policies. The Respondent argued that the Petitioners had no right to upload what they considered obscene videos on the internet and label them as representative of a new culture in India. They highlighted instances of sexually explicit language used in the series.
To assess whether the content was obscene, the Court adopted the test of an ordinary common person rather than a hypersensitive one. [p. 28] After watching several episodes of the web series, including the specific episode in question, the Court observed excessive and continuous use of “swear words,” “profane language,” and “vulgar expletives.” [p. 30] The Court noted a “clear description and reference to a sexually explicit act” due to the “profanity of language used.” [p. 30] Consequently, the Court held that the content could “deprave and corrupt” impressionable minds, falling within the ambit of Section 67 of the IT Act. [p. 36]
Considering “contemporary morals and national standards,” the Court found that the language used in the series exceeded the threshold of decency. [p. 38] It refrained from reproducing the profane words in the judgment. [p. 39] The Court concluded that the series could be viewed by young people below 18 years, attracting Section 67 of the IT Act. [p. 38] Addressing the Petitioner’s freedom of speech and expression under Article 19(1)(a) of the Indian Constitution, the Court held that promoting such language as the spoken language of India and its youth remained unacceptable. [p. 41] It emphasized that certain episodes depicted explicit language and acts that aroused prurient feelings, justifying their prohibition under Section 67/67A of the IT Act. [p. 43]
The Court recognized the importance of language and the need to maintain standards of decency in electronic media. [p. 58] It held that projecting profanity as the norm would set a dangerous precedent. [p. 53] Lastly, the Court referred to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 (‘IT Rules’) to highlight the responsibilities of online content curators and intermediaries. In this case, the Court noted the absence of classification and warnings regarding the profanity of language, a violation of IT Rules. [p. 48]
In conclusion, the Court held that the web series “College Romance” did not meet the test of public decency [p. 71] and upheld the order of the ASJ. [p. 81]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling of the Delhi High Court in the “College Romance” web series case constricts freedom of speech and expression. The Court found the series contained excessive profanity and sexually explicit references that could negatively influence young viewers. It held that such content exceeded decency standards, justifying its prohibition under the Information Technology Act. The ruling underscores the need to balance freedom of speech with responsibilities for maintaining decency standards in online content. Overall, it restricts freedom of speech in the context of online content creation and sets a precedent for increased scrutiny of objectionable material.
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