Is There A Need for Social Media Censor Board?

NEED FOR CENSOR BOARD FOR MEDIA

In past few years the usage of internet i.e. world wide web has increased ten folds. As a result, the dependency of human beings on it has increased. Due to this age of fast internet connectivity and everything available on your finger tips it has made the work for many industries easy but at the same time its abuse can’t be ignored. With advancement of technology and internet came the excessive usage of internet for communication and social networking (Social Media). There are many applications in the market that helps in social networking i.e. Facebook, Twitter, WhatsApp, Instagram, Telegram, TikTok, Messenger and many other that helps the user to connect to the world, connect to their loved ones and helps in sharing their view and experience (for instance the #MeToo Movement against sexual harassment).But this connectivity comes at a very high cost; meaning there is a wide spread misuse of social media in the society at every sphere whether it be child pornography shared via chats on Facebook, WhatsApp and other data sharing apps, to spread terrorism, cyber bullying most common in teenagers, loss of privacy, loss of social skills, excessive time consumption, fake news, spread of anti-government agenda and many more.

There have been many incidents where due to lack of a governing body or; a statutory body like a censor board that people ended up giving their life’s, for instance the Blue Whale Challenge that originated in Europe and spread throughout the world. In this game, so-called "curators" would set players 50 tasks over 50 days. On the last day the user was instructed to take their own life. The Supreme Court of India stated[1]:

"We direct the Chief Secretaries of the States and the Union Territories through their concerned departments to spread awareness in the schools run by the State, who in their turn shall make aware the children about the danger such games propagate by bringing people into a trap. We may hasten to clarify that making people aware about a danger has to be done with clarity, concern and taking it within the sweep of the duty of the State. There may not be such a problem in that State, but the children must grow up with an awareness that such a thing exists and they shall scrupulously avoid it. The awareness campaign need not be about the game, but about the dignity of life and not to waste it and not to fall in anyone’s trap."

In the past there are many incidences where women have been harassed and threatened by hackers or someone, they know for posting personal data (naked photographs or video) or any other data that may result in loss of respect and which may even result in defamation. In the case of Shanmugam vs Senkol, the High Court said that the act of defendant, threatening to defame the plaintiff and asking for money amounts to defamation and held him liable for the same and awarded a sum of Rs 10,000.00 as award for defamation. Another, case of revenge porn where the court inTamluk, East Midnapore, Bengal, sentenced a 23-year-old man to five years in jail and a fine of Rs 9,000 for uploading objectionable pictures and videos of a girl on the internet. It was considered a major step taken by the courts to curb revenge porn.

In many cases it is seen that social media personalities, people from film and TV fraternity and Politics are backlashed for any reason (it may be their lifestyle, personal view on a matter, clothing style or any other matter) that leads to harassment and public degradation (The recent Neha Dupia incidence #it’s her choice).

Also, there are incidences of sharing child pornography and obscene material over social media via messaging apps like WhatsApp and others. In some cases, cyber bullying among students at various levels leads to depression and loss of self confidence which later on results very badly. These above stated and many others constitute the need of tightening the social media censorship.

In recent years the government is trying to strengthen the social media censorship, as a new amendment is tried to be brought in the Information Technology Act, 2000. Under, this draft the government is trying to force the big internet companies to remove a lot of content from their platforms, this is a step forward in regulating and making the Indian Social Media Platform Safe for its user. Its aimed to stop its misuse and the spread of fake news (For Example on 1st March, 2020 fake news was spread in Delhi that riots have started in West Delhi and a person is shot but in reality it was an encounter in Khyala by Delhi Police; it resulted in causing fear among people and as a result some colleges even postponed their scheduled paper). The government is amending Section 79 of the act due to which many companies have to remove a lot of data from their platform. It will result in breaking the end to end encryption chat offered by Facebook in WhatsApp. The government has asked public comments on the draft amendments to the IT Act proposed with the motto to curb the spread of fake news. The draft rules proposed the removal of "unlawful content" within 24 hours from the platform.

The active role played by the current Modi Government in its administration is quite remarkable as Prime minister Narendra Modi’s administration ordered social media platforms to take down 3,433 URLs between January and October in 2019. According, to the data in the past 5 years the Social Media Censorship has increased by 5 folds. According to Section 69A of the IT Act,

This law authorises the government to block any digital information "if it is satisfied that it is necessary or expedient to do so, in the interest of sovereignty and integrity of India, defence of India, security of the state, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognisable offence."

PM Narendra Modi in the past years have met with many owners of social media users that are used in India like Mark Zuckerberg owner of Facebook, WhatsApp, Instagram and many others, Sundar Pichai Google CEO, Jack Dorsey CEO of Twitter and many other in order to manifest his work for safety social media platform. It is in talks and very soon the government will the pass, The Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018 in order to stricken the censorship of social media.

In this time of Corona Virus Pandemic it has become a more crucial duty of the government to impose censorship over social media as a fake can cause more harm than the corona virus and in the previous we have seen many incidences in which people in huge number gathered in order to return to return their home in Maharashtra breaking the lockdown on the basis of a false rumour. During this time, it is important that the news i.e. shared to us should be true, via a valid source, evidence based and trustworthy for everybody’s safety. The government is also trying its best in order to stop these incidences.

The above stated incidences, reasoning and work of our government shows why its important to have a Censor Board for Social Media just like CBFC.

ROLE OF CBFC

The Censor Board of Film Certification in India has been playing a keen role in regulating the film industry and their strict criteria shows their work. In India, the Central Board of Film Certification banned a total of 793 films in 16 years, an RTI response has revealed.The response to the RTI query filed by Lucknow-based activist Dr.Nutan Thakur said that between January 1, 2000 and March 31, 2016, the censor board refused to grant certificate for exhibition to 793 films. These include 586 Indian films and 207 foreign films. It shows that the censor board is very strict in its decision. The Censor Boards objective states that;

1. To ensure healthy entertainment, recreation and education to the public.

2. To make the certification process transparent and responsible.

3. To create awareness among advisory panel members, media and film makers about the guidelines for certification and current trend in films through workshops and meetings.

4. To adopt modern technology for certification process through computerization of certification process and upgrades of infrastructure.

5. To maintain transparency about Board’s activities through voluntary disclosures, implementation of e-governance, prompt replies to right to information queries and publication of annual report.

6. To develop CBFC as a Centre of Excellence

In order to ascertain the need of CBFC the Supreme Court in S. Rangarajan Etc vs P. Jagjivan Ram stated[2]:

"The fundamental freedom under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Articles 19(2) and the restriction must be justified on the anvil of necessity and not the quicks and of convenience or expediency. Open criticism of Government policies and operations is not a ground for restricting expression. We must practice tolerance to the views of others. Intolerance is as much dangerous to democracy as to the person himself."

Similar, view point was taken in the case of Udta Punjab and Bandit Queen where some scenes were allowed on the ground that it is necessary to bring about awareness in people to fight against such social crimes.

There are certain grounds on which the censor board gives certificate i.e.,  a film shall not be certified if, in the opinion of the authority competent to grant the certificate, the film is against the interests of Article 19,  the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence; orwhen content in a film crosses the ceiling laid down in the highest category of certification and the applicant must specify the category of certification being sought and the target audience.

The CBFC body can be considered as a necessary evil as the movies to whom they give certificate impact the mental status of nature; and in that society there are children who are supposed to form the future of our country if, the CBFC certifies a film that will change the mindset of the coming generation in a wrong direction the result maybe catastrophic. Its is one of very reason due to which there is a dire need of a body that regulates the film industry. The CBFC certificate criteria also prove that:

1. U certificate: Sanctioned for unrestricted public exhibition
2. U/A certificate: Sanctioned for unrestricted public exhibition except any child below the age of twelve years may be allowed to see such a film after the consideration of child's parents or guardian
3. A certificate: Sanctioned the film for public exhibition restricted to adults
4. S certificate: Sanctioned the film for public exhibition restricted to members of any profession or any class of persons, having regard to the nature, content and theme of the film, e.g.: doctors, farmers etc.

But it does not mean that the censor board is absolute authority i.e. why the Judiciary comes into picture for instance the lift of ban on Padmavat and many other movies.

It’s been over 100 years since the CBFC was established it has seen many ups and down. We can’t say that the CBFC is a perfect body and has worked for more than 100 years without any flaw but that does not mean the CBFC has failed in performing its duty but, rather we can say that it has worked pretty well as the current industry is the result of the work of CBFC. But the fact can’t be denied that they are a lot of shortcomings that they have to overcome in order to excel. In previous years CBFC has always played the role of villain as in it has delayed the release of various movies in India like Mohalla Assi[3], Padmavat, Udta Punjab, the main function of CBFC is to certify movies but recently they have acted based upon moral structure and as a result they have been in news for quite a period of time. Many big stars have even voiced against the arbitrary use of power by the CBFC like Irfan Khan, Anurag Kashyap and Palekar. Recently, the CBFC is again causing problem by asking from film makers to submit affidavit ascertaining that they will not release any material on social media i.e. not necessary as they can’t do so without its certificate.

In a country like India where in order to show any kissing scene two pigeons were shown, in order to show any love or intimate scene indirect ways were used and today in the same country online obscene material is available at such ease, it is a sign to make a separate censor board for Social Media and it can’t be denied that it is the need of the hour.

HOW SOCIAL MEDIA CENSOR BOARD WILL BE DIFFERENT FROM CBFC?

The social media censor board shall vary from the CBFC on the ground that it seeks to censor any violative data that is in violation of the Constitution of India and spreads hate towards government of India; or in order to stop the spread of fake news; or stop the sharing and posting of obscene data over the internet or social networking sites. This is high time to form a statutory body for censorship of social media. This step shall also be taken in order to stop foreign countries from spreading hate and terrorism in our country via internet, as today is the most commonly used platform that helps terrorist organization to spread their motives and to manhandle with the thinking of our country’s youth. In the past many a times, it is seen that terrorist organization use social media to govern their work and due to which sometimes it becomes very difficult to trace these actions due to absence of any statutory body that shall govern such work. On the other hand, CBFCs work is altogether different, they are just responsible certifying movies whose scope is very limited but the scope of Media Censor Board shall be far wider than the CBFC.

IS IT VIOLATION OF ARTICLE 19?

In order to ascertain is it violative of Article 19 or not, we must first understand what is Right to Freedom of Speech. Article 19(1)a states that citizens shall have the rightto freedom of speech and expression.

In Maneka Gandhi v. Union of India,BHAGWATI J., has emphasized on the significance of the freedom of speech & expression in these words:

"Democracy is based essentially on free debate and open discussion, for that is the only corrective of government action in a democratic set up. If democracy means government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his rights of making a choice, free & general discussion of public matters is absolutely essential."

But it shall be subject to restriction under Article 19(2) as laid in the Constitution of India.

The question that lies even after crossing all the other obstacles is that, whether censorship violative of Article 19 or not? Under the censorship the government attains the power to suppress the views of citizens of India in light of sovereignty of the country. In the case of Shreya Singhal vs U.O.I[4], the petitioner raised various contentions against Section 69A (Power to issue directions for blocking for public access of any information through any computer resource) of Information Technology Act, 2000 i.e., "The enforcement of the said Section would really be an insidious form of censorship which impairs a core value contained in Article 19(1)(a). In addition, the said Section has a chilling effect on the freedom of speech and expression. Also, the right of viewers is infringed as such chilling effect would not give them the benefit of many shades of grey in terms of various points of view that could be viewed over the internet."

The petitioners also contended that the said article is also violative of the Article 14 and Article 21.

But the court stated that, the observations of Justice Jackson in American Communications Association v. Douds, 94 L. Ed. 925 are apposite:

"Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error. We could justify any censorship only when the censors are better shielded against error than the censored."

But, other than censorship violative of Article 19 in certain cases it is also violative of Article 21 as access to social networking apps such as Facebook, Twitter, WhatsApp, Instagram, Telegram, TikTok, Messenger and many other results to infringement of privacy that is envisaged into the citizens under Article 21 which can’t be violated as it is a fundamental right.

In Justice K.S.Puttaswamy(Retd) vs Union Of India And Ors.[5], the court stated that

The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of "private life". However, it would be too restrictive to limit the notion to an "inner circle" in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle.

The court also laid the principle that Right to Privacy comes under the ambit of Article 21.

From the above stated incidents, cases, statutory laws and assumptions it is quite unclear as to what will be the future of the censorship of social media as it stands on a road that further divides two roads going in opposite direction. In time we will see what will happen to the censorship whether, it lands in the interest of government or the public privacy.

Very soon it shall be clear!!!!!!!!!!!

[1] Sneha Kalita vs Union of India,W.P.(C) No.872/2017 on 20 November, 2017

[2] 1989 SCR (2) 204, 1989 SCC (2) 574

[3] It took 2 years to certify the film via getting an order from the courtCrossword Entertainment Private vs Central Board of Film, W.P.(C) 11992/2016

[4] WRIT PETITION (CRIMINAL) NO.167 OF 2012

[5] WRIT PETITION (CIVIL) NO 494 OF 2012