Read Time: 18 minutes

Synopsis

The Maharashtra Cyber Cell’s recent legal action against multiple content creators has sparked more than just legal battles—it has set off a media firestorm. While the legal process inches forward, the media has already painted its own version of guilt and innocence, putting content creators under relentless scrutiny. But is this relentless media trial a justified exercise of press freedom, or an overreach that jeopardizes due process and free speech?

To explore these questions, we sought insights from legal experts, whose perspectives reveal the complexities of the law, media responsibility, and the challenges faced by digital creators.

Defining "Offensive Content": Who Decides?

Senior Advocate Pradeep Bakshi observes, "There cannot be and never has been a clear definition of ‘offensive content.’ It depends on context, public sentiment, and interpretation." Yet, in this case, he asserts, "The content was definitely offensive and in bad taste, and media should have refrained from highlighting the same."

Expanding on the legal approach, Advocate Chandan Singh Shekhawat, Partner at Parinam Law Associates, who is part of YouTuber Ranveer Allahabadia's legal team, explains that modern jurisprudence now embraces more contextual approaches, such as the Community Standards Test to define obscenity. “This newer standard evaluates obscenity based on prevailing community standards and considers the work's overall context, rather than isolated passages,” he says. He emphasizes that courts today are increasingly inclined to assess obscenity through a broader lens, factoring in elements like context, intent, and community standards, rather than solely concentrating on the potential impact on vulnerable audiences.

Advocate Dr. Prashant Mali supports this view, stating that courts evaluate offensiveness on a case-by-case basis, often taking into account public sentiment, especially when it leads to law and order issues. However, he stresses that the law should ideally remain neutral and not be swayed by viral outrage.

Adding to the discussion, Advocate Puneet Bhasin notes, "Offensive content is shaped by case law, not a single statute. Social structures evolve, and so does legal interpretation."

Advocate Karnika A Seth brings attention to the ‘reasonable person’ test used by Indian courts to evaluate obscenity. Sections 67 and 67A of the IT Act criminalize obscene content, but whether abusive language qualifies as obscenity is the question, she says referring to the Supreme Court’s ruling in Ajay Goswami v. UOI on balancing speech with legal limits.

Platform vs. Creator: Who Bears the Brunt?

The debate also extends to whether platforms like YouTube should be held responsible for content regulation or if the burden lies solely on creators.

Shekhawat explains that under Section 79 of India's IT Act, the "safe harbor" provision shields platforms like YouTube from liability for third-party content, provided they comply with conditions like due diligence, content removal, and adherence to the IT Rules, 2021. He notes that the government may reconsider these exemptions on a case-by-case basis, potentially requiring platforms to prove their eligibility for protection.

Supporting this view, Mali adds that these intermediaries enjoy safe harbor protection if they meet due diligence norms, such as removing illegal content within 36 hours of orders, appointing grievance officers, and monitoring for sensitive content. However, Dr. Mali clarifies that the primary liability still rests with the content creator.

Seth further elaborates, stating, "Intermediaries are liable if they fail to remove obscene content after actual notice."

Bhasin reinforces this point, explaining, "Yes, under IT Rules, platforms lose immunity under Section 79 if they don’t act upon notification, making them criminally liable."

Given that the IT Rules mandate that platforms must be notified—and, in this case, the content was removed by the creators themselves—shouldn't our focus be on ensuring that this notification mechanism is effectively enforced, rather than stoking outrage?

Legal Safeguards: Are There Any for Content Creators?

Bhasin warns, “Many creators are unaware of OTT rules and legal compliance.” She emphasizes that ignorance of the law is not an excuse, adding, “Content creation is now a business, and like any business, it must follow legal and regulatory compliance, or creators will end up in legal trouble."

Mali further advises that content creators take several important steps to avoid legal pitfalls. First, they should fully understand content regulations, steering clear of hate speech, misinformation, or material that could incite violence. He also recommends consulting cyber lawyers before publishing potentially controversial content. “Creators should be cautious with disclaimers; while they don’t offer immunity, they can demonstrate intent,” he tells.

To the discussion, Mali adds that the police also have an obligation to ensure fair investigations and shield the accused from media trials, which may influence the case unfairly. He notes that if media reporting veers into defamation or contempt of court, it can be legally challenged, and courts have the authority to issue gag orders restricting media coverage, though such orders are rare.

The Spectacle of Media Trials: Accountability or Mob Justice?

The accused content creators are not just answering to the police; they are standing trial in the court of public opinion, where it seems media narratives dictate guilt long before a judge does.

This raises a critical concern: if the content itself was inappropriate, does excessive media coverage only amplify its impact rather than mitigate it? Does the media’s role shift from reporting the news to fueling outrage?

Bakshi believes the matter should be put to rest after the creator in question accepted his mistake and issued a public apology. "A clear message has been sent to all, including the media, that such reporting was in bad taste and should be voluntarily avoided."

However, Bhasin presents a different perspective: " Influencers and content creators seek media coverage. Their business model depends on visibility and engagement. It’s not that they are being aggressively covered—they want the coverage because it generates revenue. Why should the police protect them from something that benefits their business model?"

On the other hand, Shekhawat stresses that the issue involves balancing freedom of speech and expression (Article 19(1)(a) of the Constitution) with the right to a fair trial. “While freedom of speech is essential for the media to perform its duties, it should be restricted in exceptional circumstances and with extreme caution”, he says.

He refers to Nilesh Navalakha and ors vs Union of India and ors (2020), where the Supreme Court had observed that the self-regulatory mechanism had failed to deliver in adequate measure in keeping erring media houses under check. The court had issued certain fundamental directives to ensure that media trials don’t infringe upon the founding principles of criminal justice system, he points out.

The Need for Media Guidelines: A Check on Sensationalism

When the media assumes the role of judge, jury, and executioner, it risks undermining the very legal system it claims to report on. Should there be clearer legal restrictions on how the media reports on such cases?

Bakshi’s remarks suggest that at the very least, media houses should exercise self-regulation and not amplify content that is already deemed offensive.

Meanwhile, Shekhawat points out that current regulatory mechanisms are ineffective, offering only "bark" without real power. Despite the Supreme Court issuing guidelines emphasizing responsible reporting, he notes that enforcement remains weak, and the penalties for overstepping are often inadequate to prevent sensationalized coverage.

Mali echoes this concern, stating that while there are guidelines, they are not always enforced. For instance, the Press Council of India’s (PCI) norms advise against sensationalizing criminal cases, and the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, specifically discourage content that prejudices ongoing investigations.

Shekhawat proposes that the PCI and the News Broadcasting & Digital Standards Authority (NBDSA) should be granted stronger authority to enforce ethical guidelines and impose significant penalties for violations. He further argues that the term "reasonable restrictions" on freedom of speech must be more clearly defined, particularly in the context of media reporting on ongoing legal cases.

In addition, he suggests that instead of waiting for complaints to arise, courts or designated bodies should take a more proactive role by monitoring media coverage of high-profile cases. These bodies could issue warnings or take action when reporting becomes overly sensationalized or prejudicial.

Shekhawat also advocates for the creation and enforcement of ethical guidelines for journalists covering legal cases. He further calls for sensitivity training for journalists to ensure they handle these cases with care and responsibility.

Given the increasing impact of media trials, Mali too emphasizes the need for stricter digital media reporting norms in India, focusing on preventing pre-judgment of the accused, protecting identities before conviction, and enforcing accountability mechanisms to ensure media outlets follow legal and ethical standards.

The Larger Debate

Amid increasing scrutiny, the debate remains: is this about ensuring accountability, or is it about sensationalism? Or perhaps, as Bakshi suggests, should both creators and the media recognize their roles in shaping public discourse and exercise greater caution? The answer may determine the future of digital expression in India.