Obscenity Module III Flashcards
Three Approaches to Obscenity Law
Hicklin 1879 - Material having tendency to deprave or corrupt immature minds
Roth 1957 - Applying Contemporary Standard, Material which appeals to prurient interests
Miller 1973 - 1. Applying contemporary standard 2. Patently offensive sexual conduct 3. SLAPs test, Series Literary, Artistic or Political Value
What are the Hicklin Roth and Miller Tests
The Hicklin Test, Roth test, and Miller test are legal standards used to determine what constitutes obscenity, particularly in the context of freedom of speech and expression. The Hicklin test, established in 1868, focuses on whether a material tends to “deprave and corrupt” those who are susceptible to its influence. The Roth test, developed in 1957, shifts the focus to whether, to the average person, the dominant theme of the material appeals to prurient interests and lacks serious literary, artistic, political, or scientific value. The Miller test, established in 1973, builds upon Roth by adding a community standards component and a requirement that the material depict or describe sexual conduct in a patently offensive way.
Case for Nudity not necessarily obscene under IPC
Aveek Sarkar v. State of West Bengal, Rejected the Hicklin test. The work is to be treated as a whole.
IPC - Obscene Materials
Section 292 of the IPC - Sale distribution and possession of obscene materials
Pornography case - Bus
Kamlesh Vaswani v. Union of India. Schoolchildren viewing porn assisted by the bus driver.
The court gave strict instructions to prevent distribution and access to pornography including measures regarding file sharing software.
Backlash in Kamlesh Vaswani
Directed ISPs to block 800 pornographic websites. There was a lot of backlash to the judgement, the public outrage did not allow for enforcement. The government then directed ban of only child pornographic material. If the society does not accept the law, the law cannot be enforced. When an adult views pornographic material in private, they are exercising their right to free speech.
Facts of the Avnish Bajaj Case
MMS in circulation across the country – contained sexual acts of some DPS students.
● IIT Kharagpur student created a profile on Baazi.com and started selling it.
● This came to the knowledge of some newspapers and the CEO of Baazi.com – Avnish
Bajaj was arrested.
● In this case, upon clicking the item, you got to see ‘DPS Girls having fun!!!’
● So it was pretty clear what the video was about when you clicked on it.
● Ultimately intermediary safe harbour protection was given here.
Issues in Avnish Bajaj
- Liability of the CEO for the illegal Act of one of its users
- Was section 79(2)(c) - Intermediary to observe due diligence followed?
Sections avnish bajaj was charged with
Section 67 read with Section 85 of the IT act. This brought in liability of the CEO for the acts of the company.
What were the due diligence norms carried out by Baazi.com
- Sign up terms had every user agree not to use platform for illegal act.
- Give title that best describes the item. The student gave DPS girls having fun, this was not a good description therefore he violated the terms again.
- Seller always needed to include an imagine that depicts item correct. This also wasn’t done, also violated terms.
- Also, there was an automatic website filter which did not catch “dps girls having fun”
Shreya Singh “Actual knowledge” standard
Shreya Singhal held that S79(3)(b) has to be read down to mean that the intermediary upon
receiving actual knowledge that a court order has been passed asking it to expeditiously
remove or disable access to certain material must then fail to do so. This is for the reason that
otherwise it would be very difficult for intermediaries like Google, Facebook etc to act
when millions of requests are made. So now actual knowledge is by court or appropriate government not a random unverified
source.
Publication v Transmission
Publishing is when content is made available to others. The crime is making it available for others. The law does not differentiate between publication in a close circle and publication to the public in general. Both are criminal activities.
Transmission is to send content to any individual. Sending is the crime.
US v. Thomas
The law prevents publication of pornography, so a man made a website where the content was not available but you had to make an id and give proof. Then you’d get the things delivered via courier.
