Edition 2: I&B Ministry's Committee to Take Down Indecent, Immoral Online Content
India's information and broadcasting ministry has a third way to get online content removed.
The ministry of information and broadcasting (MIB) created an inter-ministerial committee in January 2024 to get indecent and immoral content on streaming platforms and digital news publishers taken down, according to documents reviewed by The Tech Trace and conversations with three people aware of the matter.
This previously unreported committee was created so that the MIB could send takedown notices under Section 79(3)(b) of the Information Technology Act, the provision that is at the heart of X (formerly Twitter’s) lawsuit against the Indian government for setting up a parallel and more dispersed content blocking process.
This “Inter-Ministerial Committee on Unlawful Content” (IMC) was responsible for getting 18 streaming platforms, 19 websites, 10 apps, and 57 social media accounts blocked for publishing “obscene, vulgar, and, in some instances, pornographic content” in March 2024. Thus far, this IMC has met only once to issue this takedown notice.
Why was this new committee created?
In an office memorandum dated December 21, 2023, the MIB had appointed the Rule 13(2) authorised officer as the nodal officer “for the purpose of notifying the intermediaries in respect of unlawful content published by digital news publishers and OTT platforms” as per Section 79(3)(b) and Rule 3(1)(d) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
According to two of the people cited above, this IMC was created to establish a process for issuing section 79(3)(b) notices that follows the “principle of natural justice” by giving the affected parties an opportunity to be heard.
This IMC is distinct from the inter-departmental committee (IDC) that was created under the aegis of the MIB via the IT Rules, 2021.
While the IT Rules IDC can issue blocking directions for six reasons related to India’s national security, this IMC, due to the wording of Section 79(3)(b) and Rule 3(1)(d) can target any “unlawful content”. (Read more about the issues with Section 79(3)(b) here.)
“[A] Standard Operating Procedure (SOP) for an administrative framework with adequate safeguards for implementation of provisions of Section 79(3)(b) of the IT Act, 2000 read with rule 3(1)(d) and Part-III of the IT Rules, 2021 has been prepared,” the MIB wrote in its January 2024 communication to Federation of Indian Chambers of Commerce and Industry (FICCI).
In this January 2024 communication, MIB wrote that as of now, Section 79(3)(b) would be invoked by the ministry only for “content that is unlawful in relation to ‘decency and morality’”, arguably narrowing the scope of the broader term “unlawful content”.
MIB had appended an “indicative list” of relevant laws and kinds of unlawful content that could be covered, such as child sexual abuse material (CSAM), pornographic and sexually explicit content, indecent representation of women, terrorist activity, sale of illegal arms, cyber harassment, unlawful disclosure of identities of the accused or of victims, fake news, false warnings about disasters, human trafficking, and others. For each type of unlawful content, the related law was cited.
How does this committee work?
The IMC is chaired by a senior MIB official — the “authorised officer” appointed under Rule 13(2) of the IT Rules, 2021. It consists of representatives from IT ministry, home ministry, ministry of women and child development, department of legal affairs and “domain experts in the field of women rights, child rights, and media and entertainment”. It also includes nominated members from the Press Council of India (PCI) and FICCI.
Despite being asked, the Bar Council of India has not yet nominated a representative, according to a person aware of the matter.
This SOP is similar to the process followed by the IDC under IT Rules, 2021. The IMC will “examine” matters related to indecent and immoral content and make recommendations to MIB about when Section 79(3)(b) should be invoked.
Why does this committee matter?
There are three main reasons:
1. MIB now has three ways to get online content removed for varying reasons.
First, content threatening national security through the IDC: Under rules 14, 15 and 16 of IT Rules, the IDC – which also includes representatives from MEA and defence ministry – can get content blocked for six reasons: 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 cognizable offence relating to above.
Second, content violating copyright of CBFC-certified movies: On November 3, 2023, the MIB had appointed 12 nodal officers under section 79(3)(b) of the IT Act who could instruct intermediaries such as YouTube and Facebook to take down content that violated the copyright of movies certified by the Central Board of Film Certification (CBFC) based on complaints from copyright owners or the public. The illegality of the infringing content is established through Section 6AB of the Cinematograph Act, 1952, not through Section 79(3)(b) of the IT Act.
Third, through this IMC.
2. Decent and moral content are subjective.
Under Article 19(2), the right to free speech can be reasonably restricted for the following reasons:
1. Sovereignty and integrity of India
2. Security of the state
3. Friendly relations with foreign states
4. Public order
5. Decency or morality
6. In relation to contempt of court
7. Defamation
8. Incitement to an offence
Reasons 1-4, along with defence of India and incitement to an offence related to them are addressed through Section 69A of the IT Act and through the respective committees of the ministry of electronics and information technology (the Section 69A blocking committee) and the MIB (the IDC).
Reason 6 is clearly determined by the court.
Reasons 5 (decency and morality) and 7 (defamation) are subjective in nature and have usually required judicial determination. Neither MeitY’s Section 69A blocking committee — which has been functional since 2009 —, nor MIB’s IDC — which has been functional since 2021 —, deal with decency, morality or defamation.
With this IMC, decisions about what is deemed to be “immoral” or “indecent” content can be made by a non-judicial body.
In March 2024, when MIB had announced that certain sites and platforms had been blocked for publishing “obscene, vulgar, and, in some instances, pornographic content”, Section 79(3)(b) was not cited in MIB’s press release.
The platforms were taken down for violating Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986, Section 292 (sale of obscene books, etc.) of the Indian Penal Code (IPC), and Sections 67 and 67A of the Information Technology Act, 2000 “under the provisions of the Information Technology Act, 2000 in consultation with other Ministries/Departments of the Government of India, and domain experts specializing in media and entertainment, women's rights, and child rights”, as per the MIB’s press release from that time.
3. Details of the office memo designating the nodal officer and of this committee were not submitted to the Karnataka HC
In its submission to the Karnataka High Court responding to X’s petition challenging the use of Section 79(3)(b) as a parallel blocking mechanism, the Centre did not disclose details about the December 2023 office memo designating the nodal officer or about this new committee.
The Centre had only submitted a copy of the November 2023 office memo listing the 12 officers who could get content violating the copyright of CBFC-certified movies removed.
On January 2, 2025, the I4C CEO had sent a circular to multiple ministries, including MIB, to give details of the designated Section 79(3)(b) officers so that they could be onboarded onto Sahyog, which is meant to “streamline” notices issued to intermediaries.
A person aware of the matter said that the MIB had informed I4C that the ministry’s relevant stakeholders — streaming platforms (such as Netflix and Jio Hotstar) and digital news publishers — had not been onboarded onto Sahyog, making MIB’s own inclusion pointless. The MIB had told I4C that it already had processes and systems to notify these entities of unlawful content.
While there are no plans to onboard digital news publishers onto Sahyog, streaming platforms could be added later, the person cited above and another person aware of Sahyog's functioning said. This second person said that Sahyog's initial focus is on major intermediaries like Google, Microsoft, and Facebook, where most cybercrimes are reported, rather than content platforms like Netflix.
But wasn’t Sahyog meant to send notices only to intermediaries?
Well, yes. That’s the short answer.
The long, more nuanced answer brings us back to the age-old question — are you an intermediary or are you a publisher?
While it is commonly assumed that intermediaries and publishers are mutually exclusive categories and safe harbour is only available for the former, Priyadarshi Banerjee, partner at Delhi-based Banerjee & Grewal Advocates, said that the expansive definition of what it means to be an intermediary means that the intermediary status and the consequent safe harbour it has depends on the particular data or communication; safe harbour is not available to an entity or a company at large.
"Thus, the practice of designating entire companies as intermediaries, without reference to a particular communication, information or data is problematic. Theoretically, it is possible for an entity to qualify for safe harbour for one piece of communication while be considered a publisher for some other information," he said.
For instance, Netflix is inarguably a publisher for its original content but it could be argued that it is an intermediary for the ads it displays on its ad-supported plan (depending on whether or not it vets them) or for the movies and shows it licences from others.
Similarly, a Times of India or a Hindustan Times are publishers for the news content they public but for their comment section, they are intermediaries and arguably not liable for the content posted there.
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