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Cyber Bullying v/s. Roasting: Regulation Of The Uncharted Vis-a-Vis The Carryminati controversy

The term Bullying, in itself, denotes a genus, whereas Cyber Bullying forms its specie. Before elaborating upon the latter, we should look into the terminological relevance and essence of the inherent psyche behind Bullying. It basically means a voluntary act' intended to harm the victim (physically or mentally) or to create a sense of shock/fear in victim's mind. So, there are just two stakeholders when we talk about bullying in general sense, one is the bully and other is the victim.

Psychologically speaking, all of this evolves from the basic human instinct to feel superior and to outclass others, in terms of social and political status, one's own worth, human growth and of course the fight for survival and well-being. There is absolutely no blanket definition of bullying because it may be uniform in terms of effect but it vastly varies in terms of its modes/means.

Every social structure entails a specific societal hierarchy which is like a ladder of competition where human beings are found in a constant struggle to out-perform others and this boxing ring is governed by certain inherent norms. These norms are pretty much dependent upon various factors such as effectiveness and policies of State control, legal infrastructure, law of the land and ofcourse societal perceptions.
Keeping aside the genus of bullying as an act, the point of focus, for now, is its specie called as Cyber Bullying.

The only difference between the two is the tool used by the aggressor/bully. Use of a computer resource or any digital platform to carry out the act of bullying is called as Cyber Bullying. It comes in various hues, be it sending obscene/vulgar messages, stalking by means of calls and messages and posting any kind of humiliating content of the victim, amongst others.

Recently, social media stood witness to a viral and controversial YouTube video posted by one of the YouTubers by the name Carryminati in which he apparently roasted an entire community of other social media influencers, better known as TikTokers (based on the mobile application used by them, called TikTok). Within few days, it received online hits in millions only to have taken down by the YouTube later. YouTube, preferably cited grounds of cyber bullying and harassment for its action.

Before we try to analyze the constitutional and legal framework with respect to all of this controversy, we should get some idea about Roasting and its prevalence in India and abroad. A roast' is a form of humor in which a specific individual, who is treated as the guest of honor, is subjected to jokes and criticism, with an intention to entertain the audience. Such events are intended to honor' a specific individual in a unique way. In addition to jokes and insult comedy, such events may also involve genuine praise and tributes.

The implication is that the roastee is able to take the jokes in good humor and not as serious criticism or insult. The individual is surrounded by friends, fans, and well-wishers, who can receive some of the same treatment as well during the course of the event. The party and presentation itself are both referred to as a roast. The host of the event is called the roast-master. Anyone who is mocked in such a way is said to have been roasted. However, the thin line that distinguishes roasting from cyber bullying, and the key stone of comedy stand-ups, that intentionally or otherwise, enter the realm of roasting, comprises the essentials of consent and familiarity. If these essentials are missing, then it encroaches upon the taboo of cyber bullying and may attract penal provisions.

The Indian Comedy Production Group All India Bakchod organized the live show AIB Knockout in January 2015 featuring eminent Bollywood personalities as a part of the roast. The programme caused a controversy for allegedly featuring distasteful, sexist, offending and humiliating content. Videos of the event were removed from YouTube.

In the AIB Roast controversy, once an FIR was registered against roughly 14 persons, including the people from Bollywood, it gave birth to the actual societal perspective with respect to Indian legal theory and societal structure when it comes to bearing with the concept of roasting, as a part of humour.

Interestingly, the FIR herein was registered under sections 34, 120B,294 and 509 of the Indian Penal Code 1860 (hereinafter referred to as IPC), covering obscene acts done in public which could insult the modesty of a woman and intrude her privacy done in furtherance of a criminal conspiracy and common intention, and section 67 of the Information Technology Act,2000 (hereinafter referred as IT Act), which deals with punishing such transmission and / or publication of material which is lascivious or appeals to the prurient interest which tends to deprave and corrupt persons.[1]

This brings us to analysis of the legal infrastructure prevalent in India when it comes to tackling such offences at large.
Further, certain other provisions cater to such online menace, for example:

  • Section 292A of IPC: Printing, etc. of grossly indecent or scurrilous matter or matter intended for blackmail;
  • Section 354A of IPC: Making sexually colored remarks or guilty of the offence of sexual harassment;
  • Section 354D of IPC: Stalking;
  • Section 499 of IPC: Defamation;
  • Section 507 of IPC - Criminal intimidation by an anonymous communication;
  • Section 66E of I. Act -Violation of someone's privacy through transmitting their image without their consent; and
  • Section 67A of IT Act: Publishing or transmitting of material containing sexually explicit act, etc. in electronic form;


YouTube's Policy on Community Standards and Harassment

Started in 2005, YouTube is an international video-sharing platform, which allows users to post video content, which can be liked, disliked, commented on and/or analyzed by viewers. Google bought the rights to YouTube in 2006, and since it has become a global sensation. To ensure that the video content uploaded is safe, clean and within the bounds of public morality, YouTube incorporated certain Community Guidelines, which act as set parameters to monitor the uploaded content.

In December 2019, YouTube updated their harassment policy and made it stricter and narrower than before. Lesson 11 of the YouTube's Community Guidelines talks about Harassment and states that, Content that threatens individuals is not allowed on YouTube. We also do not allow content that targets an individual with prolonged or malicious insults based on intrinsic attributes, including their protected group status or physical traits.[2]

The guidelines are clear and hardly leave any vagueness in their definition and scope, but wide discretion rests with YouTube to exercise their power to veto a video, which they think is in violation of the Community Guidelines. Further, if one sets out on an expedition to actually see how many videos there are, that actually violate the terms and conditions of this international giant, it is realized that not every video is taken down, and only channels with a large view base are sometimes singled out, which remains a subject matter of debate as it illustrates selective outrage.

YouTube, being a global platform, it is not possible for it to conform to the obscenity, decency and morality parameters of every country, and they have based their guidelines on the highest common factor that exists amongst the widely accepted standards of ethics and public order.

It is understoodthat social media actors and performers open themselves up for both appreciation and criticism when they upload any content on a public platform. However, personal comments are not covered under the ambit of criticism, which should only cover the content uploaded by such channels and/or artists.

In the Carryminatiepisode, a spat ensued between two social media influencers. The war of words between the content creators started with TikTok user Amir Siddiqui posting a video calling out YouTubers. In his video, Siddiqui compared both the mediums, and highlighted the unity of the TikTok community.

He also accused YouTubers of plagiarizing TikTok content. He even tried to instigate creators who roast, to respond to him.CarryMinati, who is known for roasting shows and celebrities, took Amir Siddiqui's video quite personally. In his response, he dissected Siddiqui's video line-by-line. From his grammar slip-ups and using hashtags to garner attention to how he gains sympathy through his videos, CarryMinati pointed out Amir's various shortcomings.[3]

This video contained a wide range of expletives and cuss words striking upon roughly all the possible dimensions, ranging from sexist slurs to prejudicial reference towards LGBTQ community, which was frowned upon by others. The comments apparently hurt sentiments of certain sections of the society, and post complaints, the video was taken down by YouTube.

Article 19(1)(a) of the Indian Constitution vis-à-vis Obscenity
Since Roasting as a concept, gains strength from the celebrated right to freedom of expression enshrined under Article 19(1)(a), so in order to qualify this as something at par with Bullying, we need to delve into the ambit and scope of terms like obscenity, public order and morality. Right to freedom of expression comes with a set of reasonable restrictions that the State can impose on any of the grounds enumerated under Article 19(2).

The words obscene and obscenity have not been defined clearly in the Indian Penal Code. The Hon'ble Apex Court defined obscenity for the first time in the case of Ranjit D. Udeshi v. The State of Maharashtra[4]. In this case the Hicklin test was applied and given due regard by the court to judge obscenity, wherein a publication can be judged for obscenity based on the isolated part of the work considered out of the context. However, the test of obscenity must agree with the freedom of speech and expression guaranteed under our Constitution.

Since this case, the Hicklin test has been continuously liberalized and applied, until the recent case of Aveek Sarkar vs. State of West Bengal[5], wherein Hon'ble Supreme Court while dealing with the issue of obscenity adopted the Roth test, which states that only those sex-related materials which had the tendency of exciting lustful thoughts were found to be obscene and the same has to be judged from the point of view of an average person by applying contemporary community standards.

The basis of Roasting is insulting the other person with an aim to degrade and patronize him/her, which doesn't always conform to the parameters of morality. However, although done in light humor and directed to be offensive only towards the one who is being roasted, the act of roasting does have to comply with the community standards of public order. Comments and remarks that could instigate violence and / or disturb public order should not be allowed on a social platform, being strictly sanctioned with penalties.

Conclusion
This is an era where we are all under the aegis of Social Media and Social Networking. Conceptually, this humongous growth can be attributed to feasibility and dimensions of available audience. However, this is an unregulated territory, and there is a gaping blind-spot that allows certain forbidden activities to go undetected, which shall certainly proliferate with the advancement and availability of the internet and social media, respectively. Either of the aggrieved individuals from the recent controversy, could have approached the appropriate authorities to lodge complaints, albeit the enabling penal provisions may be missing from our legal framework.

The existing penal laws were laid down keeping in mind some serious and heinous offences, and may not necessarily be proportional to the simpler offences that are committed, more often than not, on the social media and other public platforms. This dynamic vacuum needs to be filled with regulatory laws on cyber bullying and roasting, which shall remove the ambiguity surrounding such new age offences. Whilst framing any policy upon prospective legislations, the State is required to put in place a proper public survey so as to gather the exact societal perspective in order to formulate a stable and effective legislation.
YouTube is a source of livelihood for many artists like CarryMinati,amongst others.

The number of views and likes on their video decides their monetary profit and in turn also promotes the domain of YouTube, making it popular and strengthening its base. When a video is taken down by YouTube for it being in violation of its Community Guidelines, one may challenge such removal through steps laid down in the Appeal Community Guidelines Actions tab on YouTube. However, are courts an option as a redressal forum for such aggrieved artists?

A system of checks and balances needs to be established where there is three-pronged accountability regarding the content that is uploaded, the procedure and justification for removing videos and content, and the role of the judiciary in providing relief against arbitrary and irrational actions. This shall ensure a free and fair mechanism in place, upholding the Fundamental Rights under Article 19(1)(g) read with Article 19(1)(a) of the Constitution of India, and protecting the livelihood of such artistsby bringing the video sharing giant under the ambit of justice as administered by our Hon'ble Courts.

Viewer discretion is the most essential aspect when it comes to perception of any online content. It is solely upon the viewer to decide whether to surf the content or leave. This is where the consent conundrum reflects itself. The alleged video gathered 70 million views and over five million likes in a span of just two days, it further attracted an additional 8 million subscribers for the channel, and it was still growing at an unprecedented rate when it was taken down by the host.[6]Posting any content online entails in itself all the consequent comments, criticism, ridicule and sentimental reactions and in the same manner, a viewer is not obligated to view all the content posted online.

This is where certain impermeable filters like with respect to viewers age, preferences, country and community etc. might be taken into consideration. Having said that, it needs no special knowledge to decode the inherent danger behind such filters in terms of viewer outrage, but this is where a thoroughly researched policy is warranted from the sides of all the concerned stakeholders.

The current legal framework is apparently inefficient and incomprehensive when it comes to dealing with the increasing cases of cyber bullying, roasting and other online offences, as there is absence of corresponding laws on the subject. The need of the hour is to enact such legislation that would make the social media a safer place for the present and future generations, and all we can do is sincerely hope for a political will in the country to bring about the desired changes, taking into consideration all the temporal and demographical parameters.

End-Notes:

  1. See https://www.financialexpress.com/entertainment/another-fir-to-be-registered-over-aib-knockout/42385/ (visited on 17th May,2020, 6:00 PM)
  2. See https://creatoracademy.youtube.com/page/lesson/policy-harassment?cid=community-guidelines&hl=en (visited on 18th May,2020, 4:00 PM)
  3. See https://indianexpress.com/article/entertainment/entertainment-others/carryminati-amir-siddiqui-youtube-vs-tiktok-6411239/ (visited on 18th May,2020, 5:00 PM)
  4. 1965 AIR 881
  5. (2014) 4 SCC 257
  6. See https://www.businessinsider.in/entertainment/news/carry-minati-youtube-vs-tiktok-video-removed-for-violating-terms-of-service/articleshow/75749665.cms (visited on 18th May,2020, 6:00 PM)

Written by:

  1. Shivang Tripathi (Advocates, Allahabad High Court) and
  2. Yash Dev Upadhyaya (Advocates, Allahabad High Court)

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