* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 24^th JANUARY, 2023 IN THE MATTER OF:

+ W.P.(C) 4319/2021 NEHA KAPOOR & ANR. ..... Petitioners Through: Ms. Neha Kapoor, Advocate.

versus MINISTRY OF INFORMATION AND BROADCASTING & ANR.

..... Respondents Through: Ms. Shiva Lakshmi, CGSC with Ms.

Srishti Rawat and Ms. Ridhima Malhotra, Advocates for R-2.

CORAM:

HON’BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD

JUDGMENT

SATISH CHANDRA SHAMAR, C.J.

1. The instant Writ Petition under Article 226 of the Constitution of India has been filed by the Petitioner for a direction to the Respondents herein to constitute a Regulatory Authority/censor board to censor/review the non-film songs, their lyrics and videos which are made available to the general public through various media platforms like Television, YouTube, etc. and make it mandatory for composers of non-film songs to receive certification before such songs are made available in public domain. Petitioner also seeks a direction to Respondent No.2 herein to constitute a body to screen every non-film song and its contents, including lyrics and video, before they are released on the internet through any Signature Not Verified Digitally Signed W.P.(C) 4319/2021 Page 1 of 21 platform/application and to ban all such non-film songs available on the internet having obscene/vulgar content with immediate effect.

2. Notice was issued in the matter on 07.04.2021 and counter affidavit has been filed.

3. The Union of India in exercise of powers conferred by sub-section (1),clauses (z) and (zg) of sub-section (2) of Section 87 of the Information Technology Act, 2000 (hereinafter referred to as ‗the IT Act‘) and in supersession of the Information Technology (Intermediaries Guidelines) Rules, 2011 (hereinafter referred to as ‗the Rules‘) has brought out the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hereinafter referred to as ‗the Ethics Code‘). The Ethics Code lays down a regimen to be followed by every intermediary. An intermediary has been defined under Section 2(w) of the IT Act and the same reads as under:

―2. (w) "intermediary" with respect to any particular electronic message means any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message;‖

4. Significant Social Media Intermediary and Social Media Intermediary has been defined under Sections 2(v) and 2(w) respectively of the Ethics Code and the same reads as under:

―2. .....

(v) ‗Significant social media intermediary‘ means a social media intermediary having number of registered users in India above such threshold as notified by the Central Government;

Signature Not Verified Digitally Signed W.P.(C) 4319/2021 Page 2 of 21 (w) ‗Social media intermediary‘ means an intermediary which primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services;‖

5. Section 3 of the Ethics Code lays down the due diligence that is to be followed by all the intermediaries and the same reads as under:

―3. (1) Due diligence by an intermediary: An intermediary, including social media intermediary and significant social media intermediary, shall observe the following due diligence while discharging its duties, namely:—

(a) the intermediary shall prominently publish on its website, mobile based application or both, as the case may be, the rules and regulations, privacy policy and user agreement for access or usage of its computer resource by any person;

(b) the rules and regulations, privacy policy or user agreement of the intermediary shall inform the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that,—

(i) belongs to another person and to which the user does not have any right;

(ii) is defamatory, obscene, pornographic, paedophilic, invasive of