Navigating Content Creation - Legal And Platform Regulations On Hate Speech And Offensive Material In India

Author: LawSphereX

Category: General Law

Published: 2026-08-23T20:38:40.606687+00:00

Updated: 2026-08-26T17:10:23.527+00:00

NAVIGATING CONTENT CREATION: LEGAL AND

PLATFORM REGULATIONS ON HATE SPEECH AND

OFFENSIVE MATERIAL IN INDIA

Priyanshi Gupta, B.A. L.LB., Dharmashastra National Law University, Jabalpur, Madhya Pradesh

ABSTRACT

In the digital age, online influencers wield significant power in shaping public opinion, but this influence also brings challenges, particularly concerning the spread of misinformation. This paper examines the legal regulations imposed on platforms in response to the spread of misinformation by online content creators in India—a country already deeply divided along various socio-political lines. Misinformation spread by online influencers has become a potent tool that exacerbates societal rifts. Recent statistics reveal that false information can significantly impact public perception and behaviour. For instance, a 2023 report by the Media Matters Foundation indicated that 40% of Indian social media users had encountered misinformation related to health, politics, or communal issues, often leading to increased polarization and social unrest.

The dissemination of misleading or inflammatory content not only misguides the public but also jeopardizes societal harmony. This paper investigates whether online content creators can be held accountable for the dissemination of partial or false news, often driven by the quest for views and engagement rather than factual accuracy. We analyse the current legal frameworks, including provisions under the Bharatiya Nyaya Sanhita (BNS) and the Information Technology Act (IT Act) that address hate speech and offensive material. In conclusion, we propose actionable recommendations to mitigate the impact of misinformation, hate speech and offensive media. These include strengthening legal accountability for content creators, creation of dedicated institutions, among others.

Addressing these issues is intended to create a more informed and cohesive society, thereby lessening the divisive effects of misinformation.

“All that glisters is not gold” - William Shakespeare Introduction It’s striking how relevant Shakespeare's words from "The Merchant of Venice," written around 1598, still feel today. His message reminds us not to blindly trust everything we see. In our digital age, where misinformation is rampant, this advice rings truer than ever. Consider the sheer volume of data being generated—approximately 402. 74 million terabytes every day, which adds up to about 147 zettabytes a year1. To put that into perspective, that’s enough data to fill over 1. 15 trillion smartphones! That’s more than enough to accommodate every smartphone for the entire global population multiple times over. Yet, amidst this overwhelming amount of information, research shows that up to 87% of social media posts on certain topics may be false.

2 This reality underscores the importance of being discerning about what we consume online. India is the largest market for social media influencers, boasting a combined reach of over 460 million. 3 This vast audience highlights the significant role influencers play in shaping opinions and spreading information across the country. According to a study by Daily Pioneer, a striking 87% of Indians who share social media posts express confidence in their truthfulness4. This statistic underscores a prevalent trust in personal narratives and shared content, reflecting how social media can influence perceptions of truth. A study conducted by Oxford University's Reuters Institute for the Study of Journalism found

that 54% of Indians trust news they receive via WhatsApp5. This finding illustrates the growing 1VEEAM,https://www.veeam.com/blog/propartners-datafreedom.html#:~:text=According%20to%20the%20latest%20estimates,by%20over%20150%25%20in%202025 (last visited on Mar. 25,2025). 2 PEW RESEARCH CENTER, https://www.pewresearch.org/global/2022/12/06/views-of-social-media-and-itsimpacts-on-society-in-advanced-economies-2022/ (last visited on March 25,2025). 3 STATISTA, https://www.statista.com/topics/9189/influencer-marketing-in-india/ (last visited on Mar. 25,2025).

THE

PIONEER,

https://www.dailypioneer.com/2022/page1/87--indians-trust-social-media-posts-- study.html#:~:text=Further%2C%20as%20many%20as%2087%20per%20cent,confident%20in%20its%20truth fulness%2C%20slightly%20above%20the (last visited on Mar. 25,2025). 5 SCROLL, https://scroll.in/latest/1033464/most-indians-trust-news-they-receive-on-whatsapp-finds-reutersstudy#:~:text=According%20to%20the%20study%2C%2077%%20of%20respondents,25%%20on%20Twitter %20and%2015%%20on%20TikTok. (last visited on Mar. 25,2025 ).

reliance on messaging apps as credible news sources, emphasizing a shift in how information is consumed in the digital age. The same study revealed that while 77% of respondents in India generally trust news media, their trust in specific platforms varies significantly. For instance, 54% trust news received on WhatsApp, 51% on Google and YouTube, and 41% on Facebook. In contrast, trust in platforms like Instagram, Twitter, and TikTok is considerably lower, with figures of 27%, 25%, and 15%, respectively. Nearly 71% of Indians prefer online mediums for news, with 49% relying on social media. 6 According to the Digital News Report 2024 by the Reuters Institute, 54% of Indians consume news from YouTube, 48% from WhatsApp, and 35% from Facebook.

7 Apart from what these statistics obviously represent, we can infer one thing- that Indians largely, trust the information disseminated via social media. This trust is striking, considering the vast and varied landscape of online content. But where does this information come from? Enter social media influencers—Important players in the digital arena. Definition of online influencers According to the Advertising Standards Council of India (ASCI), an online influencer is “someone who has the power to impact their audience's opinions or purchasing decisions about a product, brand, or service. This is due to their position, authority, knowledge, or relationship with their audience.

”8 According to the department of consumer affairs, influencers are “Creators who advertise products and services with a strong influence on the purchasing decisions or opinions of their 6 TIMES OF INDIA, https://timesofindia. indiatimes. com/india/over-70-indians-rely-on-online-media-for-newsmajority-on-social-media-report/articleshow/111146576. cms, (last visited on Mar. 25,2025 ). 7 THE WIRE, https://thewire. in/media/over-50-of-indians-rely-on-social-media-for-news-finds-reuters-institutereport , (last visited on Mar. 25,2025). 8 SAI KRISHNA ASSOCIATES, https://www. saikrishnaassociates. com/the-advertising-standards-council-ofindia-guidelines-for-influencer-advertising-in-digital-media/ , (last visited on Mar. 25,2025).

audience. ”9 There’s an important nuance to consider: not every influencer act is performed with complete sincerity. Much like actors on a stage, while many influencers genuinely aim to share insights and build community, some prioritize entertainment, sensationalism, or personal gain over accuracy. This duality can create a façade, where followers may find themselves drawn in by a captivating performance rather than truly informed by authentic content. Take, for example, the untimely death of actor Sushant Singh Rajput. This tragedy led to a surge of speculation and conspiracy theories, with many influencers promoting unfounded claims about foul play and alleged involvement of political figures and the mafia. Some even claimed they had communicated with his spirit, asserting it sought justice and revenge.

This situation highlights how influencers, after gaining the trust of their followers, can sometimes mislead them for views and engagement. This reality sheds light on a troubling aspect of social media: the platforms often reward sensationalism over truth. Influencers may chase maximum engagement, leading to the sharing of misleading or exaggerated narratives that prey on public emotions. This emphasizes the need for critical thinking and media literacy; followers must navigate a landscape where trust can easily be exploited. Influencers on social media cover a wide range of interests and genres. Fashion influencers focus on style, beauty influencers share makeup tips and skincare routines, and fitness influencers promote healthy living through workouts and nutrition advice. Travel influencers document their adventures, while food influencers share recipes and restaurant reviews.

There are also lifestyle influencers who discuss everything from home decor to personal growth, tech influencers who review gadgets, and gaming influencers who engage with the gaming community. Parenting and finance influencers offer advice on raising kids and managing money, respectively. Moreover, sustainable living influencers advocate for eco-friendly practices, health and wellness influencers emphasize mental health and holistic approaches, pet influencers share tips on caring for animals, and educational influencers provide valuable tutorials. Together, 9 MONDAQ, https://www. mondaq. com/india/social-media/1283676/endorsement-know-how-guidelines-forcelebrities-virtual-influencers-and-influencers , (last visited on Mar. 25,2025).

these diverse genres create a vibrant online community that reflects a wide array of interests and perspectives. India's influencer industry is projected to reach ₹10,750 crore by 2027, capturing an 11% share of the overall digital media market. According to the IMR 2024 report, influencer marketing is experiencing annual growth exceeding 20%. But how safe and authentic is this industry that is skyrocketing? 10 Clickbait refers to the use of eye-catching or exaggerated headlines by influencers to grab your attention and entice you to click on their content. These headlines often promise something sensational or shocking, but the actual content rarely delivers on those expectations. In contrast, rage bait is designed to provoke anger or upset, encouraging you to comment, share, or engage in heated debates.

This type of content often revolves around controversial topics or strong opinions that trigger intense emotions. Influencers and content creators are strategic in how they craft their posts to maximize engagement. They use clickbait titles, provoke strong reactions, and stage what appear to be spontaneous moments that are actually well-planned. This approach keeps audiences watching and interacting, which helps influencers maintain their popularity and attract brands eager to connect with their followers. Many people overlook this dynamic. Social media platforms are designed to foster emotional connections, tapping into users' feelings and experiences. Some influencers exploit this vulnerability, using emotional manipulation to boost views and engagement. By creating content that resonates deeply—whether through humour, outrage, or empathy—they keep their audiences hooked and engaged.

Kayla Massa built a following of over 330,000 people, which she exploited to promote a fraudulent scheme. She posted flashy images of stacks of cash, claiming her followers could earn up to $5,000 by letting her acquaintance temporarily use their bank accounts. Victims were instructed to send in their depleted bank cards along with their personal identification 10 CAMPAIGN INDIA, https://www. campaignindia. in/article/indias-influencer-industry-to-touch-rs-10-750crore-by-2027/498520, (last visited on Mar. 25,2025).

numbers (PINs). Unfortunately, Massa used this information to transfer large sums of money before she and her accomplices were caught by the authorities. 11 In a different but equally troubling case, Belle Gibson amassed millions of followers on social media. She claimed that her holistic diet helped her fight cancer and even published a cookbook, promising that the proceeds would go to charity. However, it was later uncovered that she hadn’t donated any of the $300,000 she raised. As scrutiny from fans grew and criticism mounted, Gibson admitted that she had never actually been diagnosed with cancer. In 2017, a federal court fined her $410,000 for faking charitable donations she never made. 12 Definition of misinformation According to the Cambridge dictionary, misinformation refers to “wrong information or the act of spreading false information, regardless of intent to mislead.

”13 Misinformation spread by online influencers in India significantly deepens existing divides based on caste, race, and religion. For example, some influencers perpetuate stereotypes about specific castes, reinforcing harmful social hierarchies and discrimination. Similarly, misleading narratives about religious groups can stoke animosity and widen communal divides, sometimes even leading to increased sectarian violence. Racial stereotyping in influencer content further fuels prejudice, undermining social cohesion. By targeting specific audiences, influencers can amplify biased views, creating echo chambers that discourage open dialogue. During political events, misinformation can be manipulated to mobilize communities against perceived threats tied to identity, which threatens social harmony and influences youth, who may adopt these biased perspectives from influencer content.

In addition to this, social media algorithms often promote divisive narratives, making it harder to foster understanding among diverse groups. Misinformation from influencers can include both partial inaccuracies and complete

KOBE,

https://www.getkobe.com/blog/unmasking-influencer-fraud-a-threat-to-the-billion-dollarindustry/#:~:text=Another%20example%20of%20influencer%20fraud,potentially%20earn%20up%20to%20%2 45%2C000, (last visited on Mar. 25,2025). 12 THE GUARDIAN, https://www.theguardian.com/books/2017/nov/13/behind-belle-gibsons-cancer-coneverything-about-this-story-is-extreme (last visited on Mar. 25,2025).

13 CAMBRIDGE DICTIONARY, https://dictionary.cambridge.org/dictionary/english/misinformation, (last

visited on Mar. 25, 2025)

falsehoods. This encompasses not just blatant lies but also misleading advertisements that distort the truth. Influencers may unintentionally or deliberately share content that misrepresents facts, leading their audiences to develop incorrect beliefs. This misinformation can significantly shape public perception and behaviour, highlighting the need for both influencers and their followers to critically assess the information shared online. The connection between misleading advertisements and misinformation is a pressing concern in the digital landscape, particularly as online influencers play a pivotal role in shaping how consumers perceive products and ideas. A 2022 survey conducted across India revealed that influencers have a notable impact on their

audience's purchasing decisions. In fact, 59% of respondents reported being more likely to try a product recommended by their favourite influencer. This statistic highlights the strong influence that these figures hold in shaping consumer behaviour and preferences. 14 Misleading advertisements often feature exaggerated claims or leave out crucial information, giving audiences a skewed view of products or services. This can lead people to develop unrealistic expectations and make uninformed decisions based on false premises. Influencers, who are frequently seen as trusted sources by their followers, can exacerbate this issue when they share or promote misleading ads. Their endorsements can lend an air of credibility to questionable claims, making it more likely that followers will believe and act on the misinformation.

For example, an influencer might promote a health supplement that makes vague promises of miraculous benefits while neglecting to mention potential side effects or the lack of scientific support. In addition to this, the casual nature of social media and influencer marketing often blurs the lines between genuine content and advertising. Followers might not realize that a post is a paid promotion, leading to the unintentional spread of misinformation. This creates a feedback loop where misleading advertisements are not only perpetuated but also reinforced by the influencer's wide reach and engagement.

STATISTA,

https://www.statista.com/statistics/1359453/india-influencer-impact-on-consumerbehavior/#:~:text=A%20survey%20conducted%20across%20India,recommended%20by%20their%20favorite% 20influencer., (last visited on Mar. 25,2025).

Related legal provisions - Section 196 of the Bharatiya Nyaya Sanhita15, 2023 addresses actions that foster disharmony or hostility among different groups based on religion, race, language, caste, or community. It makes it illegal to use words, symbols, or electronic communication to incite hatred or animosity. In addition to this, it prohibits actions that disrupt public peace and harmony, as well as organizing or participating in activities that train individuals to use violence against any group, instilling fear or insecurity. - Those who violate these laws could face imprisonment of up to three years and fines. Offenses committed in places of worship or during religious ceremonies carry even stricter penalties, with potential prison sentences of up to five years and higher fines.

This provision aims to address misinformation or hate speech that can lead to societal disharmony, emphasizing the importance of promoting understanding and respect among diverse communities. - Section 153B of the Indian Penal Code (IPC)16 has been revised and included as Section

197 in the Bharatiya Nyaya Sanhita (BNS)17. This clause makes it illegal to create or

share false and misleading information that threatens the sovereignty, unity, integrity, or security of India. Offenders could face up to three years in prison, fines, or both. For an action to be considered illegal under Section 197(1)(d), three conditions must be met: first, there must be information that has been created or published; second, this information must be clearly identified as 'false or misleading'; and third, it must pose a threat to the 'unity, sovereignty, integrity, or security of India. ' - Section 35318 outlines the penalties for spreading false statements or rumours, including those shared online, when done with harmful intent. Individuals could face up to three years in prison or fines if their statements aim to incite military personnel to mutiny, create public fear, or provoke violence between communities.

The same penalties apply if false information incites hatred based on religion, race, or other factors. 15Bharatiya Nyaya Sanhita, 2023, § 196, No. 45, Acts of Parliament, 2023 (India).

16 Indian Penal Code, 1860, § 157, No. 45, British Parliament, 1860 (India).

17 Bharatiya Nyaya Sanhita, 2023, § 197(1)(d), No. 45, Acts of Parliament, 2023 (India).

18 Id. at § 353

However, there’s an exception for those who genuinely believe their statements are true and share them in good faith, without harmful intent. In such cases, these actions are not considered offenses. Proposed Digital India Act,2023 Since the Digital India Act 202319 has not yet been passed, we will refrain from commenting on its provisions and potential implications. However, this Act is crucial for updating the outdated regulatory framework established by the Information Technology Act of 2000. Over the past two decades, India’s digital landscape has changed dramatically, with the number of internet users soaring from 5. 5 million to around 850 million. 20 This explosion in connectivity has given rise to various online intermediaries and new forms of user harm, such as cyberbullying, misinformation, and hate speech—issues that weren’t as prevalent when the original Act was enacted.

Current regulations, including the Intermediary Guidelines and Digital Media Ethics Code, fall short in addressing the complexities introduced by advancements in technology like AI, blockchain, and cloud computing. As cyber threats become more sophisticated, there’s an urgent need to strengthen cybersecurity and data protection measures. The proposed Digital India Act aims to align India’s regulations with international standards, promoting cooperation in cybersecurity and data management across borders. Information Technology Act, 2000 Section 66A of the Information Technology Act, 200021 penalized individuals for sending offensive messages through electronic means. This law specifically targets actions like sending grossly offensive or threatening information, as well as spreading false information intended to cause annoyance, danger, or hatred.

It also criminalizes deceptive emails that mislead

MINISTRY

OF

ELECTRONICS

AND

INFORMATION

TECHNOLOGY,

https://www.meity.gov.in/writereaddata/files/DIA_Presentation%2009.03.2023%20Final.pdf, (last visited on Mar. 25,2025).

20 THE ECONOMIC TIMES,

https://economictimes.indiatimes.com/tech/technology/how-india-is-using-theinternet/articleshow/108354854.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst, (last visited on Mar. 25,2025).

21 Information Technology Act, 2000, § 66A, No. 21, Acts of Parliament, 2000 (India).

recipients about the origin of the messages. Offenders could face up to three years in prison and fines. The section also clarifies that "electronic mail" and "electronic mail message" encompass any form of information transmitted via computers or communication devices, including text, images, audio, and video. However, the Supreme Court declared section 66A unconstitutional under the case of Shreya Singhal v Union of India. 22 Case of Shreya Singhal Vs Union of India Justices Chelameswar and Nariman of the Supreme Court of India examined whether Section 66A of the Information Technology Act (ITA) violated the right to freedom of expression under Article 19(1)(a) of the Constitution. 23 While Article 19(2)24 allows the government to impose reasonable restrictions for various reasons like public order and national security, petitioners argued that Section 66A was unconstitutional.

They claimed that its provisions against annoyance and inconvenience went beyond what Article 19(2) allows and that the law was unconstitutionally vague, creating a "chilling effect" on free speech. In response, the government argued that the legislature is best equipped to address societal needs, insisting that any abuses of the law do not make it unconstitutional. They maintained that the law's broad language was necessary to tackle new forms of online disruptions, asserting that vagueness alone doesn’t invalidate a statute if it has legislative backing. The Court explored fundamental concepts of freedom of expression—discussion, advocacy, and incitement—stating that mere discussion or advocacy, no matter how unpopular, is central to this right. They concluded that freedom of expression can only be limited when it amounts to incitement.

The Court found that Section 66A restricted all internet communications without distinguishing between advocacy and incitement, failing to establish a clear link to public order. In addition to this, the Court noted that Section 66A did not adequately protect against defamation, as it targeted offensive statements that might annoy individuals but didn’t

22 Shreya Singhal Vs Union of India, AIR 2015 SUPREME COURT 1523.

23 INDIA CONST. art. 19 cl. 1.

24 Id at cl. 2.

necessarily harm their reputation. They ruled that the law failed to prevent communications inciting offenses since annoyance and offensiveness are not criminal offenses under the Penal Code. Addressing the issue of vagueness, the Court referred to U. S. judicial precedents, stating that undefined terms in a statute lead to arbitrariness and unreasonableness. They determined that Section 66A contained many open-ended terms, making it void for vagueness. The Court acknowledged that the provision could create a chilling effect on protected speech due to its lack of clear definitions. While the Court rejected claims that Section 66A violated Article 14 of the Constitution, finding a distinction between online and offline speech justifiable, it ultimately did not address procedural unreasonableness since they had already deemed the law unconstitutional on substantive grounds.

They also invalidated Section 118(d) of the Kerala Police Act as it related to Section 66A. Based on these findings, the Court declared Section 66A of the ITA unconstitutional for violating the right to freedom of expression under Article 19(1)(a) of the Constitution. Responsibility of online influencers while advertising Another leg of misinformation can be misleading advertisements, thus responsibilities of influencers, while endorsing a product or service, are listed below- Guidelines for influencer advertising according to ASCI25

1. Disclosure Requirements

All advertisements shared by social media influencers must clearly identify themselves as ads. • When to Disclose: Disclosure is necessary if there’s any connection between the influencer and the advertiser, such as receiving payment, free products, or other benefits for promoting a product. Even if the influencer's opinion is unbiased, they still need to disclose any material connection. If there’s no connection and the influencer shares

ASCI,

https://www.ascionline.in/wp-content/uploads/2023/08/GUIDELINES-FOR-INFLUENCER- ADVERTISING-IN-DIGITAL-MEDIA.pdf, (last visited on Mar. 25,2025).

their honest opinion about a product they purchased themselves, no disclosure is needed. • Visibility: Disclosures must be easy to see and shouldn’t be hidden in places like profile bios or at the end of posts. They should be prominent in photos or videos. For short videos, the disclosure must be visible for a minimum duration, while in longer videos, it should appear for a significant portion of the time when the product is mentioned. • Format: Disclosures should be clear and easy to understand. Acceptable labels include "Advertisement," "Ad," "Sponsored," or "Paid Partnership." They should be in English or the language of the advertisement. • Shared Responsibility: Both the advertiser and the influencer share the responsibility for ensuring that disclosures are made and that advertisements comply with the guidelines.

2. Due Diligence

Influencers should verify that advertisers can substantiate any claims made in their ads.

3. Evidence for Disputes

In case of a dispute about whether a post is an advertisement, the advertiser must provide a signed declaration confirming that there’s no connection to the influencer. If the advertiser is difficult to identify, proof of purchase can serve as evidence.

4. Special Guidelines for Health and Financial Influencers

Influencers in the health and finance sectors must have the appropriate qualifications and certifications to provide advice. • Financial Influencers: They should be registered with the Securities and Exchange Board of India (SEBI) and include their registration number in their posts. • Health Influencers: They must have relevant qualifications, such as medical or nutrition certifications, and should clearly disclose these qualifications in their content.

These guidelines are designed to promote transparency and accountability in influencer advertising, protecting consumers from misleading information. Central Consumer Protection Authority (CCPA) guidelines On June 9, 2022, the Central Consumer Protection Authority (CCPA) issued new Guidelines to prevent misleading advertisements and endorsements.26 These Guidelines aim to stop false or misleading ads and have been effective since their announcement. The guidelines clarify what constitutes a misleading advertisement and outline the proper use of disclaimers. They address issues such as “bait advertisements” (which attract consumers with low prices but may not deliver), “surrogate advertisements,” and ads targeting children. Influencers and endorsers now have additional responsibilities to ensure their promotions are truthful. Important aspects of the Guidelines

1. Applicability: The guidelines apply to all forms of advertisements, regardless of their

presentation. Responsibility lies with the advertiser or advertising agency, not the platform displaying the ad.

2. Valid Advertisement Conditions: Ads must be honest and should not exaggerate

claims about a product. They must not mislead consumers regarding the risks of not purchasing the product and must adhere to other relevant laws. Minor mistakes in an ad can still be acceptable if the advertiser can demonstrate that they generally meet their claims and have made efforts to rectify any issues.

3. Use of Disclaimers: Disclaimers must be clear and should not contradict the main

claims of the advertisement. They should be easy to read and prominently displayed where consumers can easily see them.

4. Bait Advertisements: While not outright banned, bait ads must ensure that products

are genuinely available at the advertised price. Advertisers should have enough stock

26 PRESS INFORMATION BUREAU, https://pib.gov.in/PressReleasePage.aspx?PRID=1832906, (last visited on

Mar. 25,2025).

to meet expected demand and must clearly explain any limitations or additional conditions in the ad.

5. Free Claims: Ads claiming that products are free must not have hidden costs.

Consumers should only be responsible for unavoidable expenses, like delivery fees. The term “free trial” cannot be used if a non-refundable purchase is required. Overall, these guidelines aim to foster a fair advertising environment and protect consumers from misleading claims. Important Provisions for Advertising to Children The guidelines stress the need for careful advertising directed at children, defined as anyone under 18 years old. They prohibit ads that could promote dangerous or unhealthy behaviours and aim to safeguard children’s mental and physical well-being. Here are the key rules:

1. Safety First: Advertisements must not promote harmful behaviours or take advantage

of a child's naivety or loyalty.

2. No Unrealistic Expectations: Ads should avoid exaggerating the benefits of products,

so children don’t form unrealistic expectations.

3. Avoid Peer Pressure: Advertisements must not imply that children will be ridiculed or

lose popularity if they don’t buy the promoted products.

4. Health Claims: Any claims related to health or intelligence must be supported by

credible scientific evidence.

5. No Junk Food Ads: Advertising junk food is banned during children's programming,

although the term “junk food” isn’t clearly defined, which may lead to some confusion.

6. Consumerism Concerns: Promotions that encourage unnecessary purchases or foster

illogical consumerism should be avoided. These measures aim to prevent negative body image and promote healthier choices among children, although some provisions may appear overly strict.

Surrogate Advertising Surrogate advertising, which promotes restricted products (like alcohol) under the guise of advertising other goods, is prohibited. The guidelines provide clear scenarios that define such ads while allowing some flexibility for the use of brand names. Responsibilities of Advertisers The guidelines outline the responsibilities of manufacturers, service providers, and advertisers to ensure that their ads are truthful and do not mislead consumers. Some exaggeration (known as puffery) is allowed as long as it is clearly humorous, but caution is especially important when advertising to children. Endorser Due Diligence Endorsers, whether individuals or groups, must ensure that their endorsements reflect genuine opinions based on adequate experience with the product. If a child is endorsing a product, their guardian must ensure compliance with these requirements.

Disclosure of Connections Endorsers must disclose any material connections they have with the brands they promote, including financial ties. This transparency helps maintain authenticity in endorsements. Offences and Penalties If a manufacturer, advertiser, or endorser fails to comply with the Misleading Advertisements Guidelines, the CCPA can impose a penalty of up to INR 10 lakh. For subsequent violations, this penalty can increase to up to INR 50 lakh. In addition to this, the CCPA can prohibit an endorser from making endorsements for up to one year, with the possibility of extending this prohibition to three years for repeat offenses. Section 89 of the Consumer Protection Act, 201927 establishes clear penalties for manufacturers or service providers who produce false or misleading advertisements that can harm consumers.

For a first offense, they might face up to two years in prison and a fine of up to ten lakh rupees.

27 Consumer Protection Act, 2019, § 89, No. 35, Acts of Parliament, 2019 (India).

If they repeat the offense, the stakes are much higher, with potential imprisonment of up to five years and fines that can soar to fifty lakh rupees. These measures are intended to discourage deceptive advertising practices and protect consumers, ensuring that businesses are held accountable for their claims. Definition of offensive content According to the Cambridge dictionary, offensive means “causing offence” or “an act of upsetting or insulting someone”. 28 In this paper, "offensive content" specifically refers to obscene material that is lewd or caters to inappropriate interests. This type of content can negatively influence or corrupt individuals who come across it, as it often lacks any significant literary, artistic, political, or scientific value.

Related legal provisions - Under Section 67A of the Information Technology Act, 2000,29 there are clear penalties for publishing or sharing material that features sexually explicit acts or conduct in electronic form. Individuals who are found guilty of this can face serious legal repercussions. For a first offense, the punishment includes up to five years in prison and a fine that can reach ten lakh rupees. If someone is convicted a second time or more, the penalties become harsher, with imprisonment extending to seven years, while the fine remains the same. This provision is designed to tackle the spread of sexually explicit content online and promote a safer, more regulated digital environment. - Section 67B of the Information Technology Act, 2000,30 imposes strict penalties for publishing or sharing any material that portrays children in sexually explicit acts.

This includes actions like creating or distributing content that shows children in inappropriate situations, promoting online relationships for sexual purposes, facilitating child abuse, or recording such abuse. For a first offense, individuals could face up to five years in prison and a fine of up to ten lakh rupees. If they are convicted again, the 28 CAMBRIDGE DICTIONARY, https://dictionary. cambridge. org/dictionary/english/offensive, (last visited on Mar. 25,2025).

29 Information Technology Act, 2000, § 67A, No. 21, Acts of Parliament, 2000 (India).

30 Id at § 67B.

imprisonment can increase to seven years, while the fine remains the same. However, there are exceptions for materials that have a public benefit, such as those in science, literature, or art, or that are used for legitimate cultural or religious purposes. In this context, "children" refers to anyone under 18 years old. - Section 294 of the Bharatiya Nyaya Sanhita, 202331 defines materials as obscene if they are sexually inappropriate or could potentially corrupt those who view or hear them. This includes a range of content, such as books, drawings, and digital media. It prohibits the selling, distributing, or displaying of obscene materials, as well as importing or exporting such items. Engaging in businesses that deal with obscenity or promoting these materials is also against the law.

- First-time offenders can face penalties of up to two years in prison and fines of up to ₹5,000, while repeat offenders may be sentenced to up to five years and fined up to ₹10,000. However, there are exceptions for materials that provide public benefit, such as those related to science or art, legitimate religious materials, and artistic representations found in ancient monuments or temples. - Section 29532 specifically addresses the sale or distribution of obscene materials to children, viewing it as a serious offense. For first-time offenders, the penalties can include up to three years in prison and a fine of up to ₹2,000. If someone commits the offense again, the consequences become much more severe, with imprisonment of up to seven years and a fine of up to ₹5,000.

The aim of this section is to protect children from harmful content, and it applies to both online and offline distribution. - Section 29633 focuses on obscene acts carried out in public places, including the singing or reciting of inappropriate songs. Offenders can face penalties of up to three months in prison, a fine of up to ₹1,000, or both. The goal of this section is to uphold public decency and prevent disruptions in communal settings. However, it would be beneficial for the law to also encompass such acts conducted through electronic means.

31 Bharatiya Nyaya Sanhita, 2023, § 294, No. 45, Acts of Parliament, 2023 (India).

32 Id at § 295.

33 Id at § 296.

Definition of hate speech According to the Cambridge English Dictionary, hate speech is “public speech that expresses hate or encourages violence towards a person or group based on their race, religion, sex, or sexual orientation. ”34 Hate speech refers to any communication that encourages violence, discrimination, or hostility against individuals or groups based on characteristics like race, ethnicity, nationality, religion, gender, sexual orientation, or disability. This type of speech often involves derogatory comments, threats, or inflammatory language intended to dehumanize or stigmatize specific communities. The definition and legal treatment of hate speech can differ from one country to another, reflecting varying societal values and legal approaches to free expression and protection against discrimination.

For this research, we will specifically concentrate on hate speech directed at religious groups or beliefs. This targeted approach will allow for a deeper exploration of the complexities and consequences associated with religiously motivated hate speech within the wider context of societal dynamics. In 1969, the significant case of Kedar Nath Singh vs. State of Bihar35 explored the delicate balance between the fundamental right to freedom of speech and the government's authority to impose restrictions. The Supreme Court of India concluded that speech could only be limited if it incited violence or public disorder. They made it clear that simply being offensive or hurtful did not meet the criteria for hate speech. This ruling reinforced the importance of protecting free expression while still recognizing the need for regulation in certain circumstances.

Related legal provisions - Under Section 298 of the Bharatiya Nyaya Sanhita 202336, individuals who destroy, damage, or show disrespect to a place of worship or a sacred object with the intent to insult a religion, or with the knowledge that their actions could offend others, may face penalties of up to two years in prison, a fine, or both. This provision aims to protect

34 CAMBRIDGE DICTIONARY, https://dictionary.cambridge.org/us/dictionary/english/hate-speech, (last

visited on Mar. 25,2025). 35Kedar Nath Singh vs. State of Bihar ,1962 AIR 955.

36 Bharatiya Nyaya Sanhita, 2023, § 298, No. 45, Acts of Parliament, 2023 (India).

religious sentiments and maintain respect for places of worship. However, committing such acts via electronic medium should also be punished. - Section 29937 stipulates that anyone who intentionally insults the religious feelings of any group in India—whether through spoken or written words, signs, or images, both in person or online—can face penalties of up to three years in prison, a fine, or both. This law is designed to protect individuals from expressions that may harm their religious sentiments. - Section 19638 focuses on preventing the promotion of hatred and enmity between different religious, racial, or community groups. It criminalizes any spoken or written communication that incites hostility or discord, with the aim of safeguarding communal harmony and public peace.

Those found engaging in activities that encourage violence or instil fear among communities can face penalties of up to three years in prison, fines, or both. If such offenses take place in places of worship or during religious ceremonies, the consequences are even more severe, potentially leading to up to five years of imprisonment. - Section 19739 aims to protect citizens' rights by prohibiting false claims that undermine loyalty to the Constitution based on group identity. It criminalizes statements that deny or deprive specific groups of their rights, as well as those that promote enmity between communities. Offenders can face penalties of up to three years in prison, fines, or both. If the offenses occur in religious contexts, the penalties can be even harsher, potentially extending to five years of imprisonment.

Ultimately, this section seeks to promote unity and respect among the diverse groups within society. - Section 302 of the Bharatiya Nyaya Sanhita, 202340 sets out penalties for those who intentionally hurt the religious feelings of others. It states that anyone who deliberately uses words, gestures, or displays objects to insult or offend someone's religious sentiments can face imprisonment for up to one year, a fine, or both. This section

37 Id at § 299.

38 Id at §196.

39 Id at § 197.

40 Id at § 302.

highlights the importance of respecting others' religious beliefs and aims to prevent actions that might spark social discord or communal tension. - The Hate Speech and Hate Crimes (Prevention) Bill, 2022,41 offers a clear definition of hate speech and includes measures to tackle its spread, particularly through digital media. However, as this bill has not yet been enacted into law, we will hold off on discussing its potential implications or how it might be enforced. Examination of the 2021 IT Guidelines and Their Regulation of Intermediaries The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021,42 released in February 2021, update the regulatory framework for social media and online platforms in India.

These new rules replace the 2011 guidelines and introduce additional responsibilities for social media intermediaries (SMIs) and significant social media intermediaries (SSMIs) to create a safer online environment. The 2023 Amendment also includes new obligations for online gaming intermediaries. Pertinent Features of the 2021 Rules:

1. Due Diligence: SMIs and SSMIs are required to publish their rules and privacy

policies, inform users about the consequences of non-compliance, and promptly remove illegal content upon notification. SSMIs have extra responsibilities, such as appointing compliance officers and employing technology to identify problematic content.

2. Grievance Redressal Mechanism: Intermediaries must designate a grievance officer,

acknowledge complaints within 24 hours, and resolve them within 15 days. They are also mandated to quickly remove illicit content.

3. Code of Ethics for Digital Media: The rules set ethical guidelines for digital media

publishers, which include age classifications and accessibility measures for content.

41 RAJYA SABHA DEBATES , https://rsdebate.nic.in/handle/123456789/733746?viewItem=browse, (last

visited on Mar. 27, 2025) 42 PRS INDIA, https://prsindia.org/billtrack/the-information-technology-intermediary-guidelines-and-digitalmedia-ethics-code-rules-2021, (last visited on Mar. 25,2025).

The 2023 Amendment43

1. Fact Check Unit (FCU): The amendment requires intermediaries to avoid hosting

content flagged as fake or misleading by a government fact-check unit. To maintain their legal protections, they must promptly remove any content identified by the FCU.

2. Concerns About Free Speech: The introduction of the FCU raises important questions

about free speech, especially regarding what is considered the "business of the Central Government." Striking a balance between preventing misinformation and protecting citizens' rights to share information is a crucial issue.

3. User Restrictions: Users are not allowed to share or store information identified as

fake by the FCU. However, the vague definitions of "fake" and "false" may lead to subjective interpretations.

4. Ensuring Online Safety: Intermediaries are required to swiftly remove content that

violates personal dignity, such as nudity or impersonation, upon receiving complaints. Gist of the 2023 Rules: • Intermediaries cannot host unapproved online games or spread misleading information about the government. • They must make reasonable efforts to prevent hosting content labelled as fake by the FCU.

Non-compliance may result in the loss of safe harbour protections, making intermediaries liable for third-party content. Overall, the 2021 rules and the 2023 amendment aim to enhance user safety and accountability among online platforms while navigating the challenges of free speech and misinformation. However, the law as to the fact checking unit is concerned was recently criticised by the 43 PRS INDIA, https://prsindia.org/billtrack/amendments-to-it-rules-2021#:~:text=freedom%20of%20speech.- ,2023%20Draft%20Amendments,without%20any%20safeguards%20in%20place. (last visited on Mar. 25,2025).

Bombay High Court.44 Recommendations The following recommendations are proposed to create a safe cyberspace

1. Broaden the Definition of Influencer: The current definition of an influencer is too

limited, focusing mainly on their ability to sway consumer choices. We need a more expansive definition that recognizes the broader societal impact influencers have.

2. Establish Regulatory Bodies: It’s important to create dedicated organizations to

oversee influencers and their content. These regulatory bodies should operate independently of existing frameworks to ensure focused and effective oversight. Since the Advertising Standards Council of India (ASCI) is not a government entity and lacks binding authority, a formal regulatory body is essential.

3. Hate Speech Criteria: Any speech that a reasonable person would find offensive

should be classified as hate speech. The focus should be on the speaker's intent rather than just the impact of their words.

4. Limit Discretion of Social Media Platforms: Social media companies, many of which

are based outside India, should not have excessive power in deciding what constitutes acceptable content. Their lack of familiarity with local cultural sensitivities can lead to inappropriate moderation practices.

5. Implement Clear Legislation: We should introduce clear and straightforward

legislation, similar to Section 66A of the IT Act, using the reasonable person standard to define unacceptable speech.

6. Dedicated Laws Against Misinformation: Relying only on consumer protection laws

is inadequate to tackle misinformation spread by influencers. We need specific laws and institutions focused on monitoring and regulating influencer activities. 44 THE HINDU, https://www.thehindu.com/news/national/bombay-hc-formally-strikes-down-centres-factcheck-unit-calls-amended-it-rules-unconstitutional/article68684934.ece, (last visited on Mar. 25,2025).

7. Educate the Public: Awareness programs should be created to teach individuals,

especially children, how to identify hate speech, misinformation, and obscene content. Educational policies should prioritize societal welfare and be free from bias.

8. Encourage Research and Collaboration: We should promote research to find

effective ways to combat misinformation. The government can facilitate collaboration between academics and businesses to foster discussions and develop solutions, ultimately creating a safer online space. Conclusion Influencers shouldn’t be seen as isolated figures or threats to our values, nor should they be dismissed as just a Gen Z phenomenon. They represent a vibrant creative force in our culture, connecting with people in ways that resonate deeply. At the same time, it’s important to consider the need for regulation. By putting guidelines in place, we can help ensure that their impact remains positive, promoting transparency and authenticity. Embracing influencers while also fostering a responsible environment allows us to appreciate their contributions without compromising our values. It’s about finding that balance between creativity and accountability.

“Like gods, we have created a new universe called cyberspace that contains great good and ominous evil. We do not know yet if this new dimension will produce more monsters than marvels, but it is too late to go back. ” -David Horsey