Obscenity In The Digital Environment: Traditional Standards, Intermediary Liability, And The Consent-Centered Frontier

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Bisna Nisar, LL.M Scholar, School of Law, University of Kashmir

ABSTRACT

The paradigm shift in obscenity jurisprudence from nineteenth-century "public morality" doctrines to the modern digital context centered on personal consent, bodily autonomy, and informational privacy. Historically rooted in the Victorian-era Hicklin test and codified in statutes like the Indian Penal Code (IPC) and the U.S. Communications Decency Act (CDA), obscenity laws have long struggled to balance state-enforced moral order against individual expression. The advent of borderless digital networks and generative artificial intelligence has fractured the geographic assumptions of "contemporary community standards". This has resulted in a dual crisis: the over-censorship of legitimate sexual speech by private corporate "shadow regulators" fearing intermediary liability under reforms like SESTA- FOSTA, and the systemic failure of traditional public-morality frameworks to address the targeted, non-consensual exploitation of generative AI deepfakes. Through a comparative analysis of Indian, British, and American legal frameworks, this study critiques the commercialized "personality rights" model dominating contemporary litigation and instead advocates for a horizontal, rights-based constitutional remedy. This paper analyzes the evolution of obscenity law from public morality toward privacy, consent, autonomy, and dignity in the digital age. It highlights the inadequacy of traditional obscenity frameworks in addressing non-consensual AI-generated sexual deepfakes and the risks of excessive private censorship. Ultimately, the study advocates a rights-based constitutional approach that recognizes sexually explicit deepfakes as technology-facilitated gender-based violence and protects individual dignity under Article 21.

Keywords: Deepfakes, Synthetically Generated Information (SGI), Intermediary Liability, Section 230, Article 21, Hicklin Test, Corporate Shadow Regulation, Bodily Dignity, Consent Paradigm

192. OBSCENITY IN THE DIGITAL ENVIRONMENT- TRADITIONAL STANDARDS, INTERMEDIARY LIABILITY,

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