As the society changes, the law cannot remain immutable – Justice D P Madon
One more time Netflix (American Online Entertainment Company)courted itself into a controversy for its recent shows ‘Krishna and its Leela’, and ‘Bulbul’. Netizens alleged that these shows are ‘Hinduphobic’ and an insult of their religion. Last yeara member of Shiv Sena Ramesh Solanki has filed police complaint against Netlix India for “defaming Hindu and India”. According to ANI, Ramesh Solanki cited few examples of series such as Sacred Games, Leila and Ghoul along with the standup comedian HasanMinhaj show and accused Netflix “to paint an incorrect picture of Hindus and India globally”
These controversies are not only faced by Netflix but other OTT (over-the-top)apps also. Nevertheless, posters of different web-series from Amazon such as PatalLok were also shared on social medias, alleging them Anti-Hindu Content. However, such apps are not facing issues in India only, but navigate different political and moral landscapes as it expands worldwide. Moreover, the 2018 Annual Report of Netflix lists both “Censorship” and “the need to adapt our content and users interfaces for specific cultural and language differences” as business risks.
The web-series available on these platforms are always highlighted for being ‘Hinduphobic’. Additionally, the content is full of drug use, nudity, vulgarity and violence, which is more harmful than being ‘hinduphobic’. The aforesaid content is shown publically without any censorship or note. Why is the censorship only restricted to movies released on theatres and not on OTT apps? What are Indian Legislations on Censorship?Do we have any legislation to govern OTT Platforms?This Article will resolve all such queries after analyzing every approach related to OTT apps.
CENSORSHIP REGULATION IN INDIA
The legislations governing the Censorship in India are the Cinematographic Act, 1952 along with the Cinematographic (Certification) Rules, 1983. Section 5B of the aforementioned Act subsist the manner according to which films are to be certified for exhibition in India. Moreover, the Censorship in India is controlled by the Central Board of Film Certification (hereinafter referred to as CBFC)that certify films under the following category-
- “U” (Unrestricted exhibition);
- “UA” (Unrestrictedexhibition except for children below 12 years of age);
- “A” (restrictedto adults only); and
- “S” (restrictedto specified class of persons).
The CBFC (Central Board of Film Certification) assesses movies without restraining artistic expression and creative freedom on the following grounds-
- The film should not be morally wrong.
- The decency should be maintained
- It should not defame any person or religious sentiments.
- The film should follow the laws relating to the depiction of cigarettes, tobacco, drugs, and substances.
- While making the film, no cruelty on the animals shall be caused.
- There should not be any misuse of National Emblem, and other matters of national honour.
However, the Filmmakers always criticize the Board for acting beyond the powers of certification. In the matter of Phantom Films Pvt. Ltd. and Ors. v. CBFC and Ors. CBFC granted “A” Certificate to the movie Udta Punjab and directed to delete various scenes from the movie. Later on, the matter was challenged before the Bombay High Court and the Court held that the film was not objectionable merely upondepiction of the use or sale of drugs in a particular state and opined that the story should be viewed in its entirety.
In Indian Motion Picture Producers Assn. v. Union of India, the petitioner challenged a notification issued by CBFC to Association of Producers, stating that an undertaking should be submitted by the producers. It should state that, the subtitles are included in the movie or no subtitles will be added after the certification is completed. The objective of CBFC to issue such notification was that some films exhibited with sub-titles without even seeking the endorsement of CBFC under Rule 33. Moreover, as per Rule 22(3) of Cinematograph (Certification) Rules, 1983 only the final version of the films is to be shown to the Board for certification. The Bombay High Court held that it is compulsory for filmmakers to submit with sub-titles if they desire that the film should sub-titles and once the film is certified, no sub-titles would be permitted. Further, the CBFC has no power under the Act or Rules to issue such notice, thus it stands unsustainable.
It is apparent from the aforementioned paragraph that Censorship Laws in India are very rigid, and CBFC is very strict about the content shown in the movie. Nevertheless, from the above stated case law on sub-titles it is crystal clear that CBFC judges every single perspective shown in the movie. As a matter of fact, the CBFC and the above-mentioned legislations are not applicable on the content available at OTT Platforms.
CONTENT REGULATION ON OTT PLATFORMS
The Ministry of Information and Broadcasting in a response of RTI Act, 2005 query stated that CBFC has no control over the online content. However, the statutory frameworksunder which these platforms can be examined are:
- Sections 67A, 67B, and 67C of the Information Technology Act, 2000 provide for penalty as well as imprisonment for publishing or transmitting obscene, sexually explicit material.
- Under Section 69A of the IT Act, the Central Government has power to issue directions to stop public access of certain information.
- Section 295A of Indian Penal Code, 1860 criminalizes deliberate and malicious acts that have intention to outrage religious feelings.
- Section 499 and 500 of IPC, 1860 criminalize dissemination of defamatory content.
- Law Enforcement Agencies can also rely on Section 91 of Criminal Procedure Code, 1973 to obtain information from internet companies.
Though,we already have enough laws to regulate OTT Platforms but there exist no mechanism of setting out censorship or certification of the online content or guidelines which specifically provide list of do’s and don’ts.
In the month of January this year, Internet and Mobile Association (IAMA) drafted a code of conduct for these platforms. Moreover, on 5thFebruary, 2020 an adjudicatory body was also formed known as Digital Content Complaint Council (DCCC) under the Chairmanship of Justice A P Shah. The Council intends to offer a consumer the platform to inform all grievances and allow platforms freedom to create content. This may result into enhanced commerce, promotion of creativity and strengthen consumer confidence.
The statement released by IAMA states that four platforms had already launched DCCC. On the other side, Mumbai Mirror reported that PrakashJavedkar (Minister of Information and Broadcasting), has provided these platforms 100 days time to set up their Complaint Council.
Mr. Nitish Kumar (Chief Minister of Bihar) last month wrote a letter to Prime Minister demanding Censorship on Internet Streaming Services. Furthermore, according to the survey conducted by YouGov, 57 per cent of Indian Citizen thinks that censorship is required on online streaming platforms, whereas, 91 percent feels that the content shown on TV or Online should be regulated by Government. With the exponential rise of OTT platforms, India has no less than 40 such platforms that stream content in English, Hindi, and other regional languages. This phenomenal growth has declined the DTH subscribers; however, these platforms are cheaper than DTH or Cable. According to experts, by the end of 2023 the Indian OTT will grow by 45% and the number of subscribers could reach around 500 million. Further, an average Indian is reported to spend around 40-50 minutes per day watching the content streaming on such platforms.
The content shown at OTT Platforms, have age restriction but it is easily accessible to all. These easy accessible services may have negative impact on children and people with less maturity level. One may wonder that movies which are not so simple to access are governed with dense laws rather, OTT Platforms which are known for its ease accessibilities do not have legislations to be governed, may be because it can hurt the Government flagship of ‘Digital India’ programme. Indeed, the open Internet is contributing much towards our GDP.
- Netflix shows Sacred Games, Leila, others accused of promoting ‘deep-rooted Hinduphobia’ by Shiv Sena member; September 04, 2019 11:40:02 IST;https://www.firstpost.com/entertainment/netflix-shows-sacred-games-leila-others-accused-of-promoting-deep-rooted-hinduphobia-by-shiv-sena-member-7282171.html
- Trolls attacking Netflix for being ‘Hindu-phobic’ are conveniently ignoring its pro-Hindu shows;7 September, 2019 10:03 am IST; https://theprint.in/features/trolls-attacking-netflix-for-being-hindu-phobic-are-conveniently-ignoring-its-pro-hindu-shows/287726/
- Netflix Expands Into a World Full of Censors; The New York Times; https://www.nytimes.com/2019/10/31/arts/television/netflix-censorship-turkey-india.html
- Indian Motion Picture Producers Assn. v. Union of India, 2019 SCC OnLineBom 2288, decided on 25-09-2019
- More than half of Indians think online streaming platforms require content censorship;
Deepa Bhatia; 30 Oct 2019; Available at: https://in.yougov.com/en-hi/news/2019/10/30/more-half-indians-think-online-streaming-platforms/
- OTT Services in India; U K Srivastva; International Telecommunication Union
- India: Regulating The Unregulated: Stories Of OTT Platforms In India; 26 September 2019; By AshimaObhanand AkankshaDua; Available at :https://www.mondaq.com/india/broadcasting-film-tv-radio/848724/regulating-the-unregulated-stories-of-ott-platforms-in-india#:~:text=Further%2C%20under%20Section%2069A%20of,public%20access%20of%20any%20information.&text=The%20framework%20and%20provisions%20under,intermediaries%20under%20the%20IT%20Act.
- FICCI CAM Entertainment Law Book 2020; Cyril Amarchand and Mangaldas Advocates and Solicitors; Available at: http://www.cyrilshroff.com/wp-content/uploads/2020/05/FICCI-CAM-Entertainment-Law-Book-2020.pdf