POSITION STATEMENT:SCALING DOWN FROM PRE-CENSORSHIP TO SELF-CENSORSHIP FOR THE FILMS ON OTT PLATFORM

Updated: Jul 23

Authored By:

R.Arun Kumar (Associate Editor, Legit)


INTRODUCTION:

Desperate times urge for desperate actions. From the title, one could assume that the paper deals with the film censoring and certification. India owes its gratitude towards the British Crown for structuring the foundation for Indian laws starting from IPC to ­­­­­­­­­­hundreds of Acts. The Cinematograph Act, 1918, is one among them that was similar to the British’s Cinematograph Act of 1909. Though the Act was it in par with the Indian customs and culture, it was, obviously, passed to suppress the Indians from rising against the Colonizing government. Even before the passing of this Act, India made its first film Raja Harichandra[1] in 1913 and thereafter didn’t pause in its progress, till today. After India attaining sovereignty and passing its own Constitution, the drafters thought of revising the British-made laws including the CG Act, which resulted in the Cinematograph Act, 1952, (hereinafter referred to as the CG Act or the 1952 Act). This was amended in such a way that it complies with the cornerstones of our constitution and without affecting the diverse sentiments prevailing across the nation.


This 1952 Act was enumerated with provisions for Central Board for Film Certification[2] (CBFC), regional bodies, Advisory panels[3] to aid the previous two, the manner in which applications must be received, criteria on which the certificates must be granted or refused, grounds for censoring a film[4] and in addition, it also has provisions stating the procedure for appeals to Film Certification Appellate Tribunal (FCAT)[5] from the decisions of the CBFC. The object of the Act is “to make provision for the certification of cinematograph films for exhibition and for regulating exhibition by means of cinematograph”. It is pertinent to note that the main function of the Act or the Bodies thereunder is to certify film and not to censor them. So CBFC can only certify the applicant’s film with the appropriate category but can’t suo motto censor the same. But it can direct the applicant to make cuts and modification in the film to avail certificate. If the latter fails to comply with such direction, the board has the right to refuse the application. So, CBFC is not a censor but just a statutory certification body.

With the advent of the digital revolution, the way in which the pictures were screened had seen a drastic change. The 1952 Act, which was predominantly governing the theatrical release, started to sense incapableness in adapting to dynamic technologies.


ISSUE:

Whether the government should have direct control over the online curated contents (OCC), especially the films, via the CBFC or like bodies, or the OCC providers should be left free to establish a Self-regulating code, similar to the Broadcast Content Complaint Committee (BCCC)[6], to streamline their contents?


Explanation: As of now, there is no legislation to specifically govern the OTT platforms and its contents. Not even a self-regulatory code among the similarly placed industries. Recently, the government hinted of allowing them to construct a code of conduct to be followed for streaming their content, in a uniform manner. This content includes the films and the web-series. So the debate under this paper is what is the appropriate mechanism to govern the OCC? Or whether it can be a statutory body like CBFC or self-regulatory body like BCCC?

Stand taken: The author favours the former, that is, it must be a requirement that the films streamed online be under the ambit of a statute, thereby supervised by the concerned statutory body. By this, the paper is against the self-regulatory mechanisms like DCCC[7], which is similar to that in television regulations (BCCC).

With that said the arguments in support for the author’s stand will be laid in the ongoing parts along with case laws, expert opinions, reports and other prominent sources. It is important to note that the paper has nothing to do with the efficiency of the said Act or its functionaries. It does not elaborate on the ongoing disparities between the theatres and online platforms, nor deals with the disadvantage caused by one against the other. Also nowhere there is going to be a discussion on the pros and cons of the two platforms. To be simpler, it only concerns what would be effective to govern the films released in the OTT. And also, the author doesn’t cover the whole of online contents; he excludes the news shows, comedy and reality shows, etc. but only focuses on the film and its related programs like series, short films. Before entering into the debate, it is important to throw some glance over the footpath or the background of the issue and also the position where it stands at present.


NEED OF THE HOUR:

The producers and directors of the film industry had simultaneously moved away from the traditional theatre exhibitions as well as attracted towards the Over the Top (OTT) platforms. This has been evident during this COVID – 19 pandemic, not only in India but also in many other countries that are at the novice stage of this transition. This had initiated a tussle between the trio namely; the producers, OCC providers and the theatre owners or the distributers. It may be referred to as an accidental or an incidental migration, the producers as well as directors as felt a room for liberty in the OTT platform than in the traditional theatre environment. If this continues the market for the distributers would scale down to fewer profits and this is the reason for the said tussle. The rationale for this liberty is that the OTT platforms are out of the ambit of the CG Act, i.e., the films or contents that come under ‘film’ doesn’t require a CBFC certificate to get released on those platforms. Since this is the reason for such attractiveness, the theatre demonstrates towards the government seeking a regulatory body like CBFC for controlling the online content.

Another pressure over the OCC is that they disintegrate the holiness of our culture and impure the religious and other sentiments. This sparked with the screening of Netflix’s ‘Sacred Games’ and very recent ‘Leila’. The public, to be more specific, the Hindutva followers were the majority in opposing such contents. As a response, the Indian government has ignited the debate of bringing the OCC under the law, starting from the industrial players itself. The Ministry of Information and Broadcasting had delegated to the OCC providers to come up with a code of best practice for the OTT platform. Ironically, the providers refused to coordinate with the government as well as among themselves. The following heads discuss the supportive argument for the author’s stand.


DISCRIMINATION:

The non-mandatory requirement of CBFC certificate for the films directly released on the OTT platforms is a clear violation of Article 14 of the Constitution of India. This article enumerates Right to equality before the law and the equal protection of the law. This contravention occurred, by placing the producers or director of the OTT released films in a liberal state when compared to those who release in a traditional way. As a defence for this argument, some state that the theatre platform is different from that of the online. That is, the former is a public exhibition while the latter is a private viewing. According to the 1952 Act, “film means a cinematograph film”[8], which includes full-length feature film as well as the short films. Though, there is no exclusive law to govern the functioning of those platforms like the Cable Television Networks (Regulation) Act, 1995, which is applicable to the Satellite channels, that is in itself discrimination between the films of both sides. Art. 14 mandate certain conditions to be fulfilled, one is intelligible differentia which distinguishes the two sides and the other is that such differentia must have a rational relation to the relation. In this case, the author sees no intelligible differentia and since there is no legislation in the picture, there will be zero relation to be assumed. Some refer that both the platforms are different, unequally placed so they require separate treatment. The films streamed on both are identical; the crew members are the same and the manner in which the work is also the same and then what’s the difference? Even the films broadcasted on TV must possess a CBFC certificate. So, if that’s the case what makes the OTT platforms liberal from the other two?


PUBLIC EXHIBITION V. PRIVATE VIEWING:

Another argument that was hinted previously is the scope of the term public exhibition’, which is one of the criteria for categorizing the film into U, U/A, A or S. Though the term has been used a number of times throughout the CG Act, it does not enumerate a definition for the same. The OCC providers view that the customers they themselves voluntarily subscribe to an OTT platform and view it in their personal space, instead of with the public. So, such viewing would only amount to Private screening and not a public exhibition.

In Garware plastics and Polyester Ltd. V. Telelink[9], the issue was that whether showing video films over Cable TV to various subscribers amount to broadcasting it to the public? The Defendant contended that the showing of a film by means of cable TV is only limited to private space of the subscribers; therefore it’s not broadcast to the public. The Bombay High Court held that such broadcast would amount to the public.


Another case, in Super Cassettes Industries Ltd. V. CBFC and others[10], the issues before the Delhi High Court were that – 1. Whether the audio-visual recording on VCDs, DVDs sold by petitioners in markets, which is bought by the consumers, would amount to private viewing? 2. Whether such films require CBFC’s approval under section 5A of the Act? The court observed that mere labelling that it is meant for private viewing does not make it an exemption from the Act. It also added that once DVDs leave the market, neither seller nor the producer of the film will have control over its viewing, it can even be viewed by a group of 100 people. The interpretation of the term ‘Public Exhibition’ has to be contextually kept in view of the purpose of the 1952 Act and the Copyrights Act, 1957. It recorded that the amendment to the latter act via section 52A had influenced the former and both the sections are no longer confined only to the theatres. Even if there is a single-family in a theatre, they should be considered as a part of the public. Finally, it held that film meant for private viewing need not necessarily be so and they are not exempted from the certification by CBFC.


It is practically true that the contents for private viewing are not always privately viewed. What if an educational institution subscribed to an OTT platform shows, to a class of 50 students, a documentary film? Another instance wherein the growing apartment styled living, management offers a facility of mini-theatre exclusively for the usage of their dwellers. It doesn’t own any license like the conventional. It requires only a laptop, projecting equipments and a theatre set up, which is enough to stream a film for 50 to 100 people. Do these 2 instances not amount to public exhibition? The answer will be, with no doubt, positive.


SCOPE OF THE TERM ‘CINEMATOGRAPH’:

The next issue that arises is the extent of the definition of the terms film or cinematograph film. Whether it includes the internet streamed contents within it? This issue was dealt in Padmanabh Shankar v Union of India[11], it ruled on the position of the films streamed other than in theatres. It held that the Cable operators must not broadcast on their cable service film certified with A category without censoring the A contents. By this the Right of an adult to view an ‘A’ film is not infringed; such a restriction is well within the ambit of Article 19(2) and also is not violative of the Right to Trade. In the same case, the issue of whether OCC comes under the definition of Cinematograph arose. The court observed that the Internet does not do the exhibition of films, but only transfer the files from the provider to the user on the request of the latter. The author, with due respects to the Hon’ble Court, refuses to accept the 2nd ruling but supports the observation. That is to say, it is true that internet service providers just transfer the content to the demanding customer, but that doesn’t mean that they don’t broadcast the same. If we take the Cable TV service, the providers telecast the films and in addition to that, some TVs have features for recording the same to watch in a future date. Even the mobile and laptops have these screen recording features. We need to relate the term ‘exhibition’ and ‘publication’. Both have the same meaning in the legal regime, except the difference that the latter is used for written or artistic content while the former is for video content. So, with regards to written content both the words ‘publish’ and ‘transfer’ more or less mean the same. Similarly, we can apply this to the video content between the words ‘exhibit’ and ‘transfer’. One function leads to another. With that said the author supports the 1st ruling and opines that the OTT is placed under identical position as that of the cable TV networks. So what applies to the latter must also apply the former. So the film released on those platforms must undergo a CBFC’s scrutinisation.


COMFORTING JUDICIARY:

Most of the OTT platforms agreed to set up a two-tier grievance redressal mechanism, one at the Preliminary level within their company and another for the industries as a whole. But that is not enough to regulate the operation of those media, because such redressal mechanism is of an administrative nature, which can be biased. Furthermore, a quasi judiciary establishment like Tribunal is mandatory for the effective functioning of the services and providers. This is not possible if the government transfers the liberty to them to draft a self-governing code. The disadvantage of not having a tribunal is that the dispute directly piles up before the doors of courts. This, in turn, delays the administration of justice. So, it is important to have a quasi-judicial body to adjudicate the dispute and for that, statutory regulation is important and not a self-governing code. Secondly, even if the matter reaches the court via appeal, the judges need a rigid enactment to rely upon, which are rigidly applied to all the industrial players rather that each having their own regulation. So self-governing code, without doubt, transfers the burden on the judiciary.


PIRACY ISSUE:

As already mentioned, the probability for illegally pirating the film is convenient in online platforms on comparing with the traditional theatre systems. The providers argue that the censorship for internet content is impossible because of its vastness. Pirated sites are easily available with uncensored materials. That’s why OTTS doesn’t concern of censoring, because the people will find an alternative. This will lead to a reduction in subscribers. So the providers stick with the idea of informing users about the content rather than promoting them to watch it elsewhere. By this, the author doesn’t mean to oppose the development of OTT platform. The already existing piracy laws are weak, ineffective and are poorly equipped to curb offences occurring in the theatres. So the government must first make the law and then concentrate on the development schemes and strategy. Without a rigid and definite law, letting the players develop and govern themselves would lead to chaos.


AFTERMATH CERTIFICATION:

Let’s us assume that the certification for the OCC had been granted, who is responsible for carrying out the conditions given by the Certifying authority? Unlike theatres where the management supervision the conduct of the people who watch the film, in OTT platform it is impossible for a natural person to constantly check over the user. So it is important for the OCC providers to give a description of the film. The burden doesn’t end there; the parents or the guardians also share the burden in supervising their wards so they are not into the restrictive content. Here it will be appropriate to cite the position in Singapore and Australia which is, according to the author, are well developed in regulating the online platforms. In Singapore, these media are governed directly by law under the Infocomm Media Development Authority (IMDA) which issues a code of practice for OTTs and video-on-demand services. The law classifies the film into PG, PG-13, NC-16, M-18 and R-21. Additionally, they also made it mandatory inculcating parental lock and control feature for NC-16[12] content and reliable age verification mechanism for the R-21 contents. Broadcasting Services Act, 1992 governs both the offline and online platforms in Australia. They too categorize as RC, X-18, R-18 and MA-15[13]. The same mechanism as that of the two countries can be implemented with the OTT platforms within India alone with and under the control of CG Act or similar enactment.


TACKLING COUNTER-ARGUMENTS:

1. The first fear expressed by the directors, producers and even the OTT providers is that censorship would hinder their creativity and innovatory works, as it was done to films released in theatre. Though this is somewhat accepted in terms of politics and religious matter, it does not completely overshadow the creative ideas. There are a lot of out of box movies which are released in theatres. So the argument that the censor blurs creativity is just a cover-up.

2. Censorship is not there to stop the people from watching but it is to regulate the same on the basis of common decency. They argue that OTT is a private viewing platform and each user has his own standard of decency. So, a single uniform decency code will be impossible and implementing that, would infringe the fundamental rights of the users. If users need to be careful regarding the contents, they can check the certification and rating systems and proceed further. The author quotes that nothing is an infringement if such restriction is backed by law.

3. It is an accepted fact that the present CBFC, regional bodies and advisory panel are biased and partial in their operation. They are largely influenced by political parties, religious and communal groups and other organizations who, apart from those who genuinely protest against the wrongful act, oppose the films just for the sake of publicity or personal vengeance, which was evident during the release of movies like Vishwaroopam, Padmavat, etc. This creates a fear in the minds of directors and producers engaged in OTT platforms that their liberty will be forfeited with the entry of censorship in their field.


CONCLUDING REMARKS:

It is pertinent to note that offline platform is referred to as ‘Content pusher’ because the customers have no option to choose what is finally shown on screen, except to surf among channels. On the other hand, ‘Consumer puller’ is the name given to online platforms because it offers greater control of what they choose finally to see. This unique factor has attracted the audience towards this market and which in turn encouraged the producers and directors to invest in this platform with wide viewers and liberty to create freely. The players suggest that the audience have a better say and the regulatory approach followed for push-based consumption, is not necessary for an online platform. This government intrusion is not the only problem the providers themselves are not taking a single stand. Few invite the government intervention; few others joined together to vote for self-regulatory code of best practice for them and the remaining holders like Amazon are reluctant to go with either side but prefer to stay away from zero interference from the government. Definitely, the last one will be arbitrary. The Government of India should decide between the first two, i.e., either it can amend the CG Act to include the OTT platform or it can establish DCCC under the IAMAI. The author had tried his best to justify all his arguments and also to rebut the opposite side defences, thereby substantiating his stand of opposing the self-regulatory mechanism. The providers must take one position and submit itself before the government. If not, the government will intervene and set out the implementation that is convenient for it. So the OTT platforms must win the race to operate itself in profit.


REFERENCE:

1. Shubhangi Heda, “How to regulate OTT streaming services in India”, Centre for Media, Data and Society, Hungary.

2. Shyam Benegal, “Broad Guidelines/ Procedure for Certification of Films by the CBFC,” 2016, New Delhi: Ministry of Information and broadcasting; Mukul Mudgal, “The Committee of Experts to examine issues of certification under the Cinematograph Act, 1952, New Delhi.

3. Shantanu Rawat, “Censorship of streaming platform: Boon or Bane?”, The Apprentice (last modified at July 17, 2020), Available at:

https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.theapprentice.in/blog/ipr/131/censorship-of-streaming-platforms:-boon-or-bane&ved=2ahUKEwim07bm49HqAhVWxDgGHSf3BAo4ChAWMAF6BAgIEAE&usg=AOvVaw2c6VupUxLzurV8Ttx4WCoX

4. Namit Gipta, “Violence and Nudity on OTTs, how much is too much?”, (Last modified on July 7, 2020), available at:

https://www.google.com/url?sa=t&source=web&rct=j&url=https://duexpress.in/violence-and-nudity-on-otts-how-much-is-too-much/&ved=2ahUKEwim07bm49HqAhVWxDgGHSf3BAo4ChAWMAN6BAgHEAE&usg=AOvVaw0FxoPF7vbPd7sajnS4Mwfm

5. “Online Content regulation: how is it done in other parts of the world?”, Ikigai Law, (Last modified on November 30, 2019), available at:

https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.ikigailaw.com/online-content-regulation-how-is-it-done-in-other-parts-of-the-world/&ved=2ahUKEwjNmrSn5NHqAhU5yjgGHUn3BBMQFjALegQIBxAB&usg=AOvVaw1TLpEV60atN5We3UOySVX9

6. Lata Jha, “Why streaming platforms are no safe haven for feature films yet”, Live mint (Last modified: April 9, 2019), available at:

https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.ikigailaw.com/online-content-regulation-how-is-it-done-in-other-parts-of-the-world/&ved=2ahUKEwjNmrSn5NHqAhU5yjgGHUn3BBMQFjALegQIBxAB&usg=AOvVaw1TLpEV60atN5We3UOySVX9

7. Public Information Bureau, “IAMAI’s Voluntary Code of Ethics”, available at: https://pib.gov.in

[1]A 40 minutes silent film directed and produced by Dadashheb Phalke released with English and Hindi intertitles. [2] Section 3, the Cinematograph Act, 1952. [3] Section 5, the Cinematograph Act, 1952. [4] Section 5-B, the Cinematograph Act, 1952. [5] Section 5-D, the Cinematograph Act, 1952. [6] It is an independent self-regulatory body for non-news general entertainment channels set up by the Indian Broadcasting Foundation in June 2011. [7] Digital Content Complaint Committee, a part under IAMAI. [8] Section 2 (dd), the Cinematograph Act, 1952. [9] AIR 1989 Bom. 331. [10] 2010 Del HC unreported. [11] 2019 case pending in Karnataka High Court [12] PG: Parental Guidelines, PG-13: Parental guidelines for a person under the age of 13, NC-16: No Children below 16 years, M-18: Mature audience above 18 years and R-2: Restricted to the person above 21 years. [13] RC: Refused Classification, X-18: Adult content because of the sexually-explicit nature, R-18: Adult content because of the high impact to an audience and offence nature and MA-15: the person above 15 years because of high impact.


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