Lights Camera Cut

The Article “Lights Camera Cut” by Amulya Kaushik is an extensive study about the film industry, especially about the online media platform along with various shortcomings. In this article, the writer makes an effort to examine the trends of censorship in India regarding the availability of creative content and tries to delve into the question of whether these measures are regulations or restrictions on creative liberty. The Article deals with the historical background behind the content regulation in India.

A lot of change can be seen due to the evolution of OTT media services. The author also elucidates guidelines that were prepared by the Government with regard to digital content. Uniform application of laws is most important because laws, in order to deal with unlawful digital content, are already in existence. It is the desire of the author that no right of individuals should be affected.

Introduction: Lights Camera Cut

In the past three or four decades, the law rested on a perception of technology that is often inaccurate and changes slowly as technology changes fast. In the last century, audio-visual technology has advanced at a breakneck speed. The globe has progressed from film as the only source of information to television and the internet.

There is a causal relationship between changes in the medium used to distribute audio-visual content and societal developments. The impact of a medium on society is the basis for government regulation. People’s conceptions of time and place have evolved due to the ongoing digital disruption in the media environment, which has resulted in new content-consuming habits fueled by enhanced accessibility, mobility, and freedom of choice.

Specifically, the television-watching experience has been revolutionized by the over-the-top (OTT) media services.[1] OTT or Over The Top Platforms are services that offer viewers access to movies, TV shows, and other media directly through the Internet, bypassing cable or satellite systems. OTT platforms are called ‘publishers of online curated content’ in India’s regulatory parlance. Online curated content is audio-visual content such as films, web series, podcasts, etc., made available to the viewers on-demand, including but not limited to subscriptions by OTT platforms.

The Indian media environment has always been dynamic. With such a diverse population in terms of religion, economic class, caste, and language, content regulation has long been a significant concern in India. The Government in India has been known for its attempts to censor content on the “grounds of public morality, communal harmony, or the need to protect history, among various reasons.” [2]

OTT services provided an alternate medium for the distribution of such content. As a result, the same content may be restricted in theatres and television but not on streaming platforms, as no content regulation existed on paid OTT services. This questioned how the government views content regulation, leading some experts to speculate whether digital disruption can improve India’s censorship.

In a move to resolve the same, the Union government had brought Over The Top (OTT) platforms, or video streaming service providers such as Netflix, Amazon Prime, and others, under the ambit of the Ministry of Information and Broadcasting by issuing a gazetted notification in February 2021 and further Cinematograph (Amendment) Bill, 2021.

Brief History of Content Regulation in India

The advent of Cinema in India: Emergence of Content Regulation

The first films were shown in India in 1896, when the Indian film industry was rapidly expanding, with both imported and domestic movies available to the public. As a result of its growing popularity, the films became a medium with a broad appeal and impact on the audience.

In 1918, India passed the Indian Cinematograph Act. It was accompanied by the establishment of censorship boards, which were operative in several provinces and whose purpose was to review content based on prevalent, socially accepted standards of morality.

In 1928, during the British rule, the government commissioned the first report about the censorship framework and issues regarding the distribution and exhibition of films in India. The inquiry was prompted by concerns among authorities regarding the effect of cinema on the Indian audience. The report presented a detailed account of the censorship practices and the influence of cinema as a medium on the Indian population. It also explores the influence dynamics between western and indigenous content.

The report argued that censorship was needed as cinema as a medium had a much more significant effect on the audience than other media: films have a unique appeal, creating a vivid impression on the spectator. The Indian Cinematograph Committee (ICC), which was set up in 1928 by the Governor-General of India to monitor censorship of cinema films in India, stated that the public opinion in India was not developed and, as the public could not be left to decide what is appropriate or not for the society, censorship was needed. [3]

The 1928 report concluded that sexually explicit content should not be allowed and films that present propaganda by other countries should be censored, regulations that were already in place.[4]

The committee concluded that the standards were satisfactory, but there was room for improvement. During the colonial period, films that promoted nationalist ideas were subjected to censorship. They included Bhakta Vidur (Devotion of Vidura), a 1921 Indian silent film directed by Kanjibhai Rathod, in which the Hindu mythological character Vidura is built on the personality of Mohandas Karamchand Gandhi, India’s anti-colonial, nationalist hero. It was the first film banned in India. Other films such as Battleship Potemkin and Orphans of the Storm, which promoted ideas of fraternity, liberty, and freedom inspired by the French Revolution, were banned. After 1930, with the emergence of sound film, the demand for Indian films exceeded that for western films.

The Indian Cinematograph Act of 1952 introduced censorship to arguably protect the audience from immorality in films. Such thinking was similar to the practices from colonial times. The newly introduced legal provisions reaffirmed the state’s power over the film as a medium.

In constitutional debates about whether the exhibition of cinema films should be considered a state or a union subject, policymakers agreed that films were considered an essential educational medium with a significant role in building the national character.

Apart from that, movies were considered an important means of expression, which justified the active role that the central government wanted to play in controlling cinema. As a result, it was eventually decided that the exhibition of films was to be regulated at the union level, with only the central government having the power to sanction films.[5]

One of the first censorship cases in the post-independence era was K.A Abbas v. Union of India.[6] In this case, the courts considered the justification for censorship and the importance of films as a medium in India. The petitioner was a journalist who produced a short film named A Tale of Four Cities that depicted the realities of life in four major Indian cities. The producer’s request for a UA certificate from the Censor Board was not approved.

Instead, the board granted a certificate restricting the public viewing to an audience of adults, saying that a UA certificate could be awarded if a scene showing prostitution was removed from the film. The petitioner filed a writ petition before the Supreme Court, claiming that his right to freedom of expression was violated. The Indian Cinematograph Act of 1952, which empowered the censors, was unconstitutional.

While examining the subject matter, the court relied on a report of the Khosla Committee, appointed in 1968, to assess the censorship model in India. The committee had pointed out that India had one of the strictest censorship models globally and that there was a need for a more liberal form of content regulation. The court observed that motion pictures could not be considered at par with other media as motion pictures serve the lowest denominator of society and stir emotions and sensitivities differently.

The court thus held that categorization and censorship of films based on age and content is a valid classification based on public decency, morality, and interest. Although the court stated that it was the responsibility of parliament to adopt policies and introduce standards for filmmakers, it decided that a list of rules on what may not be shown in the cinema, dating back to the colonial times, had to be followed.

The amendment of the Indian Cinematograph Act of 1952 was pending in parliament in writing. In summary, state control, in one form or another, has been considered justified in the film exhibition industry because, since the early days of cinema in India, films were considered a powerful medium that could influence society. As the film industry grew, calls for more liberal forms of censorship and a more independent censorship board were intensified. Those objectives have not yet been achieved.

Transition to Television in India: Evolution of Content Regulation

While the rise of cinema prompted the government to act as a content regulator for the first time, another significant media appeared in India in 1959. Television was first introduced in India as an educational endeavour funded by UNESCO and the Ford Foundation. Television, like radio, was heavily regulated by the government.

Television at the time was still in its nascent stage and was highly manipulated by the government because of its monopoly over broadcasting. Until the 1980s, the sole television content distributor in India was Doordarshan, the country’s state broadcaster.

One of the few instances where the state demonstrated its power to control the medium was when “Bobby,” an Indian Bollywood romance film, was aired on television to prevent people from joining an anti-government protest organized by a political leader at that time. During the same period, Doordarshan exhibited more films that promoted Mrs. Gandhi, then Prime Minister of India, as a great political leader with progressive ideas, such as “Indus Valley to Indira Gandhi,” “New Students,” and “Giton Bhari Sham.” At the same time, the television was devoting generous coverage to events organized by the government.

By 1988 about 12% of the Indian population watched television regularly. As the viewership increased, the Doordarshan became increasingly scrutinized by the courts as it became a medium not only promoting public interest but also increasingly critical of the government.

One of the first controversial cases involving Doordarshan was Ramesh v. Union of India, in which the transmission of “Tamas,” an Indian television series, was asked to be halted because it depicted communal rioting between different religious groups, according to the appellant. The censorship board and Doordarshan administration had both determined that the series was fit for public screening, the court held.

In another case, Odyssey Communication Pvt. Ltd v. Lokvidyan Sanghtan, the broadcast of the series “Honi Anhoni” was questioned as critics claimed that it induced fear among people and spread blind faith. The court, in this case, established that the series was not prejudicial to the community and did not hinder public morality. It concluded that the producer has the right to exhibit films on Doordarshan under freedom of expression.

As television became a heavily regulated medium, the broadcast sector was liberalized for economic reasons, and the market opened up to private players and foreign content. Many corporations saw great potential in the Indian market. The market liberalization led to a massive increase in India’s number of television channels. By 1996, 14.2 million households had access to cable television.

After that, the government passed the Cable Television Networks (Regulation) Act of 1995, aimed at curbing the cultural invasion caused, it said, by the emergence of western content in India through the proliferation of satellite channels. The act put forward a set of guidelines inspired by the regulation of films through the Cinematograph Act of 1952 that had to be followed in television.

The Act introduced a program code with guidelines for prohibited content. Companies interested in broadcasting in India had first to obtain a broadcast license from the state by bringing guarantees that they would adhere to these content requirements.[7]

As television’s popularity grew and the media landscape became more open, the government regulated content more aggressively. Cultural sensitivities among people became more prominent as television viewing expanded. The government attempted to use television as a mouthpiece, but technological advancements and liberalization measures made this impossible, transforming television from a government monopoly to a competitive broadcasting market.

Shift to OTT Video Streaming Services: The Arrival of Architectural Censorship

The hybrid nature of OTT services comes from the fact that they blend the passive consumption mode of television with the consumer choice of the internet. In fact, the latter has sparked a great demand for it. BigFliX, established by Reliance Entertainment in 2008, was India’s first OTT video service. Netflix and Amazon, both owned by the United States, began operations in India eight years later.

In the meantime, many traditional broadcasters launched their own OTT services. By 2020, India’s OTT market is expected to reach $218 million.

In one of the first cases regarding the release of censored content online, the court ordered the Ministry of Information and Broadcasting (MIB) to draft policies to regulate content edited on other media but not online (precisely because of the lack of a regulatory framework). [8]

In 2015, the Telecom Regulatory Authority of India (TRAI) released a consultation paper on the regulation of OTT services, but no consensus on a regulatory framework had been reached by September 2019.[9]

The legislature in 2019 was working on amending the Cinematograph Act of 1952, taking in recommendations from the Mukul Mudgal Committee and Shyam Benegal Committee, two committees set up by MIB to find ways to improve the existing regulatory framework for cinema and to propose new standards for content regulation.

According to the reports drafted by the two committees, the relevance in the digital age of the Central Board of Film Certification (CBFC) and of the universal rating system was questioned by the public as technology allows film producers today to release their films online platforms.[10]

Justice Rights Foundation filed a public interest lawsuit (PIL) in the Supreme Court in 2019 against OTT services such as Netflix, Amazon Prime, and Hotstar, claiming that without any policy or regulation to regulate online content, sexually explicit and obscene content is readily available. Shows like “Scared Games,” “Vikings,” and “Game of Thrones” was mentioned by the foundation.

As per the petitioner, these platforms are profit-driven and do not regard cultural sensitivity or the moral fabric of society. In the same case, the Delhi High Court concluded that, in the absence of legal provisions on licensing OTT platforms, the Government cannot censor them, advising that the petitioner’s complaints should be considered under the Information and Technology Act. A similar ruling was made in a separate case that involved the television series “Sacred Games.”

Prompted by these growing concerns, the Mobile and Internet Association of India drafted a code of ethics to regulate content on OTT services. The code, however, has not drawn support from all the OTT services. Netflix, for example, signed it, but Amazon and a few others were still not on board at the time of writing.[11] In 2018, MIB also set up a committee to draft regulations for online content, but no output has been made public to date. Public consultation on OTT regulation, launched in May 2019 by TRAI, was ongoing at writing.

Justice Rights Foundation filed a public interest lawsuit (PIL) in the Supreme Court in 2019 against OTT services such as Netflix, Amazon Prime, and Hotstar, claiming that without any policy or regulation to regulate online content, sexually explicit and obscene content is readily available.

Shows like “Scared Games,” “Vikings,” and “Game of Thrones” was mentioned by the foundation. As per the petitioner, these platforms are profit-driven and do not regard cultural sensitivity or the moral fabric of society. In the same case, the Delhi High Court concluded that, in the absence of legal provisions on licensing OTT platforms, the government cannot censor them, advising that the petitioner’s complaints should be considered under the Information and Technology Act. A similar ruling was made in a separate case that involved the television series “Sacred Games.”

Prompted by these growing concerns, the Mobile and Internet Association of India drafted a code of ethics to regulate content on OTT services. The code, however, has not drawn support from all the OTT services. Netflix, for example, signed it, but Amazon and a few others were still not on board at the time of writing. In 2018, MIB also set up a committee to draft regulations for online content, but no output has been made public to date. Public consultation on OTT regulation, launched in May 2019 by TRAI, was ongoing at writing.

The Moment of Truth

The government, on February 25, under the ambit of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, brought in detailed guidelines for digital content on both digital media and Over The Top (OTT) platforms while giving overriding powers to the government to step in. According to the Center’s new, tighter guidelines for social media intermediaries, services like WhatsApp were to assist in identifying the “originator” of “unlawful” messages.

It also mandates that social media platforms such as Twitter, Facebook, and YouTube remove such remarks within a specific timeframe, provide grievance redress systems, and aid government officials in their investigations.

Restrictions or Regulations?

The most worrying aspect of this clumsily veiled move by the executive was to keep the media — particularly the standalone digital news media, which have generally proved more defiant and inconvenient for the government than the mainstream press or television channels — on a leash was the way it invoked and insinuated the idea that the public, or the users, need to be protected against the very media that sought to make them critically informed citizens, thereby making their democracy that much richer and deeper.

A redress mechanism

The new set of guidelines aimed to create a grievance resolution system for users of social media, over-the-top (OTT) platforms, and digital news websites. That would be an exceptional step in most cases. But the nature and scope of the majority of grievances could easily be imagined in an already vitiated climate of overweening political and religious majoritarianism, where the street tends to whip up and aggressively nurse and drive a sense of outrage or hurt on any and every issue, regardless of institutional procedures or safeguards.

Furthermore, independent digital news and current affairs portals that are smaller or medium-sized and are fighting to stay afloat, whether they are younger startups or have been around for a few years, would be the ones hardest hurt by these guidelines.

Any criticism of the ruling party or government might set off a well-coordinated avalanche of complaints. The notified rules outlined an elaborate time-bound three-tier process. Every grievance is first handled at the portal level by its grievance officer, then passed on to the sector or industry’s self-regulatory body, and if still unresolved, to an inter-ministerial government oversight committee.

Regulation by the Government

The sheer act of dealing with such grievances could hamper the operations of a smaller digital news and current affairs venture. Furthermore, the method makes a mockery of self-regulation, with an inter-ministerial committee of government officials effectively serving as an appellate authority over the self-regulatory activity.

This would be self-regulation by the news media entity or industry at the government’s discretion; government regulation disguised as self-regulation by the news media entity or enterprise. Worse, the notification allowed the Secretary of the Ministry of Information and Broadcasting ad hoc emergency authority to restrict any content that the government deems harmful, even if no such token mechanism is in place.

Posed a financial threat

Guidelines like these can jeopardize the sustenance of the already financially straitened and functionally beleaguered digital news media — unless that is the exact intention. Monetization avenues become scarce, and investors and brands run scared because they see political considerations supervening upon business interests and a whimsical media policy regime in constant flux.

The arrival of the “Super Censor”

The Union Government released the proposed Cinematograph (Amendment) Bill 2021 in June 2021 for public comment, causing a stir among filmmakers who criticized a provision that empowers the Government to order re-certification for a picture already certified by the Central Board of Film Certification (CBFC). The new clause is seen as installing a ‘super censor,’ adding another censorship layer to the already complex process.

The action, which came only two months after the government abolished the Film Certification Appellate Tribunal (FCAT), a body that used to hear appeals from filmmakers unhappy with CBFC decisions, might be seen as further evidence of restriction on the freedom of speech of filmmakers.

The draft Cinematograph (Amendment) Bill 2021 acknowledges the Supreme Court order that the Government cannot exercise revisional powers on films certified by the CBFC. It further says that “sometimes complaints are received against a film that alludes to violation of Section 5B(1) of the Cinematograph Act, 1952 after a film is certified”, on which the Government now has no powers of intervention.[12]

The newly added clause reads – “Since the provisions of Section 5B(1) are derived from Article 19(2) of the Constitution (reasonable restrictions on freedom of speech) and are non-negotiable, it is also proposed in the draft Bill to add a proviso to sub-section(1) of section 6 to the effect that on receipt of any references by the Central government in respect of a film certified for public exhibition, on account of violation of Section 5B(1) of the Act, the Central Government may, if it considers it necessary so to do, direct the chairman of the board to re-examine the film”.

Various groups or people frequently object to a film just before its release but after being certified. Even if the CBFC has already approved a movie, the proposed new criteria could cause it to be held up for much longer for re-certification based on random objections.

Conclusion

Some amount of censorship is inevitable given new challenges in the media and entertainment industry and its impact on society. But it would be wrong to imagine that the government can solve these problems by implanting itself in the grievance redress process or by making platforms share more information.

It could be counterproductive in a country where citizens are still without a data privacy law to protect themselves from any party’s excesses. Regulation is crucial in the grand scheme of things, and no one recommends giving digital platforms a free pass. But then, the laws to combat unlawful content are already in place. What is required is their uniform application.

The appetite for criticism, so important in a democracy, is diminishing. And in a world where individuals are becoming increasingly sensitive to content, the regulatory mechanism might become a nightmare to operate. Worse, creativity and freedom of speech may suffer as a result.

The government would like to consider itself a guardian of digital content for the public good, but with these notifications, it comes across as a predator.

---

References

[1] Chuck Tryon, TV Got Better: Netflix’s Original Programming Strategies and Binge Viewing, Available Here

[2] Shubhangi Heda, How to Regulate OTT Streaming Services in India, Available Here

[3] Ibid.

[4] Report of the Indian Cinematograph Committee,” Calcutta: Government of India, 1928, Available Here

[5] Constituent Assembly Debates, Available Here

[6] 1971 AIR 481

[7] Ministry of Information and Broadcasting, The Cable Television Networks (Regulation) Act, 1995, Available Here

[8] Raksha Jyoti Foundation v. Union Of India And Ors on 2 March, 2016

[9] Consultation Paper on Regulatory Framework for Over-The-Top (OTT) Communication Services, Available Here

[10] Shyam Benegal Committee Submits Recommendations on Film Certification, Available Here

[11] Namita Singh, IAMAI’s Regulatory Code for OTT Platforms Outlining Principles and Seeking a Creation of
Grievance Redressal, Available Here

[12] Filmmakers see a ‘super censor’ in Cinematograph Amendment Bill, Available Here

---

• Law Library: Notes and Study Material for LLB, LLM, Judiciary, and Entrance Exams
• Legal Bites Academy – Ultimate Test Prep Destination