Over the past century, India’s entertainment sector has expanded dramatically. Along with increasing the quality and quantity of films and shows it produces, it has also expanded its global reach. The amount and scope of content created by the entertainment business have only increased with the development of digital platforms over time.
However, an unprecedented global pandemic – COVID 19 – took over the world for a storm and derailed the businesses of almost all the sectors. The pandemic changed the way people consumed media and films, which led to an increased use of OTT (Over The Top) platforms that very easily took over a major chunk of people watching films in theaters, even till today. There would be no exaggeration in saying that the lockdown due to the Global pandemic, in India, fueled the growth of the OTT video streaming industry whilst the theaters were shut. Numerous statistics demonstrate the expanding market and customer demand for the variety of content offered on OTT platforms. OTTs give users advantages they’ve never had before, like choice of content, ease of access and choice of devices such as mobile phones, laptops, tv screen. The days of squabbling over who got to watch what on the family’s one home device, the TV, are long gone. Even after the opening of theaters in India, the filmmakers continue to release their films on OTT platforms only as a result of such immense viewership and a more positive response on them.
Censorship is controlling and forbidding the dissemination of informational ideas within a society. It refers to the process of going through books, plays, films, television shows, live-streaming apps, and other forms of communication with the intention of removing any content that may be deemed objectionable or offensive to the society at large, or even a small sect of people. This censorship is typically carried out by a local government, a national government, a religious organization, or infrequently by a strong private organization. If this is to be understood broadly, it refers to the repression of information, ideas, or artistic expression by anyone, including public authorities, secretive pressure groups, speakers, authors, and the artists themselves. In a more formal meaning, censorship only refers to the official government action that stops the spread of already generated messages. Hence, neither individuals who boycott sponsors of or detest television shows are engaging in censorship in this narrower meaning as are authors who self-censor before putting words on paper out of fear of failing to sell their work. However, since each of these restrictions has the negative consequence of reducing the diversity that would otherwise be available in the marketplace of ideas, censorship in the broadest sense may be applied to them all.
OTT PLATFORMS
While OTT has gained popularity, some people might find it difficult to comprehend that the technology is more than ten years old in India. In India, Reliance Entertainment introduced the first OTT platform in 2008. After that, India got its first over-the-top (OTT) mobile app, nextGTv, which gave users access to both live TV and on-demand content, including live streaming of one of the most watched sporting events in 2013–14: Indian Premier League games.
When major players like Sony and Zee joined the market with Sony Liv and DittoTV (Zee), the medium experienced a surge in popularity. As DittoTV continued to compile programming from networks like Star, Sony, Viacom, Zee, and others, the platform as a whole began to gain more and more attraction. Over 40 OTT providers now offer services to Indian consumers, including both domestic and foreign giants like Netflix, Amazon Prime, Disney+ Hotstar, Zee5, and Eros Now. The majority of fully paid platforms typically offer some content for free and charge a monthly subscription fee for premium content, which is unavailable elsewhere. These platforms offer a variety of content and use artificial intelligence to suggest to you the content they are likely to view based on their past on the platform. The premium content is typically created and promoted by 30 platforms independently, in collaboration with chic production companies that historically have created feature films.
CENSORSHIP LAWS IN INDIA
Throughout its history, censorship in India has taken many different forms. Despite the fact that the Indian Constitution de jure guarantees freedom of expression, in practise there are a number of content-related restrictions due to the official goal of “maintaining communal and religious harmony,” which is understandable given the country’s history of intercommunal conflict. Anything that “threatens the unity, integrity, defense, security or sovereignty of India, cordial relations with foreign nations or public order” is considered offensive content, according to the Information Technology Regulations of 2011[1].
The Cinematographic Act, 1952, along with its rules from 1983 and recommendations from 1991, outlined how films should be certified for screening in India by the censor board. Additionally, this statute stipulates that “a picture shall not be certified for public screening if the body competent to award the certificate finds that the film or any part thereof is against the interest of society.”
Institutions like the Central Bureau of Film Certification, which was formed by the Cinematograph Act of 1952, engage in censorship. The CBFC is a group that regulates movies, and it is strict about its adherence to archaic censorship norms. Most rules in India are easily manipulable and may be made to fit into suitable stories. It is crucial to understand the laws governing censorship and to be aware that social media sites that are over-the-top (OTT) are censored.
These OTT platforms are not subject to any kind of regulation by the Union Ministry of Information and Broadcasting, Law and Justice, Electronics, Information and Technology, Telecom, or CBFC. The government views these platforms as middlemen over which they have no legal authority.
However, in accordance with Rule 3(2)(b), (c), and (e) of the Information Technology (Intermediaries Guidance) Regulations, 2011, intermediaries must use caution when showing, hosting, or publishing any obscene, pornographic, or illegal information and must not endanger minors. According to Rule 3(3)[2], the intermediary is not permitted to knowingly host or start the transmission of such content.
The Cable Television Network Regulation Act, 1995[3] (“CTNA”) and the Cable Television Network Regulations, 1994[4] (“CTNR”) must be complied with when it comes to movies and other content that is initially launched on OTT before being shown on television.
Nonetheless, it is possible that makers of films may use extreme caution and adopt a strict interpretation in order to obtain a CBFC certificate for the OTT films. However, obtaining CBFC approval for any film or video that is directly or initially released on OTT Platforms is not required.
Even though there is no censorship, the government has the authority to remove objectionable content from OTT Platforms if it violates Article 19(2) of the Constitution, as provided for in Section 69A[5] of the Information Technology Act and the IT (Blocking Rules), 2009, i.e., the power to issue directions for blocking public access to any information through any computer resource.
- Right to Freedom of Speech or Expression
Only an open exchange of ideas can progress civilization. It is unquestionably true that freedom of speech and expression is important to democracy. It permits, among other things, the free exchange of knowledge, concepts, and opinions. The court ruled in Union of India v. Naveen Jindal[6] Upholding a system of free expression is crucial because it promotes individual fulfillment, offers a means of learning the truth, ensures that members of society participate in social and political life and decision-making, and strikes a balance between social stability and change. Article 19 of the UDHR[7] and the ICCPR[8] both specifically support the right to freedom of expression. Yet, in every country, this freedom of expression is not unrestricted, and governments frequently outlaw specific statements. Limitations on freedom of speech and expression must meet three criteria in order to be legal, promote a recognised objective, and be required (i.e., proportional) for the achievement of that objective, according to international law. 10 In India, all media outlets enjoy the same freedom in accordance with the Indian Constitution, including the ability to express themselves and promote relevant ideas. However over time, it has been seen that the right to free speech and expression is frequently curtailed or outright banned in the name of morality, public sentiment, and law and order. Indian citizens are entitled to freedom of speech and expression under Article 19(1) of the Indian Constitution. So, this provision applies to both the media and the motion picture industry. Keeping in mind that the right above is not perfect and will have additional flaws is crucial. There are numerous prohibitions in the Indian Constitution, including those aimed at foreigners’ relationships, foreign policy, the dignity and honor of the government, honesty, justice, and public order, as mentioned in Article 19(2). The freedom of speech and expression is therefore not unrestricted and is therefore subject to reasonable limitations. It is crucial that limits be reasonable and do not conflict with the law or public policy.
- Reasonable Restrictions – Article 19(1)(A)
The Indian Constitution does not recognise the right to freedom of speech and expression as being unalienable. Article 19 (1) (a) of the Indian Constitution guarantees freedom of speech and expression, but places reasonable restrictions on it (2). It states, “Nothing in sub-clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offense.”[9] This was the initial function that contributed to the introduction of censorship regulations in our system.
The unregulated nature of the information streaming on these OTT platforms raises the possibility that it violates Article 19 of the Indian Constitution. As a result, under the principles of free speech and expression, OTT platforms cannot allow the broadcast of unrestricted, unedited, and uncontrolled content. It must also abide by a number of rules, including not endangering the reputations of others, maintaining public health and order, transgressing morality, etc. In accordance with the boundaries of society’s decency standards, reasonable constraints are set. Showing films like “Udta Punjab,” “Haider,” and “My Name Is Khan,” etc., which highlight societal issues that may have an influence on public order and sovereignty, becomes difficult as a result.
- Judicial Precedents
The Constitution merely laid out the reasons for restrictions, giving the courts the authority to decide whether the restriction was reasonable and fulfilled the objective for which the legislation was passed. In order to comprehend the concept of eliminating censorship, the following examples should be examined: In accordance with Article 19(1)(a) of the Indian Constitution, the Supreme Court of India handled the first instance of movie censorship in the case of K.A. Abbas v. Union of India[10]. According to the Supreme Court, categorizing films based on their target audience’s age is a legitimate means of control that is used in the cause of societal modesty, moralism, etc. That cannot be seen as a restriction on the right to free speech. “More intense emotions can be evoked by a motion film than by any other work of art. Hence, a movie may be censored for the reasons listed in Article 19(2) of the Constitution. The Supreme Court held that for the sake of public morality, decency, etc., the censorship of films, their categorization according to age groups, and their fitness for unrestricted display with or without excisions are seen as legitimate uses of power. This should not be taken to mean that the right to free speech and expression has inevitably been violated.
The Supreme Court examined the relationship between Article 19(2) and Section 5(2)[11] of the Cinematograph Act in Bobby Art International v. Om Pal Singh Hoon[12]. The fact includes Phoolan Devi’s biography, an Indian bandit who later entered politics. The Supreme Court debated whether the movie’s public showings should be outlawed because they were disrespectful to women and a particular Indian group known as the Gujjar community since they included explicit scenes of rape and violence. Although it was argued that the Central Government’s censorship regulations clearly barred allowing images depicting sexual assault against women, the Court found that the standards were just broad principles and could not be construed as a law. The Court concluded that films containing socially significant issues should be subject to the least level of censorship since adult viewers may be trusted to grasp the film’s underlying message, supporting the decision in KA Abbas.
The Supreme Court stated that “the criteria to be applied by the Board or courts for appraising the film should be that of an average man of common sense and prudence and not that of an out of the ordinary or hypersensitive guy” in the case of S. Rangarajan v. P. Jagjivan Ram[13] “It stated that “the predicted danger should have immediate and direct nexus with the expression and equivalent of a spark in a powder keg” rather than being hypothetical, far-fetched, or remote ” 18 To decide whether a given communication is just an opinion or a picture endorsing violence, anti-national feeling, vulgarity, or defamation of any individual or organization, the court placed emphasis on the phrase “reasonability” in this instance.
As in this instance, the producer developed a video on the Bhopal Gas Disaster that received the Golden Lotus Awards, the SC intervened to defend Professor Manubhai’s right to freedom of speech and expression in Lic V. Prof. Manubhai D. Shah[14] case. The national TV stations in India, however, declined to air the tour as it was about to get underway, claiming opposition from political parties. The Court dismissed the argument, stating that there was no grounds to forbid publication simply because a documentary attacked the Administration. The Court has examined similar situations involving the release of Indian films like Aarakshan, Udta Punjab, Padmaavat, etc.
The Supreme Court of India recently dealt with a similar issue involving the state governments of Gujarat and Rajasthan decision to forbid the release of the film “Padmavat” in the case of Viacom 18 Media Private Ltd & Ors. v. Union of India & Ors.[15] The Supreme Court in this case upheld its ruling in the “Aarakshan” movie controversy and prevented additional states from establishing any laws that would have forbidden the playing of the film in Gujarat and Rajasthan. The Supreme Court stated: “If intellectual prowess and innate or acquired capabilities of innovation are interfered with without the permissible facet of law, the notion of creativity leads the way to extinction and when creativity dies, values of civilization corrode.”
CENSORSHIP IN OTT PLATFORMS POST COVID
Media and entertainment experts predicted that the 2000s will be a time when technology-enabled entertainment will predominate beyond TV screens. By “content of demand,” we don’t just mean the genre and nature of content; we also mean the choice of time, place, and device. The 80s were an era of DoorDarshan, and the 90s were dominated by private broadcasters. OTTs do not only offer audiovisual material; the market for audio-only content accounts for a sizable portion of this market. Though unique solutions like Graphy (by local edtech soonicorn Unacademy) are still to be classified as OTTs, platforms like StoryTel and Audible are growing in popularity. It goes without saying that this market is constantly humming with a wide variety of cutting-edge items. Players are doing everything possible to attract customers, expand their user base, and keep each user around longer than in the past.
The pandemic crisis has led to an unparalleled boom in the OTT Market around the world while movie theaters take a backseat. OTT viewership in India during and after the pandemic is currently at an all-time high, just like it is for the rest of the world. The COVID issue hastened the process of OTT platforms’ growth in the Indian market, which was already underway. The OTT revolution in India has advanced significantly from only two OTT platform providers in 2012 to roughly 40 operators at this point.
OTT players are eager to create localized content to appeal to the rural consumers as internet penetration in rural areas rises. According to Nachiket Pantvaidya, CEO of ALTBalaji and Group COO of Balaji Telefilms, the absence of other entertainment options has caused people, primarily from Tier 2 and Tier 3 cities, who had not previously heard of OTT viewing, to start adjusting to these platforms. Platform owners are attempting to boost consumer stickiness by bringing in a variety of material to satisfy the increasing demand for content viewing, even though the majority of them are first-time samplers due to the lockout.
CONCLUSION
In light of the current situation, a neutral regulating body is essential. A self-regulating body cannot regulate Internet content streaming. The body will identify content that needs to be regulated. Working together, the government and OTT platforms may put a stop to this problem once and for all. OTT platforms are currently in their infancy around the world. By creating legislation, India must be careful to address the requirements of the populace. The general audience today is looking for information that exposes the social truth, addresses socio-political issues, offers geographical variety, and, most importantly, doesn’t offend any group of people. These regulatory holes and ambiguities are thus concerning.
[1] The Information Technology Rules, 2011
[2] Information Technology (Intermediaries Guidance) Regulations, 2011
[3] The Cable Television Network Regulation Act, 1995
[4] The Cable Television Network Regulations, 1994
[5] Information Technology Act and the IT (Blocking Rules), 2009, S. 69A
[6] Appeal (civil) 2920 of 1996
[7] Universal Declaration of Human Rights, A. 19
[8] International Covenant on Civil and Political Rights
[9] The Constitution of India, 1950, A.19(1)(A)
[10] 1971 AIR 481 1971 SCR (2) 446 1970 SCC (2) 780
[11] Cinematograph Act, 1952
[12] Civil Appeal No. 7523, 7525-27 AND 7524
[13] 1989 SCR (2) 204
[14] 1993 AIR 171 1992 SCR (3) 595 1992 SCC (3) 637 JT 1992 (4) 181 1992 SCALE (2)60
[15] (2011) 8 SCC 372
Author: Harkeerat Kaur
Juris Centre 