What started as only Sunday specials on a black and white television set, with large groups gathering in one home to watch it, has now culminated into an ubiquitous form of entertainment available across numerous streaming devices through platforms known as OTT or Over the top services. It has provided a rather easier means to refresh oneself anytime they want without the need to schedule time to do the same. In addition to this, there are a variety of shows and movies available for one’s viewing pleasure, transcending the boundaries in various aspects. Here, the question arises as to whether the superfluity of content available on such platforms saturate the masses or does it explore and celebrate the diversity of today’s society?
A common approach which is often adopted by the regulatory authorities and the governments is ‘censorship’. In simple words, it is the process of restricting or banning certain mediums of media like newspapers, magazines, television series, movies, speeches, etc. These steps are often taken to stop the spread of information which may be misleading and which may incite instances of violence or hatred among various communities. In recent times, censorship has now become a tool for the government and other authorities to restrict the kind of contents which may show the country in bad light or highlight the shortcomings, incongruity and other differences which may exist in the society.
However, here exist opinions as varied as the content available on OTT platforms thereby creating a tussle between the authorities and those in the creative sector emphasising the need to bring out stories either celebrating the diversity of India and its people or calling out social concerns which need primary attention from the functionaries of the country. In this regard, what is often challenged is the limit of Article 19 of the Indian Constitution, specifically Article 19 (1) (a) which is a fundamental right providing all the citizens of the country the freedom of speech and expression. However, clause (2) of the same Article places reasonable restrictions on the same. Imposing the said restrictions was how the system of censorship first introduced in the Indian landscape.
Over the years, the meaning of the word censorship has evolved as the country dealt with a number of developments, more specifically, the 1990s which is termed as the era of Liberalisation, Globalisation and Privatization (LPG). This is what initiated the growth in the sectors of arts, culture, technology etc. because of the exchange of information and increasing interconnectedness transcending boundaries. In fact as said by Andrew Heywood in his book Politics, the growth of a mass television audience starting in the 1950s and more recently the proliferation of channels and media products linked to the ‘new media’ have greatly enhanced the media’s influence on people’s daily lives.[1]
HISTORY OF OTT PLATFORMS
Before 2008, there only existed regularly scheduled programs on the television and a world beyond cable television was only in the preliminary stages of exploration. While Netflix had already started to pierce the OTT market in 1997 by replacing the use of DVDs, CDs and VHS tapes, we were yet to feel its presence in India. However, eventually in 2008, Reliance Entertainment launched India’s first independent OTT platform known as BigFlix followed by Digivive in 2010 who launched India’s first mobile application called nexGTv which allowed an user to access live TV as well as on-demand content. In fact, this app was the first service to stream the Indian Premier League (IPL) on smart phones during 2013 and 2014. [2] This was a turning point in the India OTT industry as it further expanded its reach to the masses.
Around 2013, DittoTV (Zee) and Sony Liv entered the market, creating a diverse range of OTT services for the citizens of the country to choose from. It also provided a significant guide of television channels which people could view any time they want. Disney Hotstar was the next big player as it became one of the highest watched OTT platforms in India when it was launched in 2015. Soon after, Netflix rolled out its plans to cater to the Indian audience in 2016.
A major and significant rise in the number of OTT viewers was observed during 2020, that is the Covid-19 pandemic as this is when people resorted to watching less television and more of OTT based content in their homes due to the ambiguity of the situation that was created at that time.
The most evident feature of the evolving nature of OTT platforms is visible from the fact that these streaming services have now developed a system of making the content interactive instead of an user simply enjoying a show. This is a form of compliance from these services as they try to meet the demand and needs of the younger generation who are infatuated with social media platforms which provide various options to engage with people within and outside the circle. Somewhere or the other, it is vital to acknowledge the hold such platforms have over this generation; so much so, that these services try their level best to attract these youngsters.
Therefore, the origin, evolution and development of OTT based services is largely rooted in the desires of the viewers who wish to watch whatever content they want, at whatever time they choose.[3]
PUBLIC PERCEPTION OF CONTENT ON OTT
With the rise in the consumption of media-based content through OTT services, its overall impact cannot be overlooked in today’s society. The content which is streaming on these services largely influences and shapes the society’s thoughts and perceptions on various social, cultural, economic and political issues. There are a number of dynamic elements to the stories presented to the viewers due to the country’s heterogeneous nature.
The key point to note, here, is that quite often the representations made in the media either underwhelm or overwhelm the viewers may be due to the lack of simplicity or over compensation for the sake of showing representation. At the same time, even the makers are bound by time restrictions or are usually barred from displaying graphic scenes which actually represent the issue which they wish to highlight to create awareness among the masses.
On the positive aspect, often, these visual stories hit the right notes by reflecting the reality of how a person or community might be dealing with the society or bring out certain necessary social issues to light. However, investing time and resources in a graphic or real depiction of such situations, in the age of censorship, is a risk one must be willing to take. Therefore, the debate between censorship and artistic freedom arises.
In this light, it is quite astonishing to note that today’s generation is actually quite receptive and unbothered with the kind of content available for viewing. The western content showing mature themes is swiftly replacing simple-themed stories giving a positive message as was favoured in the 90s. On the contrary, the parents are left to regulate the content their children are allowed to view. This is also why the issue between censorship and artistic freedom arises as it becomes pertinent to question whether the involvement of guardians or the platforms in regulating such content must be considered. Consequently it has now become a popular topic for discussion and debate.
CENSORSHIP AND ARTISTIC FREEDOM
Due to the nature of the content available today, the already existing tussle between freedom of expression and censorship has magnified over the years, even though there exist reasonable restrictions on the former. In the present setting, freedom of expression exists in the form of artistic freedom. Films and TV shows have always been a torch bearer to bring forward some key social issues which persist in the society and it is considered as one of the most favourable modes of disseminating information across various classes.
However, artistic freedom was required to be challenged due to its wide reach and frank depictions of a number of issues which was deemed too graphic or violent, or it hurt religious or community sentiments. Article 19(2) imposes reasonable restrictions on Article 19(1)(a) which provides the fundamental right to freedom of speech and expression. Article 19(2) states as follows:-
“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 4 [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 offence”[4]
In view of this provision, the Apex Court opined that that censorship is a primary tool in a democratic nation like India due to its extensive reach as any cinema, TV show or other forms of audio-video mediums impacts the perceptions and thought processes of the masses in a significant way, regardless of their age.[5] The Supreme Court first examined the issue in the early 1970s when the questions regarding pre-censorship of cinema films were raised.[6]
The Courts while interpreting Article 19(2) of the Constitution have opined that the artistic freedoms of any person is not at all absolute; it creates restriction upon such content which could prove to be detrimental to India’s social, cultural, economic and political fabric as it could effect India’s sovereignty, security and integrity by bringing public disorder in the streets. In other words, any content which could affect India’s democratic character and spirit will be questioned and consequently barred from being displayed to the public by the Censor Board of Film Certification (CBFC).
In the case of K.A. Abbas v Union of India[7], the Supreme Court held that
“a motion picture has the ability to stir up more emotions deeply than any other product of art. A film can therefore, be censored on the grounds mentioned in Article 19(2) of the Constitution.”
They further held that, censorship, when imposed to classify or restrict some content as per the demography of the country, is done in order to uphold decency, public morality etc. However, this does not restrict a person from expressing his/her opinions.[8]
However, in another case, S. Rangarajan v P. Jagjivan Ram[9], the Apex Court opined that:-
“the standard to be applied by the Board or courts for judging the film should be that of an ordinary man of common sense and prudence and not that of an out of the ordinary or hypersensitive man”
This depicts that not every content is to be restricted in the name of reasonability as per the Judiciary.[10] If the content is true to the issue at hand and has been presented in such a format which highlights them to bring attention and not compromise India’s integrity, security and sovereignty, it must be allowed to flow and take form as it was intended. It may not sit right with everyone and subsequently, they too, are allowed to have the fundamental right to form and express their own views and thoughts upon it.
All things considered, it is paramount in the interest of the nation, to maintain and enforce a balance between both these aspects.
IT GUIDELINE AND CONCLUSION
India accounts for one of the largest film industries in the World which produces a number of short as well as long films. While there is a deep appreciation for the films and TV shows being produced by Indian creators at home, their realistic and simple nature has also managed to garner support and interest from the rest of the World.
However, with the advent of technology and the development of various new tools and methods of production and storytelling, the content creators of OTT platforms are now subject to the newly enacted Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. This has provided a relief to such makers from procuring the CBFC certificate for the content they wish to put on these services. But at the same time, the OTT services are now mandated to self-regulate such content on their platforms to avoid government intervention in the same.
According to these rules for OTT platforms, they must abide by Indian law, refrain from streaming material that is inimical to the country’s integrity and sovereignty, maintain its security and good relations with other nations, and refrain from streaming material that could cause a disturbance in the peace. They must also be respectful and careful with respect to the various religious and community beliefs and practices as they must consider the diverse nature of the India population.
These guidelines have also provided for a systematic and organised system of grievance redressal by establishing a three-tier mechanism. Hence, anyone who views any content to be problematic can file their issues under such mechanism.
However, these guidelines have been criticised on several grounds. One example is that these guidelines do no provide for any proper censorship function to be performed by the services but they are only required to mention the various classifications as per the age, maturity etc for whatever content that is available to stream on their platform. It has also been criticised on the grounds that there is an excessive delegation of power by the Government. This is because of the fact that the rules mandate the creation of an adjudicatory body as an “oversight committee” to keep an eye on the behaviour of intermediaries as well as the establishment of a non-judicial adjudicatory process to resolve complaints which may arise with respect to the contents published by such OTT platforms. However, the government is not given this authority by the Information Technology Act of 2000 and as a result, such government actions suffer from an excessive delegation of power.
In conclusion, while censorship is required for the kind of content available online, it must not violate a creator’s fundamental right to freedom of speech and expression. Parallely, it is also important to establish the aspect of reasonable restrictions which are imposed via Article 19 (2) of the Indian Constitution, One of the main reasons of this lies in the fact that India is a diverse country in terms of religion, ethnicity, culture etc and to display any content which would go against these aspects would prove to be detrimental to the society at large.
It is also maintained that not all content must be viewed as showing a certain community or people in poor light. Acceptance must find its place in people’s mind and thought process while viewing such content so that they can themselves judge if the said content is violative or insulting in any form. In any case, the adjudicatory mechanism for addressing grievances and further, various statutes, the Judiciary and the Government are in place to remedy any issue which may arise. A simple suggestion in todays’ time is to fact check as you view the available content, read more about it and then form a decision about the same. Other than this, as adults, we must take proactive steps to first educate the younger generation on the related issues and then present such content for them to view. Additionally, one must also decide for themselves if they wish to view such content online. Therefore, this tussle between artistic freedom and censorship may evolve new rules and regulations over time but it will always persist in society, even in the coming times.
[1] 4th Edition Andrew Heywood, Politics 178 (The Palgrave Macmillan 2013).
[2] Scribd, https://www.scribd.com/document/515281213/History-of-OTT , (last visited July 20, 2023).
[3] Id. at 2.
[4] INDIA CONSTI. Article 19 cl. 2
[5] Bhagavatula Naga Sai Sriram, Censorship in OTT Platforms: The Necessity, PEN ACCLAIMS (July 11, 2020) , http://www.penacclaims.com/wp-content/uploads/2020/07/Sriram.pdf
[6] Sapna Chaurasia and Krishi Shah, Artistic Freedom versus Censorship in the OTT Age, LEXOLOGY (July 23, 2023, 7:34 PM), https://www.lexology.com/library/detail.aspx?g=69b3c5f4-1e2a-4dba-aed6-880f865efc17
[7] K.A. Abbas v Union of India, (1970) SCC 780
[8] Id. at 7.
[9] S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574, 592.
[10] Id. at 5.
Author: Aakanksha Dasmesh
Juris Centre 