“Censorship arises when and precisely because someone cannot convincingly demonstrate to others that the opinions which offend him or her are indeed truly false and dangerous. If they could, there would after all be little or no need for censorship.” [1] This is a common view held by the critics of censorship, a line of thought often omitted from students’ education in their formative years. In schools, students are usually taught about censorship as being a ‘necessary’ and ‘reasonable’ restriction on the Freedom of Speech and Expression guaranteed by the Indian Constitution. Article 19 (1) gives citizens the right to express their views and opinions freely while Article 19 (2) allows the imposition of ‘reasonable’ restrictions on free speech for specific reasons including maintaining the integrity of the nation and maintaining public order, decency and morality. [2] Thus, the perpetual debate around censorship is the dichotomy between allowing people to express their views openly and freely, and protecting the interest of the nation and public. The proponents of censorship see it as a necessary measure to protect people from false and misleading information, prevent antisocial behaviour, and on a larger scale, maintain the security and order of the country. Censorship is rationalized by the idea that the minds of those exposed to such information are incapable of discerning the falsity of the information presented and will hence, be led astray. The counterargument prophesizes that censorship is an arbitrary exercise of power by those in authority to enforce their outlook and perspective. It is seen as a mere political play to protect the interests, beliefs, and opinions of a small, ‘elite’ group. The discussion around censorship has been active in news channels and cable television media over the years. With the advent of Over-The-Top (OTT) platforms in this contemporary world that has been through a worldwide pandemic, the discourse around censorship has seeped into digital entertainment media content as well. We shall now look at the arguments on both sides.
The adversaries to censorship believe that OTT content should not be censored. Doing so will restrict the freedom of speech and expression that gives all citizens the right to express their opinions on matters. Movies and shows are created through creative ideas and expression by the writers and directors. Therefore, such a step would confine unbridled creativity to the shackles of censorship. Additionally, overbearing censorship can prevent the production of unconventional, thought-provoking, and innovative content. Since movies on television, theatres, and social media platforms are increasingly restricted and censored, OTT is the only sphere where people can express their views openly. Censorship can easily be used arbitrarily by those in power to curb opinions that do not favour them or expound their perspectives. Influential people and authorities can alter the information being published and this could easily lead to one-sided and biased content being published for everyone to see. This is not acceptable. The world is not free of corruption, abuse of power, or other evils. Such unfortunate realities have to be expressed and informed to the people to make them aware of their surroundings. It is very easy for one side to portray only the positive aspects of their actions. However, this can be misleading and can paint a wrong picture in the minds of people who deserve to know the reality. Another major drawback of censorship is piracy. Censoring parts of media can incentivize the illegal selling and sharing of uncensored content. People who are extremely interested in viewing such content would just find other ways to retrieve the content. Thus, Piracy could increase as a result of censorship. Therefore, for maintaining an open and free platform for expression of one’s views and for preventing potential illegal activities, OTT Platforms should not be censored.
The exponents of censorship argue otherwise. They believe that censorship of OTT Platforms is paramount. According to them, the entertainment media these days, in the name of creativity, publish content that causes ethical and moral transgressions. Extreme violence, untrue information, intentionally demoralizing scenes, unnecessary nudity and obscene content, and fundamentally controversial, provoking, and discriminatory content are found in abundance. Such content has a harmful impact on society. A major reason why OTT platforms need to be censored is that OTT content is easily accessible to children. This can taint their thinking and outlook on society and give them an incorrect and false representation of society and reality. Therefore, it is important to properly censor media and have a check on it. Another point to note is that a lot of content posted online not only influences children exposed to it but the behaviour and thinking of adults as well. While it may not seem true or possible, movies do have a considerable impact on society and the actions of people. For instance, movies like Animal, Kabir Singh, etc. which portray toxic masculinity and romanticize domestic violence, are often seen as mere entertainment. However, the effects are very real. Inspired by actor Shah Rukh Khan’s movie Darr, a man stalked a woman for 14 months and later, even kidnapped her. [3] A New York teenager set off a bomb in public using a plastic bottle, fireworks, and electrical tape, drawing the idea from David Fincher’s classic movie, Fight Club. [4] A man named Israr stole 180 cars in a year following the same method shown in the movie ‘Oye Lucky Lucky Oye!’. [5] While it is not suggested that these exact movies should have been censored, these real-life incidents go on to show the impact of movies on people’s minds. These shows and films can easily influence the minds of members of society and consequently, their actions as well. Socially unacceptable acts, become a possible reality. Though all citizens have been awarded the right to free speech, reasonable restrictions can be imposed. Therefore, such content that is demoralizing and affects public order, must be censored for public interest.
It is evident that the debate around OTT censorship is not just a clash of opinions, but rather a battle between unrestricted expression of opinions and safeguarding societal values. Though there exist arguments on both sides, it is quite clear that censorship is a necessary practice. The outlook should be towards creating a fine balance between freedom and responsibility. A lot of the concern around censorship revolves around the execution and abuse of authority by those in power. The very concept and need for censorship are, as such, rarely questioned. Therefore, in theory, it would be good to have a system where censorship exists but doesn’t leave room for any arbitrary imposition.
Laws regarding censorship have long existed but hadn’t entered the OTT sphere until the new Broadcasting Services (Regulation) Bill, 2023. In other spheres, various other institutions are present. The Cable Television Networks (Regulation) Act, 1995 only covered broadcasts uplinked or downlinked via satellite. Internet media (OTT) was not included. The Cinematography Act, 1952 provided for the establishment of a certification board. Consequently, the Central Board of Film Certification was set up following the provisions of the Cinematography Act, 1952 and Cinematograph (Certification) Rules, 1983. The Cinematograph (Amendment) Act, 2023 adds specific age categories to certify movies. The OTT platforms, being intermediaries, come within the ambit of the Information Technology Act, 2000. Under this Act, publishing or transmitting any obscene or sexually explicit content is considered an offence. [6] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 provides a Code of Ethics for publishers to follow. It also provides for a 3-tier structure including self-regulation by publishers, setting up of self-regulation bodies, and an Oversight mechanism by the Central government. However, this provision has been stayed by the Bombay High Court and affirmed by the Madras High Court for violating Article 19(1)(a) of the Constitution of India. [7] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2023 gives the Central Government authority to remove any online content that relates to its functioning if it is false or misleading. So far, the following statutes and guidelines have governed the sphere of censorship. The Broadcasting Services (Regulation) Bill, 2023 seeks to include broadcasting over the internet within its ambit. It also envisages a three-tiered system of checks. At the first level, it calls for self-regulation by broadcasters and operators. This is followed by a system of Self-regulatory Organizations. At the top of the wrung, a Broadcast Advisory Council consisting of ex-officio government officers and some independent persons appointed by the Central Government. The self-regulatory mechanisms require the broadcaster/operator to set up a grievance redressal mechanism as well as a Content Evaluation Committee (CEC) to certify the content before release. While it seems like a good step toward censorship by introducing self-regulatory bodies, the fact that this bill proposes a similar 3-tier system that was previously stayed is questionable. [8] Further, the final tier is monopolized by the executive. This could jeopardize the independence and impartiality that a Bill is supposed to be based on. Therefore, this calls into question the intent and prospects of this Bill.
In such confusing situations, when a dilemma arises, looking into the practices of other countries can be of great help. In Australia, a post of ‘eSafety Commissioner’ has been created to ensure that guidelines are followed by online media. They work towards preventing, protecting, and proactively changing the system to benefit Australians. [9] In Western countries, entertainment media is mostly self-regulated, with occasional instances of banning films usually due to child pornography. [10] Countries like Singapore have an elaborate system of regulation. The Infocomm Media Development Authority (IMDA) is the media regulatory organization in Singapore. This body has made a set of regulations, especially for OTT platforms. A code of ethics, rules for certification, etc. have been laid out. Independent bodies have more control over the censorship system. [11] This prevents an executive hand from monopolizing the content and introducing bias. Therefore, to create a system of checks that is rightly moulded for the situation and conditions in India, ideas can be derived from different countries and modified to fit the Indian context.
With the ever-increasing demand for online entertainment media, OTT platforms have formed an indispensable part of the system. Their popularity has been growing, amplified by the worldwide COVID-19 pandemic. In such a situation, where the concern revolves around a prominent feature of people’s day-to-day lives and especially, seems like a factor that is not going to lose its significance and be brought down from its current pedestal anytime soon, this topic assumes great importance. Regulation of online media can be a controversial subject with many stakeholders having differing views. Therefore, finding common ground that incorporates people’s views and opinions on the subject, while considering their general welfare, is of utmost importance. Finding the right balance, navigating the fine line between protecting national and public interest on one side and maintaining social order and societal values on the other, is essential. We are in dire need of a mechanism that regulates OTT content. While there are mechanisms to regulate other forms of digital media at the moment, the considerably different nature of OTT needs to be considered while making the laws. OTT is more accessible nowadays and is available online, making it slightly harder to regulate with ease. OTT can be accessed easily on laptops, phones, etc., and not just television channels. This makes parental supervision of children even more difficult as they cannot hover over their children and their actions, monitoring what they do and watch all the time. Therefore, considering the differing position that OTT platforms occupy, laws and regulations have to be made accordingly to address these issues. Such a step towards the greater good of society will act as a forerunner for several other legislations that are the need of the hour. A happy and peaceful society ensues.
[1] HARRY WHITE, ANATOMY OF CENSORSHIP: WHY THE CENSORS HAVE IT WRONG 14.
[2] INDIA CONST. art. 19.
[3] SRK’S Darr inspired Snapdeal exec’s psycho stalker. He is not alone, THE HINDUSTAN TIMES (Feb. 15, 2016, 03:23 PM), https://www.hindustantimes.com/hollywood/srk-s-darr-inspired-snapdeal-abduction-these-films-led-to-crime-too/story-Qkr4WigDDMT8xeX4mlpdCM.html .
[4] Ibid.
[5] Ibid.
[6] Information Technology Act, 2000, No.21, Acts of Parliament, 2000.
[7] Krishnesh Bapat & Anandita Mishra, May threaten ‘independence of media’ and violate freedom of speech: Madras HC on the IT Rules, INTERNET FREEDOM FOUNDATION (Sept. 17,2021), https://internetfreedom.in/madras-high-court-affirms-the-pan-india-stay-on-rule-9-3-of-the-it-rules-and-provides-relief-on-part-ii/.
[8] Seema Chishti, Control + All or Delete: The Draft Broadcast Bill Is a Blueprint for Censorship, THE WIRE (Dec. 7,2023), https://thewire.in/government/control-all-or-delete-the-draft-broadcast-bill-is-a-blueprint-for-censorship.
[9] What we do, ESAFETY COMMISIONER- AUSTRALIAN GOVERNMENT, https://www.esafety.gov.au/about-us/what-we-do.
[10] Satyaki Baidya, How censoring of OTT platforms will hamper art, GOT MONITOR (Dec. 15,2020), https://www.goimonitor.com/story/how-censoring-ott-platforms-will-hamper-art.
[11] Chelcie Agrawal, Censorship of Over The Top Platforms in India: A Comparitive Study Of India and Singapore, SSRN (Nov. 20, 2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4294043.
Author: G.S. Avane
Juris Centre 