Read time: 9 minutes
Inhouse credit: Editor: Shantanu Rawat
Last updated: 21/10/2021
Synopsis: OTTs such as Netflix, Amazon Prime, Hotstar etc. are famous for providing uncensored content for their audience. This has created a long legal debate as to whether there should be a censorship standard set by the authorities for the same. This article looks into the various types of streaming services, their self-censorship models, laws applicable and attempts by the authorities to arrive at a mutual solution.
OTT v. IPTV
The medium and mode of viewership of content have undergone a radical change in the past decade. With the advent of Video on Demand services and the ease of access and varied unique options associated with it, the demand for Over the Top (“OTT”) platforms have begun to challenge traditional cable operators and broadcasters. OTT refers to the dissemination of content through internet surpassing usual modes like cable and broadcasting television platforms wherein the end user has significant control over the method of viewing the content. Indian audience are spoilt for choice with OTT platforms such as Netflix, Hotstar, Alt Balaji, Voot, Amazon Prime Video and Zee5 etc.
Currently, there is no specific legislation in place to regulate the dissemination of content to the end users through this platform. However, since the internet is the medium of delivery of content for OTT platforms, there is a certain amount of confusion whether content regulation and delivery mechanisms for OTT should be subject to those legal compliances which are statutorily mandated for Internet Protocol Television (“IPTV”).
IPTV services utilise the infrastructure and internet services provided by various telecom companies to exhibit multimedia content to end users on television, mobile or any other compatible device through Set Top Box modules. In brief, IPTV is a television service that runs on the internet and can be operated only through a registered IPTV owner who holds a valid registration from the Department of Telecommunication. Due to these stark differences between the two mediums, the legislations which govern the functioning of IPTV will not apply to OTT platforms. Hence, there is a dire necessity, taking into consideration the existing conundrum in the media industry, for the creation of a specific legislation to address and effectively govern OTT services.
OTTs’ fluctuating standards of censorship
It is interesting to note that some OTT platforms which have a significant presence in the media and entertainment industry have their own standards of self-censorship. Google Play was one of the earliest platforms to initiate self-censorship and uploads only films duly censored by the CBFC and Apple’s iTunes followed suit.
The content which is not supposed for release in theatres is also required to be approved by the CBFC before it is made available for upload by iTunes for India. For example, the award-winning documentary Inside Job and Indian documentary Placebo (which was never intended for theatrical release) both had to undergo the censorship process before they were made available for the subscribers of iTunes.
Hotstar, the OTT platform of Star India, has not laid down any guidelines with respect to self-censorship and does not seem very stringent with respect to censorship. While the movie Masaan was re-censored for Hotstar, Game of Thrones, with its explicit content, was not censored. In 2016, a petition was filed in the Delhi High Court alleging that the Hotstar displays “soft pornographic” content and as an IPTV, it contravened downlinking guidelines. Hotstar vehemently contended that it was not an IPTV service but an OTT platform. Since the matter is sub judice, the author refrains from discussing it any further.
Similarly, Netflix hasn’t published any censorship guidelines of its own, however, maturity ratings are displayed at the commencement of a programme. Netflix India’s self-imposed TV and movie ratings are -
OTT and the law applicable
Recently, there has been an upheaval about the quality of content being displayed on various OTT platforms and petitions are being filed in the form of PILs seeking the regulation and censorship of such content.
IPC and obscenity
India and its thin skin for all things that are allegedly obscene is well known. ‘Obscenity’ as defined in Section 292 of the Indian Penal Code, 1860 (IPC) are applicable to content irrespective of their mode of exhibition, and OTT platforms cannot contravene such existing laws. For instance, a number of petitions have been filed in the past alleging presence of obscenity in films and the same have been addressed by the courts.
The threshold, concept and measuring yardstick of obscenity has undergone a significant change and if a particular scene/title/character qualifies as obscene under Section 292 often has been a moot point. The Supreme Court initially followed the test laid down in the old English judgment of Hicklin case (Regina v. Hicklin, LR 3 QB 360) which was whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort (obscene) may fall. Gradually, Supreme Court moved on to applying contemporary community standards test in the matter of Aveek Sarkar v. State of W.B., (2014) 4 SCC 257.
Cinematograph Act and CBFC
According to Section 4 of the Cinematograph Act, 1952, an applicant who is desirous of exhibiting a film to the public is mandatorily required to obtain a certificate from the Central Board of Film Certification (CBFC). This is done through the Examination Committee which is created under Rule 22 of Cinematograph (Certification) Rules, 1983. The Examining Committee examines the content and accordingly rates the content as “U” (unrestricted public exhibition), “A” ( public exhibition restricted to adults only), “U/A”( exhibition subject to parental guidance for children below the age of 12 years), “ S” ( restricted to special class of persons). The Cinematograph Act, 1952, mandates censorship of content only meant for public exhibition of content, however, the Act does not define nor lays down the perimeters of the term ‘exhibition’. The Cable Television Network (Regulation) Act, 1995 also mandates that cable network operators are to display/exhibit movies which have been duly censored by the CBFC.
The Delhi High Court had addressed this issue in the matter of M/s Super Cassettes Industries v. Board of Film Certification & Ors., 2010 Del HC Unreported, and held that even if there are individuals or families watching a film in the confines of their home, it would still amount to ‘exhibition’ of film. In Garware Plastics and Polyesters Ltd. v. M/s Telelink, AIR 1989 Bom 331, it was held by the Bombay High Court that exhibition is no longer confined to a place where the public is admitted like a cinema hall but it would include residential rooms of any hotel or hostel. These cases, however, do not provide any clarity if private viewing within four walls of a room by an individual would qualify as ‘exhibition’ and whether viewing of such content on OTT platforms requires any kind of censorship.
It has also been debated time and again whether issuance of a censor certificate by the CBFC bars the criminal court’s jurisdiction to try offences under Sections 292 and 293 of the IPC relating to obscenity. A notable case in this regard is a case disposed by a Division Bench of the Supreme Court comprising of Justice V.R. Krishna Iyer and Justice R.S. Pathak in the matter of Raj Kapoor & Ors. v. State and Ors., AIR 1980 SC 258, centered around certain scenes in the movie Satyam Shivam Sundaram stating unequivocally that while a certificate is issued by the Censor Board is of relevance, it does not preclude the court from deciding if a film is obscene or not. This provides a legal footing to applicants to challenge the scenes/titles/characters in films and contest their claims of obscenity under Section 292 of the IPC.
General laws like Information Technology Act, 2008 (IT Act) and the Intermediary guidelines under the IT Act also apply to OTT platforms most of which produce or curate the data that is available on their platforms.
Need for regulation?
The most recent legal issue surrounding OTTs which has restarted talks about its censorship is the Sacred Games matter. On July 16, 2018, a petition was filed in the Delhi High Court against the producers of the critically acclaimed series Sacred Games and Netflix alleging that the show maligns the reputation of former Prime Minister Mr. Rajiv Gandhi. On July 19, 2018, the counsel representing Netflix informed the Division Bench comprising of Justices Sanjiv Khanna and Justice Chander Shekhar that Netflix changed the word in the English subtitles in the fourth episode of the show that was alleged derogatory.
The lack of legislation governing OTTs is becoming evident with each passing day and every new case that is filed on these grounds. The government is facing heat to fill this lacuna with regulations from the public and the Judiciary.
Recently, the Nagpur Bench of the Bombay High Court issued a notice to the Ministry of Information and Broadcasting, Ministry of Electronics and Information Technology, Ministry of Law and Justice and Ministry of Home Affairs seeking regulation of online content in furtherance to a petition filed by an advocate with respect to the nature of the content displayed in the online series named ‘Gandi Baat’ on the OTT platform ALT Balaji. The matter was scheduled for further hearing on October 31, 2018. No further information about this hearing was available to the author at the time of publishing this article.
Further, the Telecom Regulatory Authority of India (“TRAI”) recently released a Consultation paper for regulation of OTTs in India and which also asked for responses from various industry experts and a reply is expected from them by December 10th, 2018. The Consultation Paper along with Stakeholders’ comments can be found here.
However, the strongest argument against any regulation is that the makers of a particular show/movie get more creative space which would not have been available to them on traditional broadcasting mediums due to fear of deletion or cuts from the CBFC. For example, the overreach of CBFC in cases of movies like Udta Punjab and Padmavat cannot be forgotten. Another good example is the biopic of the adult-star-turned-actor Sunny Leone proved to be a commercial success for OTT platform Zee5 - a theatrical release of this biopic may have been a hard task.
It is commendable and frankly exciting that by paying a nominal subscription fee any user can have access to a vast repertoire of content on OTT platforms which is revenue generating for various verticals like content maker, content provider and the intermediaries like the telecom service provider. It provides a worthy pedestal to flesh out characters and build gripping storylines and give true meaning to the fundamental right of freedom of speech and expression envisaged in our constitution. OTT platforms are producing and making available good content bringing in a large number of audience, consequently generating a notable amount of revenue and popularity.
With the increase in popularity come the non-supporters. On one hand, censorship of content for OTT may curb litigation and overzealous litigants to an extent, whereas on the other hand it might stifle creativity and dissemination of edgy content. The TRAI Consultation Paper aims at a mutually beneficial solution and we are looking forward to the responses. In the circumstance, we must admit that currently there is a lot of confusion pertaining to the applicability of relevant laws and we truly hope that the Judiciary settles and clears this legal quagmire for once and all.
DISCLAIMER: The information provided in this article is for educational purposes only. The same cannot be construed as legal advice.
Senior Legal Executive
Shemaroo Entertainment Limited
Sudha, an IP lawyer is currently working at Shemaroo Entertainment Limited and specializes in Media and Entertainment Laws. Prior to this, she has also worked with the Trademark teams at boutique IP firms like BananaIP and Intellcopia IP Services.
She completed her graduation in law from Bangalore Institute of Legal Studies and her Post Graduation from National Law Institute University, Bhopal ( NLIU) with a specialization in Intellectual Property and Business Laws.
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