The Cinematograph (Amendment) Bill 2023: Another nail in the OTT coffin?

On May 31, 2023, the Government of India released the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Amendment Rules, 2023 (COTPA Amendment Rules, 2023).

Under these Rules, the Union is imposing cumbersome, and frankly supernumerary obligations on ‘publishers of online curated content’. Such publishers are required to put in place anti-tobacco health spots in the beginning and the middle of the content for at least 30 seconds each, a static anti-tobacco health scroll whenever scenes depicting tobacco or its use are displayed and an audio-visual anti-tobacco disclaimer in the beginning and the middle of the content for at least 20 seconds each.

In between releasing and passing the COTPA Amendment Rules, 2023; the Jan Vishwas Bill, 2023 and the Digital Personal Data Protection Bill, 2023, the Government of India in the last week of July also passed the Cinematograph (Amendment) Bill, 2023. While the Cinematograph Bill, by all accounts and purposes, is aimed at reducing the menace of piracy and imposing stricter penalties for the same both in terms of fines and imprisonment term, there is another small but potentially crucial change that the Bill seeks to bring about.

The (Un)usual Developments

Clause 4(3) of the Cinematograph Bill reads thus:

“Any person desiring to exhibit on television or such other media as may be prescribed, any film which has been sanctioned by the Board under clause (ii) or clause (iii) of sub-section (2), may make an application to the Board in such form and manner as may be prescribed, and the Board may, for this purpose, sanction the film with a separate certificate, after directing the applicant to carry out such excisions or modifications in the film as it may think fit.”

There are a couple of interesting things right off the bat. The Cinematograph Act, 1952 has never governed television programmes and serials and does not in any form mandate that a Central Board of Film Certification (CBFC) certification is a pre-requisite for exhibiting content. The mandate for any programme (including films) exhibited on cable television being required to be certified by the CBFC came from the Programme Code under the Cable Television Network Rules, 1994 (CTN Rules). Now, while the CTN Rules were only concerned with ‘cable television network’, the Cinematograph Bill neither creates any such distinction nor defines ‘television’. Interestingly, Clause 4(3) is only concerned with ‘films’ (which are defined as cinematograph films under the Cinematograph Act) and arguably doesn’t extend to programmes, serials, etc.

Further, unlike Clause 4(1) of the Bill, which mandates CBFC certification for exhibition of a film, this provision uses the word ‘may’ to suggest that it is in fact not mandatory to obtain certification for films planned to be exhibited on television (which arguably means that barring ‘cable television network’, for all other television forms, there is no obligation to obtain a certificate).

‘Reeling’ in OTTs through the backdoor, again

Along with ‘television’, the government has also left it open to itself to also prescribe any other media which would be subject to this provision. This, arguably and quite possibly, refers to the exhibition of films on OTT platforms. While we are yet to receive any clarity on this and there is no notification including ‘publishers of online curated content’ within this provision, the broad and open-ended language of this provision empowers the government to include any form of media within the fold of this clause.

Two years ago, the Ministry of Electronics & Information Technology (MEITY) came up with the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (Digital Media Code) under Section 87(2)(zg) of the Information Technology Act, 2000 (IT Act) and extended its application to ‘publishers of online curated content'. Similarly, the Ministry of Information and Broadcasting (MIB) has potentially extended the application of the Cinematograph Act to OTT platforms. The reason for this comparison is that similar to the MEITY not having power under the IT Act to create laws with respect to OTT platforms, so too the MIB does not have the power to extend the requirement for certification to OTT platforms under the Cinematograph Act.

The Cinematograph Bill muddies the waters slightly, because on the one hand, it authorizes the government to extend its application to OTT platforms, and on the other hand, there is nothing in the Cinematograph Act (even after this Bill) or in the Cinematograph (Certification) Rules, 1983 that provides any basis to enable extension of the Act to OTT platforms.

This is interesting to the say the least, considering the judgment of the Division Bench of Karnataka High Court in Padmanabh Shankar v. Union of India & Ors. The Karnataka High Court, having regard to the definitions of ‘film’ and ‘cinematograph’ under the Act (which definitions have NOT been changed by the Bill), had held that the Cinematograph Act does not extend or apply to films, serials, etc transmitted or exhibited through the internet.

Fin

Whether the Cinematograph Act will be extended to OTT platforms and if so, how will it play out both legally and practically, remains to be seen. However, with the Government breathing heavily down the necks of OTT players with the Digital Media Code in 2021 (which is currently under challenge), the COTPA Amendment Rules 2023, the Digital Personal Data Protection Bill 2023 and the various Telecom Regulatory Authority of India (TRAI) consultation papers on OTT services, the OTT players aren’t exactly being left a lot of wiggle room or breathing space legally and practically. While it is way too early to predict with some degree of certainty how these developments will impact OTT platforms as well as consumers in the long run, what is clear is that comprehensively regulating the digital sector is on the government’s agenda and it is slowly but surely taking steps towards it.

Devvrat Joshi is a Senior Associate in the Dispute Resolution and Advisory Team at Saikrishna & Associates.

The views of the author are personal.