Almost every week, we as a team of media and entertainment lawyers, receive different questions related to what content is safe to make, what can be depicted in the content, and whether a particular scene or sequence could attract a claim or litigation.
The first question to be asked is whether the content is meant for theatrical release or for television, or whether it will be distributed on an OTT platform. This question itself highlights the inconsistency in the laws governing content creation and distribution in India.
The second most common issue that we face is addressing frivolous claims, and preparing defences in litigation that we know is frivolous, or raises a question that leaves the content producer or the content distributor exposed to what a Court may think about the claim. Such claims and litigation plague the audiovisual entertainment world. It could be filed in any Court across the length and breadth of India, and this is in fact being done on too regular a basis. Every person in the audience seems to assume the role of content police, or wants the publicity by raising an issue because the industry attracts so much media attention. Somewhere along the way the lines between censorship and certification have been severely blurred. The evolution of technology and the changes of law have not been in sync. This has led to a myriad of problems for stakeholders in the industry.
The definition of audio-visual products or types of content has been sliced into films, television shows, web series, direct to digital films, documentaries, etc. There are also short film trailers, promos, advertisements, music videos, video podcasts, which account for shorter duration audio-visual products. All these formats have developed from time to time as the entertainment industry grew.
The medium for viewing each of these has also evolved and changed with the changes in time and technology. In India, a person can watch content in a cinema hall, on television, on a video streaming platform, like the OTT platform or YouTube. However, there is no single legislation that defines or clarifies any or all these distinctly, leaving the content producer and the exploiting medium both confused about legalities and regulations. For each medium of distribution, there is a different legislation or regulation, and these are in addition to other applicable laws relating to intellectual property, contract, tort, information technology and even criminal offences.
A film meant for theatrical release in India will be governed by the Cinematograph Act, 1952. The object of this Act is to govern the certification of cinematographic films for exhibition. It applies to all films and content related to films like trailers and promos that are to be released in theatres/cinema halls. It has constituted the Central Board of Film Certification (CBFC) to certify the cinematographic film for public exhibitions, but what constitutes public exhibition is not defined.
The question of what amounts to public exhibition versus private viewing was discussed in the case of Super Cassettes Industries Limited and Others vs. Board of Film Certification and Others (Writ Petition (C) No. 2543 of 2007). The Act mentions the word “censor” in only one heading without clearly identifying any censorship provisions.
There are certain guidelines provided for certifying films and different categories of certification have been provided for. The basis for refusal of a certification for a film is the opinion of the authority, i.e. the CBFC. Such refusal can be if the film or any part thereof is against the interests of the sovereignty and integrity of India, security of the State, public order, relation with foreign states or involves defamation or contempt of court, or is likely to incite the commission of any offence.
It is very important to note that the provision is conditioned upon the opinion of the CBFC. Somehow, the certification process has been mixed up with censorship. While the Act does give the right to CBFC to direct the applicant to carry out excisions or modifications to a film, in practice this is what happens in order to obtain certification. The right should be exercised in consonance with the fundamental right of freedom of speech and expression that has been guaranteed to a content producer under the Constitution of India. This right is only conditioned with reasonable restrictions. In actual practice, if a film has been granted certification for adult viewing, it cannot be shown on a television channel during prime time, because a separate legislation will govern this same film when it has to be shown on television.
The Cable Television Networks (Regulation) Act, 1994 (Cable TV Act) governs the programs broadcast on television. The objective with which this Act was enacted was to regulate the operation of cable television networks in India. It is pertinent to note that until this Act was enacted, there was only the Prasar Bharati Act which governed the functioning of the Prasar Bharati Corporation. This Corporation only broadcasts the Doordashan channels on television. The Rules under the Cable TV Act provide for a Programme Code and the Advertising Code governing the programmes or advertisements that can be broadcast on cable television. However, there is no separate certification process for cable television programmes. However, if any theatrically released film or any content related to such film is required to be broadcast on cable television, then such film and content is required to be certified by the CBFC.
The Indian Broadcasting Foundation (IBF), the apex body of broadcasters, framed a set of self-regulating content guidelines. The idea was to provide the member channels with “certain guiding principles for programme content, usher in a redressal mechanism for viewer complaint and to ensure that programming creativity flourished in a free-speech environment without ad-hoc interventions”. The IBF has set up the Broadcasting Content Complaints Council (BCCC) as an independent self-regulatory body for non-news general entertainment channels, for redressal of viewer complaints. The television channels have time slots for programming content as per the maturity of the content. The television channels also take into the sponsorship and advertisement revenues. More advertisement and sponsorship revenues are received for programmes played on prime time, which has content that can be watched by larger number of audiences. The financial impact also acts as a content regulator. In addition to content, bodies like ASCII look into advertisements shown on television.
With the evolution of technology, the OTT platforms like Netflix, Amazon Prime, Hotstar, Zee5, have found a wide subscriber base in India, providing them with a much wider choice of content. The content producers have started pushing the creative envelope to make edgier provocative content, and the Indian audience has also matured with time to largely accept such kinds of content. However, the audience still has the discretion to not watch content that they don’t want to watch. While again there is no specific legislation that governs the OTT platforms or certification or censorship of content on OTT platforms, the Internet and Mobile Association of India (IAMAI) is taking steps towards the regulation of online curated content providers.
The IAMAI has proposed and certain OTT platforms have subscribed to the self-regulation codes version 1.0, 2.0 (Code), or both. The Code provides guiding principles in the form of best practices that the OTT platforms can adopt, including adherence to the statutory provisions of the Constitution of India, Information Technology Act, 2000, Indian Penal Code, 1860, Emblems and Names (Prevention of Improper Use) Act, 1950, Indecent Representation of Women (Prohibition) Act, 1986, and Protection of Children from Sexual Offences Act, 2012, amongst others. It also provides for guidelines on content classification, such as providing certain disclosures like maturity ratings and content descriptors (e.g., language, sex, violence) so that the consumer can make an informed decision.
In order to tackle the issue of consumer complaints, the 2.0 Code has introduced a two-tier consumer complaint redressal mechanism in the Digital Content Complaint Forum (DCCF) which is similar to the BCCC. The shortcomings of these versions of the Code are that not all OTT platforms, including some of the significant ones, have signed up to the Code, therefore, it cannot be said that the Code governs the entire OTT industry.
In addition to the Code, some OTT platforms display a disclaimer regarding the content, some allow for parental control through the creation of different profiles for children and for adults sharing a common account for an OTT platform. The parental controls allow the parents to keep a check on what the child is watching. The different profiles also come with the ability to lock the adult profile, thereby filtering out mature content from the children’s profiles. OTT platforms like Netflix have maturity ratings for their content, which rate each piece of content as per maturity levels, and which vary from country to country. The internal teams of these OTT platforms also self-censor the content. Video streaming platforms like YouTube also have internal policies that filter explicit content.
With the outbreak of the Covid-19 pandemic there has been a temporary closure of theatres/cinema halls worldwide. A flurry of films, which were ready and meant for theatrical release are now being released directly on OTT platforms. If these films were released theatrically then they would have had to obtain CBFC certification. However, the same film has been released on an OTT platform without any certification. The OTT platform has done its own internal process of content control, and has left the choice with the audience to decide whether they would like to watch the film. This throws up a very important aspect, that can we as the audience now be considered mature enough to decide what we want to watch, instead of leaving such decision in the hands of a set of people whose individual opinions, and possibly personal biases, decide the fate of publication of content.
The lack of a single legislation applicable to all content, leaves the stakeholders at the mercy of multiple laws that may apply, without a uniform interpretation, and are exposed to a plethora of litigation, which can be filed across India by just any individual. This has an enormous financial impact on the content producer and the distribution platform. While there are some insurance products available to cover such financial impact to at least some extent, these do not address the larger issue of why certain content needs to be censored by a few people in India, when it is created for a global audience. In a scenario where the Indian content business and the audio-visual entertainment industry is trying to make content which is at par with international content, there needs to be a solution where each platform like cinema theatres or television broadcasters or OTT platforms have a common independent body comprising industry representatives and experts from the business.
The viewer can approach this body if they have any grievance regarding any content. Such a body, which should understand the nature of the industry and the business, can take the necessary decisions to redress the viewer complaint, and also help the producer and distributor. This would reduce the burden of litigation in Courts, allow for a creator to make content freely, encourage creative growth, improve the economics for the industry and the stakeholders, address viewer concerns and yet uphold the necessary restrictions on free speech and expression, a right which is guaranteed to each one of us, with reasonable restrictions, by our Constitution.
Chandrima Mitra is a Partner and Vaishakhi Mehta is a Senior Associate at DSK Legal.