Arushi Anthwal
Maharashtra National Law University, Mumbai
Binge-watching the coming of age and edgy content on OTT (over the top) Media, better known to us as web series, is the new norm today. Not only has it garnered massive viewership but in the light of the global pandemic, with cinemas closed to public access, even the big commercial titles will now be released through OTT platforms raising their significance to a new level of interest and scrutiny.
With conventional commercial cinema entering the OTT domain and with the increasing mix of demand for and condemnation of the OTT content, we are faced with some interesting questions all arising from the concept and need for ‘pre-censorship’.
What is pre-censorship?
Censorship is any alteration or suppression of content that is perceived to be objectionable. When such censorship is carried out before the content materializes i.e. before the information is printed or broadcast it is called pre-censorship.
Often, the information which is subject to public knowledge may require censorship to ensure that material reaching the public domain will not have any harmful consequences in terms of national security, hurting religious sentiments, publishing defamatory content, obscene material, etc. In this sense, though the objective can be noble, it is also important to note that in essence, pre-censorship is a restriction on one’s freedom of speech and expression as guaranteed under the constitution under Article 19(1)(a) which is why what should and should not be made subject to censorship, becomes a pivotal concern in a democratic nation.
Pre-censorship in cinema v. Pre-censorship in OTT Media:
In India, while the general norm is that there shall be no pre-censorship since the same is a restriction on liberty and a violation of freedom of speech and expression, an exception to this general norm is cinematograph films. Under section 5B of the Cinematograph Act, 1952 the Central Board of Film Certification (CBFC) has the power to view the film in advance in order to give certification (direction as to the category of the audience that shall be allowed to view the film: U, U/A, A or S).
The Supreme Court in K.A. Abbas v. Union of India (1971 AIR 481) justified the reason for such exception, as it held pre-censorship of films to be constitutionally valid. The court observed that the versatility and combination of appealing to the visual and aural senses bring the motion pictures to life such that they stir deeper emotions and tend to have a greater influence on adults and more so on children than any other form of artistic expression. For this reason, the court opined that the pre-censorship imposed was in the best interests of the society.
This brings us to the question that though the content on OTT Media too, combines audio and visual material and similar to a motion picture has the capacity of influencing the audience yet, there is currently no legal provision in India for the pre-censorship of the content displayed through this forum.
Does this give rise to legitimate concerns like whether there should be a similar system of pre-censorship as in the case of films for OTT media content as well? Or whether there should be a more liberal model adopted in the case of the latter in order to advance creative freedom and artistic expression?
Scope for pre-censorship in the light of the recommendations of the Shyam Benegal Committee:
When viewed from the context of the Court’s observations in K.A. Abbas it would appear as if the OTT media must be placed on the same footing as the cinematograph films owing to the essence of the content generated and medium of audio-visual coordination. However, any discussion on pre-censorship shall be incomplete without citing the observations of the Shyam Benegal Committee constituted in 2016 with the aim of not only providing a holistic framework for film certification but also, to create space for artistic freedom and expression.
Some of the important observations made by the committee in this regard were as follows:
- The CBFC is not to become moral police, reviewing content as per the ‘values and standards’ of the society, the same being too subjective to be reviewing criteria.
- The owner of a film has complete rights over it and the CBFC cannot demand cuts or modifications without his/her consent.
- Move from the task of censorship to certification only, the aim being to allow people to make an informed choice.
The committee clearly tilted in favor of more artistic freedom than unreasonable restrictions on content especially when the restrictions come before the content even materializes.
The emerging conflicting views reveal the tussle of pre-censorship with article 19, which specifically becomes more problematic for OTT media, there being no explicit binding regulation for the same at all and a parallel rise in its popularity and demand.
Current Regulatory Status and Controversies:
Though there are no explicit or binding legal provisions in terms of pre-censorship of OTT media, the Internet and Mobile Association of India has drafted a self-regulatory code called “The Code of Best Practices for Online Curated Content Providers” which has platforms like Hotstar, Jio, Netflix, ALTBalaji, Arre, Eros Now, SonyLIV, Voot, and Zee5 already on board.
The non-binding guidelines contained therein are framed with the objective to preserve freedom of speech and expression and allow the consumers to make informed choices without compromising on creativity and innovation.
The key principles guiding censorship efforts under the code provide against the following:
- Content which is disrespectful of the national emblem or national flag.
- Prohibition on displaying child pornography.
- Content made available must not deliberately and maliciously outrage religious sentiments of any class, section, or community.
- Content must not be in a form that encourages terrorism or any other form of violence against India.
In the light of the above, the code prescribes the following measures:
- Categorization and classification of content based on age-appropriateness.
- Availability of a content descriptor in order to inform the audience of the nature of the content.
- Possibility of parental control/access control measures, which may be adopted by each signatory by choice.
The code is definitely a positive step towards regulation and its objectives are in tune with the recommendations of the Shyam Benegal Committee however, certain shortcomings are patent and cannot be ignored. Firstly, the code does not indicate any penalty or other consequences in case of non-compliance with the guiding principles and a complaint arising therefrom. Furthermore, the complaints redressal system under the code calls for a redressal department specific to each platform and not any general and independent body that can address complaints/appeals for all signatory platforms alike and without bias. As a resolution to this problem, the Digital Curated Content Complaint Council (DCCCC) has now been set up as an independent body under the code. However, many signatories have refused to get on board with the DCCCC’s powers and functions.
Currently, a petition with regard to profanity and sexually explicit content displayed without censorship over the OTT platforms lies pending before the Delhi High Court and the added controversies surrounding this outlet seem far from over.
Recently, the popular show ‘Paatal Lok’ streaming on Amazon Prime Video became a center of critical appreciation as well as condemnation for its alleged role in hurting the sentiments of the Sikh community as well as the Nepali speaking community. The show also got into trouble for using a caste slur in one of the episodes, a complaint regarding which has been filed under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. Another show streaming on Netflix, ‘Jamtara: Sabka Number Ayega’ got into similar trouble for using casteist slurs.
While the problem with the hate and politics that may arise from such instances cannot escape us, the solution and regulation mechanism to counter the same definitely requires a more streamlined approach without compromising on creative freedom.
According to a survey conducted by YouGov around 57 percent of the participants favored censorship for OTT platforms in India. In light of the same, though the self-regulatory code is a laudable initiative, the government must ensure that the same does not become toothless without an appropriate enforcement mechanism in place.
