The old-age battle between freedom of expression and artistic freedom dates back to the 1970s when the Apex Court first examined the question of censorship of cinematographic films vis-a-vis the fundamental right conferred by Article 19(1)(a) of the Constitution of India wherein the Courts have imposed restraints on content which is against sovereignty, integrity and security of India or is defamatory, in contempt of Court or leads to incitement of any offence.

In recent years with the advent of technology and low footfall in theatres due to the pandemic, the media and entertainment industry has seen a paradigm shift in the volume and demand for diversified content through OTT (Over-the-top) means of content creation which is basically television and film content that is broadcasted using a high-speed internet connection instead of a cable connection and some of the major services in India including Netflix, Amazon Prime, and Hotstar. This shift can be said to be a major relief for the filmmakers as it is not mandatory to procure a Central Board Film Certification (CBFC) certification for making movies available on OTT Platforms. The rising popularity of OTT Platforms and social media which remained unregulated for a long period of time, led to the enactment of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. Even though these guidelines provide for a three-tier grievance redressal system, it seems that the Courts are still being preferred by the citizens seeking redressal of their grievances including seeking a ban on content on the grounds of excessive obscenity, filthy language, public morality, hurting religious sentiments, etc. It is most pertinent to note that these guidelines do not contain any express provision of censorship of the content on the OTT Platforms and are only required to comply with the self-classification of content with appropriate age classification and content descriptor of each content displayed on the OTT Platforms.

Even though there is no censorship, if any content on the OTT Platforms contravenes Article 19(2) of the Constitution, the Government under Section 69A of the Information Technology Act and the IT (Blocking Rules), 2009 i.e., Power to issue directions for blocking public access of any information through any computer resource, has the power to remove such content which is objectionable.

In fact, the Hon’ble Delhi High Court in its recent order has ruled that the language used in the TVF Web Series, College Romance does not pass the morale decency community test of a common man and slips into the area of obscenity. The Court observed that the sexually explicit language used in the series could corrupt impressionable minds. The Petition was filed by TVF India Limited challenging the order passed by the Additional Sessions Judge, Rohini in the complaint filed alleging that the series “College Romance” is in violation of sections 292 and 294 of the Indian Penal Code, 1860, Section 67 and 67A of the Information Technology Act, 2000 and Section 2(c), 3 & 4 of Indecent Representation of Woman Prohibition Act, 1986. The Court observed that a web series cannot be allowed to run unhindered taking the shade and safety of arguments that no law makes it punishable or some people use such language. The Court ordered that if any particular episode in question is still posted on any YouTube channel without classification, appropriate remedial steps shall be taken as per the law, rules and regulations of the IT Act. Not only this, but the Court also attracted the attention of the Ministry of Information Technology to these kinds of situations and take steps to ensure stricter applications of its rules. Accordingly, the Court held that since there were no classifications or any warnings on the streaming platforms regarding the kind of language used, it was in clear violation of the IT Rules, 2021 as well.

This is not the first time such a petition has been filed against the unparliamentary language used on the OTT platforms. In fact, the Hon’ble Kerela High Court while dealing with one such issue interestingly directed the State Police Chief to constitute a team to watch the film for verifying and submitting a report as to whether there are any statutory violations or any criminal offences made out. The report submitted by the police team primarily stated that the Film contains foul language which was essential for the Film to be believable to the audience; and no statutory offence or criminal offence has been committed by use of foul language and depiction of obscenity, as these are offences only if committed in a ‘public place’. The Hon’ble Kerela High Court while dismissing the petition held that the presence of obscene matter and the use of language is outweighed by the preponderance of artistic value and social purpose of the Film and that the Film must be judged in the light of the period depicted and the contemporary standards of the people to whom it relates.

It was further observed that OTT Platforms unlike theatres are not public places as a person has to possess a smart device such as a phone, tablet, or laptop to download the application and pay an advance monthly subscription fee to access the content on the OTT Platform, thus no statutory or criminal offence has been committed requiring to take down of the Film from the OTT Platform. With regard to the CBFC Certification, the Hon’ble Court held that CBFC has no role whatsoever to play in the content displayed on the OTT Platforms as CBFC draws its powers from the Cinematograph Act, 1952 which relates to the theatrical content unless the Cinematograph Act, 1952 is amended to include the content on the OTT Platform as well.

The Hon’ble Delhi High Court has also not banned or censored any of the content displayed in the series “College Romance” but has merely directed YouTube to include appropriate classification and take appropriate steps as per law, rules and guidelines of the IT Act issued by Ministry of Information and Technology from time to time.

Even though the stand taken by the Hon’ble Delhi High Court is contradictory to the stand taken by the Hon’ble Kerela High Court, it only directs for the web series to be appropriately classified under the 2021 Act and does not really impose any restrictions on artistic freedom. This case recognizes that censorship requirements are less for OTT Platforms possibly due to the very nature of this medium itself whereby content can be viewed only by the subscribers.

By - Prapti Allagh