SAGA OF CENSORSHIP

Introduction

• The issue of censorship is essentially an issue of free speech and expression; it refers mainly to the suppression of speech and other forms of public communication.
• Freedom of Speech and Expression is guaranteed under Article 19(1) (a) of the Constitution as a fundamental right but this right is not absolute and as such restrictions are imposed on this right under Article 19(2).
• Therefore, censorship is all about harmonising the two i.e. freedom of speech and expression on the one hand and the restriction provided on the other hand.
• The entertainment industry in India has grown by leaps and bounds in the last century. It has increased not only the number of movies and programs it produces but its reach has also spilled all over the world.
• The emergence of digital platforms over the years has only increased the quantity and extent of the content that is produced by the entertainment industry.
• In the most recent times, content creators are leaning towards the OTT platforms over the traditional platforms because of the creative liberties they can take.
• Indian legal demands for online content removal are the fourth highest in the world. India is followed by Russia, Turkey, France, Mexico, Brazil, Germany, Pakistan, the US and the UK in the top 10.
• Internet censorship and heavy content moderation has been a primary target of the Indian government’s rules for the cyber world these days. Latest to come under the government scanner are the news portals.
• The Indian government has called for the formation of a regulatory body, an organisation like the Press Council of India, for news portals or websites.
• Government also said that over the top (OTT) platforms currently have no regulations.They do fall under the IT Act, but have no government or self-regulation.
• Creators of films and documentaries on OTT platforms make all kinds of content, good, bad and obscene. These platforms have no censor board.

Internet Censorship in India

• The Indian government has been stressing upon guidelines for social media platforms and online content for a while now.
• The regulations are mainly meant to stop the misuse of social media and stop the spread of fake news.
• However, most social media and OTT companies have been saying that such regulations are a threat to free speech.
• To avoid conflict with the government, leading online video streaming players including Netflix, Hotstar, Voot, Arre, SonyLIV and ALTBalaji came up with an idea to sign up for a voluntary censorship code to regulate video streaming content.
• The government’s insistence on internet censorship is mainly to stop platforms from showing content that is banned by Indian courts or disrespectful to the national emblem and flag.
• It is also concerned about content that outrages religious sentiments, promotes terrorism or violence against state and shows child pornography.
• The OTT platforms look at voluntary censorship as a pre-emptive move to avoid Indian government’s imposition of its own rules, which some players expect will be onerous.
• However, some players who were reportedly against the code include Amazon, Facebook and Google, who feared that this initiative would set a “dangerous” precedent for restricting freedom.
• The government proposes internet censorship by amendment of Section 79 of India’s IT Act, which would require internet companies to take down content marked as inappropriate by authorities.
• If a company receives a complaint from a law enforcement agency, the firm should trace and report within 72 hours of the origin of the content and disable that user’s access within a day.
• This would primarily mean that platforms like Facebook-owned Whatsapp have to break the end-to-end encryption services of platforms like Facebook-owned Whatsapp, which the social media giant has not yet agreed to.
• Earlier, Facebook and WhatsApp had strongly objected to Aadhaar linking, claiming it would affect the privacy of its users.
• There is also a popular opinion that Aadhaar-social media linking would not be technically feasible.
• Some feel that linking Aadhaar with social media accounts will not serve many purposes, besides letting the government keep an eye on every citizen’s social media posts.

Law on censorship and its interpretation by courts

• Cinematographic Act: In India, the Central Board of Film Certification (Censor Board) was set up under the Cinematographic Act, 1952 (the Act).
  • The Act along with Rules (1983) and guidelines (1991) set out the manner in which films are to be certified for exhibition in India by the Censor Board.
    • The Act states that “a film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of, inter alia, decency”.
    • In addition, the guidelines stipulated that film certification must ensure that “artistic expression and creative freedom are not unduly curbed” and that “certification is responsive to social change”.
  • IT Rules (2011): Although, as per Rule 3(2)(b), (c), (e), of Information Technology (Intermediaries guidelines) Rules, 2011, due diligence shall be observed by the intermediaries in displaying, hosting, publishing any obscene, pornographic or unlawful content and shall not harm minors.
    • As per Rule 3(3) the intermediary shall not knowingly host, initiate transmission of such content.
  • IT Act (Section 69A): The Government has power to remove any content that is objectionable and/or harms India's sovereign interests under Section 69A of IT Act i.e., Power to issue directions for blocking for public access of any information through any computer resource, the said section is considered to be Internet Kill Switch.
  • India has exceptionally lively media on varied platforms – newspapers, periodicals, TV channels, online media, radio stations and more, in more than 20 languages.
  • These platforms voice varied opinions that are protected by the constitution.
  • The media jurisprudence has developed over a period of time through cases touching upon press, arts, books, motion pictures, social media and advertisements.
  • In these decisions, the court has struck a balance between the interest of freedom of expression and social interests.
  • Press Council of India: The Press Council of India is another institution which does not directly practice censorship but has often addressed issues concerning the same.

History of censorship

• A. Abbas v. Union of India: In 1970, the constitutionality of censorship under the 1952 Act was challenged for the first time before the Supreme Court in the case of K.A. Abbas v. Union of India.
  • The apex court upheld the constitutionality within the ambit of Article 19(2) of the constitution
  • It added that films have to be treated separately from other forms of art and expression because a motion picture is “able to stir up emotions more deeply than any other product of art”.
  • At the same time, it cautioned that it should be “in the interests of society”.
• 16th constitutional amendment of 1963: The balance in favour of state security over freedom of expression was further consolidated by the 16th constitutional amendment of 1963, which added that the ‘sovereignty and integrity of India’ be considered in assessing political speech.

Legacy of bans

• Films like Water, Udta Punjab, Lipstick Under My Burkha, Deshdrohi are only a few amongst many that ran into troubled waters with the Censor Board, were restrained in the name of ‘public interest’.
• Desh drohi fought a battle of political censorship even after the Censor Board’s approval.
• The question of freedom of expression in India needs a nuanced approach rather than a simple ‘for or against’ conclusion.
• It is true that the government has had to deal with politically sensitive and inflammable situations with the history of oppression and religious divide in our country.
• The most recent issue surrounding OTT's was the John Oliver show on Hotstar, where he actively criticized Narendra Modi and CAA and the show was further blocked on Hotstar. A similar incident occurred on Hasan Minaj's show that dealt with Lok Sabha Elections, 2019 and was highly criticised later.
• Shows such as Sacred Games was criticised as it mentioned some speculative lines on Rajeev Gandhi and also mentioned about the Bofors scam.
• Leila was criticised as it hurt the feeling of Hindus by promoting Hinduphobia.
• Amazon Prime also deleted an entire episode of CBS Political Drama "Madam Secretary" in its Indian version. The show was said to hurt the sentiments of various people as it deals with Hindu Nationalism, India occupied Kashmir, violence on Muslims by majoritarian society, etc.
• As per the law, the court has criticised the state emphasising that freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence.
• It is the duty of the state to protect the freedom of expression since it is a liberty guaranteed against the state. The state cannot plead its inability to handle the hostile audience problem.

Pre-censorship vs Ex-post remedies

• The desirability of pre-censorship or ex-ante regulation would really depend on how much we value a democratic system.
• For offensive and defamatory content, we already have ex-post remedies in civil courts in dealing with speech that infringes on privacy, insults dignity or defames honour.
• Today, on OTT platforms, where private viewing is not considered as public exhibition, it is difficult to see pre-censorship as anything but arbitrary and chilling.
• The Indian audience is not restricting their choice to domestic content and likewise, global citizens are watching Indian movies/TV series on OTT or Internet platforms.

The rise of over the top (OTT) platforms

• The traffic to these platforms has only increased due to the lockdowns imposed because of the COVID-19 pandemic.
• These platforms which are flourishing by the day include the most popular ones Netflix and Amazon Prime.
• As of now, these platforms are free from any kind of regulations and restrictions making them very popular among artists because they do not restrict the creative nature of their art like theatres and television does.
• The OTT platforms have adopted self-regulation in this regard by categorising their programs on the basis of violence, nudity and strong language.

International Perspective

• Countries like Singapore, UK have regulatory bodies to keep a check on the OTT platforms.
• In Singapore, the service providers have to display the elements such as nudity, drugs, sex, violence, etc. in the content.
• However, in UK, the OTT platforms face the same scrutiny as any public service broadcaster.
• Australia has a principal legislation BSA, 1992 that governs the OTT sector.
• While in Turkey, there is a licensing regime under which the OTT platforms are given a licence for 10 years.
• Countries like Indonesia, Turkey and Saudi Arabia have strict regulations. They want total control in the hands of Government. Many OTT platforms including Netflix have been blocked.

Way forward/Conclusion

Looking at the present scenario, the need for an unbiased regulatory body is a must. The Internet Content Streaming cannot be controlled by a self-regulatory body. The body shall distinguish responsible content for regulation. The OTT platforms and the Government shall work together on this and end this issue once and for all. At this point of time OTT platform is at a nascent stage across the globe. India needs to make sure that they cope up with the needs of the people while making legislation.

The basic purpose behind the law shall be clear; whether it is made to protect the audience or to bridge the regulatory gap. The Intermediary Rules, 2011 shall also be kept in mind as violation of the Rules shall lead to cancellation of their license.  Total censorship on the platform will transform it into nothing more than a television show or mainstream cinema. Also, it would lead to increasing cases of piracy. The public today is looking for content that brings out the truth of the society, deals with socio-political issues, provides us regional varieties and utmost importantly doesn't hurt the sentiments of a single class of people. Hence, these regulatory gaps and grey areas are alarming.