By Utkarsh Srivastava
In the process of ‘strongly advising’ OTT platform ULLU to take down the wonderfully named “Charamsukh, Polangtod, Secretary, Jananejane”, the Digital Publishers Content Grievances Council (DPCGC) boldly starts with the heading: “ORDER”. The problem with this is that the DPCGC is neither a court nor a tribunal, and can only issue guidance or advisories to platforms. While this heading doesn’t really matter in the large scheme of things, it certainly set the tone for an “order” that is completely detached from the laws governing the functioning of the DPCGC.
The case in question is a complaint against ULLU. The complainant was “aggrieved” by certain episodes of ULLU’s show and instead of merely canceling his subscription, he invested his time and resources in ensuring that no one else would be able to watch the show. The complaint led to the first order issued by the DPCGC in which it asked a platform to take down the content.
Given the ever-expanding volume of OTT content and platforms, the Government has devised a three-level system for governing OTT content under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules (Intermediary Guidelines). Content is first regulated at the platform level, then by a self-regulating body set up by the platforms such as the DPCGC, and finally by a committee set up by the Ministry of Information and Broadcasting (MIB).
As is prudent, not all power is delegated, and especially the power to ask for removal of content is restricted. However, the self-regulating body (or the DPCGC) with the biggest platforms on board (Netflix, Amazon Prime Video, Apple TV+, Eros Now, Alt Balaji, etc.) appears to have chosen to ignore these restrictions.
While laying out the legal position in the appeal, the DPCGC appears to have confused itself with a Constitutional court. Without any discussion of the Intermediary Guidelines, it dives into the right to Freedom of Speech under Article 19(1)(a) of the Constitution and the restrictions thereon. It then applies the legal principles to the facts and finds that the content is obscene and borderline pornographic. As part of its “Dispositive Order”, it reprimands the platform and strongly advises them to take down the content in question or modify it to comply with the Intermediary Guidelines. It also advises it to make sure that all its content passes muster with the laws of obscenity and pornography.
SRBs cannot ask for content to be taken down for obscenity
While the DPCGC has refused to acknowledge the limitations of its own powers under the Intermediary Guidelines, those limitations are still nevertheless the law of the land. Under Rules 12(4)(d) and 12(4)(e) of the Intermediary Guidelines, SRBs like the DPCGC are required to hear appeals against publishers and issue guidance/advisories as specified in Rule 12(5) to ensure compliance with the Code of Ethics.
Rule 12(5) lists the specific guidance/advisories that the DPCGC can issue while disposing of such appeals. These include warning or reprimanding the platform, requiring them to apologise, asking them to reclassify content ratings, etc. It does not allow SRBs to ask for removal of content. Indeed, such a scenario is specifically addressed in Rule 12(5)(e) wherein, if the SRB is of the view that content must be deleted or modified, then it may refer such content to the MIB for consideration by the Oversight Mechanism. Such a recommendation can only take place for (a) preventing incitement of a cognizable offence relating to public order; or (b) reasons under Section 69A(1) of the Information Technology Act (IT Act). Neither of these categories mention obscenity as a reason for taking down content.
In fact, even the Inter-Departmental Committee (referred to as Committee hereon) executing the Oversight Mechanism under Rule 13 of the Intermediary Guidelines cannot ask for removal of content on the grounds of obscenity. Similar to the SRBs, the Committee can only recommend removal of content for (a) preventing incitement of a cognisable offence relating to public order; or (b) reasons under Section 69A(1) of the IT Act. As mentioned above, neither category mentions obscenity or even decency/morality as a ground.
Therefore, a plain reading of the Intermediary Guidelines shows the following:
- The actions of an SRB acting on an appeal are limited and do not allow for removal of content.
- Even when the SRB thinks that content should be removed, it can only recommend such removal to the Committee (through MIB) based on two categories of reasons, neither of which include obscenity.
The Intermediary Guidelines are thus clear and SRBs have absolutely no need to test content against obscenity or any other law except those related to public order or covered by Section 69A(1) of the IT Act.
It must be noted that one of the functions of the SRBs is to ensure compliance with the Code of Ethics and the Code of Ethics requires platforms to not transmit any content prohibited by law/courts. This could potentially include the content in question in the present case. However, the SRBs cannot sit in judgment of what content might be held illegal by the courts. While it should be allowed to advise platforms to not show content that has been banned by the courts or the Executive, it cannot decide on its own what content should be illegal. That is the job of the courts. SRBs cannot be permitted to take on this power on their own as that will further degrade the artistic freedom in this country which is already under attack.
Taking inspiration from the “Censor” Board
This is not the first time that an administrative body has overstepped its boundaries when it comes to censorship. The biggest example of such censorship comes from the norms set by the Central Board of Film Certification (colloquially known as and functionally acting as, the Censor Board). Set up under the Cinematograph Act, the Censor Board certifies films for restricted or unrestricted public exhibition. Section 5B of the Cinematograph Act allows it to deny certification to a film if it is against the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence. However, if certification is being granted, there is leeway as to what certification should be given. The Cinematograph Act also envisages suggesting edits to films as part of the certification process. Therefore, practically, the Censor Board certifies films while simultaneously mandating edits. These edits are guided by certain principles (1991 Guidelines) laid down by the MIB. The principles are extremely broad and paternalistic, and could cover practically any movie catering to even a remotely mature audience.
The Censor Board has taken the power under the 1991 Guidelines and ran with it. Over the years, it has started issuing large numbers of cuts and changes to films as conditions for granting the much-desired U certificate or any certificate at all (a U certificate ensures broader distribution of the film thereby resulting in higher profits). Among other edits, it has asked for: a shot of a signboard saying “Punjab” to be deleted as well as the movie to not call a dog “Jacky Chain” (Udta Punjab); muting the words “lesbian” (Dum Laga Ke Haisha), “orgasm” (Hai Apna Dil Toh Awara), “bloody” (The Ghazi Attack) and “Goa” (Missing on the Weekend); reducing lip lock visuals by 80% (Babumoshai Bandookbaaz); blurring of vibrators (Veere Di Wedding); muting the word “Pelo” from the dialogue “Samose Mat Pelo” (Running Shaadi); blurring posters of political parties (Love Sonia); and removing the word “Hindu” from “Hindu right wing”.
Apart from the standard cuts around sexual content, violence, and abusive language, the Censor Board has now started asking for modifications based on concerns like diplomatic relations, police overreach, political balance, religion, and caste. Removal of references to “Prime Minister” and even “government” and “Motabhai” are now par for the course.
The Censor Board has found power outside the Cinematograph Act as well. As discussed above, certification can be denied only for the grounds mentioned under Section 5B of the Cinematograph Act. However, the Board refused certification for Lipstick Under My Burkha because the movie was “lady-oriented, their fantasy above life” and the movie was released only after being cleared by the now-abolished Film Certification Appellate Tribunal (FCAT). In total, The Censor Board has banned a total of 793 films in 16 years.
The Censor Board’s actions have frustrated even the Bombay High Court which asked the Board if they were ostriches and asserted that the Board will not decide what one wants to watch and see. While deciding on the certification of a children’s film “Chidiakhana”, the court observed that the CBFC is a certification board and not a censor board. It went on to say that the CBFC was “forming an opinion that the whole population is infantile and imbecile and [the CBFC is] the only one with an iota of intelligence to decide for everyone.”
The Censor Board’s actions have taken on further importance with the abolition of the FCAT in 2021. The FCAT was the first port of call for filmmakers aggrieved by the decisions of the Censor Board who now need to approach overburdened High Courts which will not be able to process these cases at anywhere near the speed that FCAT could. The litigation costs in these cases will also increase.
The issues with the Censor Board were noted by the MIB-appointed Shyam Benegal committee which asked for the CBFC to transition into solely becoming a film certification body and the current system of demanding edits to films to be abolished. It was of the view the Censor Board should not be the moral compass of the nation and it should only decide who and what category of audiences can watch certain films. It also provided detailed amendments to the applicable laws, but its recommendations remain unimplemented.
SRBs as Censor Board v2.0
The three primary ways in which Indians consume movies and shows are through television, theatres, and OTT. On the one end of the spectrum is television which is governed by the very strict Programme Code because it is the most accessible medium and children can watch it easily. Therefore, it sees the most censorship. In the middle are theatres because while they still require an active decision by a person to go watch a movie, those movies are exposed to a large audience, and thereby require a certain level of censorship. On the other end of the spectrum are OTT platforms which cater to comparatively niche audiences. Adult Indian citizens sign up for them and make a financial decision to watch the content on these platforms. Parents can set parental locks on their accounts to prevent children from watching undesirable content. Given the extremely low likelihood of someone unknowingly stumbling upon this content, it should face the lowest level of censorship.
India already has a Censor Board hell-bent on infantilising the entire population and deciding what people should watch. Its decisions range from somewhat sensible to truly infuriating depending on the people who are part of the Board. If SRBs are permitted to go down the same route, it will be a big blow to the creative freedom of filmmakers in particular, and the right to freedom of speech as a whole. Either the MIB or the courts must step in and clarify the limited role that SRBs should play in the censorship ecosystem. Otherwise, SRBs like the DPCGC will just make ullus of us all.
Utkarsh is an LLM graduate from UC Berkeley and focuses on trust and safety, and content moderation issues. He has earlier worked for Trilegal in their TMT practice.
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