Censorship & certification – Outlining the CBFC’s role under law

The Central Board of Film Certification (CBFC) functions as the primary body certifying films for public exhibition in India. It is guided by the Cinematograph Act, 1952, and various rules and guidelines in determining the nature of certification to be granted to a film. However, over the past few months, reports about the CBFC’s alleged overreach – moving from certification of films to moral policing, for instance, by denying certification to films which address LGBTQ issues – have made the news.  This post outlines the legal framework within which the CBFC operates and discuss the prospects for change within this framework.

The CBFC was constituted under the Cinematograph Act, 1952 (Act), which aims to provide for the certification of cinematograph films for exhibition. Specifically, the CBFC was set up for the purpose of ‘sanctioning films for public exhibition’. The law however, also allows the CBFC to require modifications to be made to a film before providing such sanction / certification.

Over time, the CBFC has increasingly used this power to direct cuts in films for various reasons, leading to it being commonly referred to as the ‘censor board’. In recent months, the CBFC has stirred up controversy in relation to certification (or the lack thereof), of films with subject matter ranging from feminism / women’s empowerment and LGBTQ issues, to the Indian government’s demonetisation drive. The increasing possibility that a film will not even be granted certification for public exhibition, has led to fears that self-censorship will become a norm.

This fear seems to have permeated into the online video streaming industry already. Today, it isn’t clear whether streaming service providers are required to abide by the certification norms under the Act. While streaming platforms differ in their approach, and some providers choose to stream unedited i.e. ‘un-censored’ content, others are choosing to make only certified versions of films available online. There have also been controversial claims of service providers choosing to edit / censor content beyond the requirements of the CBFC.

The legal framework within which the CBFC operates is outlined below.

As described above, the CBFC is the sanctioning body which certifies films for public exhibition. The Act also allows for the setting up of regional centers or ‘advisory panels’ to assist the CBFC in its functions.

The Act provides that any person who wishes to exhibit a film should make an application to the CBFC for certification. The CBFC may (after examining the film, or having it examined):

  • sanction the film for unrestricted public exhibition, subject to requiring a caution to be provided stating that parents / guardians may consider whether a film is suitable for viewing by a child if required (i.e. grant a U or UA certificate)
  • sanction the film for public exhibition restricted to adult viewers (i.e. grant an A certificate)
  • sanction the film for public exhibition restricted to members of a certain profession or class of persons based on the nature of the film (i.e. grant an S certificate)
  • direct that certain modifications are made to the film before sanctioning the film for exhibition as described above, or
  • refuse to sanction the film for public exhibition.

The Act, as well as the Cinematograph (Certification) Rules, 1983, also provide detailed procedures for the appointment of members of the CBFC and the advisory panels, and appellate bodies, applications for certification, and appeals to the decision of the CBFC. The Act also provides for revisionary powers of the Central government in relation to the decisions of the CBFC.

In addition to the above, the Act provides principles on the basis of which the CBFC may refuse to certify a film – namely, “if a film or any part of it is against the interests of the sovereignty and integrity of India, 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 an offence”.

These principles are further supplemented by the certification guidelines issued by the Central Government in 1991, in accordance with the powers granted to it under the Act.

These guidelines provide five objectives for film certification under the Act: (a) the medium of film remains responsible and sensitive to the values and standards of society; (b) artistic expression and creative freedom are not unduly curbed; (c) certification is responsive to social changes; (d) the medium of film provides clean and healthy entertainment; and (e) the film is of aesthetic value and cinematically of a good standard.

In order to meet these objectives, the guidelines require the CBFC to ensure that films do not contain (a) scenes that glorify / justify activities such as violence, drinking, smoking or drug addiction, (b) scenes that denigrate women, (c) scenes that involve sexual violence or depict sexual perversions, or (d) scenes that show violence against children, among many others.

The language used in many of these guidelines, while perhaps well intended, is vague, and allows for wide discretion in certification subject entirely to the sensibilities of the individual members of the CBFC.

In 2016, the Ministry of Information & Broadcasting set up a committee to evolve broad, but clear guidelines/ procedures to guide the CBFC in the certification of films. The committee was headed by noted film maker Mr. Shyam Benegal. The committee, in its report, has expressed the view that it is not for the CBFC to act as a ‘moral compass’, and decide on what constitutes glorification or promotion of certain issues.

The committee’s report suggests that the only function of the CBFC should be to determine which category of viewers a film can be exhibited to. The committee’s report has suggested new guidelines, with the following objectives: (i) children and adults are protected from potentially harmful or otherwise unsuitable content; (ii) audiences (and parents / those responsible for children) are empowered to make informed viewing decisions; (iii) artistic expression and creative freedom are not unduly curbed in the classification of films; (iv) the process of certification is responsive to social changes.

The committee’s recommendations are yet to be implemented, however, news reports suggest that work is currently underway to modify the new guidelines suggested in the report.

It is interesting to note that the committee’s report does not address the issue of certification requirements for films available on online streaming platforms. In March 2016, the CBFC had suggested that it would require all or film-makers, producers, and directors in India to sign an undertaking stating that they would not share with / release ‘excised portions of a feature or a film to anybody’, including streaming service providers.An affidavit to this effect was accepted by the Punjab & Haryana High Court, which suggested in its order that such steps would be sufficient to ensure that ‘censored’ content would not be available. However, later that year, the Ministry of Information and Broadcasting confirmed in a response to an RTI application, that they do not intend to regulate or censor online content.

Supreme Court considers installation of CCTV units in courts – but will it regulate what happens next?

Earlier this month, the Supreme Court heard a petition seeking directions to ensure audio-visual recording of the proceedings in trial courts. The reasoning behind the request was that recording proceedings would enhance the fairness of trials. The Supreme Court decided to limit the question to whether CCTV (video only) cameras may be installed at various locations in the courts, in order to better serve security and administrative needs.

This is not the first time the Supreme Court has discussed the use of CCTV cameras for security and other purposes. However, there is also no comprehensive law that deals with the use of CCTV cameras and related security and privacy issues.

In the present case, the Court initially noted that multiple courts, including the courts in Gurgaon have undertaken such efforts in the past. The Court then requested the additional solicitor general and a senior advocate present in the court as amicus to visit the courts in Gurgaon, and report on the matter within four weeks. It stated that once the report is received, it will consider directing installation of CCTV (video only) cameras at district courts in various states. It has also indicated that any recordings made by these CCTV cameras will not be available to the public, and will be retained for specified periods of time only.

The Court has considered the use of CCTV cameras in public places in previous cases. In Deputy Inspector General of Police and Anr. v. S. Samuthiram, a case regarding eve-teasing / sexual harassment, the Court took cognizance of such cases and the need for prevention mechanisms. Amongst other things, it directed all states and union territories to install CCTV cameras in public places. The CCTV cameras were to be positioned such that they act as a deterrent to potential offenders, and if an offence was committed, the offenders would be caught / identified.

In Dilip K. Basu v. State of West Bengal and Ors, the Court considered the request of the amicus, and directed state governments to: (a) take steps to install CCTV cameras in all the prisons in their respective states, within a period of one year from the date of the order (but not later than two years), and (b) consider installation of CCTV cameras in police stations in a phased manner depending upon the incidents of human rights violation reported in such stations.

State governments have also, in various instances, directed the installation of CCTV cameras in public places. In Tamil Nadu, the state government has directed that CCTV cameras must be installed in every public building. The cameras must be installed in accordance with the recommendations of the local police officers. Such recommendations may be made for purposes such as ensuring public order or controlling crimes and the reasons for the recommendation must be recorded in writing.

In Chandigarh, the local government released a set of draft rules meant to regulate mobile app-based transport aggregators (such as Uber and Ola). Among other things, these draft rules require that every taxi must install a CCTV unit to monitor activities inside the taxi in real time. The rules suggest that the video feed from the CCTV cameras should be linked to a control room established by the aggregator.

The above are some examples of courts and government bodies providing for installation and use of CCTV cameras and video recordings. There is a common trend among them – the orders and rules only deal with when and where the units are to be installed, and used. They do not, however, provide a procedural / regulatory mechanism to ensure proper, lawful use of such cameras and associated video recordings.

Maintenance of law and order, security, deterrence of criminal activity, and identification of offenders, are all important issues, and appropriate means should be adopted to provide for the same. At the same time, there needs to be a balance between such means, and individual rights, such as the right to privacy. These laws and orders largely deal with installation and use of CCTV cameras in public places, where some may argue that an individual does not have a reasonable expectation of privacy. However, reports suggest there is misuse of CCTV cameras, especially where installed in customer heavy locations such as retail outlets.

Such misuse could be dealt with under some existing provisions of laws such as the Information Technology Act, 2000 – for example under the provision which criminalizes capturing of images or videos of an individual’s private parts, or the data protection rules. However, these laws are of limited applicability, and deal mostly with sensitive personal information, and images or videos of a private / sexual nature. We do not currently have a comprehensive law that deals with  surveillance equipment and its use in public spaces. Although some states such as Tamil Nadu provide that CCTV cameras must be installed based on police recommendations, there is no general prohibition or restriction on their installation and use. Further, there are no specific restrictions on the collection, use, retention, or transfer of any video recordings, or information that is derived from such recordings. There is no mechanism put in place to deal with a situation where an individual’s data is shared without authorization.

Certain authorities within the country appear to have recognized this gap, and taken some steps towards addressing these issues. In Maharashtra, the local municipal corporation in Navi Mumbai has implemented a CCTV surveillance system to help the local police maintain law and order. The corporation has issued a ‘voluntary code of conduct’ in relation to all surveillance camera systems in public and private places. This document attempts to “provide a framework to all the stakeholders so that there is proportionality and transparency in their use of surveillance”. Among other things, it provides that (i) the use of a surveillance system must always be for a legitimate and specified purpose; (ii) establishments must be transparent about the use of CCTV cameras on their premises; and (iii) access to the video feed will be limited and subject to clearly defined rules on persons who can gain access and purposes for which access may be gained.

Even a limited framework such as this, goes a long way towards ensuring transparency and protection of individual rights and freedoms. Perhaps the Supreme Court will provide more nuanced directions, not only on the installation of CCTV cameras, but also on the use of associated video recordings when the matter is next brought up.

Intermediaries v. Copyright Holders: The Delhi High Court Wants to Protect Both

In July 2011, a single judge bench of the Delhi High Court issued an interim order in the case of Super Cassettes Industries Ltd. v. Myspace Inc. & Anr. The bench effectively held Myspace (a social media website) liable for infringement of copyright by third party content posted on its platform. This decision was considered to put a dent in the protection of internet based businesses and intermediaries. Recognising the far-reaching implications of such an order, a division bench of the Delhi High Court has now reversed this decision.

This post focuses on the recent order of the Court, and some of the concepts discussed which may impact the liability of intermediaries and the safe harbours afforded to them.

Background

Myspace is a social media platform, which operates by allowing users to upload content, and view content posted by other users.  Super Cassettes, more popularly known as T-Series, is a music label, and production house which owns rights to a large repertoire of Indian music.

Issues before the court

T-Series alleged that Myspace was infringing its copyright by allowing infringing copies of T-Series’ work to be posted on the Myspace platform. T-Series approached the Delhi High Court and filed a suit seeking injunctive relief and damages.

The primary issue before the court was whether Myspace, should be held liable for third party content posted on its platform.

T-Series argued that (i) infringing copies of several of its works were available on the Myspace platform, (ii) that Myspace was aware of such infringing material, and (iii) that Myspace was guilty of primary infringement of T-Series’ rights.

Myspace on the other hand argued that the content was user generated, and it had no control over the content. The terms in its user agreement restricting users from posting infringing content could not be held to mean that Myspace was aware of specific instances of infringement. Further, although Myspace did take a limited license from its users to modify the content, such modification was limited to an automated process to insert advertisements. Myspace also stated that it had rights management and notice and takedown processes, which T-Series could use to protect its rights.

Important legal provisions

The arguments of the parties and the orders of the court largely focus on three provisions of law:

  • Section 51(a)(ii) of the Copyright Act, 1957 (Copyright Act), which provides that copyright is infringed when any person “permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work”. However, an exception is provided, where the person was not aware and had no reasonable ground for believing that such communication would be an infringement;
  • Section 79 of the Information Technology Act, 2000 (IT Act), which provides that an intermediary will be provided with a safe harbour, and not held liable for third party content if
    • The intermediary does not initiate the transmission of content
    • The intermediary does not select the receiver of the transmission
    • The intermediary does not modify the content
    • The intermediary undertakes certain due diligence requirements as prescribed

It further states that to be exempted from liability the intermediary must remove or disable access to the content when it becomes aware that the content is unlawful

  • Section 81 of the IT Act, which states that nothing in the IT Act will restrict any person from exercising rights granted under the Copyright Act.

Decisions of the court:

Interim injunction awarded in 2011

In 2011, the court found that Myspace did ‘permit for profit’ a place i.e. the Myspace platform, to be used for the communication of infringing material. Further, the court also found that Myspace was aware of possible infringement, as evident by the rights management tools it used. In relation to the IT Act, the court reasoned that section 81 of the IT Act overrides the protection granted under section 79. The court also took cognizance of the license taken by Myspace to modify the posted content, and the modifications undertaken in terms of insertion of ads. It stated that as a result Myspace did not meet the criteria for protection under section 79.

An injunction was given requiring Myspace to, among other things:

  • Ensure that no works owned by T-Series would be uploaded on its platform without making enquiries as to ownership / rights to the work.
  • Ensure that as and when the T-Series informed Myspace of any of its works available on the Myspace platform, such work is removed within 1 week of receiving such notice.

Appeal and reversal

Myspace appealed the injunction arguing that it was too wide and impossible to comply with or monitor. It also argued that the subject matter of the injunction was now a matter of public interest, affecting the rights of all intermediaries, and could threaten the way the internet functions. The division bench of the Delhi High Court acknowledged this, and focused on three broad questions after admitting the appeal:

  • whether Myspace could be said to have knowledge of infringement and held liable under the Copyright Act
  • Whether section 81 overrides the “safe harbour” granted to intermediaries under section 79 of the IT Act in case of copyright infringement
  • Whether sections 79 and 81 of the IT Act and section 51 of the Copyright Act should be read harmoniously

Dealing with the first question, the court found that Myspace could not be found to have specific knowledge of infringing acts simply because it:

  • put in place rights management / safeguard tools (which could be used by rights owners to identify and ensure that infringing copies were not uploaded on / removed from the platform), or
  • inserted ads in the content, given that this was done through an automated system.

The court while answering this first question, also discussed at length the nuances of copyright law, and its applicability in the present case. However, the scope of this post is limited to the courts observations in relation to intermediaries and their liability under the IT Act.

In this regard, the court noted that various countries across the globe have safe harbour or similar regimes which protect intermediaries from liability for third party actions. The court noted that Myspace’s business model of providing a platform for the posting of user generated content, brought it within the definition of an ‘intermediary’.

The court then considered the question of whether section 81 of the IT Act, overrides the benefits provided under section 79. The court observed that the “true intent of Section 79 is to ensure that in terms of globally accepted standards of intermediary liabilities and to further digital trade and economy, an intermediary is granted certain protections”. It found however, that section 81 provided a mechanism for private copyright owners to act against intermediaries who posted infringing content themselves.

Next the court considered the distinctions between the mechanisms provided under the Copyright Act and the IT Act to identify whether someone had knowledge of infringing/ illegal content.  The court noted that the Copyright Act provides for liability where the person permits the sharing of infringing content even if they were aware of or have reasonable grounds to believe that the content was infringing. However, the IT Act requires an intermediary to have ‘actual knowledge’. ‘Actual knowledge’ has been held by the Supreme Court in the famous case Shreya Singhal v. Union of India to mean receipt of notifications by a government agency or a court.

The court observed that the provisions of the IT Act have been enacted keeping in mind a digital economy / new technologies. The Copyright Act on the other hand was enacted solely for the purpose of protecting specific rights. It was held that the only logical and harmonious manner to interpret the law would be to read them together.

The court considered two concepts in this context (a) the idea that Myspace should take down any allegedly ‘infringing’ content that matched the attributes of T-Series owned content, and (b) the idea that some of the user generated content may be rightfully uploaded by users even if not by T-Series itself. It also noted that if Myspace took down content in the second case, it risks breach of its contractual obligations to the user.

The court also looked at Myspace’s privacy policy, terms of use, and due diligence practices as required under the IT Act. It was found that Myspace was in compliance with section 79 of the IT Act, and the due diligence procedures prescribed under it. It was observed that “If copyright owners, such as SCIL inform MySpace specifically about infringing works and despite such notice it does not take down the content, then alone is safe harbor denied. However, it is for SCIL to show that despite giving specific information the appellant did not comply with its notice.”

In this regard, the court correctly observed that “To attribute knowledge to the intermediary industry would mostly likely lead to its shutdown, especially where content is of this magnitude and size…. The greater evil is where a private organization without authorization would by requirement be allowed to view and police content and remove that content which in its opinion would invite liability, resulting in a gross violation of the fundamental right to privacy.

Setting aside the 2011 order, this court directed T-Series to provide an updated catalogue of specific works in which it holds copyright along with the location/ URL of such work on Myspace’s website as and when T-Series detects infringement. Myspace was directed to remove/ block access to such content, within 36 hours of receiving notice in accordance with rules prescribed under the IT Act. Myspace was also directed to keep records of all advertisement revenue earned from content uploaded, and removed pursuant to such requests. It is interesting to note here that the court has worked out a balance between the knowledge requirements under the Copyright Act and IT Act (as elaborated in Shreya Singhal v. Union of India) – requiring Myspace to remove content upon receiving notice from T-Series, and not a government agency. This would imply that Myspace has to act on every notice / request for removal of content issued by T-Series in compliance with the court’s order, and remove the content available at the relevant webpage. T-Series does not have to obtain an order of a court / government agency prior to issuing such a notice. In the event Myspace wants to contest a notice issued by T-Series, the burden would be upon Myspace to take the issue up before the court. To some extent this reverses the burden, and doesn’t take into account the intended purpose of the Shreya Singhal order.

However, at a broader level, the court recognised that ‘rapid growth of technology calls for new legislative and judicial approaches’. It called for discussions between the stakeholders, to create a transparent framework for licensing, and exchange of rights information. It also suggested implementation of the 4-step mechanism identified by the OECD – (i) notice and take down (ii) notice and notice (iii) notice and disconnection and (iv) filtering.

The court looked at providing practical solutions for an industry that is outgrowing the law by leaps and bounds. This is a welcome outlook on issues affecting the internet, and one which we hope is adopted widely by the executive, legislature and judiciary.