Streaming platforms and self-censorship: An Indian perspective

Introduction

In May 2017, a movie titled ‘Angry Indian Goddesses’ was released on Netflix India. A censored version of the film, originally intended for theatrical release was made available. Critics brought attention to the self-censorship Netflix was resorting to, in the absence of censorship guidelines for streaming platforms. While theatrical releases are regulated by the Central Board of Film Certification, their jurisdiction does not extend to online platforms, as was recently made evident through an RTI response from the Ministry of Information and Broadcasting. Eventually, the director of ‘Angry Indian Goddesses’ informed viewers that Netflix had insisted on making the censored version available themselves.

Other platforms like Amazon Prime and Hotstar also indulge in the precarious practice of ‘self-censorship’. As per the law, films meant for theatrical release are certified by the CBFC. Through the process of certification, the CBFC has the power to request edits to the film. However, there is no legal stipulation for streaming services to censor content as the CBFC would. In some instances, documentaries, which were not intended for theatrical release in India, were available on streaming platforms in their censored forms. This post will navigate this phenomena of self-censorship.

What is the applicable law?  

Prior to the RTI response by the Ministry of Information and Broadcasting, there has been speculation over whether streaming platforms are Internet Protocol Television services (IPTV). IPTVs in India are bound by the Cable Television Networks (Regulation) Act, 1995, and need a license provided by the Department of Telecommunications to function. However, streaming services are considered to be over-the-top (OTT) services, and are not bound by the same regulations.

The status of streaming platforms has been considered by the judiciary as well. In 2016, a petition was filed in the Delhi High Court stating that the online streaming service Hotstar had made ‘soft pornographic’ content available on their platform. The petition stated that Hotstar, as an IPTV service, was in contravention of the downlinking guidelines. In response, Hotstar debated their status as an IPTV service and also categorically stated that they did not host any content that could be considered to be ‘soft pornography’.

This case has not made any progress since 2016, and there seems to be no judicial consensus on the status of streaming platforms as IPTV service providers.

In a recent judgment titled Raksha Jyoti Foundation vs. Union of India, the Punjab and Haryana High Court made references to an affidavit filed by the CBFC which would ensure that deleted parts of a film are not further released by other means. This would be carried out through undertakings, which the directors/producers would be held to. This system would effectively ensure that uncensored films are not made available on streaming platforms. It is unclear what the current position of this censorship procedure is, but if carried out, it would be in conflict with the RTI response.

Platform specific guidelines

Platforms like Netflix haven’t published censorship guidelines of their own, but they do have separate ‘maturity ratings’ according to country and region. The CEO of Netflix has also stated that they would have ‘airplane cuts’ of movies for different regions, stating that ‘entertainment companies have to make compromises over time’.

Why self-censorship?

Despite the absence of censorship laws applicable to streaming platforms, there are still other laws applicable to these platforms in India. As mentioned above, the downlinking guidelines were one such set of rules which were considered applicable. In addition, statutes like the Information Technology Act, 2000 and the Indian Penal Code, 1860 would also be applicable. It could be the case that streaming platforms are censoring content to ensure that they are in compliance with other statutes.

There is also a possibility that international services like Netflix and Amazon Prime are trying to find their place in the Indian market without drawing attention for the wrong reasons. Amazon for instance has publicly stated that they intend to keep in mind ‘Indian cultural sensitivities’ while making content available. In addition, platforms like Hotstar are run by parent companies like Star India, with ancillary business interests that they would be interested in protecting.

Conclusion

Unexpectedly, streaming platforms, which were meant to be avenues of free media in an age of heavily regulated television content, are following the same route as traditional media outlets.

This trend of self-censorship on streaming websites is similar to other internet platforms, who resort to self-censorship to avoid legal trouble. The tendency to ‘err on the side of caution’ is similar to platforms adhering to the intermediary liability laws in India. This form of tip-toeing around issues of regulation has led to a chilling effect on other internet platforms and could also lead to ‘over-censorship’ on streaming websites.

It is disconcerting that streaming websites are censoring content in the absence of laws, and leaves us speculating about the state of freedom of expression once censorship laws are in place.

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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.