Amazon Prime’s latest Indian web series, ‘Tandav’, has been caught in controversy over content deemed objectionable by some sections. That has led to calls for boycott, outright ban and, in some instances, police action in the way of filing of a First Information Report (FIR).
As this controversy continues, a larger debate has begun on the need for strict regulation and censoring of content hosted on Over The Top (OTT) platforms like Netflix, Amazon Prime and Hotstar. While there is a vetting mechanism which applies to television shows and movies released in the theatres, OTT content, more or less, gets a free run.
Article 19 of the Constitution of India does not guarantee an absolute right to free speech. Limitations to enjoying the right, if enforced through a law, include anything that could adversely affect the sovereignty and integrity of India, security of the State, friendly relations with foreign countries, public order, decency, morality, contempt of court, defamation or incitement to an offence.
The Cinematograph Act, 1952, the primary law guiding the vetting mechanism for movies, makes use of the Article 19 restrictions. For cable television, the Cable Television Networks (Regulation) Act, 1995, provides a mechanism.
Notably, this mechanism also applies to live content which, by its very nature, cannot be vetted before publication. Almost similar would be the case for daily soap operas, for example, where advance vetting is impractical, if not impossible.
Yet, there is a code and a procedure for cable TV as well as movies. Therefore, there is every reason for OTT content to be treated on par with movies and cable TV. For starters, the absence of a regulatory mechanism for OTT content could arguably violate the equality before the law principle enshrined in Article 14 of the Constitution. Why, one can argue, should the medium of dissemination alone change how content is treated?
Vetting OTT Content
To bring about parity by removing regulations for movies and cable TV, while compelling to lovers of creative freedom, is fraught with obvious risks.
In fact, vetting OTT content is less problematic than vetting live content on cable TV. Web series or shows hosted on OTT platforms aren’t typically (if never) released live. There is a pre-release edit process, not very different from movies. Therefore, it should be easier to vet such content before publication.
In that regard, the Government of India’s move in November last year to give the Ministry of Information and Broadcasting jurisdiction over OTT platforms – it was earlier with the Ministry of Electronics and Information Technology – paves the way for introducing a code while the penetration of OTT platforms is still relatively less (even if the market is exponentially growing).
Indeed, this isn’t to say that the regulatory procedure must be arbitrary, opaque and vaguely implemented. A plain reading of the rules linked to the two laws shows a vague and overbroad nature.
For example, according to a 1991 government notification, principles required to be followed by the Board of Film Certification, the agency authorized to grant certificates to movies, include ensuring that anti-social activities such as violence are not glorified or justified, pointless or avoidable scenes of violence or scenes of violence primarily intended to provide entertainment are not shown, human sensibilities are not offended by vulgarity, obscenity or depravity, scenes degrading or denigrating women are not presented, visuals which promote obscurantism, anti-scientific and anti-national attitudes are not presented, and so on.
For cable TV, there is a Programme Code which bans content promoting anti-national attitudes, offending against good taste or decency or containing visuals which reflect a slandering, ironical and snobbish attitude in the portrayal of certain ethnic, linguistic or regional groups.
Indeed, a lot of these principles are not applied as vehemently as they used to be. Movies and television shows in India routinely contain scenes which arguably fall foul of many of these restrictions. However, these guiding principles continue to be on the books, capable of application in a highly subjective and arbitrary manner.
Don’t Need Vague Rules
Therefore, while there is a need to introduce a regulatory framework for content on OTT platforms, the grounds must be clear, precise, well-defined and universally applied to all types of content on diverse platforms. Vague and overbroad content does not find judicial favour as we have witnessed in a Supreme Court case in which Section 66-A of the Information Technology Act, 2000, which sought to criminalize “menacing” information posted online which causes “annoyance” or “inconvenience”, was ultimately struck down as unconstitutional.
A starting example is an elaborate Content Code Singapore has in place for OTT content, which includes a glossary of terms and illustrations regarding what is restricted or prohibited. Content providers as well as platforms should know, with utmost clarity, the rules within which they are required to produce content for consumption within India. As divorced as India can be from ad hocism – action taken and vague rules applied pursuant to outrage by segments – the better it will be for the country’s growth story.
Indeed, certification must be robust. Regulations must ensure that there are enough locks available on such platforms. While physical theatres can enforce rules vis-a-vis ratings, policing on OTT platforms is impossible. For instance, the adult subscriber of an OTT service can choose, or be mandated, to have locks for adult content following which anyone intending to access that content must enter a One-Time Password (OTP) which is issued directly to the adult subscriber.
Indeed, none of these mechanisms would prevent violent outrage or law and order issues over content deemed objectionable. Once the content has been vetted in accordance with the defined criteria, it must, then, be the responsibility of the law and order machinery of each State to ensure that the exercise of freedom of speech is protected.
The ‘Tandav’ controversy may have given India a useful reminder that it is time for a robust revamping of current regulations which squarely balance creative freedom while ensuring that restrictions to free speech the Constitution drafters contemplated are enforced in a robust yet non-arbitrary manner.
India is consciously making it easier for businesses to operate—complex labour laws have been streamlined, farmers are being given freedom to trade. It is time our creative artistes are given a consistent regulatory framework to succeed.
(Kartikeya Tanna is a lawyer and political commentator. Views expressed are personal.)