The
Web of Web Series – A legal perspective
The lockdown has resulted in enormous
increase in the viewership of web based platforms better known as Over The Top
Platforms “OTTs” throughout the world. Various digital platforms of world
repute like Netflix, Amazon Prime Video and Hotstar are doing brisk business in
India. The new means of entertainment has also led to mushrooming of local Web
platforms like Zee5, MX Player, ALT Balaji, VOOT, JIO, Sony Liv etc. All these OTTs
telecast content which is a fine mix of censored and uncensored content.
Censored content is films certified by Central Board of Film Certification
(“CBFC”) deriving its powers under The Cinematograph Act, 1952 and uncensored
content includes popular “Web Series” and Tele Shows.
The
Cinematograph Act defines a Cinematograph film as an apparatus for
representation of moving pictures or series of pictures. Having examined the
film in prescribed manner, Central Board of Film Certification (“CBFC”) sanctions
the film for unrestricted or restricted public exhibition having regard to the
nature, content and theme of the Film.
However,
there is no mechanism to regulate the content of Digital Media. Hence, Digital
Platforms are producing, broadcasting the content without any control or
monitoring. OTTs are self regulating the content and are unwilling to submit to
the jurisdiction of a statutory authority. The case of OTTs is fortified by
Article 19(1)(a) of Constitution of India. Moreover artistic freedom is the
norm of new age society, freedom rather than restriction is the guiding force
behind over thought process.
But the
catch starts from Article 19 of The Constitution of India itself which provides
that Freedom of Speech & Expression shall be subject to (a) any existing
law (b) law to be formulated by State (c) relating to libel, slander,
defamation, sedition or any other matter which offends against decency or
morality or undermines the security of, or tends to overthrow, the State. I am
afraid that the content showcased on digital platforms violates all the
provisos of this Article from which they derive powers.
Almost
all the “Web Series” are guilty of depicting woman in indecent form which is
violative of Section 4 of The Indecent Representation of Women (Prohibition)
Act, 1986, which attracts imprisonment of term which may extend to two years
for first violation or term not less than six months but which can extend to
two years on subsequent violation. Now the question arises how the films are
able to show sexually explicit content, the answer lies in the proviso of
Section 4 of the 1986 Act itself as proviso (c) exempts the operation of this
section on films in respect of which provision of Part II of the Cinematograph
Act, will be applicable. Hence, as the certified content is exempted from
attracting punishment under Section 4 of The Indecent Representation of Women
(Prohibition) Act, the same cannot be said about uncertified content
broadcasted by these OTTs. The OTTs are living in fools paradise in assuming
that once the provisions of Cinematograph Act are not applicable to them they
are loath to every scrutiny. Rather, Cinematograph Act is a safety cover which
they should gladly wear to avoid ending up in jail. “Suraksha mein hi
samajhdari hai.”
The
Ministry of Information and Broadcasting (“MIB”) is already facing various
legal challenges in shape of writ petitions in this regard and is also
contemplating issuance of regulations. The MIB is struck in dilemma to choose
between Artistic Freedom or Morality. But the law leaves no scope of dilemma.
Recently
a police complaint has been filed against “Paatal Lok” web series being
showcased by Amazon Prime Video produced by Clean Slate Films Private Limited, a
production house led by famous actress Anushka Sharma, for hurting religious
sentiments of Sikh community and violations of other laws. Further details are
not being disclosed here as the matter is subjudice and the writer of this
Article is representing petitioner in a Civil Writ Petition filed before
Hon’ble Punjab & Haryana High Court.
Let us
examine the various provisions of law which can be invoked against the
uncertified content broadcasted by Electronic Platforms or OTTs. Apart from
Section 4 of The Indecent Representation of Women (Prohibition) Act. Section
295A, 298 IPC can be attracted for hurting religious feelings of an individual
as in case of “Paatal Lok”. Moreover, many “Web Series” are openly showing a
rivalry between various castes and atrocities committed on each other and thus
can arguably be held guilty for violating Section 153A of IPC which seeks to
prevent promotion of enmity between different groups on ground of religion,
race, place of birth, residence, language etc. and doing acts prejudicial to
maintenance of harmony.
Once we
are discussing the Web Content, the provisions of Information Technology Act,
2000 are sine qua non of the discussion. Obscene material transmitted on
digital platforms in electronic form attracts the provision of Section 67 of
the Information Technology Act which can lead to maximum imprisonment of 3
years and fine of Rs. 5 lac or 5 years and fine of Rs. 10 lac on subsequent
conviction. Section 67A provides for punishment for publishing or transmitting
of material containing sexually explicit act etc. in electronic form and
Section 67B for publishing or transmitting of material depicting children in
sexually explicit act etc. in electronic form.
It
appears that no electronic platform can claim that they have not violated one
or more provisions depicted above. The natural question which arises in the
solution is upto Government and bodies representing digital platforms to sit
together and ponder upon the way ahead. The Parliament can obviously amend
these laws to give greater liberty to digital media but the extent of liberty
would naturally depend upon public policy, reactions of various stakeholders,
public morality etc.
I am convinced that
majority of illegal content transmitted on OTTs is due to lack of knowledge of
law. However, ignorance of law is no defence in legal jurisprudence, even
otherwise to prove inadvertence one has to face the agony of trial. As of now
the Producers, Transmitters of the electronic content should seek legal due
diligence of the content before commencing production. The expert opinion vis-à-vis
content and legal violation can save majority of inadvertent violators from
landing up in soup. God save the intentional violators.
by Chanchal K. Singla, Advocate
Managing Partner,
R & S Law Associates.
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