Censorship in the age of Netflix

Vinay Kesari August 20, 2018 9 min

The Indian state has an expansive legal toolkit when it comes to censorship of content, encompassing cinema, broadcast media, books, and newspapers and news magazines. Even live dramatic performances do not escape the possibility of censorship, thanks to the truly anachronistic Dramatic Performances Act and its various state government avatars. Essentially, if the government believes you are up to no good, there are laws on the books which they can use to stop you regardless of whether your chosen vehicle is a prurient pantomime, a blasphemous book, or a mischievous movie.

Confining ourselves to moving images (which are more heavily regulated than any other type of content), we are all familiar with the Censor Board – officially known as Central Board of Film Certification – and the delicate dance that Indian filmmakers play when it comes to obtaining the ubiquitous CBFC certificate we see before every film. Some of us are even familiar with the content code that all television channels in India need to comply with.

But, surprise, surprise, none of this applies to moving images on the internet. As the internet steadily replaces movie theatres and broadcast television in the affections of Indian viewers, the pressure will grow on the government to decide if it wants to extend these restrictions to cyberspace, or treat this as an opportunity to display forbearance or perhaps even innovation.

India’s censorship regime

Cinema is set apart from other types of content in that it is subject to “pre-censorship”. This is the requirement (imposed via the Cinematograph Act, 1952) that a film obtain a certificate from the CBFC before “public exhibition”. During this process, the CBFC has the power to “direct the applicant to carry out such excisions or modifications in the film as it thinks necessary” or even “refuse to sanction the film for public exhibition”. Pre-censorship is viewed as a “prior restraint” on the right to freedom of speech and expression guaranteed under the Constitution of India; while this right is subject to reasonable restrictions, prior restraint is generally viewed by the law and the courts as a particularly serious restriction.

A scene from Netflix's 'Sacred Games'. Parts of the image have been masked keeping with PG 18+ norms since FactorDaily has teen readers.
A scene from Netflix’s ‘Sacred Games’. Parts of the image have been masked keeping with PG 18+ norms since FactorDaily has teen readers.

No other medium or art form is subject to such heavy-handed regulation, which has its genesis in early 20th century notions about the disproportionate ability of moving pictures to influence an impressionable public, and the need for a colonial administration to ensure that “dangerous” ideas such as self-rule (or, god forbid, freedom) were not disseminated through this medium. While multiple opportunities presented themselves after Independence to overhaul this regime in favour of a more relaxed or even self-governing model, the old system has survived with little change.

The opening up of broadcast television to private players in the 1990s came with a perceived need to regulate its content. (Note: The term ‘broadcast’ is used in this piece broadly to cover satellite and cable television and not just terrestrial broadcast.) Over time, a rather fragmented content regulation model has emerged:

“Non-news and current affairs” channels: Also referred to as ‘entertainment’ channels, they follow a loose co-regulatory model. The Programme Code under the Cable Television Networks (Regulation) Act, 1995 governs them and it contains broad proscriptions against content which “offends good taste or decency”, “contains an attack on religions or communities”, “contains anything affecting the integrity of the nation”, and so on. The Programme Code is enforced by an “Inter-Ministerial Committee” (IMC) of the government that has extensive powers including issuing temporary and permanent bans. Separately, industry has developed a self-regulatory mechanism through the Broadcasting Content Complaints Council (BCCC), which has its own Content Code and enforcement mechanism.

“News and current affairs” channels: In keeping with the traditional freedoms granted to the press in a democracy, these channels self-regulate through the News Broadcasters Association (NBA) which has a Code of Ethics and Broadcasting Standards.

Overall, the Programme Code as well as the punitive and enforcement actions of the IMC are widely considered overbroad and open to abuse.

When it comes to content on the internet though, the government has until recently been steadfast in maintaining that it had no intention of applying this existing regime online.

Recent regulatory developments

It is in this backdrop that the Ministry of Information and Broadcasting on April 4, 2018 suddenly constituted a committee to “frame regulations for online media/ news portals and online content” setting off alarm bells in various corners. The terms of reference made it clear that the intention was to apply existing content rules to online media and news portals and online content in general.

Order constituting committee to frame regulations for online media
Order constituting committee to frame regulations for online media

Taking a step back, it’s considered a settled proposition that the I&B ministry has no legal power to regulate content on the public internet. This power instead lies with the Ministry of Electronics and IT (MeitY). While the Information Technology Act, 2000 does contain some provisions relating to content regulation, those in no way resemble the elaborate framework that exists for television and film.

Before New Delhi scuttlebutt could settle on an explanation for this sudden move, the committee was nixed pursuant to a cabinet reshuffle in July 2018. The incoming I&B minister Rajyavardhan Singh Rathore has sought to reassure industry that he believes self regulation is the way forward. But in tandem with the news of the committee being disbanded is an acknowledgment that its mandate with respect to regulating online content is being transferred to an existing MeitY committee on “national investment in critical national infrastructure and digital broadcasting”, whose purpose and scope remain opaque.

What do video streaming services currently do?

They usually play it safe by overcomplying, which is what you would expect most sensible companies to do. The Cinematograph Act does not apply to an online movie streaming service. This means that there is technically no requirement for a CBFC certificate for a film shown on Netflix, Amazon Prime Video, or Hotstar. Yet in practice, almost all streaming services available officially in India (with Netflix possibly being the sole exception) voluntarily upload only censored versions of Indian movies — complete with a CBFC certificate displayed pre-roll. Shows available on these services (including original shows) are often similarly self-censored, with even Netflix not being completely immune to this phenomenon.

What does the future hold?

History and common sense indicate that in the absence of strong consumer preferences, activism, and pushback, companies will tend to over-comply in the face of ambiguous regulation, something that has been empirically demonstrated in the case of content takedowns under the Information Technology Act. That is the exact situation online streaming platforms are currently faced with, where offering uncensored (though still legal) content is not necessarily recognised as a competitive advantage by enough consumers for it to be a viable option, particularly in the face of unpredictable legal and extra-legal consequences that a platform can face.

And beyond the relatively familiar territory of films and shows, the true promise of the internet is in breaking down traditional notions of what constitutes media, removing divisions between news and non-news platforms, and lowering the barriers to entry for content creators. Indians increasingly consume entertainment and access news on online services such as YouTube which are largely intermediaries hosting user-uploaded content. At the cutting edge, gamified live-video broadcasting platforms such as Bigo Live are popular entertainment destinations, online trivia games relying on live video such as Loco could one day rival broadcast powerhouses like Kaun Banega Crorepati, and many people rely on private YouTube channels and personalities for current affairs and commentary. In India’s mobile-first eco-system, more and more Indians are accessing even traditional broadcast television through “over-the-top” (OTT) apps such as Jio TV or Airtel TV, blurring the lines further between “traditional” and new media in the eyes of consumers.

Scene from 'American Playboy' from Amazon Prime. Parts of the image have been masked keeping with PG 18+ norms since FactorDaily has teen readers.
Scene from ‘American Playboy’ from Amazon Prime. Parts of the image have been masked keeping with PG 18+ norms since FactorDaily has teen readers.

It would be naive to expect that the regulatory response to this will continue indefinitely to be a mix of enlightened forbearance and turning a Nelson’s eye to genuine regulatory gaps. There are indications already that the Indian government is less willing to entertain arguments grounded only on “internet exceptionalism” — the idea that something that looks familiar or serves a familiar purpose is different only because the medium of transmission is the internet.

There are periodic opinion pieces espousing the view that the I&B ministry has no reason to exist anymore. This opinion has even been expressed by multiple former I&B ministers albeit only when their party is not in power. Yet, the temptation for a government in power to exert control, however illusory, over public perception and the cultural zeitgeist through content regulation cannot be overstated. The Indian state rarely gives up regulatory control willingly.

At the same time, there is little doubt that the I&B ministry is an imperfect tool for the digital age given its top-down regulatory structure which depends on centralised pressure points such as film producers and satellite uplinks to enforce its writ when it comes to content regulation. MeitY is more accustomed to operating in the borderless and nebulous world of the internet, where it is important to know which battles to pick and have a keen sense of where to apply pressure. The problem, of course, is that MeitY has never truly been in the business of content regulation, which is messy, subjective, and political. Which begs the question — who has both the power and the experience to make this happen?

It could be that all roads converge towards the idea of a super-regulator, a new entity which is finally empowered to break down the silos between content and carriage that currently plague Indian communications regulation and which hinder effective policy making in the digital age. The Communications Convergence Bill, which aimed to create just such a super-regulator by subsuming at least five laws and large parts of the I&B ministry and the country’s telecom regulator has been an on-and-off project of National Democratic Alliance governments. A fleshed-out draft dating all the way back to 2000 was rumoured to be a pet project of the then-IT Minister Pramod Mahajan and stood a decent chance of becoming law in 2002, though it sank without a trace soon after. Rumours of a new draft bill did the rounds soon after the present NDA government took office in 2014, though they again did not go very far.

While there is no clear indication presently of a revival, it is difficult to imagine a logical and effective solution to the current logjam without a substantial reconfiguration of regulatory powers. The impulse to assert control over new forms of communication and media, if not the incentive to be an effective regulator for the converged future, could provide the impetus to revive this long-neglected project.

Lead image: A scene from ‘Lust Stories’ on Netflix.


Updated at 08:30 am on August 20, 2018  to add a reference to the lead image in the copy.

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