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.