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Indian Cinema, Television And OTT: Certification Laws

The process of film certification in India is governed by the Cinematograph Act 1952 and the Cinematograph (Certification) Rules 1983, alongside guidelines issued by the central government. The Central Board of Film Certification (CBFC) categorizes films into four categories: U, U/A, A, and S, each indicating different levels of audience suitability.

The guidelines for film certification, established by the Ministry of Information and Broadcasting, emphasize principles such as discouraging violence, avoiding content that may encourage crime, and upholding national integrity. Violations of certification provisions carry significant penalties, including imprisonment and fines. While certification is mandated for public exhibition, questions remain regarding its necessity for private screenings.

Additionally, certification regulations extend to television broadcasts and OTT platforms, with recent amendments proposing age-based categorizations and stricter measures against piracy. However, there's a growing call to relax certification and censorship laws to foster a more vibrant film industry, recognizing the importance of artists' freedom of expression as a cornerstone of a democratic society.

In the realm of Indian cinema, television, and OTT platforms, the certification laws play a pivotal role in shaping the content landscape, ensuring suitability, and adhering to ethical and legal standards. Governed primarily by the Cinematograph Act of 1952 and its subsequent amendments, alongside guidelines set forth by the Information and Broadcasting Ministry, the certification process is overseen by the Central Board of Film Certification (CBFC) and other regulatory bodies.

The CBFC categorizes films into four main categories: U (Unrestricted), U/A (Unrestricted with Caution), A (Adults Only), and S (Restricted to Specific Audiences), each denoting varying levels of audience suitability. These categories are instrumental in guiding viewers and exhibitors on the content's appropriateness, with stringent penalties in place for violations of certification provisions. While certification is mandated for public exhibition, questions persist regarding its necessity for private screenings.

Recent amendments have proposed age-based categorizations and stricter measures against piracy, reflecting the evolving nature of media consumption and technological advancements. However, there is a growing consensus to relax certification and censorship laws to foster a more vibrant and dynamic creative industry, balancing regulatory oversight with artistic freedom.

In the television realm, the Cable Television Networks (Regulation) Act of 1995 and Cable Television Networks Rules regulate content dissemination, emphasizing adherence to program and advertising codes. The introduction of self-regulatory mechanisms, such as the IBF Guidelines, underscores industry-driven standards and accountability, complementing regulatory efforts.

Similarly, the burgeoning OTT sector faces regulatory oversight, with recent legislation like the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 aiming to classify content independently and ensure adherence to ethical standards. Harmonizing regulations across mediums and fostering stakeholder consultations are essential to adapt certification laws to evolving technological and societal landscapes.

In conclusion, the evolution of certification laws must align with principles of inclusivity, diversity, and artistic integrity to nurture a thriving media ecosystem in India. There is a need to regulatory objectives with the promotion of creative freedom is paramount, as artists, writers, and filmmakers serve as custodians of free expression in a democratic society.

Film Certification
The film process certification in India is in accordance with the Cinematograph Act 1952, the Cinematograph (Certification) Rules 1983, and the guidelines issued by the central government u/s 5[B](1).

As of now CBFC categories movies into 4 categories, which are U, U/A, A And S. U/A and S categories were added by The Cinematography (Certification) Rules in 1983

  1. U - Unrestricted Public Exhibition
  2. U/A - Unrestricted Public Exhibition but with a word of caution that discretion is required for children below 12 years. Movies with a U/A rating may contain some mildly suggestive adult content that children can view with parental supervision. These movies could have typical violence, lots of crude content (like brief nudity and sexual details), and subdued abusive language.
  3. A - Restricted to adults
  4. S - Restricted to any special class of persons
Guidelines for Film Certification
Ministry of Information And Broadcasting on the 6th december, 1991 via notification S.O. 836-(E) exercising of the power conferred by sub-section (2) of section 5 B of the Cinematograph Act, 1952 (37 of 1952) directed that in sanctioning films for public exhibition, the Board of Film Certification shall be guided by the few principles. They act as guidelines during certification process.

Penalties For Violation
According to the law, violations of the certification provisions constitute offences. Additionally, they are not bailable. According to Section 7 of the 1952 Act, specific penalties may be imposed if certification requirements are broken, certified films are interpolated or otherwise tampered with, non-certified films are exhibited, films intended for adult audiences are shown to children, or "S" certificate films are shown to people other than the target audience. It is also punishable to disobey section 6A, which requires that anyone delivering a film to an exhibitor or a distributor gave him information about all cuts, certification, title, length, and certification requirements.

According to Section 7, a person who violates the law faces a term of imprisonment that can last up to three years, a fine that can amount to Rs. 1 lakh, both, and a further fine of up to Rs. 20,000 for every day the offence continues.

Showing video films that violate the rules in the manner outlined in this section is punishable by a minimum three-month sentence that may be increased to three years in prison, a fine of at least 20,000 rupees that may be increased to 1 lakh, and an additional 20,000 rupees for each day the offence continues. The trial court may also order the forfeiture of the unlawful movie to the government. Any police officer may enter a hall where an illegal movie is being shown, search the area, and seize the print in accordance with Section 7A.

The appellants in Gita Ram v. State of HP were caught while screening the blue movie "Size Matter" to young men on their property. The wrongdoers were found guilty and given the appropriate sentences for an offence covered by Sections 292 and 34 of the Indian Penal Code. Additionally, they were governed by Section 7 of the Cinematograph Act.

Is CBFC certification required for private exhibitions of films?
The Cinematograph Act mandates certification for films being shown in public. Whether a CBFC certificate will be necessary for purely private viewership is a question that arose in M/S Super Cassettes Industries vs. Board Of Film Certification & Ors, [2010 Del HC, unreported]. The Delhi High Court held that a certificate for public exhibition would be necessary, according to the Delhi High Court's ruling.

The petitioner was selling religious VCDs and DVDs with the disclaimer that they were only intended for private viewing The petition was denied by the Delhi High Court, which mandates CBFC certification approval for all audiences.

Certification And Subtitles
The CBFC published a notification in April 2018 regarding the certification of subtitles. In its notice, the CBFC noted that a number of movies had received certifications without subtitles; as a result, it advised applicants to submit an assurance that the final cut would have subtitles and that no subtitles would be added after a movie had already received certification. This was challenged in court in Indian Motion Picture Producers Assn. v. Union of India.

On August 14, 2018, when CBFC submitted an affidavit, the court took note of a very important point, which stated that any addition of subtitles after the film has been certified must be reported to the Board in Form III in the Second Schedule, and the Board must then endorse the details of the alteration on the certificate as required by Rule 33 of the aforementioned rules. The Division Bench of Akil Kureshi and S.J. Kathawalla, JJ., disposed of the petition and stated that the notice is unsustainable.

Television Broadcast
The Cable Television Networks (Regulation) Act, 1995, and Cable Television Networks Rules, 1994 (the "Cable Television Laws") regulate the operation of television networks, broadcasters, and related matters. Among other things, the Cable Television Laws prohibit the transmission through a cable service of any programme that is not in compliance with the programme code (the "Program Code") and any advertisement that is not in compliance with the advertising code (the "Advertising Code").

In order to control the content broadcast on television, the Indian Broadcasting Foundation introduced the IBF Guidelines "Content Code and Certification Rules 2011 (hereinafter the IBF Content Code 2011)" for general entertainment television channels in July 2011. These Guidelines, as their name implies, are only self-regulatory in nature, and the television channels have adopted them after consulting with the Ministry of Information and Broadcasting.
Accordingly BSP ensure that all Programmes are categorised and self certified by each BSP as:
  • 'G' Programmes which are suitable for unrestricted viewing by all viewers and/or under Parental Guidance and
  • 'R' Programmes which may not be suitable for Children & Young viewers.
Further there are specific timings to run the programme according to their certification Scheduling of programme:
  • G- At all times
  • R- 11:00 pm to 5:00 am
The IBF Guidelines also include a system for categorising programmes. Programs must be categorised under the system's various themes, which include crime and violence, sex, obscenity, and nudity, horror and the occult, drugs, smoking, drinking, using solvents, and abusing alcohol, as well as harm and offence. For example, distinct criteria have been established for the content that may be construed as falling under the "G" category and the "R" category of programmes when it comes to programming that may contain obscene material.

As a result of a public interest lawsuit, the High Court of Bombay in the case of Pratibha Naitthani v. Union of India (UOI) and Ors prohibited cable television operators and multi service operators from showing adult-oriented movies on cable television unless those movies had received certification from the Central Board of Film Certification for unrestricted public exhibition.

Every film and programme must be self-certified by a Broadcasting Service Provider (BSP) under one of the categories on the basis of the subject matter treatment and audio-visual presentation of various themes as may be prescribed from time to time, with the exception of cases where preview and certification by the CBFC or any other competent authority is required.

The 'Programme Categorization System' Of Ibf Content Code 2011 Takes Into Account Following Themes:
  • Crime & Violence
  • Sex, Obscenity & Nudity
  • Horror & Occult
  • Drugs, Smoking, Tobacco, Solvents & alcohol
  • Religion & Community
  • Harm & Offense
  • General Restrictions. Eg- Exploitation of the national emblem etc.

Under the Cable TV Networks (Amendment) Rules, 2021, the ministry of information and broadcasting (I&B) has registered the Broadcasting Content Complaints Council (BCCC) as a self-regulatory body for the resolution of complaints against the non-news television channels. Anyone who is offended by any television content has the right to complain to the Broadcast Content Complaints Council (BCCC).

OTT Platforms
A direct streaming service known as an OTT, or over-the-top, media service, basically delivers audio and video streaming content over the internet without requiring a satellite service subscription. Hotstar, Netflix, Amazon Prime Video, Hulu, Zee5, and Voot are a few of the most well-known OTT video streaming platforms. The first independent OTT platform in India was Bigflix, which Reliance Entertainment introduced in 2008.

In 2022, India's over-the-top media services sector will generate US$3 billion in revenue, a significant increase from the years prior to the pandemic. According to research from independent transaction advisory firm RBSA Advisors, the industry is expected to grow at a CAGR of 30.7 percent between 2019 and 2024.

OTT platforms are subject to regulatory oversight in nations like Singapore and the UK. In Singapore, the content must include elements like violence, sex, drugs, and other immorality. The same level of regulation applies to public service broadcasters in the UK as it does to OTT platforms. The OTT industry in Australia is governed by the main legislation BSA, 1992.

In response to a request made under the RTI Act of 2005, which asserted that the Central Board of Film Certification has no authority over online content and only certifies films for theatrical release, the Ministry of Information and Broadcasting confirmed this. Additionally, Sections 67A, 67B, and 67C of the Information Technology Act, 2000. provide a fine and/or imprisonment for publishing or disseminating pornographic content or sexually explicit material in electronic form. The Central Government may issue instructions prohibiting public access to any information if it is deemed objectionable, as per Section 69A of the Information Technology Act, 2000. OTT platforms also continue to be governed by the 1860 Indian Penal Code.

To control OTT platforms, the government announced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. They allow the content to be classified independently, independent of the Central Board of Film Certification.

To ensure observance and adherence to the Code of Ethics, the OTT platforms are required by these Rules to develop a strong three-tier grievance redressal system. which includes:
  • Level I - Self-regulation by the publishers;
  • Level II - Self-regulation by the self-regulating bodies of the publishers; and
  • Level III - Oversight mechanism by the Central Government.
The content is classified into 5 categories under this Code:
  1. U (all ages)
  2. U/A 7+ (7 years and above)
  3. U/A 13+ (13 and above)
  4. U/A 16+ (16 and above)
  5. A (limited to adults only)
The rules further state that every programme must open with the classification rating visible, and the platform's publishers are required to offer a parental lock feature. The Rules also outline criteria for categorising curated content according to context, theme, tone, and target audience.

Current Developments
The government brought the Cinematograph (Amendment) Bill, in 2019 and 2021 to make amendments recently, which include the addition of Sec. 6AA and a change in certification categories.

According to the Cinematograph Act, theatrical movies can be rated as U (unrestricted exhibition), U/A (parental guidance), A (adult-only exhibition), or S (exhibition restricted only to a specific class of persons). In order to further segment the UA category, the Cinematograph Amendment Bill proposes age-based categories for film certification, such as U/A 7+, U/A 13+, and U/A 16+.

Age ratings similar to those under the IT Rules 2021 are also proposed by the Cinematograph Amendment Bill and are applicable to publishers of online curated content. This appears to be an effort by the government to establish consistency across various mediums of content exhibition. In addition to the legal recourse provided by the Copyright Act of 1957, the Cinematograph Amendment Bill's restriction on unpermitted film recordings will give filmmakers' rights protection and teeth in the fight against piracy. This is also consistent with practises used in nations with strict laws against unauthorised film recordings, such as the United States of America, South Korea, the Philippines, and the United Kingdom.

To enhance the efficacy and relevance of India's certification laws governing cinema, television, and OTT platforms, several key suggestions can be considered:
  1. Flexibility for Private Screenings: While certification for public exhibition is crucial, providing exemptions or simplified processes for purely private screenings could alleviate unnecessary bureaucratic hurdles, promoting greater flexibility for small-scale events and private gatherings.
  2. Transparent Subtitle Certification: The process of subtitle certification should be transparent and streamlined to ensure timely approvals and avoid unnecessary delays. Clear guidelines should be established regarding subtitle additions or modifications after certification to maintain transparency and compliance.
  3. Self-Regulation Empowerment: Encouraging self-regulation mechanisms, similar to those adopted by television broadcasters under the IBF Guidelines, can promote accountability and industry-driven standards while reducing the burden on regulatory bodies.
  4. Harmonization of OTT Regulations: Efforts should be made to harmonize regulations across different mediums, ensuring consistency in certification standards and content classification criteria to create a level playing field for all stakeholders, including OTT platforms.
  5. Stakeholder Consultation: Regular consultations with industry stakeholders, including filmmakers, broadcasters, OTT platforms, and consumer advocacy groups, can help identify emerging challenges and adapt certification laws to evolving technological and societal trends.
  6. Awareness and Education: Increasing awareness among content creators, distributors, and consumers about certification laws, their implications, and avenues for grievance redressal can promote better compliance and understanding of regulatory requirements.
  7. Promotion of Creative Freedom: Balancing regulatory objectives with the promotion of creative freedom is essential. Certification laws should be designed to uphold fundamental rights while safeguarding public interests, fostering a conducive environment for artistic expression and innovation.

India needs to relax its certification and censorship laws in order to encourage and promote film production in the country. The landscape of film, television, and OTT certification laws in India is intricate and multifaceted, governed by a combination of legislative acts, regulatory bodies, and evolving guidelines. The certification process, overseen by the Central Board of Film Certification (CBFC) and other regulatory authorities, plays a crucial role in determining the suitability of content for public consumption, with strict penalties in place for violations.

However, amidst the regulatory framework, there exist challenges and debates regarding the necessity of certification for private screenings and the need for relaxation of censorship laws to foster a more vibrant and dynamic creative industry. Recent amendments, such as those proposed in the Cinematograph (Amendment) Bill, aim to address issues like piracy and introduce age-based categorizations, reflecting ongoing efforts to adapt to changing media landscapes and consumer preferences.

Nonetheless, there is a growing consensus that India must strike a balance between regulatory oversight and creative freedom, recognizing the role of artists, writers, and filmmakers as the custodians of free expression in a democratic society. Ultimately, the evolution of certification laws must align with the principles of inclusivity, diversity, and artistic integrity to nurture a thriving media ecosystem in the country.

Written By:
  • Kartik Rathee and
  • Samarth Aryan

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