Takedowns, Bans, Self-Regulation: Challenges To Online Content In India

Stay on Netflix show Bad Boys Billionaire: India rekindles debate on the regulation of online content

How did liquor baron Vijay Mallya's debts get bigger and bigger? How did Nirav Modi continue borrowing from banks? What led to Ramalinga Raju to "cook the books"? and how many people did Subrata Roy employ to raise money from the poorest in India?

Where did all the money go?

Netflix "docuseries" 'Bad Boys Billionaires: India' would have attempted to answer all these questions, but viewers in India will have to wait.

A lower court in Araria, Bihar and a civil court in Hyderabad restrained OTT platform Netflix from streaming its upcoming docuseries 'Bad Boys Billionaires: India' on pleas filed by two of the four characters featured in the show. Satyam promoter Raju and Sahara head honcho Roy sought a stay on the release of the series claiming it defamed their reputation. N

Netflix appealed against the lower court order in the Supreme Court but failed to get any relief.

"This is not the proper forum to come to after the order is passed by a lower court. You have deliberately come here, you should not have come here," the Supreme Court told Netflix. It will now have to appeal before the respective state high court's to get relief before it is allowed to stream the "docuseries".

Online Streaming services need to be regulated

Pleas in at least two high courts across the country seek regulation the ban of content online. Even as the high courts of Allahabad and Madhya Pradesh have yet to rule on the issue, Delhi and Karnataka already decided on the subject against a ban of any kind. The Karnataka HC had urged the Centre to come up with a regulatory framework that would define the content available on the streaming platforms.

A plea in the Supreme Court has challenged the Delhi High Court plea and sought regulation of online streaming services. Bombay High Court has kept a plea in abeyance pending a decision from the Supreme Court.

The decision directing Netflix to ban the release of its show has kick started the debate on the regulation of online content in India.

Self-regulation or Censorship

Earlier this year in February, the Ministry of Information and Broadcasting (I&B) categorically told the top court that it does not have powers to regulate content online and jurisdiction to issue licences before uploading content on the internet. The I&B ministry's affidavit was in response to a plea filed by NGO Justice for Rights (JFR) which sought regulation of streaming websites.

"It may be relevant to have an institutional mechanism of self-regulation by these media platforms as in respect of other media – print and electronic - along with the relevant provisions of the Information Technology Act and the rules framed thereunder," the Prakash Javadekar-led ministry submitted. The ministry would not police the content but rely on the streaming services to self-regulate.

The response came on a plea filed by NGO Justice for Rights Foundation (JFR) that challenged the Delhi High Court verdict dismissing its plea seeking regulation of online streaming platforms like Netflix, Amazon Prime Video, Hotstar among others.

Webseries caught in the crossfire

The Netflix original Gunjan Saxena: The Kargil Girl ran in troubled waters. JFR and the Defence Ministry, in two separate pleas, sought an injunction from the Delhi High Court on the grounds that it portrayed the Air Force in a negative light. The high court dismissed the plea observing, "The shoulders of the armed forces are broad enough to protect its reputation" and if the IAF has any objections "let them take it up".

"Why this kind of sensitivity to a movie or a book? Are our institutions so weak?", the bench said.

In May, the Vir Das-starer Hasmukh also faced trouble. Advocate Ashutosh Dubey failed to get an injunction against the show, which, according to him defamed lawyers. Dubey failed to "even show any personal injury or violation of any right entitling him to grant of any injunction," Justice Sanjeev Sachdeva had ruled.

Some shows on streaming platforms often come under attack for their politically sensitive content. In 2018, Netflix released Sacred Games, the country's first original series, starring Saif Ali Khan, Nawazuddin Siddiqui, Radhika Apte and other big-ticket names. The expletive-ridden series—adapted from Vikram Chandra's novel of the same name, was an eight-episode fest full of sex, drugs, violence, and nudity. Shortly after its release, the Delhi High Court dismissed a plea filed by Congress leader Nikhil Bhalla who sought removal of certain objectionable scenes. Bhalla was offended when Siddiqui's character uses derogatory language against former prime minister Rajiv Gandhi and "incorrectly depicts historical events of the country like Bofors case, Shah Bano case, Babri Masjid case and communal riots". His petition was dismissed.

Shows like Leila, Ghoul and stand up acts by comedian Hasan Minhaj have also come in the line of fire.

Centre can use the "kill switch"

Though the Centre wants to rely on self-regulation, it contends that provisions in the Information and Technology (IT) Act, 2000 allows for the "disablement of content for public access only in limited circumstances". Especially in matters relating to security and sovereignty of the country.

While there is no "general power for regulation" for material online, and "so far as the ministry is concerned, it does not have jurisdiction" the Centre will primarily rely on section 69A of the IT Act, more popularly known as the 'kill switch', which allows the government to block access to certain URLs it finds objectionable.

Self-regulation is a myth

There are almost 35-40 streaming websites in India. Of these, nine were signatories to the 2019 code to self-regulate. However, a year later, five backed out.

Vaibhav Modi, founder-director of a content house—Victor Tango Entertainment—said self-regulation is a myth. "Watching mature content is not a crime. What is the point of self-regulation, when the audience does not regulate itself," he said. Modi is the man behind web series like It's Not That Simple (Voot), Bekaaboo (Alt Balaji), The Story (Zee 5), among many others. Referring to the explicit content on HBO's Game of Thrones he said, "Go to any panwadi (paanwala) in Kanpur or Lucknow and he will give you the entire series—dubbed in Hindi—for 20 bucks."

"The audience demands content of all kinds. The minute you ban something, the audience will find other options like YouTube or a torrent to access it," he added. Modi, a veteran in the industry who has seen the transition from theatres to TV to online says there is no point in bringing out policies as well. "Laws and policies become irrelevant by the time they come into force. The medium today is such that it has already evolved beyond the scope of the policies by the time it sees the light of the day."

Other filmmakers and content producers insist that OTT platforms here are regulating their content anyway. Since these codes are more like guidelines, certain filmmakers observed that "every platform has its own set of do's and don't's."

For example, a certain platform is ok with content that is highly sexualised or those set in small towns, filmmaker Bhavya Bokaria said. Bokaria who directed White Matter—a Hotstar Original—said, "These channels (streaming platforms) are private and have their own target audiences they cater too," he added. "There is more liberty to shoot for online platforms. You can push the boundaries, but not cross the line," Bokaria said.

Ashi Dua, one of the producers for Lust Stories said that if one starts censoring the web, then the platform's charm will die. "When you put shows on the web, you are not only competing with Indian television and cinema, but you are competing against content from the world," she added. "If our audience doesn't like the content they can simply just switch it off," she said.

Suparn Verma, the man behind the Manoj Bajpai-starer The Family Man 2, said, "Today there is creative freedom unlike any other time. Content in all kinds of genres are being made today. Each platform and genre has its own unique audience, which automatically becomes a filter for the audiences."

Gurmmeet Singh, the primary director of the Amazon Prime Video series Mirzapur, says that online content has become highly personalised. The audience is niche, and mature enough to make choices. "They can see violence on screen and know that they do not need to emulate it," Singh said.


Hotstar did not upload an episode from Emmy-winning satire show Last Week Tonight with John Oliver since it was critical of Prime Minister Narendra Modi, his handling of the 2002 Gujarat riots and his "tepid apologies", the anti-Citizenship Amendment Act (CAA) protests and demonetisation.

In the episode, Oliver called Modi divisive and said the demonetisation was a "mess". In the 20-minute long episode, Oliver also said Modi and the BJP is "actively trying to erase whole sections of Indian history", and called the CAA as a "diabolically clever" move to "strip millions of Muslims of citizenship".

In 2019, Amazon's Prime Video was forced to take down the fifth season premiere of Tea Leoni starer-Madam Secretary. The episode 'E Pluribus Unum' centres around Leoni's character Secretary Elizabeth McCord's attempts to get India and Pakistan to sign a nuclear disarmament treaty. However, the sub-plot in the episode which dealt with the Indian government's lack of action towards Hindu extremists who are attacking Muslims, was considered to be far more contentious.

In its first-ever Environmental Social Governance report, Netflix revealed that since its launch, it has taken down nine shows/movies in several countries at the behest of their governments.

"In 2015, we complied with a written demand from the New Zealand Film and Video Labeling Body to remove The Bridge from the service in New Zealand only," the report read. "The film is classified as "objectionable" in the country."

In 2017, Stanley Kubrick's 1987 cult classic Full Metal Jacket was taken down in Vietnam while the Night of the Living Dead was removed from its service in Germany only.

In 2018, Cooking on High, The Legend of 420, and Disjointed was taken down from service in Singapore.

In 2019, one episode titled 'Saudi Arabia' in the Hasan Minaj-led series Patriot Act was taken down from service in Saudi Arabia. Singapore government once again compelled Netflix to ban the film The Last Temptation of Christ and The Last Hangover from the service there.

From now on, Netflix will report these takedowns annually.

Updated On: 2020-09-07T17:43:57+05:30
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