The Central Board of Film Certification (CBFC) is a statutory body formed under the Cinematographic Act, 1952 (Act), which regulates the public exhibitions of films.
The CBFC functions in accordance with the Act and the Cinematographic (Certification) Rules, 1958 (Rules). The Act applies to the films distributed theatrically and includes distribution via DVDs or VCDs. By the Cable TV Networks (Regulation) Act, 1995 (Cable TV Act) the CBFC Certification is made applicable for films broadcast on television. Since the existence of the Act and the Rules, the world has rapidly evolved and one such tremendous revolution has undoubtedly been the internet or the digital world. Traditional ways of viewing content have taken a back seat and the recent trend has been to access content via the internet. Throngs of people are constantly connected with the digital world with the emergence of smart phones at affordable prices along with subsidized access to the internet. Interestingly, now contents such as films, web-series, promotional videos etc. are created for only being streamed over the internet.
To understand the framework, it is imperative to first know how the content is categorized. Legally speaking there is no distinction between films, documentaries, web-series, short films, etc. and all of them fall under the definition of “cinematograph film” under the Copyright Act, 1957 (Copyright Act) which includes any apparatus for the representation of moving pictures or series of pictures[1]. What distinguishes the applicability of the legal framework is the medium where the film is sought to be exhibited.
CERTIFICATION OF FILMS IN INDIA
Films in India can be publicly exhibited pursuant to procuring certification from the CBFC. The Act and the Rules provide for, “U” (unrestricted public exhibition); “A” (restricted to adult audiences); “UA” (unrestricted public exhibition subject to parental guidance for children below the age of twelve); or “S” (restricted to specialized audiences such as doctors or scientists), categories of certification. A film is required to be certified prior to its exhibition in theaters and/or on television and requires mandatory display of the certification issued by the CBFC. For procuring a CBFC certification for a film an application must be made to the Board of Film Certification under the Act and the Rules. Each film is examined by the CBFC, and certification may be conditional upon certain modifications or deletions as suggested by the Board of Film Certification.
Neither the ambit of the Cable TV Act nor the Act and the Rules contain any requirement of certification prior to its exhibition on OTT Platforms, as the concept of content being available via internet during the said enactments was unknown. This led to several litigation across the country particularly during the COVID-19 pandemics when consumption of content on OTT increased tremendously. There have been certain grey arears where the Courts have intervened and provided the required guidance and few such interventions are, a petition was filed before the Hon’ble Karnataka High Court, that transmission of any films, cinemas, and serials, through the internet ought to come under the purview of the definition of section 2(c) of the Act and a declaration that such films displayed on the internet would amount to public exhibition under the Act. The Court observed that since the films or series were displayed on the internet which uses Hyper Text Transfer of Protocol (“http”) to transfer images and videos from one person to another, therefore transmission of film over internet will not come under the purview of the Act[2]. In another petition filed before the Hon’ble Delhi High Court, directions were sought seeking guidelines for regulating OTT platforms. The Ministry of Information and Broadcasting filed an affidavit stating OTT platforms are not regulated by the said Ministry. The Hon’ble Court dismissed the petition and observed that since there were stringent provisions already in place under the Information Technology Act, 2000 no requirement arose to direct the Ministry to make guidelines[3].
In the meanwhile, The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”) were notified on 25th February 2021 which aims to specifically regulate the social media forums, intermediaries, digital news media, and OTT platforms; and are in supersession of the erstwhile Information Technology (Intermediary Guidelines) Rules 2011. The IT Rules includes the requirements of content classification, displaying the classification, age-based restriction to content, amongst others.
Thus, as on date there exists two processes, one applicable to theaters and television; and the other applicable to OTT platforms. However, there are certain interesting aspects, such as, can a certificate provided for theatrical release be used for television broadcast; can a film certified in a category be re-certified to another category; are dubbed version of films required to be certified, if yes, in which jurisdiction (i.e. where the original language film was certified or any other jurisdiction); and how does the certification work for the promos, teasers, trailers of the films (Promotion), which are medium agnostic.
- A film which is certified “A” for theatrical release cannot be broadcasted on television unless the said film is re-certified to “UA” or “U”. Thus, a film which is originally certified “UA” or “U” is not required to be re-certified for television broadcast and the same “UA” or “U” certification issued for theatrical release can be displayed for television broadcast.
- In case of “A” certification, the producer or rights holder is required to make an application for having the film re-certified to “UA” or “U” for television broadcast. A film which is required to be re-certified from “A” to “UA” or “U”, will be examined by CBFC from scratch and recommend edits (if required) and revised certification shall be subject to compliances with such edits.
- The CBFC had passed an order that once a film has been certified for both the platforms viz., theatrical release and broadcast on television, then the said film cannot be certified again. This order was taken in appeal before the Film Certificate Appellate Tribunal (FCAT) and the FCAT set aside (by consent of the parties) the said order with directions to file fresh application for re-certification by the CBFC.[4]
- If a film has been certified and a dubbed version of the said film is created, then such dubbed version of the film (for theatrical release or television broadcast) will also be required to be certified by the CBFC. Usually, queries are raised as to the jurisdiction where the application for certification should be submitted, and the answer is the ‘place of production’ of the film. The CBFC has determined the two norms which will define ‘place of production’e. the location of the producer’s association with whom the film title is registered; and the location (head, regional or production office) of the film processing company. In relation to the dubbed films, it is recommended that the dubbed version of the film is submitted for certification in the jurisdiction where the original language film was submitted.
- Lastly, in relation to the Promotions, where the Promotions are carried on television, the display of CBFC certificate is required as specified in the Programme and Advertising Codes prescribed under the Cable Television Network Rules, 1994. However, the Cinematographic (Censorship) Rules 1958 formulated under the Act, required indication of certification only after the date of its certification. This being the case, when Promotions are made available on digital platforms such as YouTube there is no requirement to display CBFC certificate for such Promotions as the internet platforms will be governed by the IT Rules.
The Hon’ble Courts were recently posed with certain unique facets of CBFC certification and inclusion of disabled persons in the experience of enjoying content. In the case of Suresh Patil against Yash Raj Films Pvt. Ltd.[5], a suit has been filed seeking to restrain Promotion of the song Besharm Rung of the film titled Pathaan over YouTube, without displaying “UA” certificate at the commencement of the Promotion. The Hon’ble Court refused to grant any relief to the Plaintiff and thereby it can be said acceptance of the arguments that there is no need to display CBFC certificate while publishing Promotions on OTT Platform under the IT Rules. Further, no relief was granted as no harm was caused to the Plaintiff and any relief would lead to the grant of final relief at an interim stage. In another case being a Writ Petition filed by Akshat Baldwa & Ors. against Yash Raj Films Pvt. Ltd. & Ors.[6] before the Hon’ble Delhi High Court, seeks enforcement of various rights and accessibility requirements under the Rights of Persons with Disabilities Act, 2016 with specific emphasis on the directive issued by the Ministry of Information and Broadcasting (MIB) to the film producers associations and the CBFC in October 2019 to have audio descriptions and subtitles/closed captioning in all films. One of the Petitioner’s emphasized that CBFC approves subtitles (in English language) however, does not insist on audio descriptions, closed captioning and/or subtitles in the original language of the film. The Hon’ble Court appreciated the challenges and the fact that the Respondent alone may not be able to bring about such change and other stakeholders will have to work alongside for a holistic solution and has directed MIB, to hold consultations with all the stakeholders viz. film producers, OTT Platforms, Indian Broadcasting Digital Foundation, Association of theatre owners, film distributors, etc. and submit a report by September 2023.
In the legal landscape of events, it is clear that content be it films, web-series, etc. made available on the internet space or OTT Platforms do not require certification from the CBFC and adherence to IT Rules will suffice. Further, from theatrical and television perspective, it is important to understand the nuances of film certification as adherence and compliance is mandatory. This is important as any failure to procure, display or incorrect display of certification has penalty such as imprisonment; fine; revocation of the CBFC certification of a film; or revocation of license (amongst others).
Footnotes
[1] Sec 2(c) and 2(dd) of the Cinematograph Act, 1952
[2] Padmanabh Shankar Vs Union of India WP/6050/2019
[3] Justice for Rights Foundation v. Union of India, WP(C) 11164 of 2018
[4] Sony Pictures Networks India Pvt. Ltd. vs. CBFC, Mumbai – Appeal No. 16-22 of 2018
[5] Senior Division Court, Shrirampur, R.C.S. No. 338 of 2022
[6] W.P.(C) 445 of 2023 and CM Appls 1752-53 of 2023
Authors: Ms. Sapna Chaurasia, Partner TMT Law Practice
Mr. Darshit Jain, Associate, TMT Law Practice.