The Web Series Balancing Act

14th May, 2024 - 9:47 am Categories: Media & Entertainment Law Social Media 0 Comments

Introduction

With the beginning of the year 2024, the media and entertainment industry have faced several legal battles. While a new wave of watching web-series on various streaming platforms has given rise to the “binging-culture”, it has also welcomed unexpected lawsuits. Whether it be an Intellectual Property Infringement such as that in case of Sacred Games (Netflix), Breathe (Amazon Prime Video) and Inside Edge (Amazon Prime Video), or obscenity concerns as seen in case of almost every other web series.

This blog specifically discusses the two most recent-fought legal battles, one being the question of profanity in case of TVF’s College Romance (SonyLiv) and other being a sub-judice stay-order petition on Netflix’s docuseries on the infamous murder case of Sheena Bora.

TVF’s College Romance

Vulgarity and obscenity are very subjective in nature. Indian courts, over the course of time, have tried to interpret the same through various precedents.

In KA Abbas v. UOI (AIR 1971 SUPREME COURT 481) and Bobby International Art v. OP Singh Hoon (AIR 1996 SUPREME COURT 1846) the courts broadened the understanding of what level of obscenity is acceptable in the name of creative freedom, like the depiction of a rape scene inspired by true events of a person’s life as in the case of Bobby International Art, which was the real-life story of Phoolan Devi also known as the Bandit Queen.

Creative content depicting any level of profanity or vulgarity has always raised concerns about their potential impact on public morality. The legal battle of TVF’s College Romance, facing similar issues, try to answer as to what qualifies as an acceptable standard of free speech and expression. Profanity or vulgarity does not always mean a graphical depiction, it can be a verbal connotation as well. This is one of the reasons why the spectrum of censorship of visual creative media or movies and show per se, is broader as compared to written creative media such as books and novels. Movies and shows can reach a wider audience in a much shorter time span than a book is expected to, and so movies and shows can be pre-censored due their ability to influence public opinion and morality.

[Image Sources: Shutterstock]

The court while penning its decision in light of this case, Apoorva Arora v. State (NCT of Delhi) 2024  which accused the actors, writers, and the creators of the web series of offence under Section 67 of the Information Technology Act, 2000, which deals with publication and transmission of obscene material in electronic form; the court made an observation that, use of such language should be viewed in the broader context of the plot and theme of the web series. The show is a light-hearted romantic comedy focusing on college lives of young adults and so, it is evident that the language used does not have sexual connotations. The creator of the web series did not intend for the language to be interpreted in its literal sense, nor would a reasonable viewer perceive it as such.

The High Court of Delhi also expressed concerns about the free accessibility of the we series especially for youth, and the lack of age-based content restrictions. However, the usage of profane or vulgar language does not justify classifying the context as obscene and subjecting it to criminal sanctions.

Netflix’s Indrani Mukherjea Story

The entire country was shaken to its core when the ultimate discovery of the Sheena Bora Case came to the forefront. Everyone wanted to know what happened and how it happened. And probably that is what Netflix, an online streaming platform tried to answer through its new docuseries “The Indrani Mukherjea Story: Buried Truths”. All true-crime enthusiasts as well as frequent streaming viewers on the on their edges awaiting the release of the docuseries but were soon met with the news of a delay. The CBI filed a petition in the Bombay High Court to grant a stay order on the docuseries, since it believed that case which is a sub judice matter should not be talked about or published in any form of media.

A sub judice matter or case is one in which the court is yet to decide its opinion on. Basically, a case that is “under judgement”.

In the case of CBI v. Netflix Entertainment Services India, the Sheena Bora murder case is still pending in the court, since there was lack of evidence to prove the culpability of any party to the case, that could directly point towards her disappearance or murder per se. So, the CBI’s contention being that revelation of any substantial information about the case.

The petition by CBI was brought under provision of the Constitution of India, Article 226 which gives the High Court right to issue writs, and Criminal Procedure Code,1973, Section 482 which empowers the High Court to use their inherent powers to pass any order to prevent the abuse of process of any court or to secure the ends of justice; with the issue being that the series would create a perception in the minds of the people thereby questioning the credibility of the witnesses that were interviewed for the docuseries. The counsel for the respondents took reference of two cases, Adarsh Cooperative Housing Society Ltd vs Union Of India (AIR 2018 SUPREME COURT 1430), and  Nilesh Navalkar v. UOI (AIRONLINE 2021 BOM 14) .

In both these cases, the court established that the core of doctrine of sub-judice is that it should not be stretched so far that it unjustifiably takes away or negates the right to freedom of speech and expression of someone else, because of a small reference or allusion.

Hence, in CBI v Netflix, the court held that, mere apprehension of misperception or probable incredibility of a witness, shall not be enough to put a stay on the release of the docuseries, given that most of the facts and discussions about the case are already in the public domain through a couple of movies, five books and several podcasts and interviews.

The case of Indrani Mukherjee docuseries is not an isolated event, where a movie or series has been petitioned to be halted from releasing. Adarsh Housing Society Cooperation case as cited above is another such example. Film “Aiyaari” was at the centre of question, when people of a housing society, which was apparently shown in bad light in the movie, petitioned for the movie to be truncated. However, the court gave its opinion in favour of the filmmakers, pointing out the fact that, an ancillary reference cannot be sufficient to hold the release of a film because it would lead to “prejudicial effect of fair administration of justice”.

Conclusion

In conclusion, with growing technology and increase in viewership through online platforms, the laws shall be interpreted with respect to the current trends in media and acceptance or rejection of the audience of a particular form of entertainment. A new regulation is need of the hour, to help understand what qualifies as just, fair and reasonable and what doesn’t.

As viewers we should also understand that our freedoms and rights cannot be achieved or guaranteed on the expense of others’ freedoms and rights. Fighting for the right things is not wrong when a depiction of something is curtailing on the sentimental values of a class of people, however an ancillary or incidental representation shall not, not be allowed to be viewed or transmitted.

Author: Tuhina Deb , in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

References

Statutes:

1. Section 67 of the Information Technology Act, 2000
2. Article 226 of the Constitution of India Act, 1950
3. Section 482 of the Criminal Procedure Code, 1973

Case Laws:

1. KA Abbas v UOI, AIR 1971 SUPREME COURT 481
2. Bobby International Art v. OP Singh Hoon, AIR 1996 SUPREME COURT 1846
3. Apoorva Arora v. State (NCT of Delhi),
4. CBI v. Netflix Entertainment Services India
5. Adarsh Cooperative Housing Society Ltd. v. UOI, AIR 2018 SC 1430
6. Nilesh Navalkar v. UOI, AIR ONLINE 2021 BOM 14