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In mid-January, a few days after the release of Amazon Prime original Tandav, a senior film studio executive—who had nothing to do with the by then-controversial web series—got wind of the changes that were about to sweep through the online streaming ecosystem.

The executive was told, verbally, by a leading streaming platform that a proposed script which was under consideration would be given a pass. The long-format cop show, which is still-born and yet to be named, was slated to involve Pakistani actors. That was enough for the web streaming platform to drop it like a pile of hot bricks. Coming on the heels of the furore that Tandav had caused, the risk was just too big to take.

Web streaming show ‘Tandav’
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Web streaming show ‘Tandav’

While over-the-top (OTT) video streaming is often imagined to be the Wild West of Bollywood, this hasn’t been true for quite some time. “We’ve been getting back scripts with portions highlighted for a while now… such as how the term ‘terrorist’ is used or subtle suggestions to remove religious and political words altogether," the studio executive, who requested anonymity, said.

Ever since the wildly popular Sacred Games got slammed by a few who took offense back in 2018, most streaming platforms had started hiring legal teams to vet scripts. Though things had been building up, 2021 marks another round of escalation.

“Now, it is clear that religious and political sentiments are not to be played with at all," the executive said.

Clearly, for an industry that thrives on creative expression and that had turned to the web in order to break free from the shackles of censorship and the box office, times are only going to get tougher.

OTT platforms—both foreign and homegrown—are increasingly facing the threat of disguised censorship as the government gives itself powers to clamp down and the courts act on petitions that accuse web shows of flagrant disregard for Indian culture and values.

As a result, web services are now increasingly combing through scripts in order to tweak or tone down aspects that could get them into trouble. If the Tandav case was an early warning, the recently released government guidelines for streaming platforms makes the state of play amply clear.

Many web platforms are planning to come up with their own guidelines detailing “no go" areas. Disney+ Hotstar has “deferred" the release of its web series Kamathipura. Producers, writers and showrunners are suddenly being asked to vet subjects, go over dialogues, character arcs and the context of it all to make sure nothing goes wrong.

It goes without saying that sex, nudity and abusive language will be discouraged more stridently than before, but the main thrust is to avoid anything that rubs the ruling establishment the wrong way or is seen as a derogatory comment on Hindu culture.

The stage is set for conflict. Apurva Asrani, writer of Hotstar original Criminal Justice: Behind Closed Doors said that in a democracy, one should be able to tell a story the way they see it. “Someone with another point of view has the right to critique it or counter it with their (own) version of the story. But this censorship businesses is another word for bullying," Asrani added.

With such a wide gulf in perceptions about the limits to free expression, the battle will inevitably be fought in the courts.

As of early March, the Supreme Court granted protection from arrest to Amazon Prime Video’s head of India originals, Aparna Purohit, in first information reports (FIRs) lodged over Tandav. The court also reminded the government that it had, in fact, not detailed any provisions for penalties against web platforms which show inappropriate content. A single-judge bench of the Allahabad high court had earlier rejected an anticipatory bail application filed by Purohit, saying that she has not been “vigilant and has acted irresponsibly… by permitting (the) streaming of a movie which is against the fundamental rights of the majority of citizens of this country and, therefore, her fundamental right of life and liberty cannot be protected."

Tandav and beyond

To be sure, most members of the film industry who are currently involved in web projects—and that is a huge chunk—knew that the Tandav controversy and the clampdown which followed was leading up to something bigger.

Web streaming show ‘Sacred Games’
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Web streaming show ‘Sacred Games’

Soon after its launch, FIRs were lodged against the Tandav team in various parts of the country, with Haryana’s home minister Anil Vij even saying that the show had hurt religious sentiments and the I&B ministry must introduce a provision to ensure no web series can be released without a screen test by the censor board. On being summoned by I&B, the Tandav team apologized and agreed to make changes to portions which were found to be objectionable, making it the first show to officially modify content since OTT was brought under the I&B ministry’s ambit last November. The Supreme Court too got into the act.

“The hurry to act so quickly on a petition that came from the back-of-beyond is a clear sign that the state wants to control the narrative and the platforms can’t afford to take chances now," said a filmmaker, who did not wish to be identified.

Events of the past few weeks have confined all conversation of self-regulation to the dustbin. In September 2020, 15 OTT platforms had come together under the aegis of the IAMAI (Internet and Mobile Association of India) to sign a code of self-regulation. The ministry, however, had rejected the code and instead asked IAMAI to look at a two-tier complaint mechanism which allowed for an independent monitoring organisation similar to the Broadcasting Content Complaints Council.

Presumably acting as per direction, the streaming services again came together in early February to announce the adoption of an Implementation Toolkit, which, they said, would address the government’s concerns. Clearly, they needn’t have made the effort as the I&B ministry already had some news for them.

Late-February, the government of India formally tightened its control over digital and OTT platforms by introducing a three-tier mechanism that it termed as a “soft-touch regulatory architecture". While the first two tiers bring in place a system of self-regulation by the platforms themselves, the crucial third calls for an oversight mechanism managed by central government bureaucrats.

Regulatory fine print

Initial reactions from the industry ranged from mild relief to much confusion. “These guidelines are along expected lines and are really quite mild compared to the kind of pre-censorship of content that many were fearing," a senior executive at a streaming platform had told Mint on condition of anonymity soon after the regulations came out.

The rules, the person said, had stemmed from the industry’s failure in formulating a code of self-regulation that the government found satisfactory.

While the I&B ministry has gone so far as to formally tell platforms and content creators that it does not intend to censor content, rather it only wants to classify, many writers and filmmakers are less than comfortable with the fine print that eventually became available.

For one, the ministry is to designate an officer who shall be authorised to issue directions for blocking access to any content. Further, no news or content company shall transmit or publish anything prohibited under any law for the time being that it is in force and must take into consideration factors such as “the sovereignty and integrity of India… India’s multi-racial and multi-religious context and exercise due caution and discretion when featuring the activities, beliefs, practices, or views of any racial or religious group".

“Topics like sex have been mentioned (in the guidelines) only to cover the entire gamut of censorship. The only point is to strike down anything that makes a political statement," said a filmmaker who is working on a slate of web shows. Another writer said that this move is not about violence, language, or nudity at all. In fact, Indian audiences have traditionally been quite tolerant of violence on the screen, the writer said. “They will include those and look progressive. But the real target is content that counters government ideology or policy. So, while it will look like nothing’s really changed, it will severely affect any discourse that could have been started via films or shows about the state of the nation or people," the second person added.

Glaring loopholes

Concerns from detractors apart, there are also several inexplicable complications in the latest government guidelines. Instead of pre-censoring via a body like the censor board, web platform owners will now have to classify their content according to different age groups: “U" or universal rating, and others for 7+, 13+, 16+ and, then, 18+ age group.

The film studio executive mentioned at the beginning pointed out that these will have to be developed specifically for India since similar bands of age classifications do not exist in other countries. Further, while the onus to implement parental locks lies with the parent, these will have to be put in place for every single episode of a series, making it cumbersome.

“In a free society, you should be able to put out any content you want as long as there are safeguards like age classifications," said a senior executive at a streaming platform on condition of anonymity. “But it’s a whole other thing to not have the content made available to them at all (due to voluntary censorship)," the person added.

Siddharth Anand Kumar, vice-president, films and television, Saregama India, which owns boutique studio Yoodlee Films that has backed movies like Axone and Chaman Bahar on Netflix, said that creators will have to be a lot more careful and conservative in their choice of subject matter going forward. Anybody with mal-intentions can file a complaint, he said.

“We all have businesses to run, and we will be second-guessing because we don’t know who could come up with what kind of an agenda," Kumar added, pointing out that the bigger issue for an emerging internet market like India is that there is no strong system to track the age of content viewers yet.

Further, the courts will need to be involved in the interpretation of some aspects of the new rules, said Chandrima Mitra, partner at DSK Legal.

“Except animated films or series, all content currently on OTT platforms may fall into the U/A 16+ or the A category. The players and creators will have to probably relook at the kind of content they want to make since these ratings will directly impact the storytelling and the commercials involved," Mitra said. Further, there would be ambiguity regarding certain films which may have already received a censor board certification. It is unclear if the platform would need to incorporate the same certification or re-determine it based on these new rules, which would lead to a greater compliance burden.

Web streaming movie ‘The Great Indian Kitchen’
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Web streaming movie ‘The Great Indian Kitchen’

Despite the hurdles along the way, and the prevalent state of heightened fear, several experts feel that it cannot thwart creativity in the long run. Film critic Manoj Kumar R pointed to the Malayalam language offering, The Great Indian Kitchen, that struggled to find takers among OTT players as it touched upon a politically sensitive topic like the entry of women into the Sabarimala temple in Kerala. Ultimately making its way to a niche Malayalam service Neestream, the film has been praised and has stirred a debate on the roles defined for women by a patriarchal society.

Many platforms and creators who say that they have been erring on the side of caution all this while also emphasize that writers and directors should be cautious of taking frivolous stands or making edgy provocations for no reason, given that one is already living in sensitive times.

“What Bollywood-style filmmakers often do is stick a point in unintelligently and they will probably have to watch out now," said a studio executive referring to Tandav. “The idea is to be smart and not be sensationalist about it."

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