Judicial Review Of Film Reviews

Recently, a film director filed a writ petition before the Kerala High Court to direct Union of India (Ministry of I&B), CBFC etc. to issue a “gag order” to ensure that social media influencers and film reviewing vloggers do not publish any reviews of his movie “Aromalinte Adyathe Pranayam” on social media for at least seven days from the date of release of the film. The main allegation of the petitioner is that movie reviewers deliberately degrade movies by giving negative reviews thereby affecting its box office performance. Unfortunately, even though such a prayer is not maintainable, the Court has taken up the writ petition and has passed several daily orders, which will have wide ramifications on freedom of free speech in India.

To begin with, a citizen's fundamental right to freedom of speech and expression can be restricted only under the grounds mentioned in Article 19(2) viz. interest of the sovereignty and integrity of India, security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. Even this restriction must be by way of a “law”, which, as held by the Supreme Court, should be a legislation passed by the state assembly or Parliament. In other words, an order of the Court cannot bypass the strict protection provided under Article 19(2) of the Constitution.

The writ petition stems from a misconception that freedom of press under Article 19(1)(a) can be exercised only by journalists. Article 19(1)(a) does not distinguish between rights of journalists and rights of other citizens. In fact, the Supreme Court, in Bennett Coleman & Co. v. Union of India, (1972) 2 SCC 788, held that freedom of press means rights of all citizens to speak, publish and express their views. Thus, the interpretation that such protection would extend only to journalists and not to vloggers is unconstitutional.

In daily order dated 6^th October, the Court begins by stating that “every movie is an intellectual property”. While there is nothing wrong with this statement, the Court then proceeded to approach the issue of alleged “review bombing” as an attack on property rights of moviemakers. This is problematic because: (i) section 52(1)(ii) of the Copyright Act, 1957 excludes criticism or review from infringement of copyrights; and (ii) it serves as a precedent for any copyright holder to gag honest negative opinions or reviews of their product by simply alleging that their property has been “attacked”.

Further orders of the Court identify two main issues in the present case- alleged attack on the reputation of moviemakers, and the need to regulate anonymous posts containing “vituperative or virulent content”. Treating anonymous posts, if any, about a movie as a reason for its bad performance at the box office is too simplistic and questions the intellect of movie-watchers. An honest review of a “bad movie” may harm the reputation of a film maker but they are equally responsible for the quality of their work. It may be noted that the Supreme Court, in R. Rajagopal v. State of Tamil Nadu AIR 1995 SC 264, held that the State has no authority to impose a prior restraint on the publication of any material on the ground that such material is likely to be defamatory in nature. Indeed, the Court distinguishes between fair criticism of an intellectual property and a “pernicious attempt to blackmail and extort”. The Court then proceeded to direct the state police to come up with suggestions to ensure that the movie industry is not “subjected to denigration on account of the illegal action of a few people, whose intent is extortion and blackmail”. Extortion is an offence under section 383 of the Indian Penal Code, 1860. If any reviewer tries to extort money from a movie producer or director, they can always register a complaint with the police. No additional protocols, as submitted by the police, are required. This will only create a chilling effect on freedom of speech and expression.

It is also necessary to acknowledge that internet, as a medium, has opened up opportunities for citizens to pursue unconventional methods of vocation. Content creators, video bloggers and independent news media are entitled for protection of right to practice their profession under Article 19(1)(g). These content creators have also helped increase flow of information to the public, which is an important facet of Article 19(1)(a) as held by the Supreme Court.

It is also worthwhile to remember how courts have protected moviemakers from attempts to ban screening of their movies citing obscenity, blasphemy etc. In fact, the Bombay High Court, in Anand Patwardhan v. Union of India AIR 1997 Bombay 25, held that the standard to be applied by the CBFC or courts for judging a film should be that of an ordinary man of common sense and prudence and not that of an out of the ordinary or hyper-sensitive person. The Court also cited an earlier judgment of Justice Vivian Bose in Bhagwati Charan Shukla v. Provincial Government AIR 1947 Nagpur 1, wherein he held that:

“…. That the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. This in our opinion, is the correct approach in judging the effect of exhibition of a film or of reading a book. It is the standard of ordinary reasonable man or as they say in English law, 'the man on the top of a Clampham omnibus' (sic).”

The same threshold must be applied to film reviews, which should be protected from hypersensitive moviemakers. The petitioner and indeed the Court seems to be batting for the adoption of some protocols, even suggesting that BIS Standards be adopted for reviewing films. Any such attempt would be unconstitutional and violative of Article 19(1)(a).

Author are Advocates, Madras High Court. Views Are Personal.