Peggy Fen v. Central Board of Film Certification and Ors
In the High Court of Kerala
WP(C) 28288/2021
Before Justice P.V. Kunhikrishnan
Decided on February 10, 2022

Relevancy of the case: Writ petition seeking the removal of an OTT film due to obscenity

Statutes and Provisions Involved

• The Information Technology Act, 2000 (Section 67)
• The Indian Penal Code, 1860 (Section 294)
• The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (Rule 2(s), 2(q), 3, 4)
  

Relevant Facts of the Case

• A film called “Churuli” was released on the Sony LIV OTT platform.
• The petitioner filed a writ petition in the nature of mandamus before the Hon’ble Court, seeking a directive to remove the movie. The petitioner contends that this OTT film violates Section 294 of the Indian Penal Code, 1860 and Section 67 of the Information Technology Act, 2000.

Prominent Arguments by the Advocates

• The petitioner’s counsel argued that the movie contained an excessive use of foul language, which, due to its inclusion of obscene and filthy content, goes against public morality and tranquillity. He further submitted that the release of this movie would attract criminal offences for obscenity.
• The second respondent’s counsel argued that the cinema is a work of art and the filmmaker is an Artist. Correspondingly, Article 19 grants artistic freedom to the Artists. He further submitted that Section 294 is not applicable because the work must be committed in a “Public Place,” and the OTT platform is not a public place.
• Further, the second respondent’s counsel argued that Sec 67 is not applicable as the film’s contents are already certified as ‘A’ (Restricted to Adults) as per the Central Government rules. Accordingly, the film is subject to governance by the Cinematography Act, 1952 and not the IT Rules, 2021. He further submitted that they fit within the definition of “publisher of online curated content” as per Rule 2(1)(u) of the IT Rules, 2021. They have also categorised the film and assigned it an A rating, indicating its restricted viewing to adults only.

Opinion of the Bench

• The court noted that it cannot remove the movie from the OTT platform only based on a writ petition stating that the movie contains an overdose of foul and obscene language. The government holds the responsibility to safeguard the artistic freedom of the filmmaker. It constitutes a fundamental right granted under Article 19(1)(a) of the Constitution.
• There were no violations of the provisions of the IT Rules. Not everyone can access the film from the OTT platform. Vulgar writing is not always obscene.
• The petitioner should have availed of an alternative remedy per the IT Rules, 2021, by raising a grievance against the movie through a grievance redressal mechanism. Hence, prima facie, the petition should not be maintainable in this court.
  

Final Decision

• The court dismissed the writ petition.