Against a broader trend of hostility toward online vloggers, the Kerala High Court’s recent orders on online film reviews undermine free speech and bolsters legal paternalism and moralism in cyberspace.
—
ON October 4, 2023, a film director approached the Kerala High Court asking for a gag order on the film he had directed to prevent vloggers from reviewing it on its release.
Due to increased internet penetration, online film reviews have found a huge uptake in Kerala’s cyberspace over the years. It is common for most Malayalam filmmakers today to work with online platforms for promotion in the run-up to their film’s release— and their profiles are even acknowledged in the credits of most films.
The petitioner’s argument, though, was that an “organised racket” was working to deliberately denigrate and tarnish movies with the intention of “unjust enrichment, coupled with blackmail and extortion”.
In response to the petition, the Kerala High Court appointed an amicus curiae, who reported that as per a prima facie inquiry, there was sufficient material to establish that there are vested interests, some of whom even think they can make or break movies.
In one of its initial interim Orders, the court directed the state police chief to “ensure that the movie industry is not subjected to denigration on account of the illegal actions of a few people, whose intent is extortion and blackmail, among such other things.”
The court then hastened to add that its Order covers only “cases of motivated and calculated reviews made solely to extort and blackmail; and not those which are made bona fide”.
In the subsequent Orders, the court extended its directions to every movie to be released. Although it is unclear what its directions in Mubeen are that filmmakers at large can avail of.
Also read: Free speech underpins all other freedoms
The state police chief submitted a protocol “to deal with cases of motivated, malicious, negative movie reviews, review bombing, etc.”
The petitioner’s argument, though, was that an “organised racket” was working to deliberately denigrate and tarnish movies with the intention of “unjust enrichment, coupled with blackmail and extortion”.
What this protocol says is unclear and nothing is apparent from the interim Orders of the court either. Meanwhile, the amicus submitted to the court that anonymity itself is a crime under the Information Technology Act, 2000.
Although it does not seem to endorse this argument directly, the court states that “the capacity of a person to act anonymously on an online platform certainly requires to be treated with great amount of care and concern”.
Soon after this Order, based on the complaint of another director, the Ernakulam Central police charged several online film reviewers under Sections 385 and 34 of the Indian Penal Code and Section 120(o) of the Kerala Police Act, 2011.
In the last interim Order, the court endorses the argument put forward by the Kerala Film Producers Association that “[t]he reputation of individuals behind a film cannot be sacrificed at the altar of unbridled freedom of expression asserted by individuals, who act under the mistaken impression that they are not governed by any parameters/regulations, particularly when there is nothing on record to show that any of them are registered, akin to Journalists or such other service providers.”
Maintainability, judicial overreach and chilling effect
Extortion and blackmail are two recurring charges across the court’s several interim Orders. However, nothing is novel about these offences— provisions in the IPC already cover them.
Even though defamation is not directly taken up by the court, even that can be dealt with under the IPC, or through a civil action for defamation. If that is the case, it is unclear why the court thought it appropriate to direct the state police chief to propose a protocol, especially for filmmakers. Much like any ordinary citizen, it is open for a threatened filmmaker to approach the police.
Given that there were equally— if not more— efficacious alternative remedies, the writ petition should have been dismissed for lack of maintainability. In other words, for a matter that requires band aid (penal action through a case) from a pharmacy, the court seems to have prescribed exploratory surgery with a team of specialist doctors.
Such a disproportionate course of action is not only inefficient but in a case that implicates free speech, it can produce a chilling effect.
The court states that its Order applies only to male fide reviews— and not bona fide reviews. However, how can anyone determine the bona fide of an online reviewer? The Order is so vague that anyone can potentially run afoul of it.
The court states that “the capacity of a person to act anonymously on an online platform certainly requires to be treated with great amount of care and concern”.
This is precisely the key ingredient for producing a chilling effect and the key reason that led to the strikedown of Section 66A of the Information Technology Act, 2000 and Section 118 of the Kerala Police Act, 2011.
Much like in Shreya Singhal versus Union of India, the sweep of the judgment is so wide that virtually any opinion on a film would be covered by it. It is in no measure coincidental that the case came to be charged under, among other Sections, Section 120(o) of the Kerala Police Act, which deals with the broad offence of “causing, through any means of communication, a nuisance of himself to any person by repeated or undesirable or anonymous call, letter, writing, message, e-mail or through a messenger”. A broadsweep such as the ‘bona fide of the reviewer’ runs afoul of Article 19(1) for overbreadth.
What makes the bona fide standard worse is that it is not a classification found in Article 19(2). It is a different matter if a speech causes an incitement to an offence, but what incitement does a film review cause?
Even if film reviewers were to call for the boycott of a film, unless there is a specific offence that deals with the action, no amount of mala fides can be a ground for its restriction.
In one of the Orders, the court observes that as a result of the pendency of the matter, the petitioner’s film had a decent run at the box office. If one interrogates this claim closely, what the court is essentially taking pride in is chilling free speech.
The court states that its Order applies only to male fide reviews— and not bona fide reviews. However, how can anyone determine the bona fide of an online reviewer?
After all, it neither granted the gag Order the petitioner sought nor expressly caused any penal action— neither did the filmmakers institute any other action. If the pendency begot any result, it is only because the vagueness of the whole petition made people censor themselves. Indications of this can easily be seen on the internet, where people are increasingly preferring to call their take on films “opinions”.
In the last interim Order that was issued, somehow, the court exacerbated this lack of clarity by needlessly endorsing the argument of the Kerala Film Producers Association that because these reviews are not by accredited journalists, it is somehow more nefarious.
Also read: Online censorship: Government’s favourite pastime activity
Is the court suggesting that an accredited journalist will have more leeway in reviewing a film than others? That would render vast swathes of guest contributions and social media posts liable for action— including this one.
No licence is required for free speech, and non-accreditation would not somehow bar any speech— neither does accreditation licence free speech. What difference would have made if these reviewers were accredited is unclear.
Policing cyberspace
The Orders of the Kerala High Court come in an atmosphere that is fast turning hostile for online vloggers. For instance, in June 2023, a vlogger named Mohammad Nihad was arrested from his residence in Kochi.
Ostensibly, the case was for singing a lewd song in public. However, even before that, controversy had been brewing about Nihad’s language in his videos. After the arrest, the handle of Kerala Police on Instagram shared a meme-video of him stating, “strict legal action will be taken against those who earn money through social media by creating content that is not compatible with the culture and moral values of the country and incites hatred among people.”
No licence is required for free speech, and non-accreditation would not somehow bar any speech— neither does accreditation licence free speech.
In 2018, a division Bench of the Kerala High Court held that what may be obscene to some may be artistic to others. In that case, a magazine had put out an issue with a picture of a woman breastfeeding her child on its cover.
In needlessly wading into the controversy on review-bombing, the court has not only chilled free speech but also bolstered legal paternalism and moralism in cyberspace.
