Recently a purported phone call by Malayalam actor and filmmaker Joju George to a film reviewer who posted a ‘negative’ review on a social media platform for his directorial debut Pani has stirred up a hornet’s nest. The research scholar who posted the review also posted the conversation online accusing the actor of threatening him, triggering a heated debate over the legal, artistic, and above all, commercial propriety of film reviews. The reviewer has explained that he had just criticized a rape scene in the film which, in his opinion, is shattering for sexual abuse victims. He further claimed that he had not divulged any spoilers relating to the movie.
Article 19(1) (a) of the Constitution of India states that all citizens shall have the right to freedom of speech and expression. A citizen’s fundamental right to freedom of speech and expression can only be restricted under the specific grounds mentioned in Article 19(2) of the Constitution. Any such restriction must be imposed by way of a “law”. In Lowell v. Griffin (1938), the US Supreme Court stated that the right to free speech encompasses various forms of communication, including movie reviews, which reflect an individual’s ideas, feelings, opinions, and thoughts through any communicative media or visual presentation, such as signs, gestures, or symbols.
Likewise, the Delhi High Court in TV Today Network Ltd v. News Laundry Media Pvt Ltd (2022) held that the right to comment on content is affirmed as part of free speech. Recently, the Kerala High Court in Mubeen Rauf v. Union of India (2023) directed the government to ‘closely watch’ online platforms to ensure that anonymous and mala fide reviews of films are not allowed to circulate on such platforms. The practice of ‘review bombing’ is undoubtedly unethical, but government intervention could potentially have a chilling effect on free speech. Moreover, in l’ affaire de Joju George, the review seems neither to be anonymous nor to be mala fide as no element of blackmailing, defamation, or copyright violation is involved in the incident.
While eating cake, you can’t have it too
In Odyssey Communications Pvt Ltd v. Lokvidayan Sanghatana (1988), the Supreme Court held that the right to exhibit films was protected under Article 19 (1) (a), thereby redeeming the hitherto low status accorded to film. This judgment leaves filmdom with a corresponding duty to acknowledge the viewer’s right to comment on movies. The hype on the internet for undeserving movies fueled by paid promotions often brings a windfall for movie barons. The same movie barons then have no moral or legal right to complain about ‘negative reviews’ by netizen journalists provided they are not violating copyright and other relevant laws. As Justice Louis D. Brandeis of the US Supreme Court in Whitney v. California (1927) pointed out, if filmdom wants to expose the falsehood and fallacies in movie reviews, the remedy to be applied is more speech and not enforced silence. The main contention of film barons is that ‘review bombing’ spoils the millions invested in movie production. If this argument is taken at face value, politicians can also argue that citizens could not comment on political parties as politicking is expensive and investment greedy.
Freedom of speech would mean very little if it were not able to respond to political, social and technological changes. The Supreme Court affirmed this aspect in LIC v. Manubhai D. Shah (1992) and held that a constitutional provision is “never static, it is ever-evolving and ever-changing and, therefore, does not admit a narrow pedantic or syllogistic approach”. The court observed in this case that the LIC was bound to publish a critical rejoinder in its in-house journal, so that readers can obtain a complete picture of the corporation and not a one-sided version. The LIC’s refusal to publish the rejoinder was therefore violative of the right of the community to know about its internal functioning. Taking a cue from this judgment, it can be said that moviegoers have a right to know the aesthetic value of a movie before paying at the box office and citizens have the right to publish positive and negative reviews on online and offline platforms.
Shahs of Blah and Oceans of Notions
The concept of the marketplace of ideas propounds that the test of the truth or acceptance of ideas depends on their competition with one another and not on the opinion of a censor, whether one provided by the government or by some dominating individual. John Stuart Mill claimed in his On Liberty (1859) that the free competition of ideas is the best way to separate falsehood from fact. The US Supreme Court in Reno v. American Civil Liberties Union (1997) invoked the concept of the free market of ideas and established that speech on the internet is entitled to the same high degree of First Amendment protection. The emergence of the internet has widened and democratized the market of Ideas. It is neither feasible nor desirable to muzzle the free trade of ideas in cyberspace. The Invisible Hand of the market would winnow the grain from the chaff. The creation of echo chambers by algorithms that reduce the effective functioning of the marketplace of ideas in cyberspace is not overlooked.
In Mubeen Rauf’s case, the filmmakers sought a gag order to ensure that social media influencers and film-reviewing vloggers do not publish any reviews of the film for at least seven days following its release. It is tantamount to a prayer for superinjunction and ‘John Doe” order (John Doe order is a legal order that allows a person or entity to take legal action against unknown parties. The term “John Doe” is used to identify the defendants who are unknown or unnamed). “John Doe orders present a grave threat to the freedom of speech and expression. To start with, they exhibit some of the more pernicious features of prior restraint…Furthermore, if the implementation of an order does not take place under judicial supervision, it places the power of censorship in the hands of private parties such as internet service providers…And lastly, because John Doe orders are often issued to prevent ‘anticipatory infringement,” writes Gautam Bhatia in his Offend, Shock, or Disturb: Free Speech under the Indian Constitution (2021). The demand for John Doe orders to stifle film reviews exposes some movie moguls’ illiberal and undemocratic worldview.
Dictator Idi Amin’s comment on freedom of speech is notorious – “There is freedom of speech, but I cannot guarantee freedom after speech.” In a constitutional ecosystem, the state, society and individuals are duty-bound to honour and guard the common citizens’ freedom on and after the utterance of their free speech. In Haroun and the Sea of Stories by Salman Rushdie, Rashid Khalifa is a professional storyteller known as the ‘Shah of Blah’ by his rivals and the ‘Ocean of Notions’ by his admirers. In a marketplace of ideas, both Shahs of Blah and Oceans of Notions have the freedom to showcase their merchandise. The shoppers are prudent enough to choose the good over the bad. In a bazaar of letters, words, pictures and pixels, there is no room for an Idi Amin who intimidates a film reviewer and transgresses the common citizen’s fundamental right to free speech and expression.
(Faisal C.K. is Deputy Law Secretary to the Government of Kerala. Views are personal. Email: [email protected])
This post was originally published on here
