Introduction
In the era where viewers have become nit-picky in the entertainment industry, gone are the days when audiences flocked to theatres solely based on star power or eye-catching titles. Viewers have become increasingly discerning, and the competition for their attention is fiercer than ever. Today, one of the easy way to maximising audience-reach lies in the art of smart marketing. Therefore, listening to the audience is the most fundamental way to improve the offering, as audiences rely heavily on reviews to guide their decisions, making movie reviews an essential component in determining a film’s worth. This reliance, however, has introduced significant challenges, particularly with the rise of rise of “review bombing” — the practice of flooding review platforms with negative feedback—to both the reputation of films and the credibility of review platforms. Given that cinema is both a medium for storytelling and a form of artistic expression, the integrity of review platforms and the financial success of films are at risk. This article delves into the effects of review bombing, studies the tension between free speech and malicious intent, and analyses the recent judicial responses, particularly the Kerala High Court’s orders in the case Mubeen Rauf v. Union of India.
Review Bombing
Review bombing involves a coordinated effort to flood review platforms with negative feedback, often driven by external geo-political agendas rather than genuine experiences. This tactic aims to undermine a film’s reputation, skew its ratings, and ultimately affect its commercial success. This phenomenon has become more prominent with the democratisation of review platforms, allowing users to influence public perception significantly. For instance, ‘Gunday’ faced backlash from a Bangladeshi group for perceived historical inaccuracies, leading to a skewed rating demonstrating that review bombing’s impact can be complex and multifaceted.
Recently, the Kerala High Court addressed the issue of review bombing as a malicious practice capable of significantly affecting a film’s success by stating its potential of “making or breaking movies”. The Court ordered for the increased monitoring of online platforms to differentiate between genuine and malicious reviews as Justice Devan Ramachandran noted, “It is one thing to say the movie is bad due to these reasons, and another to say that I did not like a movie due to certain reasons”. This intervention followed petitions from the director of ‘Aromalinte Adyathe Pranayam’, who prayed to issue a gag order directing a ban on social media influencers for seven days post-release, and from the Kerala Film Producers’ Association.
The Court is now considering a dedicated portal to address malicious review bombings in the film industry, contributing significantly to revenue and employment. This portal would allow producers and the public to report malicious reviews, reducing the need for individual complaints, and could invoke the Information Technology Act, specifically Sections 66C (identity theft) and Section 66D (cheating by impersonation), for cases involving harassment or cyberbullying. Previously, the Court emphasised that authorities should act against malicious reviews, and directed protocols from the State Police Chief. Amicus Curiae Shyam Padman proposed restricting social media reviews within 48 hours of a film’s release and suggested the creation of this portal. The Court emphasized the need for detailed measures to protect filmmakers, leading to the Kerala police filing their first review bombing case under Sections 385 (extortion) of the Indian Penal Code and Section 120(o) of the Kerala Police Act against nine online reviewers.
Interference to Article 19(1)(a)
Article 19(1) (a) of the Constitution 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, the court stated that this right 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. The supreme court of India upheld this right in Shreya Singhal vs. Union of India, recognising that discussions of unpopular views are protected unless they incite violence or pose specific threats. However, Review Bombing serves as a tool for holding creators accountable, raising awareness and protesting against powerful entities.
Precedents have maintained that while freedom of expression is fundamental, it does not preclude all restrictions. In Brij Bhushan v. The State of Delhi, the court affirmed that everyone has the right to express their opinions privately or publicly, provided they do not incite violence. Likewise, in TV Today Network Limited v. News Laundry Media Private Limited, the right to comment on content was affirmed as part of free speech. The Madras High Court, V.P. Sarathi v. Mrs. S. Kiruthiga and Anr, confirmed that online reviews are protected under Article 19(1)(a) and do not amount to defamation. However, differentiating between honest and false reviews remains a complex issue.
The case in question arises from a misapprehension that Article 19(1)(a) does not extend to citizen journalism. The supreme court, in Bennett Coleman & Co. v. Union of India, ruled that the freedom of the press is, at its core, the right of every citizen to speak, publish, and express their opinions. In Bhagwati Charan Shukla v. Provincial Government, the court set an important standard for assessing the impact of speech and expression and held 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. The petitioner, and by extension the Court, seems to advocate for certain protocols for reviewing films. However, any such attempt to regulate film reviews would be unconstitutional, as it would violate the fundamental right to free speech guaranteed by Article 19(1)(a). Film reviews, like any form of expression, cannot be subjected to formal standards that limit creative or critical freedom, as this would undermine the essence of free speech in a democratic society.
The Kerala High Court responded to the alleged violation of free speech by stating that the reputation of those involved in filmmaking cannot be sacrificed at the altar of freedom of expression asserted by individuals who seem to be under the impression that they are not governed by any parameter or regulations, particularly when there is nothing on record to show that any of them are registered or akin to journalists or such other service providers.
Reconsidering the need for State Regulation
The Kerala High Court’s decision reflects a growing concern about the increasing impact of Review Bombing. While the practice of Review Bombing is undoubtedly unethical, government intervention could potentially have a chilling effect on free speech and expression as there is a risk of overregulation that could stifle free speech. The problem emerges from the perspective of identifying between passive and active slander or, more specifically, identifying between actual negative feedback and attempts to sabotage a film’s prospects. The court’s directive to monitor online platforms and enforce stricter regulations could potentially limit privacy and free speech where legitimate criticism could be stifled.
The Court’s call for enhanced oversight and the enforcement of the IT Act reflects an effort to tackle anonymous and harmful content. Nevertheless, the blurred criteria for differentiating between malicious and bona fide reviews remain ambiguous, complicating the application of these regulations. Furthermore, the focus on anonymous reviews raises privacy issues. Anonymity is a key aspect of online discourse, allowing individuals to express views without fear of retaliation. Mandating identity disclosure for social media users has faced resistance due to its implications for privacy and free speech. Regulatory measures that suppress anonymous speech risk creating a chilling effect, where individuals might self-censor to avoid legal consequences.
Legal measures should target criminal conduct, such as extortion or blackmail, rather than attempt to regulate negative reviews. Existing laws already address issues like identity theft, extortion, and criminal intimidation separately. Review bombing, when not linked to these criminal activities, does not necessarily warrant legal action. The Kerala High Court’s proceedings may reflect a lack of trust in public judgment, assuming that individuals cannot discern credible reviews from malicious ones.
Upholding this constitutional right to free speech requires careful consideration of measures that could infringe upon this fundamental right. Reviews, even if negative, represent a legitimate expression of opinion by the audiences. The balance between protecting creators from deliberate harm and safeguarding free expression is delicate, and regulatory measures must be approached with caution to avoid unintended.
Judicial Restraint
The Court in this case had directed 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”. In Directorate of Film Festivals v. Gaurav Jain, the supreme court discussed the principle of judicial restraint, emphasizing that judicial activism should not extend to advising the executive on policy matters within its purview. It may be noted that the supreme court, in R. Rajagopal v. State of Tamil Nadu, 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.
The judiciary’s primary role is to interpret and uphold existing laws, rather than to engage in policymaking, which is the domain of the legislature and executive. This distinction is important to maintain the separation of powers. Since no specific legislation addresses review bombing, the courts should refrain from directly intervening or drafting ad-hoc solutions. Instead, they should direct the government to tackle this issue rather than leave it to the police.
Conclusion
This recent order of the Kerala High Court appears to be driven more by sentiments than existing legal principles. This matter does not confide itself in the guise of the right to freedom of speech and expression but also the right to freedom of employment. The decision risks creating an arbitrary distinction between traditional critics and the growing number of freelancers who review content through vlogs and social media despite lacking formal qualifications. If this order turns into a precedent, it could lead to unjust censorship, where professional critics and emerging reviewers alike might face undue restrictions under the guise of ensuring authentic commentary. While the order may address some concerns related to review bombing, its broader implications could undermine fundamental rights. Further, the order could deter Review Bombing but may not withstand broader scrutiny if challenged. Maintaining the integrity of online reviews and safeguarding free speech requires a nuanced approach that respects both the need for regulation and the importance of free expression.
This Blog is Written by Fathima Liyana C.M, 3rd year Student of B.A. LL.B.(Hons.) at NUALS, Kochi