Conditions set by CBFC for theatrical release of film should be complied for OTT release as well: Kerala High Court on ‘Kaduva’ movie

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The Kerala High Court on Wednesday observed that the conditions set by the Central Board of Film Certification (CBFC) for the theatrical release of a film, should also be complied with when it is streamed on Over-the-Top platforms (OTT Platform) [Jose Kuruvinakkunnel @ Kuruvinakkunnel Kuruvachan v Union of India].

Justice VG Arun was considering a plea challenging the release of an unaltered version of the Prithviraj-starrer Kaduva on OTT platforms even though the film was altered for theatrical screening on the orders of the CBFC.

The single-judge opined that when the CBFC has already issued directions, even after the OTT rights of a movie are sold, compliance with said directions must continue.

“I find considerable force in the contention urged on behalf of the petitioner. The Board of Film Certification having considered all aspects and issued the directions at Ext.P8, the party respondents are bound to ensure compliance when their movie is released in theatres or through OTT mode. Therefore, even if OTT rights of the movie is sold, that can only be subject to the above condition,” the Court said in its order.

Pertinently, the Court stressed that a general mechanism for regulating OTT streaming of movies is the need of the hour and directed the Central government and the CBFC to submit a statement on the steps taken in this regard

“I am informed that the mechanism for regulating exhibition of movies through OTT platforms, is yet to be finalised. This is an aspect which requires serious deliberation and prompt action. The learned CGC shall cause a counter affidavit/statement to be filed by the first respondent, detailing the steps taken in this regard,” the order stated.

The Court was considering a plea moved by one Jose Kuruvinakkunnel seeking an order of injunction to restrain the makers of Malayalam movie, Kaduva, from screening and releasing the movie in full or in parts or its trailers, teasers or songs, or by changing its name, in theaters or any other media/OTT platform/social media pages etc. in audio or video form.

The movie has been mired in litigation ever since it was announced in 2021.

The petitioner had first instituted a civil suit seeking to prevent its publication alleging that the protagonists of the movie was a portrayal of him, and was defamatory.

In December 2021, the Second Additional Sub Judge of Ernakulam granted an interim order staying the release of the movie but the case was soon dismissed, as was an appeal against the dismissal.

Later, the petitioner approached the High Court objecting to the grant of certification to the film under the Cinematograph Act. The Court had directed the CBFC to take a decision after hearing the petitioner’s objection.

The board allowed the release subject to changing the protagonists name from Kuruvachan.

After its release in theatres, the petitioners once again approached the Court alleging that the movie was released overseas without the changing the name and sought for orders preventing the OTT release of the movie.

At the hearing on Thursday, counsel appearing for the party respondents, i.e, director Shaji Kailas, writer Jinu V Abraham, Prithviraj Productions, and distributor Listin Stephen, submitted that the OTT rights of the movie ‘Kaduva’ has already been sold to third party and the movie is likely to be released through OTT platform on August 4.

However, the petitioner contended that since the CBFC passed an order to change the name of the protagonist, the respondents are bound to ensure that the directions are complied with, even when the movie is exhibited through an OTT platform.

In support of the contention, reliance was placed on Section 79 of the Information and Technology Act, 2000 and decision of the apex court in Google India Private Limited v. Visaka Industries

Finding considerable force in the argument of the petitioner, the Court directed the party respondents to ensure that the directions of the CBFC are complied with while exhibiting the movie on OTT platforms.

M/S Kodoch Sreedharan and advocate Chackochen Vithayathil represented the petitioner. Central Government Counsel Jaishankar V Nair appeared for the Central Government and the CBFC.

The matter will be taken up again after two weeks.

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