For those who are not familiar with this fairly new concept of 'review bombing', it is an internet phenomenon in which mass number of disgruntled users visit film review sites like Rotten Tomatoes or IMDB to intentionally leave low ratings and malicious reviews to create a negative image about the film and possibly tank it's box-office collection.
In what may be the first attempt by an Indian court to curb this practice, a single bench of the Kerala High Court on October 6, 2023 directed the State Police Chief to develop an appropriate protocol to firstly, distinguish between 'fair criticism' and 'malicious reviews' and secondly, take action against those who engage in the latter act.
The High Court was hearing a couple of petitions on the issue of review bombing. One of the petitioners is Malayalam cinema Director Mubeen Rauf. He averred in his petition that there has been a rapid rise of such cases wherein an 'organized racket' seems to be at play with the intent of deliberately tarnishing a movie at times even combining such attack with threats. The Producers' Association also filed a petition highlighting such instances of review bombing arguing that it goes against the larger public interest and harms other stakeholders.
The Court observed that the reasonable restrictions to the fundamental right to freedom of speech and expression under the Indian Constitution, applies in this situation, specifically defamation listed under Article 19(2), possibly as it further results in the alleged instance of blackmail and extortion that accompany the deleterious critiques (as illustrated in Section 383(a) of the IPC).
However, they do not explain as to why the unnecessary attack on a film as a whole would malign the reputation of the individual director or film fraternity considering that Section 499 applies the offence of defamation to a 'person' under Section 11. While the Supreme Court in Romesh Thappar v. State of Madras and Brij Bhushan Sharma v. Delhi, clarified that freedom of press comes under Article 19(1), there has not been sufficient jurisprudence on whether this extends to reviews about films.
Although Section 499's sixth exception (and its accompanying illustrations (c) and (d)) do give the audience the right, including reviewers, to criticize any 'public performance', such as the actor in the theatrically distributed film or even the director thereof, but as long as the opinion stems solely from the performance and not their personal character.
The Court also initially claimed it had sufficient materials to prove that these review bombers had vested interests to essentially break or sabotage the movie's successful run in the box office, based on the preliminary and prima facie inquiry alone, without divulging any information as to what such evidence might be.
However, the Court later on contradicted this by stating that a mere preliminary scrutiny when a complaint is received is not sufficient, and it requires further enquiry or investigation, before the FIR is registered by the investigating officer for a crime punishable under Section 499 of the Indian Penal Code for defamation or Section 384 thereof for 'extortion'.
Since the Kerala Government developed an efficient system to monitor cybercrimes, the Court claimed that a similar complaint mechanism can be set up by the Kerala Police Chief, for movie producers to request an investigation and take measures according to penal and cyber laws, despite the fact that such mechanism is not based on any government policy or initiative.
In Directorate of Film Festivals v. Gaurav Jain, the Apex Court held that judicial activism is frowned upon, and that the judiciary cannot advise the executive on policy matters which the executive is empowered to create. There is no specific law framed by the Legislature yet to deter review bombing, therefore the Courts should simply direct the Government and not the police (being a mere agency of the government) to do the same.
Overall, the order seems to not be based on sound principles of law but creates a discriminatory classification between the reporting of conventional press functionaries and the new breed of freelancers reviewing content without the professional qualification through vlogs and social media accounts. Such an order will result in arbitrary police measures such as censoring professional critics, under the guise of only validating genuine film commentary.
Originally published November 6, 2023
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