State regulation of film reviews is a risky business
‘Review bombing’ is distasteful and unethical, but government intervention can have a chilling effect on free speech
Last month, a somewhat peculiar case came up before the High Court (HC) of Kerala. Mubeen Rauf, the director of a film called Aromalinte Aadhyathe Pranayam (Aromal’s First Love), approached the court for a gag order against the publication of online reviews of his film, for the first seven days after its release. Meanwhile, in another petition, the Producers’ Association sought to highlight the practice of “review bombing”, whereby spam accounts negatively rate a film en masse, leading to a self-fulfilling cycle where a film’s rating drops, leading to a decline in viewership and popularity.
According to reports, on the first date of the hearing, the HC asked the police chief what action could be taken against people deliberately posting bad reviews of films. Since then, the proceedings have expanded. The court has asked the authorities to take action under the Information Technology Act (IT Act) against “anonymous, mala fide content”.
In that hearing, the amicus curiae also drew the court’s attention to provisions under the IT Act that deal with identity theft, impersonation, and the liability of intermediaries, while the state police chief informed the court that a protocol had been drafted to deal with motivated and malicious reviews and the practice of review bombing. The deputy solicitor general also appeared for the central government and promised to study the issue and make recommendations.
These proceedings, however, raise some serious concerns about the right to freedom of speech and expression. There is little doubt that in today’s online world, there exists a practice of “review bombing”, which is not always guided by ethical motives. This is not merely in the context of films, but across the board: For hotels and places of lodging which are booked online, for restaurants, and so on. As users of these services are well aware, it is not always easy to tell a negative review from a motivated review.
However, it is precisely this difficulty that makes the prospect of State regulation, on these terms, a dangerous prospect. To begin with, it will be almost impossible to identify when a review is a “motivated” one. Between a nuanced critique of a film, and a crude and intentional attempt to blackmail or extort money from a director, there is an entire spectrum that belongs in a grey area. Staying with the issue of film reviews, I may rate a film negatively because I have a personal dislike of a particular actor, or because I simply disagree with the ideology that (in my view) the film promotes. Indeed, this is not hypothetical. There are enough documented instances of mass negative reviews of actors (and even writers) who are perceived to espouse a “wrong” ideology.
Distasteful and unethical as these practices of review bombing might be, it is difficult to see where the illegality lies, or where State interference is justified. Unless I am weaponising my reviews to commit a criminal offence (such as extortion or blackmail), my reasons for negatively reviewing a film might be right or wrong, justifiable or unjustifiable, but the law should not have anything to say about it. This is not merely a matter of principle, but also because, as a practical matter, as we have seen, in a large number of cases it will be simply impossible to parse the true motivation for a negative review. This, in turn, risks overregulation and what, in legal terminology, is known as a “chilling effect”: Individuals self-censor and inhibit themselves because the regulatory red line is inherently vague and susceptible to State misuse. This issue will not be resolved through a precise definition of review bombingor some associated term. The issue arises because of the very nature of the practice which is sought to be regulated. It is so inherently subjective, that any attempt at drawing lines or definitions will inevitably lead to overregulation, and a stifling of speech.
This is also why it is somewhat puzzling to note that counsel pointed out various legal provisions dealing with identity theft or impersonation. These are standalone offences — as are the offences of extortion or criminal intimidation — which do not depend upon the content of a review. Thus, a person commits the crime of identity theft regardless of whether identity theft is used to post a negative review, and likewise, a person commits extortion regardless of whether a negative review is the chosen vehicle to extort money from a director.
Indeed, the existence of these offences reveals that the law is not inclined to punish mere negative reviewing or malicious review bombing, as the case may be: It is only when such activities are linked to a cognisable legal harm that the law steps in. It is similar, in some ways, to the fact that the law does not punish a bare lie or falsehood (because it is so often impossible to define a lie as such), but does step in when a falsehood is linked to a cognisable harm (as in the case of defamation).
Finally, it is also concerning to note that the focus of the proceedings on anonymous reviews. Anonymity is an inherent part of the online world, and a facet of the right to free speech. Previous proposals to compel identity disclosure as a precondition for accessing social media (for example) have fallen flat precisely because of the grave implications for privacy and online speech that such compulsion would entail.
At the end of the day, the proceedings before the Kerala HC appear to be premised upon a mistrust of the people, i.e., the recipients of online speech. The assumption appears to be that people will be very easily swayed by negative reviews or review bombing, and will boycott a film, or refrain from watching it. The constitutional right to free speech, however, is based upon respecting the autonomy of the individual, and the belief that individuals have the capacity to determine for themselves how they will engage with speech. Respect for this principle would require the court to step very carefully before greenlighting any proposal to impose coercive consequences upon (what the State perceives to be) malicious reviews, or review bombing.
Gautam Bhatia is a Delhi-based advocate. The views expressed are personal