LAHORE: The Lahore High Court (LHC) has dismissed petitions filed by cinema operators seeking to extend the scope of the Motion Pictures Ordinance, 1979, to cover Over-the-Top (OTT) platforms such as Netflix and Amazon Prime, ruling that the law cannot be applied to digital streaming services.
Justice Raheel Kamran, delivering a detailed 20-page judgement, observed that the ordinance was enacted in a pre-digital era to regulate films exhibited through cinematographs in cinemas and other public venues, and was not designed for online streaming services.
The petitioners, including NC Entertainment (Pvt) Ltd, had argued that requiring cinemas to obtain film certification while leaving digital platforms unregulated was discriminatory and infringed their fundamental rights.
They contended that censorship principles under Section 6 of the Ordinance, derived from Article 19 of the Constitution, should apply equally across all platforms to uphold social norms of decency and morality.
Says extending Motion Pictures Ordinance to streaming services will be ‘judicial legislation’
The counsel argued that provisions of the ordinance had not been enforced equally against all mediums and platforms of public and private exhibition and the same were being applied selectively and arbitrarily against the petitioners, leaving all other digital platforms to continue unchecked.
A law officer for the federal government opposed the writ petitions as not maintainable.
He said the petitioners were not aggrieved and none of their established rights had been restricted or hindered by any of the respondents.
He maintained that following the 18th constitutional amendment, the subject of cinematograph censorship devolved upon the provinces, granting them exclusive authority in this regard.
He contended that the term “cinematograph” shall be construed keeping in view the context of the ordinance and OTT platforms were not covered by it.
A law officer for the Punjab government stated that the Pakistan Electronic Media Regulatory Authority (Pemra) exclusively deals with electronic media and that the jurisdiction of the Punjab Film Censor Board was only restricted to the censorship of films.
He also emphasised that the term “cinematograph” was to be construed in the context of the ordinance, which had no application to the OTT platforms.
A lawyer for Pemra argued that the body was a regulatory authority for the broadcasting media and distribution of services and it was responsible only for improving the quality standards of the channels shown to the people of Pakistan.
He contended that Pemra had no nexus with the motion picture law and the petitioners. He also questioned the locus standi of the petitioners.
A counsel for the Pakistan Telecommunication Authority (PTA) also stated that it had no mandate or jurisdiction to regulate matters pertaining to content that was available for viewership on OTT platforms.
Advocate Zeeshan Zafar Hashmi, an amicus curiae (an impartial adviser to a court of law), also stated that the ordinance essentially deals with the exhibition of films by means of cinematograph, which is controlled by the Censor Board through censorship.
Justice Kamran observed that OTT platforms, which operate globally and deliver content directly to users on personal devices, fall outside the framework of the ordinance.
The judge noted that pre-censorship of OTT platforms was not only legally untenable but also logistically impossible given the vast, continuously updated nature of digital content.
Justice Kamran ruled that extending the motion pictures ordinance to cover OTT platforms would amount to judicial legislation, which is beyond the court’s domain.
The judge observed that cinemas and OTT platforms are fundamentally distinct and therefore not “similarly circumstanced” entities under Article 25 of the Constitution.
The judge also dismissed the petitioners’ contention that importing digital content is exempt from the Import Policy Order 2022, holding that once content is exhibited publicly in Pakistan, it must comply with domestic laws governing public exhibition.
Justice Kamran then dismissed the petitions, declaring that they were not maintainable on legal or practical grounds.
