NC ENTERTAINMENT (PVT.) LTD. vs CENTRAL BOARD OF FILM CENSORS (CBFC) Preamble & S

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NC ENTERTAINMENT (PVT.) LTD. VS CENTRAL BOARD OF FILM CENSORS (CBFC) Preamble & S. 2---Prevention of Electronic Crimes Act (XL of 2016), S.37(1)---Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguards) Rules, 2021, Rr.4 & 5---Constitution of Pakistan, Arts.4(c), 19, 25 & 199---Constitutional petition by entertainment broadcasting companies---Unequal enforcement of censorship and certification laws, plea of---Grievance---Cinema films requiring prior certification while identical OTT/digital content remaining unregulated and freely accessible---Legality---Brief facts were that the petitioner companies were entertainment broadcasting companies operating a chain of cinemas across the country, duly licensed to exhibit films under the Motion Pictures Ordinance, 1979---They filed a constitutional petition alleging unequal enforcement of censorship and certification laws, arguing that while films screened in cinemas were subject to prior certification by the Central Board of Film Censors, identical content available on digital and OTT platforms such as Netflix or Amazon Prime were freely accessible in the country without similar regulation---The petition also challenged the applicability of the Import Policy Order, 2022 to digital film content, asserting that digital imports did not constitute "goods" under the law---Petitioner companies sought directions for uniform application of the Motion Pictures Ordinance to all mediums of exhibition, including online platforms, and alternatively requested that any unrestrained film content available online be deemed certified for public exhibition in their cinemas---Core question for determination before the High Court was as to "Whether the Motion Pictures Ordinance, 1979 applied to Over-the-Top (OTT) digital platforms and whether content available online, if unregulated by the Central Board of Film Censors, could be deemed certified for public exhibition in cinemas"?---Held: The procedure provided under Rr. 4 & 5 of the Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguards) Rules, 2021 primarily addressed online content based on complaints, however, S. 4(6) of the Rules also allowed the authority to act on its own initiative to remove or block unlawful online content under S. 37(1) of the Act, even without a formal complaint---While acknowledging the PTA's statutory authority to block access to unlawful online content under S. 37(1) of the Prevention of Electronic Crimes Act, 2016 and R. 5(6) of the Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguards) Rules, 2021, there was acritical distinction---Though a platform might be blocked entirely, the granular, pre-screening censorship of individual content items, as was done for traditional films to be exhibited through cinematograph, was not practically achievable due to the encrypted nature and sheer volume of data streaming over such protocols---The authority's recourse in such scenarios was often limited to acomplete blocking of the platform or engaging with content providers, rather than undertaking a proactive, content-by-content review---The distinctions between exhibition of films by means of cinematograph and content on OTT platforms reflected fundamental differences in content creation, distribution, consumption patterns and the practicalities of regulation---Therefore, High Court could not expand the scope of the Ordinance, designed for a different technological epoch and mode of consumption, to encompass a modern, dynamic digital medium---The Motion Pictures Ordinance of 1979 did not apply to content on Over-the-Top (OTT) platforms because these platforms did not exist when the Ordinance was promulgated---As the Ordinance was neither designed to regulate digital content on OTT platforms nor amended to meet such new exigencies, compelling its application through judicial order would impose an obligation not required by law as articulated under Art. 4(c) of the Constitution---With respect to the alternative prayer of the petitioner companies that if respondents did not restrain OTT platforms content, such unrestrained content be considered certified and allowed for public exhibition, to declare all such unrestrained content "certified" by default would create a regulatory vacuum, allowing potentially objectionable or unlawful content to be exhibited without any prior scrutiny or classification---The question of whether digital content constituted "goods" for import purposes was primarily one for customs, trade, and taxation authorities---However, irrespective of its classification under import policies, once such content was sought to be publicly exhibited within the territorial limits of Pakistan via cinemas, it immediately engaged the State's power to regulate public displays for the maintenance of public order, morality and other societal interests---The nature of the medium of exhibition (cinema) produced distinct regulatory requirements under domestic law (including the Motion Pictures Ordinance, 1979 for cinematographs), which could not be circumvented by arguing the digital origin or non-import status of the content itself---Therefore, even if the content was not deemed an "import of goods" in the traditional sense, its public exhibition in a cinema required adherence to the laws governing public exhibition, which necessitated proper certification---In the present case, cinematographs and OTT platforms were not "similarly circumstanced" entities under the purview of the Ordinance---A cinematograph involved a distinct mode of exhibition in a public setting, demanding physical infrastructure, controlled access and aregulatory framework built for a pre-digital era---Conversely, OTT platforms operated as digital streaming services, delivering a vast, dynamic and globally sourced content library primarily for private consumption on diverse personal devices---The Ordinance was never designed nor enacted to regulate the latter---Therefore, the mere absence of its application to OTT platforms, which operated under a fundamentally different technological and consumption paradigm, did not constitute a discriminatory application of the same law---The State's challenge lay in a legislative vacuum for modern digital media, not in a discriminatory enforcement of an existing law on entities that were, in fact, distinct in their nature and mode of operation---Prayer seeking the application of the Motion Pictures Ordinance, 1979 to OTT platforms and the alternate prayer for deemed certification of unrestrained content, were not maintainable on legal and practical grounds---Both the petitions were, therefore, dismissed, in circumstances.

NC ENTERTAINMENT (PVT.) LTD. vs CENTRAL BOARD OF FILM CENSORS (CBFC) Preamble & S — 2026 PLD 28 LAHORE-HIGH-COURT-LAHORE

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