ANTI TOBACCO HEALTH WARNINGS FOR OTT CONTENT: SHOULD OTT BE TREATED AT PAR WITH THEATRES AND TELEVISION?

The Ministry of Health and Family Welfare recently notified the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) 2023 Rules, 2023 (“2023 Rules”) on 31^st May, 2023 which is to come into effect within 3 (three) months from the date of their publication in the Official Gazette. Read here.

The 2023 Rules has taken the OTT platforms with storm and as per reports, leading platforms like Netflix, Amazon and Hotstar are contemplating challenging the said 2023 Rules.

What do the 2023 Rules say?

• The 2023 Rules declare that every publisher of online curated contents displaying tobacco products or their use shall
  • display anti-tobacco health spots, of minimum thirty seconds duration each at the beginning and middle of the programme; 
  • display an anti-tobacco health warning as a prominent static message at the bottom of the screen during the period of display of the tobacco products or their use in the programme; 
  • display an audio-visual disclaimer on the ill-effects of tobacco use, of minimum twenty seconds duration each, in the beginning and middle of the programme.
• The anti-tobacco health spots, warning and disclaimer will be made available on “mohfw.gov.in” or “ntcp.mohfw.gov.in”, and should be in the language of the audio visual content.
• The anti-tobacco warning message should be legible and readable with font in black colour on white background and with the warnings “Tobacco causes cancer” or “Tobacco kills“.
• The anti-tobacco health warning message, health spot and audio-visual disclaimer, shall be in the same language as used in the online curated content.
• The display of tobacco products or their use in online curated content is not extended to displaying brands of cigarettes or other tobacco products or any form of tobacco product placement and tobacco products or their use in promotional materials;
• Non-compliance will result in inter-ministerial committee consisting of representatives from the Ministry of Health and Family Welfare, Ministry of Information and Broadcasting and Ministry of Electronics and Information Technology, to take action suo motu or on a complaint, and after identifying the publisher of online curated content, issue notice giving reasonable opportunity to explain such failure and make appropriate modification in the content.
• As per the 2023 Rules, “Online curated content” means, any curated catalogue of audio-visual content, other than news and current affairs content, which is owned by, licensed to, or contracted to be transmitted by a publisher of online curated content, and made available on demand, including but not limited through subscription, over the internet or computer networks, and includes films, audio visual programmes, documentaries, television programmes, serials, series, podcasts and other such content;
• “Publisher of online curated content” means, a publisher who, performing a significant role in determining the online curated content being made available, makes available to users a computer resource that enables such users to access online curated content over the internet or computer networks, and such other entity called by whatever name, which is functionally similar to publishers of online curated content but does not include any individual or user who is not transmitting online curated content in the course of systematic business, professional or commercial activity.

What is the existing legislative framework qua television and theatres?

Currently, the existing framework requires the following

It can be seen from the above that the requirements imposed on OTT platforms vide the 2023 Amendment are analogous to those for new films and television programmes under the 2012 Rules. 

Should there be uniformity in the extent of regulation for OTT and TV/ theatres?

As per reports, India is the first country in the world to regulate anti-tobacco warnings for OTT content. This raises the question, was there a need to impose such regulation in the first place analogous to television and cinema.

• Viewer control and personal choice: The emergence of OTT platforms has revolutionized the entertainment industry, providing viewers with unprecedented access to diverse and personalized content.  One of the primary reasons to reconsider uniform content regulation is the dynamic shift in viewer preferences.  OTT platforms offer a personalized viewing experience, allowing viewers to choose content based on their preferences. Unlike traditional television, which caters to a broad audience, OTT platforms provide tailored recommendations and options, enabling viewers to select content that aligns with their interests. Given this personalized approach, anti-tobacco disclaimers may be redundant as viewers have the freedom to decide what they watch, including content that may or may not contain smoking or tobacco-related scenes.
• Contextual Relevance and creative freedom: One must also consider the importance of contextual relevance and realism in storytelling. In certain narratives, smoking may play a significant role in accurately depicting a particular time, place, or character. Imposing anti-tobacco disclaimers on such content could undermine the integrity of the storytelling process. OTT platforms have become a hub for diverse and unique storytelling. The absence of rigid regulations allows creators to explore unconventional themes, narratives, and artistic expressions. This creative freedom fosters innovation and diversity in content creation. By avoiding the same stringent regulations as traditional television, OTT platforms encourage the production of thought-provoking, experimental, and boundary-pushing content that may not find a place within the confines of traditional television programming. Such diversity is crucial for fostering cultural growth and nurturing emerging talent. Creatives should have the freedom to authentically portray characters without unnecessary interference, as long as it is done within the parameters of Article 19 of the Constitution.
• Content classification, user control features: OTT platforms provide robust user control features that empower viewers to make informed choices about the content they consume. The IT Rules, 2021 already provide for age-based classification. By placing the responsibility in the hands of viewers and parents, the need for additional anti-tobacco disclaimers becomes less imperative, as individuals can make decisions based on their own values and preferences.
• Varying Content Standards: OTT platforms operate on a global scale, reaching diverse audiences with varying cultural norms and standards. The one-size-fits-all approach should not be imposed for multi-jurisdictional content.

The rise of OTT platforms has created a competitive market environment. Multiple streaming services vie for consumer attention, leading to a natural regulation through market forces. If a platform fails to meet the expectations of its audience, it risks losing subscribers to other platforms that better align with their preferences. The pressure to satisfy consumer demand, coupled with the availability of numerous alternatives, inherently encourages platforms to self-regulate to maintain their user base. In this way, market competition acts as an organic mechanism for ensuring content quality and appropriateness.

Conclusion:

OTT platforms represent a significant departure from traditional television, offering viewers personalized experiences and access to diverse content. The unique characteristics of OTT platforms, including evolving viewer preferences, creative freedom, user controls, market competition, and cultural diversity, argue against subjecting OTT content to the same level of regulation as traditional television. Balancing societal concerns with the importance of fostering innovation and diverse storytelling is crucial. The requirement of displaying anti-tobacco health warning as a prominent static message at the bottom of the screen during the period of display of the tobacco products or their use in the programme for dynamic nature OTT content would certainly spoil the viewer experience. It would also be a herculean task involving huge expenses for OTT platforms to go through the exercise of adhering to the 2023 Rules especially for old content and foreign content.

It would be relevant to quote the following extract from Justice Sanjay Kishan Kaul’s judgement concurring with Justice Mukul Mudgal:

“A cinematographic film must reflect the realities of life. Smoking is a reality of life. It may be undesirable, but it exists. It is not banned by any law. To shift the burden on the Director to justify such an act of smoking in the category of very rare cases where there is display or use of tobacco products due to compulsions of the script and they shall be supported by a strong editorial justification would be wholly unreasonable and violative of Article 19 (1) (a) of the Constitution of India. The bar has been rightly extended in terms of Cinematograph Act, 1952 to scenes tending to encourage, justify or glamorize consumption of tobacco or smoking and not mere depiction of the act of smoking as it exists. A Director has to reflect real life positions where smoking exists. In certain persons and trades the habit of smoking is found to a greater degree. The undesirability of the act of smoking has nothing to do with the right of the Director as an artist to express what he so desires. It is not as if cinematographic films are to be filmed only with moral lectures as they are often reflective of the negative aspects of our society. It is in this context that the observations of Mukul Mudgal, J. are to the effect that even gambling, kidnapping, deceiting and such depictions cannot be legitimately prohibited to promote a moral and idealistic society. In fact, what can be more reprehensible than an act of rape. There is yet no bar in showing such acts in cinematographic films even though such an act in society would entail the severest of punishment. The object of discouraging smoking can hardly be commented against. It, however, does appear that while making the Rules apart from the aspect of legislative competence under Section 31 of the said Act the Rules have gone overboard ignoring the constitutional mandate under Article 19 (1) (a) of the Constitution of India”.

The earlier legal challenges to the previous rules also include other aspects pertaining to legislative competence of the Government and whether the earlier rules are ultra vires the parent statute and legislations i.e., Cinematographic act,1952 and Cable TV Network(regulation) Act,1995, which would be issues pertinent to the 2023 Rules as well. The earlier matters are pending before the Supreme Court.

However, complete absence of regulation for OTT content qua the anti-tobacco disclaimers may be in the teeth of Article 14 of the Constitution as television and cinema have long been subject to regulatory framework aimed at protecting public health. It will have to be seen whether OTT Platforms can make out a case of an intelligible differentia between OTT and television/ cinema to not bring them on a level playing field. Striking a balance between consumer protection and creative freedom is paramount to ensure the continued growth and innovation of the OTT industry.