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ANALYSIS OF MANDATORY ANTI-TOBACCO WARNINGS ON OTT PLATFORMS

INTRODUCTION

The Union Health and Family Welfare Ministry has on 31st May, which is celebrated as World No-Tobacco Day, released new guidelines for online depiction of Tobacco in online curated content. All the publishers of online curated content will have to comply with the new rules from now. These guidelines aim to create awareness among the masses about the ill effects of tobacco consumption via the use of various health spots and warnings displayed before the start of a movie/series and in the middle of it. 

While these guidelines have created a positive response from a group of activists and a few actors, other industry experts and directors such as Vikramaditya Motwane have questioned the effectiveness of such warnings and asked whether such warnings make any difference or not. Also, the OTT platforms which are the publishers of the online curated content have raised some serious questions regarding the feasibility of the move and also about the loss of artistic freedom.

This blog aims to analyze the legal provisions and issues underlying the mandatory anti-tobacco warnings on OTT platforms and also aims to analyze the issue from the standpoint of viewer experience and freedom of expression.

THE NEED FOR THE WARNINGS

According to the Global Anti-Tobacco Survey-India 2016-17, the number of people consuming tobacco in any form is 26.7 crores which is 2nd highest in the world. Tobacco use causes nearly 1.35 million deaths in India every year, which includes deaths caused by direct use and second-hand smoke too. This creates a huge economic and social burden for the nation, the costs of which equals around $22.4 billion every year.

To reduce tobacco use and create awareness among the masses, the government uses various techniques. One of them is the use of warnings on the packets of cigarettes and tobacco and also warnings via audio-visual means which can be promoted through movies that run in theatres and Television. As per a survey, the use of warnings has been effective as nearly 61% of people have thought of quitting smoking because of warnings. The same survey has found that nearly 46% have thought of quitting smokeless tobacco because of warnings. Thus warnings against tobacco products have proved to be effective to counter the use of tobacco.

Till now audio-visual warnings via the use of mandatory health spots were limited to traditional movie cinemas and television. Cinema and Television were used by the government to create awareness among the people and run anti-tobacco ads. But the OTT platforms did not have any such mandatory requirements and were free to show the use of substances without any mandatory warnings. Thus this free hand to showcase the use of tobacco may promote the use of tobacco among the young generation which is the major target audience of the OTT platforms. 

As the effectiveness of the warnings is well established by certain studies, the government felt that the mandatory anti-tobacco warnings on OTT platforms may regulate the use of tobacco on these sites and also lead to creating awareness among the masses.

THE GUIDELINES

In India, the consumption of tobacco and other related products is governed and regulated by the Cigarettes and Other Tobacco Products Act, of 2003. Successive amendments have been made to the Act to include and regulate the changing dynamics of tobacco and cigarette use. The Ministry of Health is authorized to make amendments to the Act and provide rules and regulations for the Act. The recent amendments which have been made are an extension to the previously made rules and guidelines.

As released by the Union Health Ministry, the guidelines are to be followed by all the publishers of online curated content which include Amazon Prime, Netflix, Disney+, Hotstar, and Jio Cinema among others. As per the rules, the publishers will have to display anti-tobacco health spots lasting a minimum of 30 seconds in the beginning and the middle of the program. These health spots can be found on the ministry’s website. Also, the OTT platforms will have to display a static warning in text form at the bottom of the screen in a black colour font on white background. The static warning must be ‘legible and readable’ and must be in the language in which the program is being played.

The platforms will also have to display an audio-visual disclaimer at the beginning and middle of the program to showcase the ill effects of tobacco. Also, the shows and movies on the OTT platforms are strictly prohibited to display the brand of tobacco products. Thus indirect advertisements are also prohibited. 

In case these guidelines are violated by the platforms a suo moto action can be taken by an inter-ministerial committee comprising officials from the Union Health and Family Welfare Ministry, Ministry of Information and Broadcasting, and Ministry of Electronics and Information Technology. Action can also be taken on receiving a complaint. The committee will issue a notice to the publisher of online curated content and give appropriate time to the publisher to explain the issue and ask for appropriate modifications in the content.

ISSUES WITH THE GUIDELINES

While these guidelines may help create awareness about the use and harmful effects of tobacco, several issues are raised about them. One of the most important issues is that no OTT platform was consulted before issuing the guidelines. No voice from within the industry was heard; thus, various challenges seem to arise from the industry that needs to be addressed. The filmmakers and OTT platforms allege that the mandatory anti-smoking warnings are a tool to curb the freedom of expression of the platforms. They are also of the position that such warnings may spoil the user experience provided by the platforms. OTT platforms are specially meant to provide a better private user experience than Television and Cinema but such warnings have the potential to spoil the experience and make the OTT platforms at par with television.

The Internet and Mobile Association of India, which represents various OTT platforms and other tech platforms has also criticized the move and has said in its letter to the health ministry that implementation of the rules is ‘practically impossible’. It has been said that the amount of logistical cost involved in editing millions of hours of Movies and Web series on OTT platforms is very huge and also that there is no clarity on whether the rules apply to newly made shows or previous shows too. 

The OTT platforms also held a meeting and discussed the rules and what can be done further including a possibility of a legal challenge. As regulation of OTT platforms comes under the IT Ministry and IT Rules 2021, the platforms have said that the Ministry of Health does not have any jurisdiction over the implementation of rules and regulations on the platforms.

As a result, freedom of expression, issues over jurisdiction, and logistical costs involved in the process remain the issues over which these regulations can be challenged.

CONCLUSION

Though the use of tobacco remains a serious issue and the use of anti-tobacco warnings via audio-visual mediums may act as a deterrent to the use of tobacco, the use of OTT platforms as a tool to spread awareness seems to seriously spoil the user experience. While it may be right for the platforms to reduce the over-glorification and indirect advertisement of tobacco products, the use of mandatory health spots lasting 30 seconds and 20 seconds at the beginning of the middle of the shows do seem to add serious logistics cost on the OTT platforms.

Author(s) Name: Yash Mundada (Gujarat National Law University, Gandhinagar)