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OTT tobacco rules issued in a “non-transparent and non-inclusive” manner: IFF writes to health ministry

Industry stakeholders and internet rights advocates have been questioning the unilateral process followed while notifying the rules as well as its impact on content creators.

“Our primary concern stems from the fact that the Amendment Rules, 2023 [OTT tobacco rules], were enacted without consultation with all relevant stakeholders. The Rules were thus formulated and notified in a non-transparent and non-inclusive process,” the Internet Freedom Foundation (IFF) noted in its letter to Rajesh Bhushan, Secretary of the Ministry of Health & Family Welfare (MoHFW), on June 9. The IFF has written to the MoHFW highlighting the implications of the new guidelines for OTT for depiction of tobacco use in online curated content by OTT platforms.

On World Tobacco Day, the Health Ministry decided to take on tobacco use via stricter regulation of content provided by streaming rules. The ministry issued new rules called the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Amendment Rules, 2023. Read about the guidelines here.

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Why it matters:

The new tobacco guidelines have raised concerns about greater regulation and censorship of OTT content by the government, which ultimately impact the rights of the creator as well as the citizens (discussed below). Industry stakeholders and internet rights advocates have been questioning the unilateral process followed while notifying the rules as well as its impact on content creators, big and small. Whether or not the health ministry reconsiders the rules is something to watch out for.

Concerns raised by IFF in the letter:

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IFF’s four-page long letter touches upon multiple issues concerning the manner in which the rules were notified and the impact of the move on the rights of the content creators, providers as well consumers of such content:

  1. On non-feasibility of these rules: OTT majors like Netflix, Amazon, and Viacom18 among others have reportedly opposed the move pointing out the cost and impractical timelines for implementation. IFF reiterates that the rules do not appear to be feasible as platforms would be required to edit millions of hours of content to add the anti-tobacco warnings in between the shows. This will impose huge costs on the platforms and also “negatively impact” consumer experience.
  2. Impact on freedom of expression: The rules, IFF states, “…may have a “chilling effect” on critical depiction of societal ills in context of lifestyle choices, thus infringing on the right to freedom of speech and expression of the individuals involved in the making of the content in question.” Infringing upon an artist’s creative expression may result in inauthentic portrayals of issues concerning health and welfare and may also shrink the audience size, who may otherwise consume OTT content.
  3. On jurisdiction issues: Experts on the issue, including industry stakeholders, were quick to question whether the health ministry has powers to administer OTT content. This is because according to the IT Rules, the Ministry of Information & Broadcasting is empowered to regulate OTT content. IFF states that “Although any adverse effects of tobacco use may fall under the ambit of the Union Ministry, this cannot extend to the governance of online platforms and the moderation of online content, a jurisdiction which is the remit of another Ministry.” The letter also notes that the depiction of tobacco on OTT platforms must be regulated through means outside of the 2004 tobacco advertisement rules, to which the amendments are notified.
  4. On the effectiveness of tobacco warnings: Highlighting the limited effect of anti-tobacco warnings, the letter cites a research-study by the Koan Advisory Group on ‘The Effectiveness of Tobacco Disclaimers on OTT Content Services’, which demonstrates that such warnings “may have limited, if any, effect on people’s intention to quit or reduce cigarette consumption, and that the effect fades over time”. The study also indicates that viewers feel the need for additional text disclaimers is “unwarranted”.
  5. On regulating OTT content: According to the letter, several filmmakers and content creators have also asked for evidence on the impact of such disclaimers in traditional forms of media. They indicate the possibility of using “less restrictive measures” than the current rules. “While discouraging the use of tobacco products is a legitimate state aim, it may be worth considering if online streaming services are the right avenue for implementing this aim, given its inaccessibility due to access or economic constraints…the distinct nature of OTT platforms and its audience must also be considered before introducing such regulatory burdens on publishers and platforms,” the letter explained.
  6. On a soft-touch regulatory mechanism: IFF pointed out that the current regulatory environment will affect the increasing reach of OTT platforms, which will in turn have “wide-ranging consequences” on the Indian economy as well. This is because the OTT industry, the letter states, “generates a large amount of employment as well as revenue, which is expected to reach $11,000-13,000 million over the next decade, and is projected to grow at 21.8% per year over the period 2018-2023”. Further, current regulations will result in rising cost of editing, manufacturing and disrupt “free and fair entry” into the market for some players. This will likely hurt India’s position in the global entertainment space. “Representatives of the Ministry of Information and Broadcasting (“MIB”) have even recently acknowledged that OTT platforms have aided in the acceptance of Indian content world-wide, and a soft-touch self-regulatory mechanism has encouraged this success,” IFF noted.
  7. On consultation with stakeholders: Given the reasons stated above, IFF states that the new guidelines can have adverse consequences on “the constitutional and cultural rights”, which extend to both the creator, whose artistic freedom, and the audience, whose right to receive information are being interfered with, respectively. IFF has urged the government to withdraw the new guidelines and recommend that amendments to the 2004 Rules must be introduced after conducing “broad-based, meaningful, consultation and must be backed with adequate scientific evidence”. The letter adds that any regulatory framework for OTT platforms must be “minimal, necessary and rights-respecting”.

IAMAI’s submission to the health ministry:

The Internet and Mobile Association of India (IAMAI) has also pointed out “fundamental concerns” and “practical difficulties” in the implementation of the new OTT guidelines, according to a report by Economic Times. The IAMAI, in its submission to the health ministry, highlighted that no consultative process was held with the stakeholders prior to the notification.

In addition to flagging logistical and jurisdictional issues, the IAMAI also pointed out that a lack of industrial consultation in the past had delayed the implementation of similar guidelines for television and cinema. IAMAI has urged the ministry to avoid past mistakes and revisit the 2023 tobacco warning rules in consultation with the online curated content providers (OCCPs).

“The Rules are designed for the 57 OCCPs registered with MIB (Ministry of Information and Broadcasting) under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”). However, these 57 OCCPs were not consulted to share their thoughts and inputs,” the IAMAI said.

This post is released under a CC-BY-SA 4.0 license. Please feel free to republish on your site, with attribution and a link. Adaptation and rewriting, though allowed, should be true to the original.

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Written By

Curious about privacy, surveillance developments and the intersection of technology with education, caste and welfare rights.

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