Does the Ministry of Health and Family Welfare have the power to issue guidelines for content services provided by OTT platforms? Panellists at MediaNama’s panel discussion on ‘OTT & Health Warnings’ said yes, considering the legal history of the tobacco rules for cinema and television. Although, they also provide a detailed explanation for the grounds on which the rules have been challenged in the past and can potentially be challenged now.
The panel discussion was hosted on June 28 with support from Koan Advisory Group and MediaNama community partner, the Internet Freedom Foundation. Moderated by MediaNama Founder and Editor Nikhil Pahwa, the session included discussants Gowree Gokhale, Partner, Nishith Desai Associates; Savni Endlaw, Partner, Saikrishna and Associates; and Aroon Deep, Principal Correspondent, The Hindu. The discussion aimed to tackle some of the key questions related to the constitutionality, feasibility and effectiveness of the new anti-tobacco guidelines for OTT platforms issued by the health ministry on May 31 this year. In this article, we cover the legal aspect of the rules and whether or not streaming services can challenge them in Court.
Watch the full discussion here:
Legal challenges to the original rules
The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2004 has been functional for films and television for over a decade now, with amendments introduced to the rules in 2005, but it hasn’t been without resistance from the industry. As Gowree Gokhale explained, the constitutional validity of the regulations was challenged in 2005 in the Bombay High Court, as well as in the Delhi High Court, but the Supreme Court had stayed the order of the High Courts, which had stayed the amendments. When in 2012, filmmaker Anurag Kashyap filed a petition against the rules, Bombay HC denied granting an interim stay on the operation of the regulations.
“And that is why for both theatres and television, those rules continue. But the petitions are pending. So, they are not final concluded decisions. These are interim orders by the Supreme Court. But the challenge to the rules that the act and the rules are still pending before the Bombay High Court and Delhi High Court,” Gokhale added.
1. Why was the Act challenged? Talking about the legal history and challenges to the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, Gokhale informed that the original Act itself was challenged to be unconstitutional and ultra-vires [beyond the scope of legal powers]. She explained that while health is a State subject under entry 6 of the State list, the Centre has invoked entry 52 of the Union list, which enables the Centre to make laws for regulating industries. In this context, the Centre invoked entry 52 to control the tobacco industry. Additionally, “The other issue from a ministry perspective, which was brought out under Allocation of Business Rules, health, of course, comes under health ministry. And under the National Health Mission, tobacco is one of the identified entries. So, these are the sort of overarching AOBR, under which health ministry is claiming their jurisdiction read with entry 52 of the union list,” she explained.
2. Jurisdictional uncertainties: When Pahwa asked whether the health ministry can override the guidelines of the Ministry of Information and Broadcasting (I&B), Gokhale observed, “If assuming they have the power, let’s say under the constitution and AOBR, then from a legal perspective, there would not be a conflict because there is no contradiction out here. And the same thing happened in television. So, MIB has the licensing power. They do have advertising and content code. But even then, the health ministry at that time also did come up with these requirements for the television channel. The same thing has happened today.”
She added that there is not much scope for legal challenge, except the constitutional issue discussed above. But, from an ease of doing business perspective, she was of the view that there should have been conversations with the I&B Ministry over the effectiveness and implementation of the rules.
Pahwa further argues that how does one then prevent different ministries from jumping in and creating disclaimer rules, for example, drug abuse, animal cruelty, etc? Gokhale added, “When the NCPCR [National Commission for Protection of Child Rights] started to intervene in some of the content for the online platforms, MIB stepped in to say that, no, now we are taking control of the rules. We are the proper ministry. And we will handle this from a content side. And they were able to sort of stop NCPCR from sort of intervening in the matter. That is where you need the ministries to sort of tell each other. But this would have happened before. Not after.”
3. On whether it is an advertising issue or not: Gokhale also raised a pertinent point that the whole purpose of the original Act is to regulate the advertising and sale of cigarettes, and Section 5 of the Act also prohibits advertisement.
“How can you say, where there is no brand being shown in any of the scenes, that it is amounting to advertising, and how can you invoke the advertising-related provision for the purpose of general display of the tobacco products? So, that is the point I am making on the ultra-vires point and under Section 31 of the act also, I do not see any powers to legislate or delegated legislation to go beyond the purpose of that, which is the advertising part,” she questions.
Pahwa provides a counterpoint stating, “For example, the tobacco industry could easily put together like a consortium and an industry body that could pay for showing general smoking, could even create general smoking ads, and that will benefit the whole industry, in the sense by encouraging people to smoke in a sense. So, the brand is a different issue.”
Gokhale argues whether or not depiction in itself can be considered advertising. “If the act was drafted in a particular way, I can understand, but the act was drafted focusing on advertising, and that is where…whatever is being controlled is not advertising as understood generally.”
To this, Savni Endlaw observes that one may wonder if showing smoking without a brand is an advertisement – then in a 20-minute episode, displaying four or five minutes of disclaimers will also in turn become an advertisement instead of a warning for tobacco use.
Can streaming services go to Court?
What’s next for streaming services? When the rules came out, reports emerged that OTT majors like Netflix, Amazon and Disney are discussing possibilities of legally challenging the rules. In response to MediaNama’s queries, Netflix denied commenting on the story. During the panel discussion, Pahwa sought to understand if streaming services have the appetite to challenge the rules in Court.
According to Gokhale, given the fact that the streaming platforms had not even challenged the IT Rules, even while the news industry did so, it’s not certain that they will go to Court against these rules. She states that in the context of TV also, the producers went to Court and not the television channels. However, she does believe that the past HC cases, alongside a challenge to the current rules, must be revived as the issue of ultra vires jurisdiction is a pending case. “Unfortunately, when the act and the rules are questioned, and you keep making amendments to that and the matter is still pending before the court, that is where I feel, there is a failure in the overall system,” she added.
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