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Event Report: OTT & Health Warnings, 28th June 2023

MediaNama hosted a virtual panel discussion on June 28, 2023, focusing on the latest guidelines issued by India’s Ministry of Health & Family Welfare (MoHFW) for anti-tobacco warnings in content provided by online curated content providers. The discussion centered on some of the critical questions concerning legal aspects of amendments to the Cigarettes and other Tobacco Products Act (COTPA), issues related to implementation of the new rules, and the impact on content production for Over-the-Top (OTT) platforms as well as overall user experience.

The discussion also included a presentation on the report ‘The Effectiveness of Tobacco Disclaimers on OTT Content Service’ by Koan Advisory Group and Youth Ki Awaaz – a study of the relationship between OTT content consumption and people’s smoking habits. Tamanna Sharma (Koan Advisory Group) presented the study and highlighted the gaps in existing literature encouraging the move to bring OTT content under the ambit of COTPA Rules.

Our objective was to identify:

  • Feasibility of implementation of the tobacco guidelines across catalog, and reasonable timelines
  • Relationship of the tobacco guidelines with IT Rules and requirements for streaming services
  • Legal challenges to the Cigarettes and Other Tobacco Products Act and amendments
  • Ambiguity in jurisdiction over regulation of content provided by streaming platforms
  • Difference between regulating cinema, television and OTT services
  • Impact on user experience, content creation and viewing in India
  • Applicability of the rules to foreign content and individual publishers
  • Impact on business models of online curated content providers
  • What can OTT platforms do next?

Download a copy of the event report

Executive Summary

With the Health Ministry’s new guidelines for anti-tobacco warnings in OTT content, an attempt is being made to regulate content provided by streaming platforms with a set of rules originally meant for films and television programmes. The Health Ministry issued the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2023, without holding any kind of consultation with the stakeholders – Online Curated Content Providers (OCCPs), Ministry of Information & Broadcasting, which administers OTT content as per IT Rules, and the public or viewers. The amendment can potentially change the way Indians consume content on streaming platforms.

Despite challenges to the constitutional validity of the COTPA Rules, 2005, the regulation has been functional for films and television for over a decade now. While the matters remain pending in the Delhi and Bombay High Courts, subjecting OTT platforms to the rules with new amendments only adds to the questions concerning ultra-vires jurisdiction over OTT content. Given that the IT Act does not define OTT platforms, as discussants have argued, the jurisdiction of IT Rules is also questionable, which further adds to the ambiguity pertaining to OTT content regulation. Will the platforms challenge the new rules in Court and raise these questions, is something to look out for.

The difference in user experience while watching a movie in theater and the same on a streaming platform necessitated the formulation of Code of Ethics for digital media under the IT Rules. This meant that the rules applied for TV or theater cannot be implementable for OTT content as it is. Discussants have highlighted that it is critical to note the distinction between public versus a private consumption of entertainment in order to frame reasonable and proportionate rules, which do not greatly disrupt the industry’s working models or affect a viewer’s content viewing experience.

The new guidelines require OTT platforms to add anti-tobacco health spots and disclaimers for as long as 20 seconds and 30 seconds in the beginning and middle of the content depicting tobacco use; not to forget the static warning messages during the scenes depicting tobacco use. One can imagine the extent of interference with a user’s indulgence in art or simply, access to entertainment, that these requirements will cause. Experts also outline myriad issues with the practical implementation of these rules such as language inconsistencies, ambiguity regarding its applicability to freemium models, and resultant pressure on individual publishers. They have also indicated possibilities of an impact on access to global content.

Though feasibility may not be a bigger problem and implementation can be achieved through negotiable timelines, the effectiveness of these warnings remains a matter of debate. There is no substantiate literary evidence or empirical data to establish the relationship between consumption of OTT content and tobacco use in the country. Are the rules necessary then? Whether or not the Ministry conducted an impact-assessment study or checked compliance levels by TV and theaters before framing these rules, there is a resonating message that the government must pay attention to the fundamental questions of necessity, proportionality, effectiveness, and engage in a dialogue to reconsider or revamp the guidelines.

Video and coverage:

 

MediaNama’s coverage of the discussion can be found here.

About the discussion

Speakers:

  • Aroon Deep, Principal Correspondent, The Hindu
  • Gowree Gokhale, Partner, Nishith Desai Associates
  • Rakesh Maheshwari, Former Sr. Director and Group Coordinator, MeitY
  • Savni Dutt Endlaw, Partner, Saikrishna & Associates 

Participation:

We saw participation from organisations like Amazon, Snap Inc, Disney-Star India, AVIA, Netflix, Voluntary Health Association of India, JSA Law, Control Risks, Shardul Amarchand Mangaldas, Deloitte, Truecaller, Friedrich-Ebert-Stiftung India, Quickplay Media, IndusLaw, Brandwith Worldwide Media, Kochhar & Co, Pearson Education, Webnyay, Saraf & Partners, CCAOI, Vidhi Centre for Legal Policy, PwC, TechCrunch, Article 21 Trust, Chase India, COAI, Ikigai Law, Coca-Cola, Aakhya India, OP Jindal Global University, TMT Law Practice, Saarlegal, The Quantum Hub, LegaliTech, KNS Digiprotect, Deepsikha, Takshashila Institution, Centre for Internet and Society, etc.

Support and partners:

MediaNama hosted this discussion with support from Koan Advisory Group, and our community partner, the Internet Freedom Foundation.

Written By

Curious about the intersection of technology with education, caste and welfare rights. For story tips, please feel free to reach out at sarasvati@medianama.com

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