“As someone who is a consumer of OTT content, a lot of the content that has smoking in it is also classified with more mature ratings. I think ‘bacche bigad jayenge’ [kids will be spoiled] has been a very big foundation for the justification of this law and also initiation for adolescents…But I think the I&B Ministry has put a system in place, for better or worse, to standardise age classifications. I feel like it [the new rules on smoking in OTT content] is disrespectful to both that system as well as viewers and add on these visually intrusive factors as well,” said Aroon Deep, Principal Correspondent, The Hindu, about the possible effects of new OTT tobacco guidelines on user experience, and the need to add such warnings to content on streaming services.
Deep was speaking as a panellist at MediaNama’s virtual panel discussion ‘OTT & Health Warnings’, held on June 28. The discussion was hosted with support from Koan Advisory Group, and MediaNama’s community partner, the Internet Freedom Foundation. The session was moderated by MediaNama’s Founder and Editor Nikhil Pahwa with discussants Aroon Deep, Principal Correspondent, The Hindu; Gowree Gokhale, Partner, Nishith Desai Associates; and Savni Endlaw, Partner, Saikrishna and Associates.
The speakers tackled some of the key questions related to the constitutionality, feasibility, and effectiveness of the anti-tobacco guidelines for OTT platforms issued by the Health Ministry.
Watch the full discussion here:
Impact on user experience
1. ‘Warnings are intrusive’: Aroon Deep emphasised on how anti-tobacco advertisements can interfere with the user’s indulgence in art and entertainment in theatres or in their private spaces. “I think it’s been almost a decade now that we have had statutory warnings for smoking on TV and in cinemas, and I can tell you it doesn’t get easier to get used to. I am particularly sensitive to censorship issues, but those warnings are very intrusive. They take away from your immersion in the scene. They take away from what the creator is trying to convey in that particular moment,” he said.
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. This is in addition to the static warning messages during the scenes depicting tobacco use.
On Pahwa’s question on whether warnings must be treated differently depending on the length of the show, Deep explained that “there are shows like Love Death + Robots on Netflix where some episodes are an hour long and some episodes are 10-13 minutes long. You have a smoking shot in that episode and you’re done. That episode is no longer a watchable piece of content. You have 30 seconds in the beginning, five minutes into that…you have another 30 seconds of warnings. It’s just, it is spoilage to a huge, huge extent.”
2. Impact on access to global content: Will the rules be applicable for foreign streaming providers without a physical office in India? For example, if an Indian citizen subscribes to a German streaming service in India, will the government ban such streaming providers? According to panellist Savni D. Endlaw (Partner, Saikrishna & Associates), this seems possible. Endlaw was of the opinion that if not a ban, the government will seek ways to apply the rules to them as well.
She adds that with respect to foreign content, given the pressure they would be subjected to with these rules, artists and creative professionals may even be willing to pull their content out of India. This will ultimately affect a viewer’s freedom to access art and entertainment from different parts of the world. Pahwa shared an example, “In 2013, Woody Allen decided not to release Blue Jasmine in India because of the Indian government’s requirement for running an anti-smoking ad concurrently with smoking on screen. So, there’s at least one example or something not being released [because of tobacco warnings].”
3. Will the rules affect podcast listeners? The new guidelines issued under Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Amendment Rules, 2023 (COTPA Rules), are applicable to publishers of online curated content providers. Under the IT Rules 2021, 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”.
When asked whether these rules will be applicable for podcasts as well and in what ways, Endlaw stated that the reading would be such that one would have to include audio health warnings or disclaimers. To which, Pahwa questioned, “if I do a podcast on the ill effects of smoking, but I’m discussing it for an hour, then every time I mention the word smoking, I’ll have to keep giving disclaimers?”
Endlaw pointed out that it is uncertain how one would add the health spots or an audio-visual disclaimer in a podcast and that the health warnings can in fact be skippable here since there’s no display of any tobacco product. But, it is a point of discussion why was the word podcast even included for these specific rules. The speakers commented that the definition seems to be simply copy-pasted from the IT Rules as it is.
Effectiveness and empirical data:
1. Are the rules based on impact-assessment studies? As these rules bring OTT platforms into the fold of the COTPA Rules, it is important to check if there’s any empirical data or study to demonstrate the effectiveness of the tobacco warnings displayed by theatres and television platforms that were subjected to them initially. Gowree Gokhale highlights a 2017 study on ‘Evaluation of Tobacco Free Film and Television Policy in India’, which states that the television industry has not implemented the rules properly.
Citing the Supreme Court’s emphasis on the principle of proportionality, raised in a judgment on banks facilitating crypto-transactions, Gokhale explained that “when we are talking about proportionality, what objective is sought to be achieved and the measure[s] taken with that objective [needs to be talked about]. So, if you see the impact, and that is where empirical data is required. All these measures for a platform…there is foreign content, which is available on the platform. So, imagine the amount of effort that is going to go in[to] that and the proportionality of that versus the mischief that you’re trying to control or regulate. And if there are other measures available to achieve the same objective, have you explored what are the other measures?” She added that the industry can be consulted to come up with creative solutions to educate the public instead of enforcing these warnings on people when they are in enjoying their leisure time.
2. Are the warnings forwardable? One of the questions Pahwa raised was if the warnings are skippable or forwardable, will they serve the purpose, and can OTT platforms allow viewers to do so? Endlaw explains that the rules have to be interpreted in terms of “beneficial legislation”.
“When you talk about a beneficial legislation, they have to interpret it in favour of the legislation and in favour of the objective being sought to be achieved by the legislation…if I were to think about how this would be interpreted in court, possibly because it is a beneficial legislation, one would say that no, you cannot give the option to skip it. And where I would read that within the wordings of the rule is the fact that it uses the word display and not something like ‘include’ [a warning] or add and so on,” she explained. Pahwa argued that one can display a warning but still enable users to skip it.
Endlaw responded, “[Suppose] I added, or I inserted the health spot. But I didn’t display it because it was in my control whether or not I would allow a person to skip or not skip it. See, YouTube has ads that you cannot skip. OTT platforms when they’re showing live content have ads that you are not allowed to skip. So, I have the ability to include something which a user will not be able to skip. So, if the government does or if a judicial body does want to take the argument that display means a mandate, then that’s how they would interpret it.”
Are the rules feasible?
1. Is it doable? One of the major points raised by the streaming providers against these rules is the requirements are impractical and non-feasible. Deep takes a counterpoint here and states that it is in fact fairly practical and doable, maybe not in three months [the stipulated timeline], but the extension is negotiable.
He explained: “I crunched some numbers very clumsily. Netflix has 36,000-something hours of content in the US. Let’s say you pay triple the highest hourly minimum wage in the world to have people sift through that content and mark whether it has smoking or not. Let’s say you have 1 lakh hours instead of 36,000 hours. The cost still comes out to something like $3 million. They are not going to go to the place with the highest minimum wage to do this. They’re going to come to Infosys, right?”
“You know that they will be trying to cut corners in the cost of doing this everywhere. So, the cost will come down to $1 million. And after that, this is a one-time expense because of the following titles [new content will be made as per the rules if implemented]…the digital supply chain is so vast and complex. Korean dramas land here with Hindi dubs on day one. It lands with subtitles in 20 languages around the world on day one. That is nothing. I mean, adding smoking warnings to them from now on is not a technically challenging task. So, I think we should not underestimate how capable the industries around the world are of pulling off something like this, which is why it is all the more scary that the resistance [that] is coming on [is] that give us a little more time, let’s talk a little bit more [about the rules], because that kind of makes me think it might end up happening.”
2. On the language of these warnings: The rules state that the warning message, health spot, and audio-visual disclaimer shall be in the same language as used in the online curated content. Pahwa asked if one is watching a Korean drama, which has a smoking scene, will the disclaimer be in Korean? Will there be disclaimers in different languages based on the show?
While Deep is of the view that Netflix can sync the warnings with the subtitle language, it will bring in a lot of confusion given that the content for warnings will be provided by the Health Ministry. That means, the ministry will have to provide disclaimers in over 100 languages, which, as Endlaw pointed out on a lighter note, will only increase the number of tenders for translators for OTT tobacco health warnings.
Endlaw also talked about how this goes against the idea of improving accessibility to OTT shows through subtitles. How will the subtitle and the warning during a scene will be displayed together on a small screen is the question. “They’ll probably sync it with the language of the subtitle, but that’s not what the rule says. The rule says that it shall be in the same language as used in the online curated content…So, neither you understand the show, nor you understand the health warning and where does that lead us?” Savni added.
What can be done?
Given the implementation hassles and uncertainties related to the applicability to certain types of content, Gokhale and Endlaw elaborated on how the rules present an ill-conceived approach by the ministry to treat cinema, TV, and OTT platforms synonymously.
When asked about what could be changed, Gokhale pointed out that one of the possible workarounds would be placing the descriptors or warnings on the top of the screen, with the subtitles of the show at the bottom. Additionally, an initial descriptor with anti-smoking warnings can also prove to be less disruptive for content marked as 16 and 18 plus. Suggesting that a middle ground must be achieved to add disclaimers in order to exclude certain kinds of content, Endlaw reiterated Gokhale’s suggestion that the intention of age ratings and the content descriptors was to give a fair warning to people before they start watching content and that was the thread that was built into the media code.
Responding to the middle ground argument, Deep raised apprehensions that all film content will be replaced with a Central Board of Film Certification (CBFC) cut, since these cuts already have such warnings in place in the beginning for non-OTT films.
“Then they are completely compliant. And we will suddenly have a situation where the CBFC, thanks to the Health Ministry of all things, surges in its influence over the kind of content we can watch anywhere in the country, whether it’s on TV, whether it’s on OTT, whether it’s on any cinemas. And there’s been a very small, regrettably small trend of some films coming out in their uncut form without CBFC interference. And that’ll just put an end to that…I just wanted to flag that as a real danger that we might have,” he observed.
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