“My wish list is that IT Rules itself get[s] removed and we become a perfect democracy. But in the realm of the possible, I would like to see, of course, that the Health Ministry extends the timeline [for implementing the OTT tobacco rules], [and] also starts talking to the OTTs because to this day, the conversations between the two parties have not been very meaningful if they have been happening at all,” said Aroon Deep, Principal Correspondent, The Hindu, while speaking at MediaNama’s virtual panel discussion on ‘OTT & Health Warnings’ on June 28, 2023.
In response to MediaNama‘s Founder and Editor Nikhil Pahwa’s question, panellists Aroon Deep, Principal Correspondent, The Hindu; Gowree Gokhale, Partner, Nishith Desai Associates; and Savni Endlaw, Partner, Saikrishna and Associates, indicated how they wished the ministry would revisit the new rules. Resistance from OTT platforms to the new tobacco rules for content on streaming services, consultation with industry stakeholders, and the extension of implementation timelines are some of the key takeaways from their wishlists that need attention.
The discussion was hosted with support from the Koan Advisory Group, and MediaNama‘s community partner, the Internet Freedom Foundation. The panellists tackled some of the major questions and uncertainties surrounding the new anti-tobacco guidelines for OTT platforms issued by India’s Health Ministry on May 31. The discussants also addressed questions concerning the constitutionality of the rules, the Health Ministry’s powers to issue guidelines for OTT content, the difference between regulating TV and streaming services, and the impact on the content viewing experience of users.
Watch the full discussion here:
Here are the key points that emerge from the wishlists:
1. On consultation with stakeholders: Like Deep, Endlaw also pointed out the importance of holding talks with the industry players. “Let them evaluate how this would work out with the existing content descriptors, [and] age rating that the OTT players are already using. Instead of having all three that they’ve put on theaters, which are a health spot, health warning, and a static message…simply a static message is sufficient if that is even practical and implementable [in this case]. Something [a policy] which has a little bit more analysis of how the industry players work and how content on the internet actually works…that will help actually achieve the objective they are trying to achieve,” Endlaw explained.
Pahwa, however, underlined the importance of holding an open public consultation for gaining feedback on the rules. “Revisit the entire process and do a full consultation also involving public stakeholders, not just the industry, and then have a public open house sort of a discussion so that all types of stakeholders can come in and represent their views because clearly these are poorly thought out. You can’t have the same thing [warning] for a five-minute shot and for a full one hour or one and a half hours [content piece]. It can’t be a one size fits all sort of a solution,” he stated.
2. On review of literature: In order to study the effectiveness of tobacco warnings on addiction problems, Deep recommended reviewing substantial literature before moving forward with the implementation. He also added that one must be cautious of a polar stance in studies done purely by industry players or government sources. Gokhale backed the suggestion, emphasising the need for empirical data as evidence. “I feel there has to be definitely a complete revisit on this overall approach, where there is an interference on the content level, because whether that is effective in the first place, some survey empirical data needs to be done in parallel,” she recommended.
3. On a better approach to public education: Gokhale believes that there is a need for designing better strategies to educate people about the dangers of smoking. For example, including anti-tobacco lessons at the school level through the National Education Policy. “The government tries to adopt a big daddy approach and intervene. And intervene in each and every aspect of our life. Let us work at the societal level rather than at a regulation level. Can we do something more at the societal level?” Gokhale asked.
“Why not speak more in your education material or otherwise?” she added. “Catch them young. You’re trying to catch them when they are already 13 plus, 16 plus, catch them young, cultivate that [message at a younger age]…I have not seen data to say that this is helping, and [if] we want to see whether it is helping or not, [on that] basis a new approach can be probably adopted,”
4. On implementation of the rules: Endlaw calls for a revamp of the rules in order to identify “the objective and what is the proportional step that can be taken to achieve that objective”. Whereas Pahwa made a couple of recommendations as to how the rules can be implemented with little disruption. He explained, “If any kind of regulations have to be made applicable, they should be made applicable to new content being published, so as to ensure that it’s not only the streaming services with deep pockets that can, and [have] the ability to rustle up an entire global network of translators. Make it easier for people to implement [the rules] by seeing that any regulation that comes in has to be applicable to new content.” He also added that the warnings should be in the language of the streaming service or the language chosen by the individual. In this matter, Deep insists that discussions must focus on the difference between public and private viewing, which can prove to be useful for industry players as well as viewers.
5. On legality: Pahwa also highlighted the lack of clarity over the legal validity of the OTT tobacco rules and stated that the ministry must take a pause until uncertainties about administering OTT content are addressed. “Wait till you have legal safe ground for bringing all these regulations because right now there is none, there is no law under which Online Curated Content Providers (OCCPs) are actually defined. So, I would say hold off until you actually have a law that allows it, which might just happen with the Digital India Act,” he stated.
6. On resistance from industry players: Putting forth a strong recommendation for OTT majors, Deep said, “go to court in the sense that restraint and compliance is really not going to help you because there will always be demands for more.” For example, in the case of ULLU, the self-regulatory body DPCGC has ordered the platform to take down content despite a certain level of restraint indicated by the platform.
“So, these are systems that you have been closely involved in creating and participating in, and yet they are kind of attacking at the foundations of some of your members. So, some resistance [is needed] that is more than just trying to align yourself with the government you might be involved with. And that is, at least make a statement, say something in public or ask viewers, would you be okay with this? And a little bit more on communication,” he observed.
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