From theatre to home: Anti-tobacco warnings to be displayed on OTT platforms

OTT platforms will have to display a static message any time a tobacco product is displayed, and a video message at the beginning and in the middle of a programme, amended Rules under the Cigarettes and Other Tobacco Products Act say.

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FURTHER tightening the regulatory noose around over-the-top (OTT) media service platforms, all programmes telecast by them will now be required to display anti-tobacco warnings. The Union Ministry of Health and Family Welfare (MoHFW) notified amended Rules in this regard today, on May 31, observed as World No-Tobacco Day.

The above decision has been made through a notification of Rules under the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA). The amended Rules will come into force at the expiration of three months.

Publishers of 'online curated content' — the phrase by which OTT platforms have been described in the Rules— will be required to display 'Tobacco Causes Cancer' or 'Tobacco Kills' as a static message at the bottom of the screen during the period of display of tobacco products in the programme. Such a warning should be 'legible and readable' to the viewer.

Additionally, at the beginning and middle of the programme, the publisher shall display "anti-tobacco health spots" of minimum thirty seconds duration each. There shall also be an audio-visual disclaimer on the ill-effects of tobacco of minimum twenty seconds at the beginning and in middle of the programme.

Under the amended Rules, the responsibility to include such warnings has been given to the publisher of the online curated content, and not the producer. Yet, the prescription to include "health spots" and an audio-visual disclaimer in the middle of a programme could mean that programmes produced hereon may be compelled to include a designated intermission within each programme to avoid abrupt cuts to anti-tobacco health warnings.

To deal with non-compliance, an inter-ministerial committee consisting of representatives from the MoHFW, the Union Ministry of Information and Broadcasting, and the Union Ministry of Electronics and Information Technology shall be formed. This committee would be empowered to take suo motu cognisance of a violation and issue notice to a publisher, giving them reasonable opportunity to "explain such failure and make appropriate modification in the content".

Tobacco on film

In 2005, the Union Ministry of Health (as it was then called) imposed a total ban on tobacco imagery in films and on television under the COTPA. The Rules were made without consulting filmmakers, the Central Board of Film Certification (CBFC) or even the Union Ministry of Information and Broadcasting.

It was argued that a complete ban on tobacco products on film and television curtails artistic freedom, and violates the freedom of trade and commerce under the Constitution.

A compromise was thereafter reached whereby tobacco imagery was allowed, but with "strong editorial justification" and on the condition that such films would receive an adult rating certification ('A' rating).

In 2012, through an amendment to the Rules, static on-screen health warnings during the presentation of the films were introduced and the age-certification of films based on tobacco imagery was dropped.

The above Amendment Rules also provided for a twenty second anti-tobacco disclaimer before the film and during the intermission. Old movies and TV programmes were also mandated to include anti-tobacco warnings during exhibition.

In 2013, American filmmaker Woody Allen refused to comply with Indian laws on mandatory anti-smoking warnings during the screening of his movie Blue Jasmine (2013) and the movie was thereafter not released in Indian theatres.

In 2016, a committee headed by film director, screenwriter and documentary filmmaker Shyam Benegal, constituted to suggest changes to the Cinematograph Act, 1952 had recommended that warnings at the beginning of the exhibition of a programme are sufficient. Static, superimposed warnings "blight a film's visual narrative", the committee submitted.

On health warnings at the beginning of a programme, the committee had suggested that "a meaningful static disclaimer in the beginning of the film with standard visual background approved by the ministry of health may be shown for a minimum period along with an audio backing it."

The committee had added that such warnings should be made in all Indian languages and made applicable to all media platforms.

Regulating OTTs

In 2021, the Union government introduced a broadly worded Code of Ethics to be followed by publishers of online curated content under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The code additionally stated that norms made under the Press Council Act, which determines the standards in print media, and the Cable TV Act, which provides a framework for TV programmes, shall now apply to online publishers as well.

Key provisions of the above Rules were stayed by the Bombay High Court in August of that year on a plea by The Leaflet, including that on the mandatory adherence to the Code of Ethics.

Prima facie, the move to expand the scope of anti-tobacco warnings to OTT platforms is an attempt by the Union government to limit the influence of tobacco-imagery, especially on young people. However, it may also be seen in the context of its attempts to regulate online curated content more closely, and to bring it in line with regulations for film and television.