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Smoking is Injurious to OTT Platforms

Smoking is Injurious to OTT Platforms

The Ministry of Health and Family Welfare (“MoHFW”) on 31.05.2023 had notified the Amendment Rules, 2023[i] under the COTPA[ii]. These Rules came into force from 01.09.2023.

The Amendment Rules, 2023 aims to amend the COTPA Rules, 2004[iii] and thus added Rule11 i.e. “Health spots, message and disclaimer in online curated contents of tobacco products by the publisher”.

Mandates under the Amendment Rules, 2023

The Amendment Rules, 2023 by way of Explanation(a) and Explanation(b) to Rule 11 defines “online curated content” and “publisher of online curated content(“OTT Platforms”) respectively. These definitions are identical to the definitions provided under Rules 2(1)(q) and 2(1)(u) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules, 2021”) respectively.

Tabular representation explaining the mandates under the Amendment Rules, 2023 is as follows:

S.No. BASIS Requirement for OTT Platforms Point of display Time duration/Other Condition(s)
OTT PLATFORMS DISPLAYING TOBACCO PRODUCT OR ITS USE SHALL-
1. Health Spots
(Rule11(1)(a))
Display anti-tobacco health spots. Beginning and middle of the programme. At least 30 seconds.
2. Health Warning Message
(Rule11(1)(b) r/w Rule11(3))
Display anti-tobacco health warning as a prominent static message. Bottom of the screen when the tobacco products/their use is displayed. In legible and readable with font in black colour on white background with the warnings:
“Tobacco causes cancer” or “Tobacco kills”.
3. Disclaimer
(Rule11(1)(c))
Display an audio-visual disclaimer on the ill-effects to tobacco use. Beginning and middle of the programme. At least 20 seconds.
OTHER CONDITIONS TO BE COMPLIED
  • The anti-tobacco health warning message, health spot and audio-visual disclaimer shall be in the same language as used in the content.(Rule11(4))
  • Displaying of tobacco products(s) or its use shall not extend to display the following(Rule11(5)):
    • brands of cigarettes
    • other tobacco products
    • any form of tobacco product placement/usage in promotional material
  • If the OTT Platforms fail to comply with Rule11(1)-(5), then either suo motu or on a complaint, an Inter-Ministerial Committee (“Committee”) (comprising representatives from MoHFW, Ministry of Information and Broadcasting (“MIB”) and Ministry of Electronics and Information Technology (“MeitY”)) shall take action after(Rule11(6)):
    • identifying the concerned OTT Platform and subsequently issuing notice.
    • providing reasonable opportunity to the OTT Platform to explain failure and to make appropriate modifications in the content.
Similar Rules applicable upon Television Programmes and Cinematograph Films

The COTPA Rules, 2004 have been amended from time to time especially with respect to prohibition of display of tobacco products and its usage in television (“TV”) and cinematograph films (“films”).

As in the case of OTT Platforms, even the films and TV programmes displaying tobacco products/their use have to comply with the necessary mandates including:

  • Health spots of at least 30 seconds duration at beginning and middle for old[i] & new[ii] TV programmes/films. (Rule 7(1), (3)(a) & Rule 8(1)(b))
  • Anti-tobacco health warning as a prominent static message at bottom of the screen for TV Programmes/new films. (Rule 7(3)(b) & 8(1)(c))
  • Audio-visual disclaimer on the ill-effects of tobacco use at beginning and middle of programme of at least 20 seconds duration for new TV Programmes/ new films. (Rule 8(1)(d))

In fact, the COTPA Rules, 2004 further prescribes the punishment in case there is non- compliance by TV programmes and/or films including cancellation/suspension of the licenses of the Broadcaster(s) (in case of TV Programmes) and of cinema hall(s)/theatre(s) (in case of films). However, the 2023 Amendment Rules with respect to the OTT Platforms are silent for any punishments other than the powers vested with the Committee.

Though, it must be noted that COTPA Rules, 2004 envisages an advantage in the form of certain exceptions for the TV programmes/films which are silent for OTT Platforms under the Amendment Rules, 2023.

By way of the exceptions under 2004 Rules, prohibition on the display of tobacco products or its use by an individual/person/character is not applicable when displayed in old Indian films[iii] and old TV programmes coming into effect prior to the 2006 Amendment Rules[iv], old foreign films and old TV programmes (including dubbed and subtitled), Indian/foreign documentaries and health spots displaying use of tobacco products made to clearly and unambiguously reflect the dangers and dire consequences of tobacco use. It further exempts the live coverage of news, current affairs, interviews, public meetings, sports events, cultural events etc., where the coverage is purely incidental and completely unintentional, etc.

With respect to the new films/TV programmes[v] display of tobacco use may be permitted where it is necessary to represent a real historical figure or historical era or classified well known character or in very rare cases due to the compulsions of the script subject to certain safeguards under the Rules.

Challenge to the COTPA Act and the subsequent Amendments

A writ petition was preferred by renowned writer, director and producer Mr. Mahesh Bhatt before the Division Bench of the Delhi High Court (Mahesh Bhatt & Anr. v. Union of India & Anr., (2008) 147 DLT 561 (DB)), challenging the legality and validity of the provisions of COTPA and the 2005 Amendment Rules[i]. It was contended that the 2005 Amendment Rules are ultra vires the parent statute and violates the rights granted under Constitution.

The Division Bench (comprising of HMJ Sanjiv Khanna and HMJ Mukul Mudgal) had a split verdict in determining if the 2005 Amendment Rules were ultra vires the COTPA and unconstitutional. Ultimately, the matter went before the third Judge of the Delhi High Court, HMJ Sanjay Kishan Kaul, who vide judgment dated 23.01.2009[ii] agreed with HMJ Mukul Mudgal and held that Rules4(6),4(6A),4(6B) and 4(8) added by way of the 2005 Amendment Rules are ultra vires the COTPA and violates Article 19(1)(a) of the Constitution. The said Rules were accordingly directed to be struck down as being unconstitutional.

The aforesaid verdict was challenged before the Supreme Court by the Union of India. The apex Court vide Order dated 02.04.2009 stayed the judgment. However, the stay order was granted without any reasons and observations and the matter is pending consideration before the Supreme Court.

Subsequently, various other Amendments had taken place to the COTPA Rules, 2004. One such amendment adding requirements for the TV programmes/films were added by virtue of the 2012 Amendment Rules[iii]. Petition challenging the 2012 Amendment Rules were eventually tagged with the aforesaid Supreme Court petition.

In fact, recently the Delhi High Court dismissed a writ petition titled as “Divyam Aggarwal v. Union of India & Anr.[iv]. By way of the said petition, direction was sought against the Union of India to prohibit the display of anti-tobacco health spots during films in theatres, TV and now on OTT platforms. The Court while dismissing the petition was of the view that the petition is a gross abuse of the process of law and aims to restrain the Government from achieving a noble objective of a tobacco free State and to prevent people from becoming tobacco addicts.

Controversies surrounding the formation of the Amendment Rules, 2023

A lot of controversies surround the Amendment Rules, 2023. The strict and stringent approach of the Amendment Rules, 2023 may impact the OTT Platforms. The following addresses the concerns and the difficulties that may be faced by the OTT Platforms:

  • No consultation with the relevant stakeholders
  • OTT Platforms are already governed by IT Rules, 2021
  • Ultra vires the parent statute and against the legislative intent
  • Unconstitutional and violates fundamental rights, artistic freedom, freedom of speech and expression etc.
  • Applicable on all forms of content irrespective of content’s duration, era etc.
  • Impacts the content and disrupts the viewer experience
  • Cost insensitive and tedious task to monitor all forms of content
  • Lack of any exceptions, even for the contents already exempted when displayed as TV Programmes/films
  • Validity to the previous amendments are still pending consideration
Conclusion & Analysis

Thus, to conclude, it would be interesting to see the manner in which the industry as a whole would cope up with the 2023 Amendment Rules. With lakhs of contents available on OTT Platforms, it would certainly be challenging to verify and recognize every content displaying smoking/usage of tobacco products.

There lie various key questions which are unanswered, such as the aspect of alteration in CBFC certified film. If cinematograph films are already certified by the CBFC, then in terms of Rule 33 of the Cinematograph Certification Rules 1983, it is the producer of the film who has to get the alterations duly endorsed on the Certificates.[i] Similarly, in terms of the old landmark shows/sitcoms (including the foreign content), OTT players which are merely providing the platform for such content to be accessed, would not have the relevant permissions and licenses on account of the past as well as the third party agreements.

Further, piracy as an issue may also arise, since the illegally streaming platforms may take the advantage of the scrupulous situation by providing the content after removing the due warnings, health spots etc., thereby providing convenience to the viewers and thus making the genuine OTT Platforms lose its hard-earned customer base.

Thus, it would be interesting to see if any challenge to the validity of the 2023 Amendment Rules takes place from the industry players or if the same is duly accepted and implemented by them.

[1] Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Amendment Rules, 2023

[2] Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003

[3] Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2004

[4] Old films and TV programmes shall mean films receiving CBFC certification and TV programmes produced- prior to 14.11.2011 respectively. (Explanation (i)-(ii) to Rule 7 of the COTPA Rules,2004)

[5] New films and TV programmes shall mean films receiving CBFC certification and TV programmes produced- after 14.11.2011 respectively. (Explanation (i)-(ii) to Rule 8 of the COTPA Rules,2004)

[6] Old films in terms of the exceptions shall mean all films that receive Central Board of Film Certification prior to 20.10.2006 (Explanation 1 to Rule 4(6) of the COTPA Rules, 2004).

[7] Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) (Amendment) Rules, 2006

[8] New films and TV programmes in terms of the exceptions shall mean all films that receive Central Board of Film Certification after 20.10.2006 (Explanation 1 to Rule 4(7) of the COTPA Rules, 2004).

[9] Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) (Amendment) Rules, 2005

[10] (2009) 156 DLT 725)

[11] Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Amendment Rules, 2012

[12] W.P.(C) 12402/2023

[13] Advisory to filmmakers regarding alterations in CBFC Certified films dated 12.10.2021

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