The Union health ministry's latest move mandating anti-tobacco warnings for OTT platforms did not involve any consultative process with the industry prior to notification, IAMAI has said flagging "fundamental concerns" and "practical difficulties" in implementation of the new norms.

The industry body has highlighted the practical impossibility associated with including such warnings across content. The amount of content being commissioned in India and licensed from within India and around the world is very high, IAMAI said, adding, "to create and incorporate multiple health spots, audio-visual disclaimers and warnings in multiple languages for the same piece of content poses significant logistical issues".

The Internet and Mobile Association of India (IAMAI) has cautioned that the rules will significantly impact consumer viewing experience, and "throttle creativity and artistic expression".

The newly-notified rules make it mandatory for OTT platforms to display anti-tobacco warnings and disclaimers as seen in movies screened in theatres and television programmes.

The regulation of online curated content is a legislatively occupied field under the IT Rules and administered by the Ministry of Information and Broadcasting after multiple rounds of extensive inter-ministerial consultation, IAMAI argued.

On May 31, the Union health ministry notified the amendments in the Cigarettes and Other Tobacco Products Act, 2004.

According to the notification, the publishers of online curated content displaying tobacco products or their use will be required to display anti-tobacco health spots of a minimum of 30 seconds each at the beginning and middle of a programme.

"At the outset, we would like to highlight that there was no consultative process with the industry before the notification of these rules," IAMAI said its latest submission on the issue.

IAMAI said while the Online Curated Content Provider (OCCP) community in India recognises the importance and necessity of reducing the consumption of tobacco and the intention and the objective of the 2023 Tobacco Warning Rules, it wished to highlight "...fundamental concerns on the process and the means by which the Rules were notified by the health ministry".

"The Rules are designed for the 57 OCCPs registered with MIB (Ministry of Information and Broadcasting) under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 ("IT Rules"). However, these 57 OCCPs were not consulted to share their thoughts and inputs," it said.

This lack of industry consultation not only disregards OCCPs' compliance to Code of Ethics under the IT Rules, but also disregards industry best practices that these OCCPs currently follow, which are aligned to the overall objective of preventing the promotion of smoking.

Citing past precedence of how the lack of industry consultation had delayed implementation of similar rules for television and cinema earlier, IAMAI urged that in spirit of collaboration, and to avoid a repeat of past mistakes, "we would request the health ministry to revisit the 2023 Tobacco Warning Rules in consultation with the OCCPs".

"Most importantly, the IT Rules lay down specific guidelines for content portraying misuse of psychotropic substances, liquor, smoking and tobacco," IAMAI said.

Content descriptors of tobacco warnings is a better alternative, it said, adding that the 2023 Tobacco Warning Rules do not account for the change in technology and new regulatory requirements for OCCPs.

Under the IT Rules, 2021, OCCPs are required to display content ratings as well as an explanation of relevant content descriptors at an appropriate place, so that viewers can make informed decisions before accessing any content.

"Thus, the creation of a separate mechanism, under the 2023 Tobacco Warning Rules, for dealing with essentially the same issues over which the IT Rules have jurisdiction, would lead to complicated overlaps and needless friction," IAMAI said.

Outlining the practical difficulties due to volume of content involved, the industry association said OCCPs tend to dub their content in multiple languages (includes Indian regional languages, south asian languages, and Arabic, among others), for the sake of accessibility.

"To create and incorporate multiple health spots, audio-visual disclaimers and warnings in multiple languages for the same piece of content poses significant logistical issues," it rued.

Moreover, a content may be available on OCCP platforms that are global but may not be even viewed in India and "thus, the practicality of the implementation of these guidelines needs to be considered".

Many international titles are rapidly becoming popular and available in India, and these rules may deter the creators from exhibiting in India as it impinges on their freedom of speech and expression.

While consumers appreciate a seamless content viewing experience, the new rules "will take away from this, especially given that they require audiovisual disclaimers to be displayed in the middle of programmes as well." The Tobacco Warning Rules also fail to account for various factors influencing consumer behaviour in the Indian context, including smartphone usage and regional content and subtitles.

"Such disruptions are also problematic for creators that put in considerable investments and efforts in creating their films and series, and adversely affects their artistic freedom," the IAMAI note said.

Meanwhile, Empower India has written to IT minister Ashwini Vaishnaw highlighting challenges associated with the guidelines. It said Online Curated Content Providers (OCCPs) were neither consulted nor given an opportunity to share their thoughts and inputs on the matter.

"Since the industry was unaware of such a move, they do not have the wherewithal to implement the guidelines. The OCCPs players acquire titles and air the content in form of shows, series or movies. Mandating the OCCPs to display tobacco warnings is unfair and the move to penalise them is very disturbing," Empower India said.

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