Although the Ministry of Health and Family Welfare (MoHFW) has imposed anti-smoking regulations on streaming services, streaming platforms fall under the Ministry of Information and Broadcasting (MIB). Speaking at MediaNama’s virtual discussion on ‘Health Disclaimers and Streaming Services’, Rakesh Maheshwari, former Principal Director and Group Coordinator of the IT Ministry, said that the The government’s allocation of trading rules assigns streaming platforms to the MIB. “The only thing is maybe the MoHFW, because their 2012 rules were adopted, their 2023 rules were never withdrawn. And they still believe in it, as if it were implemented. And that is why they proposed another version, I will say, a draft, and then such an amendment,” he added.

As a reminder, in 2023, the MoHFW implemented anti-smoking regulations quite similar to the more recent version in 2024. Both versions of the regulations require streaming services to broadcast health messages warning users of the impact of smoking. tobacco consumption. Similarly, in 2012, the MoHFW issued rules regulating depictions of tobacco in film and television. “The rules required all of these things that we talk about today in the context of OTT (over-the-top services). Now whether television has implemented them or not is another question,” Maheshwari said. According to a 2017 Economic Times report, the MoHFW admitted that television programs had not properly applied its 2012 rules.

“Ideally, the MIB should have pushed back the 2012 rules. Now, whatever the scenario, at the judicial level, the fact remains that they (the anti-smoking rules) have been in force for twelve years,” explained Maheshwari, adding that this leads the MoHFW to believe that its decision to implement these rules is rational.

Watch the full discussion here:

Why MoHFW has not been able to ensure compliance with its regulations:

Maheshwari believed that the MoHFW was unable to adequately implement its anti-smoking regulations on television due to the lack of proper mechanisms to enforce them. Explaining why the Ministry of Health was able to impose these regulations on the cinema, he said it could be “because of the licensing terms and conditions and perhaps local law enforcement authorities have the power”.

Much like television regulations, streaming services have also implemented anti-smoking regulations to varying degrees. Aroon Deep, senior correspondent of The Hindu, mentioned that some platforms, like JioCinema, display watermarked warnings when someone smokes in a film/show. Others, like Netflix, had a small pop-up warning at the top left.

“Ideally, we should only make a law or regulation that can be reasonably enforced…whatever (enforcement) mechanism we talk about again, who takes the lead is important,” Maheshwari said. He explained that to enforce anti-smoking regulations on streaming platforms, the government is proposing an inter-ministerial committee (IMC) composed of a member of the MIB and a member of the Ministry of Electronics and Information Technology (MeitY). “If there is non-compliance, what do we do? There are no fines,” he explained, adding that all the IMC could do is send the platforms a notice of non-compliance.

Is the MoHFW the competent government body to issue such rules?

The Cigarettes and Other Tobacco Products Act, 2003 (COPTA) prohibits advertising of cigarettes and tobacco products, Gowree Gokhale, independent legal advisor, pointed out during the discussion. “If you look at advertising control from a public health perspective, in my opinion, just showing consumption without a visible brand is not advertising,” she explained. So, technically, under the current structure of the law, the MoHFW should not be able to impose such obligations on streaming platforms. “If they really want to do it in another form, then we will have to see if they want to change the law,” she added.

Gokhale mentioned that the Delhi High Court had also ruled the same, but the Supreme Court had stayed this order. “And (for) two decades this litigation has been ongoing on this particular point,” she said. When the Supreme Court stayed the order, it mentioned that some of these disclaimers were necessary from a public health perspective.

What led to these smoke-free regulations for streaming services?

MoHFW’s tobacco control unit is leading efforts to implement anti-smoking disclaimers on streaming services, Deep said. He explained that efforts to implement them have been going on for several years. The person who pushed for this informed the Health Secretary that by doing this, India would be a world leader in warnings on OTT platforms for tobacco. Deep mentioned that the 2023 regulations came as a shock not only to streaming services but also to MIB. “And they had a few meetings, but ultimately they did the notification,” he added.

Weakened capacity of the MIB to regulate streaming services:

Maheshwari mentioned that if an appropriate government agency were to implement anti-smoking regulations, it would be within its purview to ask platforms to remove non-compliant content instead of asking them to add disclaimers. “So, to me, ideally it should be MIB. And I think the MIB should take the lead and take a pragmatic view,” he said, adding that while the MIB is the competent government body for tobacco regulations, online platforms (especially online information platforms) should also proactively take responsibility for not depicting tobacco abuse.

Maheshwari mentioned that it is thanks to online information platforms that the MIB does not have the regulatory powers it had under Rules 9(1) and 9(3) of the Information and Communication Rules, 2021. technology (intermediary guidelines and digital media ethics code) (IT Rules, 2021). He explained that these rules required digital media platforms to follow a code of ethics and implement a three-tier regulatory mechanism. “But as the Mumbai High Court and then the Chennai High Court (Madras HC) have both stayed these rules, the MIB is left virtually powerless,” he said.

Maheshwari said that without these rules, the MIB only has the power to regulate streaming services under Rule 16/Section 69A of the IT Act, both of which deal with content blocking. “And this is where we have, directly or indirectly, strengthened the power of the Ministry of Health and Family Welfare,” he added. On the other hand, MediaNama founder Nikhil Pahwa questioned whether MIB would be better than MoHFW in implementing anti-smoking rules.

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“Even if this had been left to the MIB, it is not very clear whether it would have done a better job than that which the Ministry of Health and Family Welfare is doing, given the ignorance with which it appears demonstrated when it imposed regulations on online advertising, especially when much online advertising is now created automatically,” Pahwa said.

Can the government impose such regulations on private media?

Unlike television or cinema, which constitute public broadcasting, people watch content on streaming services in a more private setting. Asked if the government can impose the anti-tobacco regulations on a non-private media outlet, Shahana Chatterji, partner at Shardul Amarchand Mangaldas & Co., said the public/private dichotomy is a losing argument against anti-tobacco rules. “Simply because at the point where the rules have already arrived, they have already imposed obligations on public spaces, on restaurants, on films, on television, on OTT, undoubtedly,” she said .

Chatterji explained that the ministry is putting these regulations in place based on the argument that reducing tobacco consumption is public policy legislation, not public health legislation. “If this had really been organized on the basis that (tobacco warnings) are a public health issue, it would have been much easier to go backwards, in terms of legislative competence, as to the path taken by the rules,” she added.

The potential for regulatory drift:

One of the main concerns with these rules is that they could lead the Ministry of Health and other ministries to expand their control over streaming platforms. For example, the Bureau of Narcotics Control could then ask the Health Ministry to impose disclaimer requirements regarding drug use, Deep said. “This is not a hypothesis because we have precedent in drift theaters of operation,” he added. Deep further said that the governments of Kerala and Tamil Nadu have imposed disclaimers for depictions of drinking in cinema.

“The regional offices of the censor board in Chennai, Thiruvana and Thapuram have said that they will enforce this law and demand these warrants. And soon it started to extend to drug control,” Deep explained. He added that sometimes a film depicts several such activities (smoking, drinking, etc.) in the same scene, which can lead to multiple warnings. Deep said that in a Malayalam film, the filmmakers even issued a disclaimer regarding domestic violence. “Normally I would think that, OK, the slippery slope argument would be disingenuous, but we’ve been sliding down that slope for a few years now,” he said.

In addition to health warnings, other types of warnings could soon be found in audiovisual content. “Recently, I came across a discussion around the Ministry of Road Safety trying to impose safety warnings in theaters,” Gokhale said. She shared that by imposing the obligation to convey these messages, the government goes beyond the very essence of an entertainment media.

Extend streaming regulation to social media:

Unlike streaming services, social media platforms distribute user-generated content, Maheshwari mentioned, adding that platforms must also inform users not to post illegal or harmful content. “The platforms should be willing to remove it (such content), or maybe label it or do something about it through their complaints mechanism,” he said. As such, social media platforms always bear responsibility for the content posted by users. “But certainly OTT platforms perhaps bear greater responsibility because they are aware of it and it is their material that is shown and consumed by the user,” he added.

Gokhale expressed concern that the government would eventually extend these regulations to social media. “They might say that the social media platforms, we’re seeing the proliferation of this type of content (featuring tobacco use), so, you know, the social media platform should, as part of the due diligence , send messages when you open a platform,” Gokhale added.

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