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Imagine you are deep in the middle of binge-watching an OTT show and suddenly the screen cuts to a 30-second anti-tobacco ad, followed by a 20-second audio-visual disclaimer. This happens for each episode, once at the beginning and then in the middle of the episode. Would you reduce or stop smoking or never start smoking because of this ad? The Union Health Ministry seems to think that you will. To raise awareness about the ill effects of tobacco use, the Health Ministry has released new rules that require anti-tobacco warnings for smoking scenes on OTT platforms, like those for theatres and TV. The WHO has praised India for being the first and only country to mandate such ads for OTT platforms. We acknowledge the good intent behind these rules. However, it seems that rules meant for theatre and TV have been force-fitted onto OTT platforms, without considering the distinction between these mediums.
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The OTT market in India has grown exponentially in the past few years and is expected to reach Rs 30,000 crore by 2030. One of the key factors for this is that OTT platforms provide a blend of experimental and quality content — as well as the comfort of watching such content on demand at home. Content in theatres and TV is usually watched as a group and is considered public exhibition by courts — since the platform decides what will be screened at a particular time and for how long. On the other hand, OTT platforms offer a hyper-personalised and private viewing experience. Viewers choose what they want to watch at a given time and for how long. They can also fast-forward content. It is owing to these distinctions that OTT platforms are regulated differently as well. OTT is subject to a self-regulatory mechanism under the Digital Media Ethics Code, whereas content in theatres and TV is strictly regulated under different statutes.
However, the new rules do not recognise this distinction. A consultation with the industry would have helped contextualise the new rules for the OTT industry and averted the strong industry pushback. For example, unlike theatre and TV, OTT content can be binge-watched, which will lead to repeated ads every time a viewer starts a new episode. OTT platforms also offer short-form content which will be disrupted with 50-second interventions, not once but twice. Research indicates that repeated exposure to pictorial and threatening warnings does not affect people’s intention to quit or reduce cigarette consumption and in fact, may actually desensitise viewers. The efficacy of these warnings is questionable, particularly for people who are already smokers.
Requiring static and prominent warnings meant for large cinema and TV screens, to be force-fitted onto six-inch smartphone screens used for watching OTT content will hamper the viewing experience. The warnings are also required to be in the same language as used in the OTT content. Does this mean that a person watching a Korean drama would see an anti-tobacco ad in Korean?
The new rules also do not consider that, unlike theatres and TV, OTT platforms will have to insert these warnings for their entire existing library in one go. Amazon Prime Video currently has more than 4,700 titles in its Indian library. Jio Cinema has over 1 lakh hours of content. Netflix reportedly offers more than 6,000 titles to its Indian audience as of 2023. In 2020, a study calculated that watching Netflix US’s entire library of more than 5,800 titles would take 36,000 hours or roughly four years. The rules provide a mere three months to make the requisite changes to the entire library, which will require considerable resources and manpower. Smaller players will be hardest hit by the increased compliance cost.
New, fast-evolving, technology-driven business models such as OTT platforms must be governed through a light touch approach that enables their growth and innovation. The I&B Ministry has, in its wisdom, allowed OTT to be self-regulated. The imposition of such rules from the Health Ministry sends mixed signals on the future of OTT regulation in India. The concerns regarding the depiction of tobacco on OTT platforms could be better addressed through consultation with the industry and the self-regulatory bodies established under the current mechanism in place.
The writers are Senior Associate and Managing Partner, respectively, at Ikigai Law Read less
