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HomeFeaturesAmazon to Netflix, OTT has escaped India’s on-screen smoking laws. But that’s...

Amazon to Netflix, OTT has escaped India’s on-screen smoking laws. But that’s set to change

Unlike films and shows screened in theatres and on television, smoking scenes are shown without any health spots and scrolls.

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In Episode 2 of Trial By Fire, a Netflix series on the 1997 Uphaar Cinema fire tragedy, two women bond over a cigarette. In the minute-long scene, they take drags and fill the frame with clouds of smoke. But they’re not the only ones puffing away on OTT platforms without any health warning on the screen.

India’s public health experts are now worried that the unabated depiction of tobacco use on OTT platforms will set the country back on its anti-tobacco efforts by two decades.

“The drop in smoking numbers will pick up again,” says Monika Arora, vice-president of research and health promotion at the Public Health Foundation of India (PHFI).

Unlike films and shows screened in theatres and on television, binge-worthy shows and movies on streaming platforms don’t carry any warnings and have become the new avenues for tobacco promotion in India.

And the Union health ministry’s hands are tied. Its strong anti-tobacco law – Cigarette and Other Tobacco Products Act (COTPA) 2003 – does not yet apply to the content shown on OTT platforms like Netflix, Amazon Prime Video, SonyLiv and Disney+ Hotstar.

Sources told ThePrint that the ministries have deliberated on this subject for almost two years, but have not found common ground.

2011 study showed that India’s adolescents — aged 12 to 16—are easily influenced by actors smoking on screen.

“It is so powerful because people don’t realise that they are being advertised to. It is stronger than peer pressure and conventional advertising,” says Stanton A. Glantz, a retired professor from the Centre for Tobacco Control Research and Education, University of California, San Francisco. Glantz has been working toward making films smoke-free in the US and India for more than 20 years.

Such depictions, however, are now common on OTT. In the opening scene of the 2020 Amazon Prime series Rasbhari, the protagonist is shown smoking with a friend. Fifteen minutes into the first episode, he puffs another cigarette—this time in school uniform.

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Shrugging responsibility

Chennai-based public health activist and anti-tobacco crusader S. Cyril Alexander, after a decade-long battle against films flouting smoking laws, took his fight to Netflix early last year. He complained about two films, the Telugu movie Shyam Singha Roy (2021) and the Tamil film Pandigai (2017), for smoking scenes involving lead actors and a minor, respectively.

While Shyam Singha Roy flouted the COTPA law by not displaying any health warning message, Pandigai violated the 2015 Juvenile Justice (Care and Protection of Children) Act, which makes giving tobacco products to minors a punishable offence.

But Netflix washed its hands of the matter, stating that the JJ Act and COTPA do not apply to its content. In its response to Alexander, Netflix wrote that watching content on OTT, unlike in theatre or TV, is a “voluntary exercise” where viewers exercise discretion based on age rating and classification. Regarding Pandigai’s smoking minor, Netflix said the character was not given an actual cigarette, but only a “prop looking like a cigarette”.

Alexander then approached the Digital Publishers Content Grievance Council (DPCGC) and was told that OTT platforms have no liability. DPCGC is a self-regulatory body for online curated content providers and was set up in June 2021 under the aegis of the Internet and Mobile Association of India (IAMAI). It is registered by the I&B ministry as a level-II body for handling grievances under IT Rules.

DPCGC said Shyam Singha Roy does not promote, advertise or endorse smoking and dismissed the complaint. As for Pandigai, it dissolved the matter saying Netflix did not give a real cigarette to the minor in question.

“If at all, the person(s) responsible for this [handing a cigarette to a minor] would be those who have produced this movie and not the OCCP [streaming platform],” noted DPCGC.

Today, Shyam Singha Roy streams without any health warning, while Pandigai has retained the controversial scene with a ‘smoking kills’ message displaying at the bottom of the screen.

Also read: Number of non-smokers with lung cancer in north India is now same as smokers: New study

Policy loopholes, worried activists

India’s OTT universe saw a growth of more than 20 per cent over the last year, with 70.6 million new viewers in 2022, as per a report by consulting firm Ormax.

But anti-smoking regulations have failed to keep pace.

Films are regulated by the Cinematograph Act of 1952, and TV shows under the Cable Television Networks (Regulation) Act of 1995. COTPA applies to both of these laws. Depiction of tobacco use in theatres and television should include a mandatory 100-second health warning before being cleared by the Central Board of Film Certification (CBFC).

Theatre and channel owners can be fined if these health warnings are not shown. On repeated offences, their licences can be revoked.

But there is an overlap of oversight for OTT platforms. While the IT Rules that govern these platforms are from the Ministry of Electronics and Information Technology (MeitY), in November 2021, the I&B ministry started regulating news, current affairs, films and audio-visual programmes by online content providers. These platforms are not classified as broadcasters under the Cable Television Network Act and are not required to obtain a broadcast licence. Hence, the films screened on OTT platforms do not need CBFC certification. The liability of showing smoking scenes does not fall on the streaming service provider either.

“Filmmakers are misusing these policy loopholes and liberties,” says Ranjit Singh, a Supreme Court advocate.

He says filmmakers and streaming platforms can add health warnings if they want to — like Dhaakad (2022) — but most choose not to do so in the absence of laws. “They are making a mockery of the whole process,” Singh adds.

In Amazon Prime’s Hostel Daze (2019), Luv Vispute’s character Chirag Bansal pulls out a cigarette in a college library and asks his friend Nabomita Bharadwaj (played by Ayushi Gupta) if she will “chill” after exams.

“I have tobacco. The one bad for health. It has a lot of tar,” Chirag says. When Nabomita refuses, he says: “Are your lungs sensitive? Will you get rashes?”

There is also ambiguity on how foreign content hosted by these platforms will be regulated.

“Should the shows produced abroad follow the law of the land in India? Ideally, yes. India followed measures earlier when TV channels like Star Movies and others broadcast foreign films. Scenes, which seemed inappropriate for the Indian context, were blurred. A similar system should be followed for content on OTT platforms regarding smoking as well,” says Arora.

In November 2020, health secretary Rajesh Bhushan wrote to I&B secretary Amit Khare, saying that unregulated depiction of tobacco scenes on OTT platforms is “undermining the tobacco control efforts of this [health] ministry”. Bhushan called for bringing OTT platforms under the purview of COTPA but there has been no development on it so far.

The impact of India’s strict pro-health rules about on-screen smoking has been evident. The Global Adult Tobacco Surveys of 2009-10 and 2016-17 show a 17 per cent relative reduction in tobacco use.

PHFI’s Arora says this drop is a direct consequence of India’s various tobacco control measures but that there is still a long way to go.

“With the depiction of tobacco use on OTT platforms, we are again normalising the behaviour we wanted to curb. The whole effort undertaken by the government goes waste,” she says.

Meanwhile, a source in the health ministry told ThePrint that administrative hurdles are causing delay in taking any decisive action.

“Either we will come up with something on our own, or we will take an existing law to the OTT platforms. Everything would need administrative approvals,” said the source.

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Freedom to choose

Watching a cigarette dangling from the mouth of actor Ajay Devgn in Runway 34 (2022) as he flies a commercial plane, or students smoking on college campuses in Mirzapur (2018), is a matter of “personal choice”, argue content providers.

They say streaming websites can only be accessed through subscriptions, which only adults can buy. Also, OTT platforms have parental control methods. Besides, not all content is for public viewing.

But health experts say that this can all be easily bypassed.

“Parental controls can be easily unblocked, and children are also watching content on phones. The impact of this will be more direct than watching something in a theatre,” says Bhavna Mukhopadhyay, Chief Executive at the Voluntary Health Association of India (VHAI). A non-profit working for public health, VHAI has been assisting the health ministry with tobacco control measures.

ThePrint reached out to Netflix, Amazon Prime Video, Disney+ Hotstar and Voot, as well as MeitY and the health and I&B ministries. Netflix declined to comment, and no response was received from the rest.

Similar concerns were raised by parliamentarians in January 2021, at a meeting of the Parliamentary Standing Committee on Information and Technology. While CBFC head Prasoon Joshi wanted OTT content to go through the same scrutiny as theatre releases, a few parliamentarians proposed that the platforms must stay out of government censorship.

One such committee member was Karti Chidambaram, MP from Sivaganga in Tamil Nadu. Chidambaram says that while he supports health warnings on streaming platforms, not all media can be censored through the same process.

“Over-censorship of content meant for private viewing has the ability to hurt artistic freedom of speech and expression. It is a slippery slope that [we] must tread carefully,” he said.

But adding a scroll and health warning during the film is not censorship, explains Amit Yadav, senior technical advisor at the International Union Against Tuberculosis and Lung Disease. Yadav has studied the impact of on-screen smoking imagery in India along with Glantz.

“Health ministry has not prohibited the display of smoking. It has simply asked films to add a scroll. A scroll distracts people and reinforces the message that smoking is bad. But even today, the industry is opposed to showing it,” he says.

Meanwhile, talks are on between the film fraternity and the I&B ministry on regulating films on streaming platforms.

Industry members ThePrint spoke to said they want parity in regulation for all films. They are urging the I&B ministry to keep health spots at the beginning and do away with the scroll.

“We should ensure that the frame is not made a mess of. Artists should be visible with the least possible disturbance,” says Ravi Kottarakara, honorary general secretary, Film Federation of India and the South Indian Film Chamber of Commerce. 

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Déjà vu 

Discussions about regulating OTT content are not new, recalls Glantz, who had dealt with the same arguments of censorship, artistic freedom and self-regulation when the government of India planned to introduce health spots and messages for films in the early 2000s.

“These are the standard pro-tobacco arguments. The health ministry is not advocating these rules for personal taste. It is pushing for it because tobacco kills,” says Glantz.

He explains that cigarettes are strategically placed in films, and there is no evidence to show that smoking scenes are better received or earn higher revenue. The only ones to benefit, he says, are tobacco companies.

Hence, health experts say there is an urgent need to break the logjam between the two ministries. Pressure is building on the health ministry to take the first step.

“The film and TV rules need to be amended to bring the content curated by OTT platforms under COTPA’s purview. This can be done by inserting a clause after Rule 10 of the COTPA. The OTT platform must comply with COTPA,” says Bhavna Mukhopadhyay of VHAI.

The creative film industry, Monika Arora says, does not need “the crutches of smoking” to build a character.

(Edited by Zoya Bhatti)

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