OTT Regulation: Understanding the drug depiction advisory through a legal lens

I am deeply perturbed by the November 26, 2024 advisory issued by the Ministry of Information and Broadcasting regarding the depiction of drug consumption in content on curated content platforms. In response to such advisories, the usual arguments concerning freedom of speech, creative freedom, and other similar concerns will inevitably be raised. I will leave it to others to advocate these points. Instead, I will focus on the inherent legal flaws in this advisory.

Firstly, the advisory relies on the Code of Ethics under the Part III of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules), issued under the Information Technology Act, 2000, was challenged before various High Courts on multiple grounds. The Honourable Bombay High Court, in its judgment, stayed the operation of Rules 9(1) and 9(3), which mandate compliance with the Code of Ethics. Subsequently, following an order by the Supreme Court, all challenges to the IT Rules were consolidated and transferred to the Honourable Delhi High Court, where the matters are currently pending. Given that the relevant Rules are under challenge and have been stayed, it seems inappropriate to issue an advisory that relies on these stayed provisions and further seeks to take action based on them.

Secondly, the Code of Ethics does not prohibit nor specifically addresses the manner of depicting drug use. It merely requires a higher age rating for such content, and rightly so. The advisory seeks to amend the Code of Ethics by directing how drug use should be depicted. The IT Rules were framed by MeitY and MIB in 2021 after public consultation. An advisory cannot bypass the due process required for amendments, that too without any industry consultation. Moreover, it employs vague expressions like “fashionable” or “acceptable”, which are open to broad interpretation. It is also worth noting that there are several other vague expressions and provisions in the Code of Ethics.

Thirdly, it is absurd to suggest that anyone who depicts drug use in entertainment content is ‘abetting’ the offence of drug sale or consumption under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). I do not even need to reference court precedents on this; it is simply common sense. Can we say that a producer who has never met or connected with a drug dealer is abetting the commission of an offence by them? The entertainment industry already faces criminal cases against executives based on flimsy grounds. This advisory may lead to even more legal trouble for the industry.

Fourthly, the advisory concludes by stating that the industry is invited to comply “voluntarily”, but if it does not, it may face consequences under the IT Rules or the NDPS Act. Such an ‘advisory’, which seeks to have the effect of law, is clearly outside the bounds of the rule of law.

The advisory suggests that the OTT industry produce educational documentaries. While the government may certainly request various industries to assist in public awareness campaigns, and industries, as responsible corporate citizens, should help where they can, the tone of the advisory suggests that failure to comply may result in punitive measures.

It has become fashionable to blame the entertainment industry for societal vices. However, there is no empirical evidence to support the claim that viewing content leads to the consumption of tobacco, alcohol, or drugs.

While it is important to address the very real issue of drug abuse in society, the approach taken in this advisory is flawed both legally and practically. The reliance on stayed rules, the attempt to amend the Code of Ethics through an advisory, and the vague language all raise serious concerns. The entertainment industry should not be unfairly burdened with the responsibility of controlling drug abuse, especially when there is no clear link between content depiction and actual drug consumption. It is crucial for the government to focus on more effective and evidence-based solutions, rather than creating an environment of fear and uncertainty within the creative industry. StoryBoard18