BACKGROUND:

The Ministry of Information and Broadcasting, Government on India (the “Ministry”), had on November 26, 2024, issued an advisory to address concerns regarding the portrayal of narcotic drugs and psychotropic substances on Over-the-Top (“OTT”) platforms (the “Advisory”). Increasing instances of content glamorizing or normalizing drug use, particularly by protagonists or prominent characters, have been flagged for their potential adverse impact on young and impressionable audiences. The Advisory underscores the societal responsibility of OTT platforms in curating content that does not inadvertently promote or glorify harmful behaviour, which may influence public perception and encourage imitable actions.

LEGAL FRAMEWORK:

1. Provisions under the Information Technology Act, 2000

The Advisory has been given in pursuance of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules (IT Rules), 2021 (“Rules”), notified under the Information Technology Act, 2000 (“IT Act”). Part III of the Code of Ethics as provided under the Rules, prescribes that a publisher shall not transmit or publish or exhibit any content which is prohibited under any law for the time being in force or has been prohibited by any court of competent jurisdiction. The guidelines which have been issued for classification of content further include:

a. Classification of content in alignment with contemporary societal standards.

b. Sensitivity in the portrayal of challenging themes, including drug misuse, with restrictions at junior levels of content classification.

c. Evaluation of content’s overall impact and its tone, with consideration of its target audience.

2. Provisions under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985

The Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”), serves as the cornerstone of India’s legal framework for regulating narcotic drugs and psychotropic substances. The Advisory explicitly references key provisions under the NDPS Act to highlight the legal ramifications of depicting drug use in a glamorized or irresponsible manner on OTT platforms:

a. Prohibition on Drug Production and Trade (Sections 15-20): These sections impose stringent penalties on activities related to the production, use, possession, sale, purchase, transport, and import/export of narcotic drugs, including cannabis, opium, and coca derivatives.

b. Penalties for Drug Consumption (Section 27): Section 27 criminalizes the personal consumption of narcotic drugs or psychotropic substances. The penalties vary based on the type and quantity of the substance involved.

c. Abetment and Criminal Conspiracy (Section 29): Section 29 penalizes abetment, criminal conspiracy, and attempts to commit offenses under the NDPS Act.

The NDPS Act adopts a zero-tolerance approach toward narcotics, reflecting its emphasis on public health and safety. Through this advisory, the Ministry reiterates that OTT platforms have a duty to ensure their content complies with these statutory provisions. Non-adherence not only risks regulatory action but may also attract criminal liability under the NDPS Act.

DIRECTIONS ISSUED UNDER THE ADVISORY:

The Advisory lays down detailed directives for OTT platforms to address the risks associated with content depicting narcotic drugs and psychotropic substances. The primary focus is to ensure compliance with legal norms and foster responsible content creation practices. These guidelines include:

(i) Content Classification for Sensitive Themes: OTT platforms are required to classify content featuring the misuse of psychotropic substances, alcohol, smoking, or tobacco under higher age-restricted categories. Content depicting imitable behaviours likely to incite offenses, self-harm, or harm to others must also receive higher classification.

(ii) Proactive Content Review and Due Diligence: OTT Platforms must exercise caution to ensure that drug use is not portrayed in a way that glamourizes or normalizes its consumption. Storylines that depict drug use as trendy, fashionable, or acceptable within societal norms should be avoided.

(iii) Mandatory Compliance with the NDPS Act: OTT platforms are instructed to align with the NDPS Act. This includes avoiding any form of content that could be interpreted as abetting or promoting the use, production, or consumption of prohibited substances.

(iv) Implementation of Content Warnings and Disclaimers: The platforms are mandated to provide appropriate warnings and disclaimers for content involving drug use. These disclaimers should highlight the adverse consequences of substance abuse and aim to educate viewers on the risks associated with such behaviour.

(v) Incorporation of Public Health Messaging: OTT platforms are encouraged to embed public health messages in programs where drug-related narratives are central. Additionally, they are urged to produce and promote educational content, such as documentaries, showcasing the harmful impacts of drug abuse as part of their Corporate Social Responsibility (CSR) initiatives.

(vi) Voluntary Compliance to Avoid Regulatory Scrutiny: The Ministry has called upon OTT platforms to voluntarily adhere to these guidelines in the larger public interest. Failure to comply may lead to increased regulatory oversight and enforcement under the IT Act, and the NDPS Act.

ANALYSIS AND CONSEQUENCES:

The Advisory brings both opportunities and challenges for OTT platforms and content creators, since OTT platforms may now be required to allocate significant resources for content review processes, ensuring that depictions of drug use are handled responsibly and within the bounds of law. While this promotes accountability, it may inadvertently stifle creative expression, particularly for narratives involving nuanced or critical explorations of drug-related issues. Furthermore, the potential for non-compliance to trigger regulatory scrutiny places an additional burden on creators to avoid themes that may invite legal challenges, leading to a more cautious approach in storytelling.

From a legal perspective, the Advisory reinforces the obligations of OTT platforms to adhere strictly to provisions under the NDPS Act. It emphasizes that content perceived as abetting or normalizing drug use could attract liabilities under these sections, necessitating the need for thorough legal vetting of scripts and storylines. Additional, from an ethical perspective, the Advisory aligns with the broader objective of protecting youth and impressionable audiences from adverse influences. However, its broad language raises concerns about potential overreach, particularly in determining what constitutes "glamorization" or "normalization" of drug use. The absence of detailed criteria for enforcement leaves room for subjective interpretations, which could lead to inconsistent application of the Advisory.

Further, the Advisory is likely to foster awareness about substance abuse by encouraging OTT platforms to include public health messaging and mitigating the glamorization of drug use in popular media. These measures could contribute to a cultural shift, promoting healthier perceptions and behaviours among the audience. However, despite its intentions, the Advisory faces challenges in implementation. Voluntary compliance relies heavily on the willingness of OTT platforms to prioritize social responsibility over commercial interests. Additionally, the lack of an enforcement mechanism or penalties for non-compliance under the advisory could dilute its impact. Striking a balance between preserving artistic freedom and ensuring adherence to legal and ethical standards may remain a complex and ongoing challenge.

This update has been contributed by Jitendra Soni (Partner) and Samia Haider (Associate).

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