Helping fix TV: Anti Tobacco Warnings

[Earlier this month, I mentioned a series of posts on based on complaints sent to broadcasting regulators. This post is the first in the series.]

With ever increasing frequency, channels are now displaying anti-tobacco warnings, which have little connection to the content being shown on television. The Cigarettes and Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 only requires these warnings to be shown when smoking and tobacco products are being depicted on screen. I sent in a complaint to the Broadcasting Content Complaints Commission (BCCC), since this is practiced by all broadcasters, and it is not possible to make individual complaints to each broadcaster.

Although the BCCC rules say that the complainant would receive a response within 2 days of the complaint (Rule 8.a), I have not received any response to my complaint, made on January 7, 2013. Since my complaint, however, at least one broadcaster’s warnings have become less conspicuous on screen, although there is still no relevance to the content being aired.

The full text of this complaint is reproduced below.

The Government of India has put in place excellent legislation to create more awareness about the medical and other negative side-effects of prolonged use of cigarettes and other tobacco products through the implementation of The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, (‘the Act’) which ensure that there are warnings about the evils of tobacco use. This includes, specifically, the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2004 (‘the Rules’) issued under the Act, which detail the circumstances under which, specifically, advertisements of cigarettes and tobacco products would be banned. The Act and the Rules under them are all admirable steps towards the fulfilling of India’s international commitments under the Framework Convention on Tobacco Control, under the aegis of the World Health Organisation.

However, the portrayal, or mere representation of tobacco and/or cigarette use has not been prohibited, as was detailed in the decision of the Hon’ble Delhi High Court in Mahesh Bhatt v. Union of India, where the learned judge suggested that cinema is intended to portray both the positives and the negatives of social life, and therefore, the use of tobacco products could not be prohibited. In addition, the learned judge suggested that as long as the actual sale of tobacco products was not banned, its portrayal on film could not be prohibited in a manner so as to survive a challenge under Article 19(1)(a) read with Article 19(2), as to the constitutionality of such a measure.  On these grounds, the Court struck down Rule 4(6), 4(6A), 4(6B) and 4(8) of the Rules.

In light of this statement of unconstitutionality, and no subsequent amendment of these rules, it should stand that there is no prohibition on the portrayal of tobacco products on television. Equally it is no longer mandatory, statutorily, for television broadcasters to broadcast a warning in the manner prescribed in the aforementioned Rules. Despite this, it is a mark of the IBF’s commitment to public health that these warnings are still displayed.

However, there appears to be a disconnect with the manner in which the warnings are being displayed, as they are currently, and the goal of such messages. Very often, the messages appear when there is no portrayal of tobacco products on screen, leading to this complaint, which is to question the efficacy of the actions of the IBF. The messages, as they currently appear, are broadcast excessively often, and as mentioned previously, have no connection to the images being broadcast at that time. Therefore, the warnings do not achieve the purpose of re-enforcing a negative message along with images being broadcast. Therefore, it would seem that there is saturation of these messages, therefore making it easy for viewers to ignore them, and for them to fail to have any impact. This saturation is one of the reasons for statutory warnings under the Rules to be rotated or changed every 12 months.

To this extent, I believe that the actions of the members of the IBF are resulting in an unfair infringement on our Fundamental Right to Receive Information, which is an essential element of the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India, as laid down by the Hon’ble Supreme Court in several landmark decisions including but not limited to Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal, the seminal decision on freedom of speech in the broadcast media. I would request the Broadcasting Content Complaints Council to take the necessary steps to ensure that this over-regulation of content on the airwaves stops, since these actions not only prejudice the broader social objectives which such actions seek to achieve, but they also potentially, result in gross violations of fundamental rights guaranteed to ever citizen, under the Constitution of India.

Any rationale for such constant disclaimers is also unclear from the Self-Regulation Content Guidelines for Non-News and Current Affairs Television Channels. Under the Programme Categorisation System, Theme 4 dealing with alcohol and tobacco merely requires discretion while airing: there is no mention of warnings being shown, especially when the warning has no discernible connection with the matter being broadcast.

I would request the IBF and the BCCC to take the necessary steps to prevent these unnecessary incursions into every citizen’s right to freedom of speech and expression, and further to refrain from activities which defeat the social purpose for which measures have been put in place.

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