Introduction

The National Commission for Protection of Child Rights (“NCPCR”) on 24th June 2022 has released the Draft Regulatory Guidelines for Child Participation in the Entertainment Industry or Any Commercial Entertainment Activity (“Draft Guidelines”), which is available on its website for 30 days for public comments. The Draft Guidelines have been developed with the aim of ensuring a healthy work environment with minimal physical and psychological stress for children participating in the entertainment industry and undertaking any commercial entertainment activity. Once notified the Draft Guidelines will supersede the “Guidelines to Regulate Child Participation in the Entertainment Industry” previously issued by the NCPCR in 2011.

Scope: The Draft Guidelines shall cover television programmes including but not limited to:

• Reality shows;
• TV serials;
• News and informative media;
• Movies;
• Content on OTT platforms;
• Content on social media;
• Performing arts;
• Advertising; and
• Any other kind of involvement of children in commercial entertainment activities.

Applicability: These Draft Guidelines shall be applicable to:

• any relevant institution comprising of but not limited to companies, organization/s, or;
• individual/s involved in the production and broadcasting of such material along with the concerned Central and State Government authorities.

Key Definitions:

• “child” means a person who has not completed 18 years of age;
• “child artist” means a child who performs or practices any work as a hobby or profession directly involving him as an actor, singer, sports person or in such other activity as may be prescribed relating to the entertainment or sports activities;
• “child labour” means the “system of employing or engaging a child to provide labour or service to any person, for any payment or benefit, paid to the child or to any other person exercising control over the said child” as defined by the Hon’ble Delhi High Court in its judgment dated 5th November 2014 in W.P. (Crl.) No. 2069/2005 filed by Save the Childhood Foundation.
• “entertainment industry” means any organization, or individual, using the services of any minor in: motion pictures of any type (film, videotape, etc.), using any format (theatrical, film, commercial documentary, television program, etc.), by any medium (theatre, television, videocassette, etc.); photography; recording; modelling; theatrical productions; publicity; rodeos; circuses; musical performances; and any other performances; and any other commercial performances where minors perform to entertain the public;

General Safeguards proposed:

• Registration of Child Artist: As per the Draft Guidelines it is proposed that any producer of any audio–visual media production or any commercial event involving the participation of a child, shall involve a child in participation only after obtaining the permission from the District Magistrate (“DM”) and shall furnish to the DM an undertaking in Form A of the Draft Guidelines. The permit obtained from the DM shall be valid for 6 months.
• Casting restrictions for specific content: The Draft Guidelines proposes that no child should be –
  • cast in a role or situation that is inappropriate
  • exposed to ridicule, insult or discouragement, harsh comments or behavior that could affect their emotional health
  • shown to be imbibing alcohol, smoking or using any other substance or shown to be indulging in any sort of antisocial activity and delinquent behavior.
  • engaged in any situation involving nudity
  • projected in a way to harm or risk their welfare in programmes based on victims of child abuse
• Presence of parent/guardian: As per the Draft Guidelines it is proposed that at least one parent should be present at all times for children below the age of six years whereas in the case of children above the age of six, a parent or legal guardian or a known person should be present at all times. Producers shall be required to appoint one “responsible” person for a maximum of five children to ensure their protection, care and best interest. For infants participating for more than an hour a day, a registered nurse or midwife must be present at all times along with the parent or legal guardian
• Physical Conditions and Safety: The Draft Guidelines propose that –
  • All production units develop guidelines with respect to children including general principles, procedures for seeking consent of parents, good practices, staff protocols for engagement with children and a child protection policy.
  • A minor, especially below the age of 6 years, shall not be exposed to harmful lighting, irritating or contaminated cosmetics.
  • Every person involved in the production who may be in contact with children shall submit a medical fitness certificates and certificate for not carrying obvious contagious disease.
  • The producer shall ensure that adequate and nutritious food and water is provided to the children during the process of production.
  • Recreational material and rest facilities shall be available on the production set.
  • Children shall not be made to share dressing spaces/rooms with adults.
  • Proper facilities of first aid and medical counselling shall be present on the set at all times.
  • Special facilities to meet the needs of the differently abled child shall be provided.
• Work Hours, Holidays and Agreements: The Draft Guidelines propose that –
  • A child shall only participate in one shift per day, with a break after every three hours.
  • The period of work of a child shall not be more than six hours, including the time spent in waiting for work on any day. There shall be no overtime work or work between 7 p.m. and 8 a.m.
  • Every child shall be given minimum one day leave; such information shall be displayed conspicuously by the producer
  • Infants below the age of 3 months shall not participate in shows except in programmes on promotion of breast feeding or immunization.
  • No child shall be made to enter into an agreement to do any work or render any service as a bonded labourer under the Bonded Labour System (Abolition) Act, 1976 or by virtue of which the child is unable to terminate the agreement or enter into any other agreement.
• Wages: The Draft Guidelines proposes that at least twenty per cent, of the income earned by the child from the production or event shall be directly deposited in a fixed deposit account in the name of the child which may be credited to the child on attaining majority.
• Education: It is also proposed that the producer shall arrange for appropriate facilities for education of the child to ensure that there is no discontinuity from his lessons in school and no child shall be allowed to work consecutively for more than twenty-seven days. The minimum number of working days or instructional hours in an academic year should be maintained as provided in the Schedule under the Right of Children to Free and Compulsory Education Act, 2009.
• Anonymity: The Draft Guidelines also proposes that the identity of the child, or any personal detail of the child shall not be revealed without the prior permission of the parent/legal guardian.

Draft Guidelines for Social Media Intermediaries (“SMIs”): The content created for SMIs involving children shall be bifurcated into content created by production houses or other organizations and content created by the child or his family as a family enterprise. Largely, the Draft Guidelines for SMIs in terms of regulation of content, wages, education and conditions of work are similar to those forming a part of the Draft General Guidelines under Chapter 2 and regulate the actions to be taken by producers/production houses/family enterprises and other stakeholders while publishing content on SMIs. Further, the Draft Guidelines highlight the duties of an SMI under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Guidelines”) for content uploaded on their platforms under Rule 3. The provisions of the Intermediary Guidelines explicitly provide for actions that can be taken by social media intermediaries’ suo-moto or upon the notice of the Appropriate Government or upon a Court Order. In such cases where there is apparent violation of child rights under any of the laws in force and/or violation of the Intermediary Guidelines, the SMIs are to take swift and prompt action.

Guidelines for Advertisements: Under the Draft Guidelines, the provisions regulating advertisements under the recent Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022 (“Advertising Guidelines”) have been reproduced for advertisements that address or target or use children. Read our blog on the Advertising Guidelines here.

Penalties and Offences: The Draft Guidelines demarcate penalties for violation of general safeguards under Chapter 2 of the Draft Guidelines as per the Child and Adolescent Labour Act, 1986. The Draft Guidelines also specify the penalties for contravention of the Protection of Children from Sexual Offences Act, 2012 and the Juvenile Justice (Care and Protection of Children) Act, 2015 especially in relation to identity disclosure and exploitation of the child, cruelty towards the child and administration of intoxicating substances to the child. Any other violation committed under the Draft Guidelines shall be punished under the respective Act.

Inspection and Complaints:

• Inspections: The Inspector appointed under the Child Labour and Adolescent Act, 1986 shall inter alia undertake periodical inspections of the places at which the employment of children is prohibited and maintain records of children and adolescents found to be working in contravention of the provisions of the Act including children who are found to be engaged in family or family enterprises in contravention of the Act.
• Complaints: Complaints regarding violations committed against a child under the Draft Guidelines or any other law in force during the child’s participation in the entertainment industry can be made by any person to the District Magistrate or the NCPCR or the SCPCR of the respective state

Our Take:

The Draft Guidelines aim to create and regulate a safe and healthy work environment for children by incorporating provisions from pre-existing statutes and other related guidelines on specific subject matters. While the Draft Guidelines are a welcome step, the broad casting restrictions as well as the requirement of SMIs to take “swift and prompt” action in cases where there is an “apparent violation of child rights” under “any of the laws” in force and/or violation of Intermediary Guidelines, requires further clarity since the said language appears to extend the scope of existing regulations.

This article was first published on Saikrishna & Associates