Technology Law Analysis
June 18, 2024
Self-Declaration Mechanism for Misleading Advertisements:
A House Built on Sand
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The Supreme Court order dated May 7, 2024 in the case of Indian Medical Association & Anr. v. Union of India & Ors, Writ Petition (C) No. 645/2022, mandated establishment of a Self-Declaration mechanism for advertisements.
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The mechanism is operational through the Broadcast Seva Portal and Press Council of India Portal, established by the Ministry of Information and Broadcasting, from June 18, 2024.
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We discuss the background to the proceedings, compliance obligations on relevant stakeholders, issues and concerns with the Self-Declaration Mechanism and propose alternatives on the way forward
In its order dated May 7, 2024, the Supreme Court
of India (“SC”) bench
of Hon’ble Justices Hima Kohli and Ahsanuddin
Amanullah (“Bench”)
in exercise of its extraordinary jurisdiction, passed
an order in Indian Medical Association & Anr.
v. Union of India & Ors,1 (“Order”)
directing all advertisers and advertising agencies
to submit a self-declaration certificate before
publishing / broadcasting any advertisement (“Self-Declaration”)
on television, radio, print and digital media and
proof of uploading the same shall be made available
by the advertisers to the concerned broadcaster/printer/publisher/platform.
The Order further directs that “no
advertisements shall be permitted to be run on the
relevant channels and/or in the print media/internet
without uploading the self-declaration”.2
Thereby, appearing to impose an implicit obligation
on platforms/broadcasters to not run advertisements
which have not been self-certified. The Ministry
of Information and Broadcasting (“MIB”)
was directed to create a dedicated portal within
four weeks from the Order to enable uploading of
the Self-Declaration.
The Order arose out of concerns relating to misleading
advertisements. In this hotline, we discuss the
background and consequences of the Self-Declaration
framework.
Background to the proceedings
The Order was in the context of the ongoing writ
proceedings before the Supreme Court filed against Patanjali Ayurved for publishing misleading
claims and advertisements about ayurvedic products
as a complete cure for certain diseases while disparaging
modern systems of medicine like allopathy, particularly
during the COVID pandemic. In an earlier order dated
April 23, 2024, however, the Bench expanded the
scope of the proceedings to include all similarly
placed FMCG and pharmaceutical companies making
misleading advertisement relating to the products
manufactured and marketed by them.3 The
Bench noted that such entities were taking the public
at large for a ride, in particular, adversely affecting
the health and well-being of babies, young children,
women (including lactating and pregnant women),
senior citizens and the sick and infirm, who have
been consuming the products on the basis of the
said misrepresentations’.4
In the earlier order dated April 23, 2024, the
Bench directed the Ministry of Consumer Affairs
(“MCA”), Ministry of
Food and Public Distribution, MIB and the Ministry
of Electronics and Information Technology (“MeitY”)
to file affidavits explaining action taken by them
to prevent abuse of the various statutes governing
advertisements: Drugs and Magic Remedies (Objectionable
Advertisements) Act, 1954 (“DMROA
Act”), Drugs and Cosmetics Act, 1940
(“DCA”), and the Consumer
Protection Act, 2019 (“CPA”).
There is an existing legislative framework governing
misleading advertisements involving a gamut of general
and sector-specific laws. Regulators such as the
Central Consumer Protection Authority, Telecom Regulatory
Authority of India, Food Safety and Standards Authority
of India, Ministry for Health and Family Welfare,
MIB etc. enforce these laws. The self-regulatory
body, the ASCI, which has been recognized by various
government departments and the Supreme Court of
India also has an enforcement mechanism in place
for non-compliant ads. Given there is a wide host
of laws already governing advertising content, the
concern of the SC in the Order was not in relation
to absence of such laws but that complaints in relation
to non-compliance with existing laws are not adequately
taken forward, resulting in poor enforcement actions.
The Order appears to mainly seek accountability
by advertisers.
In the Order, the Bench went on to generally
examine the compliance under the CPA and actions
taken against print, FM and television advertisements
in general, i.e., not specific to advertisements
making medical or health- related claims. The SC
noted that “provisions ought to be used
with much more vigour and intensity”.5
However, subsequently in the Order, the SC directed
the MCA to file an affidavit “setting out
the action taken by the [Central Consumer Protection
Authority] on noticing/being informed of false/misleading
advertisements, particularly in the food and health
sector”.6
Hence, given the focus of the case is on drugs,
cosmetics, food products and health services, the
Order ideally should be read to apply to those products.
MIB Press Release and Portal
On June 3, 2024, the MIB issued a press release
pursuant to the Order (which was further updated
on June 5, 2024) (“Press Release”)
introducing features to enable submission of the
Self-Declaration:
A new feature on the Broadcast Seva Portal of MIB
for TV and radio advertisement (“Broadcast
Seva Portal”);
A feature on the Press Council of India’s
portal for print and digital/internet advertisements
(“PCI Portal”).
The PCI Portal went live on June 4, 2024, and
the industry was directed to comply with the Self-Declaration
mechanism by June 18, 2024. The Press Release was
accompanied by guidelines for advertisers/advertising
agencies using the portals (“Portal
Guidelines”).
However, the Self-Declaration mechanism and its
implementation vide the Broadcast Seva
Portal and PCI Portal (collectively, “Portals”)
appears to be riddled with ambiguities and implementation
difficulties.
Per the Press Release, the Self-Declaration certificate
is required to be submitted by all advertisers and
advertising agencies for all new advertisements
published
on or
after June 18, 2024. A mere two-week buffer
period was provided in order to provide stakeholders
to familiarize themselves with the process of Self-Declaration.
Ongoing advertisements, which were published
before June 18, 2024, do not require the Self-Declaration.
The Order contemplates the Self-Declaration for
certification of compliance with the Guidelines
for Prevention of Misleading Advertisements and
Endorsements for Misleading Advertisements, 2022
issued under the CPA. However, the Portal Guidelines
in addition require that the Self-Declaration certificate
certifies that the advertisement:
The Order referred to self-certification in the
context of Rule 7 of the Cable Television Networks
Rules, 1994. However, the said rule does not refer
to any self-certification requirement. The rule
simply requires surrogate advertisements to provide
affidavits certifying the availability of the advertised
product in reasonable quantities as per the prescribed
threshold and details of expenditure on the advertisement.
The Press Release provided for exceptions to
Self-Declaration for classifieds (not directly relating
to consumer products/services), personal advertisements,
statutory advertisements, public information notices,
tenders, and advertisements related to public functions.
Compliance Obligations
(i)
Advertiser/Advertising Agency
In addition to submission of the Self-Declaration
certificate, the Portals require advertisers/advertising
agencies to submit additional details in relation
to the advertisement such as:
-
a brief description of the advertisement in approximately
100-200 words, highlighting specific features or
claims made in the advertisement;
-
full script of advertisement (in a PDF file);
-
URL or PDF of the actual advertisement;
-
proposed date of first broadcast/publishing of the
advertisement;
-
letter of authorization for submission of the Self-Declaration;
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CBFC certificate, if applicable.
This creates an additional burden on Advertisers.
(ii)
Platform
The Order states that advertisers are required
to upload the Self-Declaration. It further states
that “Proof of uploading the self-declaration
shall be made available by the advertisers to the
concerned broadcaster/printer/publisher/T.V Channel/electronic
media, as the case may be, for the records. No advertisements
shall be permitted to be run on the relevant channels
and/or in the print media/internet without uploading
the self-declaration as directed above.”7
A newspaper press notification issued by the
MIB providing details on how to comply with the
Self-Declaration states that:
“Publishers/broadcasters/internet
platforms shall publish, broadcast or telecast an
advertisement only if advertisers/advertising agencies
submit a copy of the self-declaration for each specific
advertisement.”
The Press Release also notes that “The
authenticity of [..] certificates may be verified
through Broadcast Seva portal of the [MIB]/PCI Portal.”
However, a perusal of the PCI Portal appears
to limit access only to advertisers or advertising
agencies.
Issues in the self-declaration
mechanism
While the deadline for compliance with the Self-Declaration
mechanism through the Portal is June 18, 2024, there
appear to be several challenges with its implementation.
What are advertisements?
While the term advertisement is not specifically
defined in the Order, the definition of the term
under the CPA8, is broadly worded and
covers wide range of marketing activities. Given
the wide definition, it is unclear whether the Self-Declaration
mechanism should cover all such advertisements,
including the following:
(a) Packages and labels
of products/ QR codes on products;
(b) Testing an advertisement
on small groups of people prior to releasing to
the public;
(c) Social media posts
which simply contain a brand name and don’t
make any claims;
(d) Teasers, advertisements
and trailers of films and series.
There may be two types of advertisements: (i)
user generated content which is in the nature of
an advertisement (such as an influencer endorsing
a product/ organic advertisement), and (ii) paid
advertisements onboarded by the platform. It may
not be possible for a platform to verify Self-Declaration
in case of (i). It is also impossible for platforms
to ascertain which user generated content is in
the nature of advertisements in the first place.
It is also unclear whether all language variations
and duration edits of a particular advertisement
will require separate declarations.
-
Administrative burden
A recent study by TAM Media Research and AdEx
reported that there are nearly 3.4 billion digital
ads, 1.3 million print ads and 860 million TV ads
published from January to December 2023. Small and
medium advertisers publish in regional publications.
It will create a huge compliance burden for such
businesses and publications. The Portals may
not be able to accommodate the influx of such volumes
of advertisements/ such traffic. This would adversely
impact the entire advertising ecosystem. If for
any reason the Portals are not available for upload,
then the entire launch gets affected.
-
Broad strokes approach
The Self-Declaration mechanism currently applies
to all advertisers without any threshold. Micro
and small businesses may be required to comply with
the self-declaration requirement irrespective of
the nature of product or service, leading to unreasonable
burden. To illustrate: the Self-Declaration at present
can apply to a home business such as a t-shirt or
handicraft businesses.
If the Self-Declaration mechanism is held to
apply to advertisements of all goods and services
irrespective of the sector or industry, it may have
a disproportionate impact, given the mischief sought
to be addressed by the Order arose in the context
of health claims.
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Diverse nature of advertisements
and advertising models
The Order mandating Self-Declaration does not
appear to consider the vast types of advertisements
and advertising models prevalent, particularly on
the digital medium. Considering the internet is
borderless, it will be difficult to implement the
proposed mechanism against foreign platforms and
advertisers. The Self-Declaration requirement
appears to be impossible to implement for certain
unique advertising models.
Advertisements have evolved from the more traditional
forms and are now deployed through various innovative
models. There are various issues in complying with
specific requirements of the Self-Declaration Mechanism
such as details of script, URL (which may not exist
prior to publication), file size concerns (limit
of 1 MB), ultimate platform on which the advertisement
is published etc. as set out below:
Programmatic
advertisements: In programmatic advertising,
there is an automated process of buying and selling
ad inventory in real-time through a complex ecosystem
involving multiple platforms and technologies. In
such cases, since the ultimate platform on which
the advertisement is published is uncertain, the
relevant stakeholders will not be able to comply
with the Self-Declaration mechanism which requires
details of the platform on which the advertisement
is published.
Influencer
advertisements:
Influencer advertising is resorted to by
most brands today because of the organic
manner in which influencers may
advertise the product. To illustrate, a brand may send an influencer freebies / product
to test, and the advertiser will make an organic
post about their experience using the product. At
the time of sending the product, the brand will
not have a script or a URL, nor will they know if
the influencer may actually post about the brand
/ product. Hence, the requirement in the Self-Declaration
mechanism to input details of the script/URL cannot
be adhered to.
Topical
advertisements: Brands may take charge of ‘topical’
advertising, for example, AMUL ads frequently take
advantage of a topical/current affairs/contemporary
subject and create an advertisement around it. The
Self-Declaration requirement would be a slow process
which may slow down such ‘moment marketing.’
Livestream
advertisements:
On several digital platforms, products and services
may also be advertised through live stream events
(including on an impromptu basis). These creative
outreach programs may get affected if all advertisements
are required to be self-declared prior to publishing.
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General issues with Self-Declaration
Given that self-declaration of advertisements
is required to be undertaken before the same is
published, and such declarations are publicly available,
there are concerns regarding the confidentiality
of submitted information, and its possible impact
in undermining healthy competition in the market.
It is also unclear how much prior to the advertisement
launch, the Self-Declaration needs to be obtained.
Proposed Solution
As stated above, there is an existing legislative
framework governing misleading advertisements under
general and industry specific laws. ASCI has recently
tied up with the Department of Consumer Affairs
to strengthen enforcement of advertising regulation
in India. The various regulators under the existing
laws may consider constituting a joint mechanism
to harmonize compliance with the host of such laws,
including submission of periodic compliance reports,
publication of non-compliant brands, conducting
awareness campaigns and streamlining consumer-complaint
mechanisms.
Further, the concerns in the Order arose primarily
from health-related concerns, as is evident from
the fact that its directions were in enforcement
of the fundamental right to health. In
numerous places in the Order as well, the Bench
has underscored that the consumer concern it is
trying to address is consumer health. Hence, the
wide ambit of the Self-Declaration mechanism over
advertisements wholly unrelated to consumer health
seems disproportionate.
The Self-Declaration requirement does not
in fact address the concern of ensuring that advertisements
do not contain any misleading claims, since the
documents submitted via the Self-Declaration do
not get verified by a regulator. Given the disproportionate
compliance burden, an alternative approach may be
considered wherein for print and digital advertisement
a one-time self-declaration may be taken from the
advertiser (instead of for each ad). Or a self-declaration
may be taken in relation to a particular product
claim, including disclaimers etc. (rather than a
separate declaration for each advertisement making
the said claim). In so far as platforms are concerned,
their only obligation could be to take-down non-complying
content. Mechanism as existing for non-compliant
digital advertisements under the Section 79 of the
Information Technology Act read with the Information
Technology (Intermediary Guidelines and Digital
Media Ethics Code) Rules, 2021 may be considered
for all other mediums. This is also in line with
Section 21 of the CPA which provides a mechanism
for takedown of misleading advertisements.
Several industry associations are impleading
in this matter.
The next date of hearing in this matter is listed
as July 9, 2024.
Authors:
-
Karishma Karthik,
Tanisha Khanna and
Gowree Gokhale
Technology Law Team:
Nishith Desai, Global Business Strategy
Gowree Gokhale, Head of Practice, TMT
Huzefa Tavawalla, Co-Head, TMT
Tanisha Khanna, Leader, TMT Team
Aniruddha Majumdar, Member, TMT Team
Karishma Karthik, Member, TMT Team
Rhythm Vijaywargiya, Member, TMT Team
Palak Kapoor, Member, TMT Team
You can direct your queries or comments to the relevant member.
1Writ Petition (C) No. 645/2022.
2Paragraph 24, Order.
3Paragraph 5, Indian Medical Association &
Anr. v. Union of India & Ors, Writ Petition
(C) No. 645/2022, order dated April 23, 2024.
4Paragraph 5, Indian Medical Association &
Anr. v. Union of India & Ors, Writ Petition
(C) No. 645/2022, order dated April 23, 2024.
5Paragraph 18-20, Order.
6Paragraph 20, Order.
7Paragraph 24, Order.
8Section 2(1), Consumer Protection
Act, 2019:
“advertisement" means any audio or
visual publicity, representation, endorsement or
pronouncement made by means of light, sound, smoke,
gas, print, electronic media, internet or website
and includes any notice, circular, label, wrapper,
invoice or such other documents;”
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