Self-Declaration Requirement for Advertisers and Advertising Agencies

In the matter of Indian Medical Association & Anr. vs Union of India & Ors. [WP No. 645/2022], the Hon’ble Supreme Court (SC) has taken note of the increasing trend of misleading advertisements of FMCGs and pharmaceutical products, which have the potential to adversely affect the health and well-being of the public at large. Noting the absence of a robust mechanism to ensure adherence to the obligations cast on advertisers under the Guidelines, the SC invoked its powers under Article 32 of the Constitution of India to enforce the ‘fundamental right to health’.

SC passed an interim order dated 07.05.2024 directing the following:

• A self-declaration shall be submitted by the advertiser/advertising agency on the Broadcast Sewa Portal on the lines contemplated in Rule 7 of the Cable TV Rules before an advertisement is printed/aired/displayed.
• Ministry of Information & Broadcasting (MIB) was directed to create a dedicated portal to upload such self-declarations for advertisements issued in the Press/Print Media/Internet.
• Proof of uploading such self-declaration is to be provided to the respective medium running/publishing the advertisement.

The directions of the SC have been implemented by the MIB by creating the requisite portals (Broadcast Seva Portal for TV and radio advertisements and Press Council of India’s portal for Print and digital/internet advertisements). Vide Press Release dated 03.06.2024, the MIB has conveyed that the self-declaration requirement would be applicable for all advertisements by all advertisers and advertising agencies that will be issued/telecast/aired/published on or after 18.06.2024.

Additionally, MIB also released an Advisory dated 03.06.2024 reiterating the self-declaration requirement.

In response to the new self-declaration obligations, the industry and associations have reacted adversely due to a lack of clarity on various aspects including practical challenges in implementation. Some aspects requiring clarity are as follows:

• The SC’s interim order was passed in the background of issues pertaining to false health claims by invoking its power to safeguard the ‘fundamental right to health’. However, MIB’s communiques do not restrict the self-declaration requirement only to advertisements with health claims.
• Whether ‘advertisements’ would extend to brand visibility, sponsored content and product endorsements and labels is also unclear.
• Many advertisers now make edits to ad-content on digital media in real time, on the basis of viewer response. Whether each edited version of the advertisement would require a separate self-declaration is also unclear. Such a requirement would not only be a challenge to enforce but would also substantially slow down the release of Ad-tweaks.
• The MIB communications do not provide clarity on the applicability of this requirement to advertisers based outside India. The portals presently only allow access by India IP addresses and require PAN credentials to log in.
• MIB communications do not clarify whether for a given advertisement, self-declaration is required to be given by the advertiser, advertising agency or both. While the SC uses the phrase ‘advertisers/advertising agencies’, MIB’s Press Release uses the phrase ‘advertisers and advertising agencies’.
• While the SC directed that the self-declaration is to certify compliance with Rule 7 of the Cable TV Rules, MIB appears to have widened the scope of the self-declaration to ‘all relevant statutes’ as well.

Considering the volume of advertisements released each day across various mediums, it is yet to be seen whether the portals can handle the influx of such volumes and ensure no disruption to Companies due to technical glitches.

The SC’s direction is part of an interim order in a matter which is still being heard by it. Further clarifications may be issued during the next hearing on 09.07.2024 and subsequent hearings.

Additionally, various representations are reported to have been filed with the MIB seeking clarity on the scope of the requirement and practical challenges. Given this, a clarification from MIB would be well received.

We trust you will find this an interesting read. For any queries or comments on this update, please feel free to contact us at insights@elp-in.com or write to our authors:

 Sweta Rajan, Partner, Email – swetarajan@elp-in.com  

Ananya Raghavendra, Associate, Email – ananyaraghavendra@elp-in.com