INTRODUCTION
The Indian Economy is flourishing at a very high pace due to which many different & innovative ways of advertisements have made a space in the market. These advertisements attract people towards the product. But many times, the companies and sellers boast a lot about their products which proves to be false when products are used by people. This creates a sense of being cheated and deception in consumers. Different legal provisions criminalize such misleading advertisements. Although these laws play a major role in protecting the public from false and alluring advertisements, such cases are not completely curbed by these laws. According to the report of ASCI, about 39 % of the total 8229 advertisements scrutinized were violative of various legal provisions. [1] This data show the need for strict implementation of the law. The cases concerning misleading complaints are increasing day by day. So the Supreme Court passed the order for every employer first to fill out a declaration form and submit relevant information about the advertisements on a government-regulated portal.[2]
SELF DECLARATION FORM
On 7 May, 2024 Supreme Court in the case of Indian Medical Association & Anr. v. Union of India & Ors[3], ordered that every advertiser has to submit the ‘Self-declaration form’ before publishing any advertisement to curb the increasing cases of misleading advertisements. Self-declaration form here means a formal form under which a person who wants to publish any advertisement on any media platform like print, TV or social media declares that his/her advertisement contains no misleading information about the product and that the advertisement is according to rules and regulations in force at that time. This form has to be uploaded on the government-managed dedicated portal for the same. Following the order of the Supreme Court, the Ministry of Information and Broadcasting issued a press release on 3 June 2024 describing directives for the Self-declaration form.[4] According to the press release, the rule will apply to advertisements to be published from 18 June 2024 and the portals were to be operational from that day.
The rule is made to ensure that misleading advertisements can be stopped. According to section 2(28) of The Consumer Protection Act, 2019[5], “Misleading Advertisement about any product or service means an advertisement, which-
(i) falsely describes such product or service; or
(ii) gives a false guarantee to, or is likely to mislead the consumers as to the nature, substance, quantity or quality of such product or service; or
(iii) conveys an express or implied representation which, if made by the manufacturer or seller or service provider thereof, would constitute an unfair trade practice; or
(iv) deliberately conceals important information; “
If any of the advertisements display such information it is called a misleading advertisement. It was also observed by the Supreme Court that there is no such mechanism to check whether advertisers have followed the relevant rules and regulations or not. The rules and regulations concerning standards for advertisements are given under different sets of Legislation like The Drugs Act, of 1954, The Consumer Protection Act, of 2019, The Food Safety And Standards Act, of 2006, The ASCI Code, The Cable Television Network Act 1995 and The Cable Television Amendment Act 2006, The Cigarettes and Other Tobacco Products Act, 2003, The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 and the Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022, made by CCPA powered under Consumer Protection Act.[6] So the new self-declaration rule is made to act as that robust mechanism.
PROCEDURE
Due to a Supreme Court order and MIB press release, all advertisers have to fill out a self-declaration form before publishing an advertisement after 18 June 2024. This form is made operational through the Broadcast Seva Portal and Press Council of India Portal. This certificate provides that the advertisement does not contain any false, misleading information and follows all the relevant rules and regulations in force. This certificate has to be obtained by the advertiser no matter where the advertisement is published i.e. on social media, print media, TV, etc. To obtain the self-declaration certificate the following procedure has to be followed:
-First, the advertiser or an authorized representative of the advertiser or advertising company has to fill out the self-declaration form. It should attest that the advertisement does not contain any misleading content and It complies with all regulations including that given under Rule 7 of the Cable Television Networks Rules, 1994 and the Norms of Journalistic Conduct of Press Council of India. [7]
-The advertiser has to submit the following details along with the self-declaration form:
- a brief description of the advertisement in 100-200 words, highlighting features and claims made in the advertisement.
- full script of the 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.
- CBFC certificate, if applicable.[8]
-For publishing the advertisement in print or digital / internet media, the form has to be submitted on ‘The Press Council of India’s portal’ and if It is to be published on TV or radio broadcast then the form has to be submitted on ‘Broadcast Seva Portal’.
This certificate has to be shown by the advertiser to the producer or broadcaster before the advertisement is published. If this certificate is not shown then the advertisement is not allowed to be published on any platform. The authenticity of these certificates can be verified through broadcast seva portals of MIB.[9]
The self-declaration certificate rule will be applied to all advertisements especially related to consumer goods and services but the exception is provided to classifieds (not directly relating to consumer products/services), personal advertisements, statutory advertisements, public information notices, tenders, and advertisements related to public functions.
PROBLEMS
This new initiative is a good step to ensure public welfare through honest advertising. But it put forward certain difficulties before all advertisers which are as follows-
- The definition of advertisement as per sec 2(1) of The Consumer Protection Act, 2019 is
“Advertisement” means any audio or visual publicity, representation, endorsement or pronouncement made using light, sound, smoke, gas, print, electronic media, internet or website and includes any notice, circular, label, wrapper, invoice or such other documents;”[10]
It has a wider base and thus includes many market activities, so it raised the question of the applicability of the rule.[11]
- The designed portals take a long time to generate the certificates. There are glitches in the portals due to which various advertisements of companies get delayed.
- Different Self-declaration certificates have to be obtained for different versions of the same advertisement.
- Various Companies release many advertisements in one day on various platforms and as the portal takes a long period to issue the certificate, this adversely affects their frequency.
- The self-declaration rule requires disclosing all information which also includes confidential and sensitive information related to the product due to this various companies are not willing to comply with this rule.
- There is a lack of any provision or order that penalizes submitting false information in self-declaration form.[12]
- There is modernization of advertising, so there are various types of advertisements that are not uploaded only on print, TV, radio and digital media. For example, live stream advertising, influencers trial and review advertising etc. so the question of applicability of the rule on these types of advertisements.[13]
Due to such issues, organizations like the Indian Newspaper Society (INS) and the Internet and Mobile Association of India (IAMAI) have moved to the Supreme Court for clarity. [14]
CONCLUSION
The Supreme Court in the famous Patanjali misleading advertisement case laid down a new procedure for ensuring responsible advertising and transparency. The cases of misleading advertisements were increasing continuously despite the existence of various legal provisions. It has a positive impact in the sense of creating a liability on advertisers for the content of their advertisement. However, this initiative creates an additional burden on advertisers and agencies. The technical issues in the portals decline the publication rate of advertisements. There is a lot of confusion concerning the rule due to which people are looking up to courts and the government. So there is a need to boost the certificate-generating mechanism and clarify on applicability of the rule.
Author(s) Name: Harmandeep Kaur (University Institute of Legal Studies, Panjab University, Chandigarh)
References:
[1] ASCI, Annual Complain Report ( 2023-2024 ) pg 3
[2] Krishna Gopalan, ‘Self-declaration for ads: Confusion reigns with little clarity over rules’ ( Business Today, 20 June 2024) < https://www.businesstoday.in/latest/corporate/story/self-declaration-for-ads-confusion-reigns-with-little-clarity-over-rules-434041-2024-06-20> accessed on 23 June 2024
[3] Indian Medical Association & Anr v Union of India & Ors [2024] Writ Petition (C) No. 645/2022
[4] Ministry of Information & Broadcasting , ‘Compliance with Supreme Court order dated 07.05.2024 w.r.t. misleading advertisement ‘( No. 13011/8/2024-B.C. II, 5 June 2024) <https://new.broadcastseva.gov.in/digigov-portal-web-app/Upload?flag=iframeAttachView&attachId=140792825&whatsnew=true > accessed on 24 June 2024
[5] The Consumer Protection Act 2019, s 2(28)
[6] ‘ Regulating Misleading Advertisements in India’ ( Drishti IAS, 15 May 2024 ) <https://www.drishtiias.com/daily-updates/daily-news-analysis/regulating-misleading-advertisements-in-india >accessed on 24 June 2024
[7] Ministry of Information & Broadcasting , ‘Compliance with Supreme Court order dated 07.05.2024 w.r.t. misleading advertisement ‘( No. 13011/8/2024-B.C. II, 5 June 2024) < https://new.broadcastseva.gov.in/digigov-portal-web-app/Upload?flag=iframeAttachView&attachId=140792825&whatsnew=true > accessed on 24 June 2024
[8] Karishma Karthik et.al., ‘Self-Declaration Mechanism for Misleading Advertisements: A House Built on Sand’ ( 26 June 2024) XIV (178) NAT Law Review < https://natlawreview.com/article/self-declaration-mechanism-misleading-advertisements-house-built-sand >accessed on 26 June 2024
[9] Ministry of Information & Broadcasting, n 7
[10] The Consumer Protection Act 2019, s 2(1)
[11]Karishma Karthik, n 8
[12] Krishna Gopalan, n 2
[13] Karishma Karthik, n 8
[14] Meenakshi Verma Ambwani, Chitra Narayanan, ‘Advertisers fret over ‘self declaration’ rules’ ( The Hindu businessline, 23 June 2024) < https://www.thehindubusinessline.com/companies/advertisers-hamstrung-by-new-self-declaration-rules/article68323664.ece > accessed on 27 June 2024
