In accordance with the Supreme Court's Order and to strengthen consumer protection and enhance transparency in advertising, the Ministry of Information & Broadcasting (MIB) issued a press release on June 3, 2024 announcing the introduction of a self-declaration certificate requirement for advertisers and advertising agencies across print, broadcast as well as digital media platforms ('Advertisers') The MIB further issued certain guidelines detailing the procedure and documentation required by the advertisers and advertising agencies to obtain a self-declaration certificate before printing/airing/display of any advertisement. It is pertinent to note that the self-declaration certificate for advertisement will ensure the accuracy and truthfulness of advertisement claims and further confirm compliance with regulatory guidelines.
The Supreme Court's Order and MIB's directive further prescribe that no advertisements will be permitted to be run on any relevant platforms/channels and/or in the print media/internet without uploading the self-declaration certificate (duly obtained on behalf of the advertisers/advertising agencies). The said directives appear to impose an implicit obligation on platforms/broadcasters/publishers to only run, print and display advertisements once the self-declaration certificate has been procured by the respective portals.
In this article, we have discussed the background of the Court proceedings, MIB's mandate, compliance obligations on relevant stakeholders (viz. Advertisers/Advertising Agencies), as well as the Impact of the Self-Declaration Certificate on stakeholders.
I. Background of the Proceedings: Indian Medical Association & Anr. vs. Union of India [Writ Petition (Civil) No 645/2022]
In the year 2022, the Indian Medical Association (hereinafter referred to as 'Petitioner') filed a writ petition before the Supreme Court against the Respondent ('Patanjali') for disseminating unsubstantiated advertisements and falsely claiming that its ayurvedic products could completely cure certain diseases, which claims are potentially harmful as the people may consider using Patanjali's misleading products and might lead people to abandon proven medical allopathic treatments.
Keeping in mind the significant potential risk that such advertising mechanism caused to the consumers and to examine the steps taken by Patanjali to prevent abuse of the Drug and Magic Remedies (Objectionable Advertisements) Act, 1954, the Drug and Cosmetics Act, 1940 and the Consumer Protection Act, 1986, the Hon'ble Supreme Court went a step ahead and impleaded the Ministry of Consumer Affairs (MCA), Ministry of Food and Public Distribution, MIB and Ministry of Electronics and Information Technology (Meity) as relevant parties to the proceedings.
Subsequently, in light of the existing regulatory mechanism and facts of the instant case, the two-judge Bench highlighted and clarified that social media influencers, celebrities, endorsers and public figures who are engaged in promoting products and services (which are a subject matter of the advertisement) should act with a sense of responsibility and must take note to not involved in any form of 'deceptive advertising'. Further, a person (viz. social media influencers, celebrities, endorsers and public figures) who endorses a product/service is expected to have adequate experience and information about the product/service, which is being advertised.
Further, the Hon'ble Supreme Court emphasized the need for a robust mechanism to oversee whether advertisers/advertising agencies adhere to the obligations mandated under ' The Guidelines for Prevention of Misleading Advertisement and Endorsement of Misleading Advertisements, 2022' ('Guidelines'), issued by the Central Consumer Protection Authority (CCPA), and therefore, invoked its constitutional powers (under Article 32 of the Constitution of India) for the protection of the fundamental right to health of the citizens (which includes consumer rights).
It is to be noted that while Article 32 of the Constitution pertains to the Supreme Court's power to enforce fundamental rights, Article 141 of the Constitution of India prescribes the law declared by the Supreme Court binding on all other courts.
II. Press Release by the Ministry of Information & Broadcasting (MIB)
Per the Press Release dated June 3, 2024, the Self-Declaration certificate for advertisement is mandatorily required to be submitted by all advertisers and advertising agencies for all new advertisements to be published, broadcasted, printed from June 18, 2024, onwards. The primary objective of the self-declaration certificate for advertisement is to certify that the advertisement does not contain any sort of misleading information or false claims and is in line with relevant regulatory guidelines, including those stipulated under Rule 7 of the Cable Television Networks Rules, 1994 and the Norms of Journalistic Conduct of Press Council of India.
(a) Obligations of Advertisers/Advertising Agencies
Under the MIB's directive, the advertisers and advertising agencies are obligated to generate a self-declaration certificate for advertisements by submitting the requisite information, before any advertisement is published, printed or broadcasted on any platform and/or channel. Further, the advertisers and advertising agencies are also obligated to provide proof of uploading the self-declaration certificate for advertisements to the relevant broadcaster, printer, publisher, or electronic media platform and channels for their records.
It is to be noted that pursuant to the Supreme Court's Order, the MIB has launched dedicated portals to enable Advertisers to submit self-declaration certificates and hence, the self-declaration certificate for advertisements is required to be uploaded on the Broadcast Seva Portal of MIB for any advertisements to be aired on TV and Radio, and in case of any advertisements in print and digital media, the self-declaration certificate for such advertisements will require to be uploaded on the Press Council of India Portal.
(b) Who can sign the Self-Declaration certificates?
It is worth mentioning that any authorized representative of the advertiser and/or advertising agency can sign the self-declaration certificate for advertisement and submit it on the respective portals. Herein, the said authorized representative would be acting on behalf of the advertiser and/or advertisement agency, who would also need to provide a valid mobile number and email address during the submission of the self-declaration form on the dedicated portals.
Since the advertiser and/or advertising agency will be authorizing a person as the authorized representative on their behalf, a Letter of such authorization would also need to be uploaded on the portal.
(c) What is the timeline for Self-Declaration Certificate for advertisement?
It is pertinent to note that the self-declaration certificate requirement is mandatory for all new advertisements to be released, broadcasted, printed from June 18, 2024, onwards and therefore, no advertisements will be allowed to air on television and digital or print media, without a valid self-declaration certificate for the respective advertisement.
(d) What sort of advertisements are exempted from the requirement of self-declaration certificates?
Though it was directed by the Supreme Court that no advertisements would be permitted on TV, Radio, print media, or on the internet in the absence of a self-declaration certificate. However, the MIB has released an advisory dated June 6, 2024 and clarified that "all advertisements are covered under the ambit of the self-declaration certification excluding classifieds, personal advertisements, statutory advertisements, public information notices, tenders, and advertisements related to public functions. However, with respect to classifieds, classified advertisements directly related to consumer products and services will come under the ambit of self-declaration certification". Hence, it can be safely assumed that apart from the above-mentioned exemptions, self-declaration certificate would be mandatorily required for all other advertisements.
III. Impact of Self-Declaration Certificate on Stakeholders (viz. Advertisers, Advertising Agencies, Media & Publishers)
As is apparent, the new mandate issued by the MIB will significantly impact advertisers and advertising agencies as they will need to comply with such a rigorous process of obtaining self-declaration certificates for advertisements. As regards the Advertisers, they will now need to ensure that their advertisements are in compliance with the prescribed legal standards and such advertisements are not misleading per se as non-compliance or inaccuracies in the self-declaration could even attract penalties (including fines or even suspension of the advertisement). To ensure effective and timely compliance, the advertisers will invest more resources needed to conduct thorough research and obtain the necessary self-declaration certifications to support their claims of advertisements. These additional steps will require better planning and coordination and may also slow down the advertisement release process.
As regards the advertising agencies, there is a possibility that the Advertisers may delegate the task of obtaining the self-declaration certificate to the advertising agencies by appointing them as their authorized representatives (as mandated under the guidelines), which will automatically overburden the advertising agencies. Further, it is worth mentioning that the MIB's mandate directs the advertisers to obtain self-declaration certificates and hence, the onus to prove the authenticity of the claims is on the advertisers instead of media houses and publishers. Therefore, it is not wrong to say that media houses and publishers can now easily deny their liability for any false advertisements and can directly hold the advertiser responsible for submitting a false self-declaration certificate for advertising.
IV. Conclusion
While the intent behind holding the advertisers and advertising agencies accountable for non-compliance with the directive is reasonable, the practical effect of this self-declaration requirement is questionable. It cannot be neglected that any action against violation or non-compliance with the directive by advertisers and advertising agencies even if they have submitted a Self-declaration certificate or not, will be addressed under the existing laws and in conformity with the regulatory mechanism only. Hence, we believe that the submission of a Self-declaration certificate for every single advertisement merely adds a rigorous administrative layer (which will require better planning and coordination and will also slow down the advertisement release process) since its non-compliance will ultimately be dealt with in the same manner and have the same consequence thereof.
Nevertheless, in the interest of ease of doing business, the directive aims to uphold responsible advertising standards and transparency by assuring the public about the authenticity and integrity of advertisements.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.