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and Endorsements for Misleading Advertisements, 2022 (“Misleading Ads Guidelines”), introduced by the Central Consumer Protection Authority (“CCPA”) in 2022, set out conditions for advertisements to be valid and not misleading, and require that advertisements must contain ‘truthful and honest representations.’ 14 The Misleading Ads Guidelines apply to all advertisements regardless of form, format or medium. Further, they are made applicable on all manufacturers, service providers or traders of goods, products or services being advertised, advertising agencies and endorsers. • Surrogate Advertising: The Misleading Ads Guidelines also prohibit surrogate advertisements. Surrogate advertisements are advertisements for goods, products or services whose advertising is otherwise prohibited regardless of the form, format and medium of such advertisements 15 . ASCI also prohibits surrogate advertisements for prohibited products 16 . During the Parliament Monsoon Session, several ministers of the Parliament had requested a written response from MIB on illegal betting and gambling through media and online intermediaries. One of the specific queries raised was, “whether it is true that there are surrogate advertisements in all kinds of media and if so, the steps taken by the Government to stop such advertisements in future.” In its written response, the MIB stated that most Indian States have enacted their own laws to deal with betting and gambling within their jurisdiction. With respect to surrogate advertisements, the MIB reiterated the prohibition under the Misleading Ads Guidelines. The MIB also issued an Advisory on Advertisements of Online Betting Platforms 17 on June 13th, 2022 (“MIB Advisory”). In the MIB’s advisory, it has noted that a number of advertisements of online betting websites / platforms are appearing in ‘print, electronic, social and online media,’ and that such advertisements are prohibited in most parts of India. It has also stated that such advertisements are misleading and don’t appear to be in conformity with the Consumer Protection Act, 2019 (“CPA”). The advisory advises
‘online and social media, including the online advertisement intermediaries and publishers’, not to display or target betting and gambling related advertisements towards the Indian audience. It is addressed to newspapers, TV channels, publishers of news and current affairs content, and is copied to social media intermediaries. However, such advertisements persisted. News websites under the same brand as sports betting brands, were being made available on television and online. On October 3, 2022, the MIB in in consultation with the Department of Consumer Affairs, issued a second advisory. In this case, separate advisories were issued to (1) TV channels and (2) digital news publishers and OTT platforms, strongly advising them against showing (i) advertisements for online sports betting platforms and (ii) surrogate advertisements for offshore sports betting platforms in the guise of sports news websites, and targeting such advertisements toward Indian audiences. The advisory contained examples of such online advertisements, specifically capturing advertisements for prominent sports betting operators online and during TV broadcasts of cricket matches. The advisory issued to private TV channels states that advertisements for betting platforms were prohibited under the Advertising Code, and contravention may invite penal action. The advisory issued to online platforms, also pointed towards MeiTy’s power 18 to take down such advertisements under relevant provisions of the Information Technology Act, 2000 2000 (“IT Act”), discussed below. It was reported thereafter that the CCPA had issued a show cause notice to six online betting apps for violating the Misleading Ad Guidelines 19 . MEITY DIRECTS TSPS TO BLOCK ACCESS TO FOREIGN BETTING/GAMBLING PLATFORMS As recently as end October 2022, it was reported that certain Indian telecom service providers (TSP) had blocked access to several offshore sports betting and gambling platforms in India.
14 Guideline 4(1)(a), Misleading Ads Guidelines. 15 Section 2(h): “surrogate advertisement” means an advertisement for goods, product or service, whose advertising is otherwise prohibited or restricted by law, by circumventing such prohibition or restriction and portraying it to be an advertisement for other goods, product or service, the advertising of which is not prohibited or restricted by law. 16 Guideline 3.4 and 3.5, ASCI Guidelines. 17 https://mib.gov.in/sites/default/files/Advisory percent20on percent20online percent20betting percent20advertisements percent2013.06.2022 percent282 percent29.pdf. 18 Under Rule 3(b) of the IT Rules, the MeiTy is empowered to direct intermediary platforms (such as ISPs, TSPs, domain name registrars, etc.) to take down unlawful content, including content which relates to or encourages money laundering or gambling.’ There is no specific advertising related prohibition for online publishers to take down unlawful content under the IT Rules. 19 https://www.cnbctv18.com/business/companies/ccpa-issues-show-cause-notices-to-6-online-betting-apps-over-surrogate-ads-14983011.htm.
IMGL Magazine • November 2022 • 17
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