The Hon’ble Supreme Court, in the case of Indian Medical Association & Anr. v. Union of India [WP(C) No. 645/2022] pertaining to the misleading advertisements of Patanjali, issued a directive in its order dated 7th May 2024, mandating submission of a self-declaration by an advertiser/advertising agency before the printing/airing/display of any advertisement.
The order was passed under Article 32, which pertains to the Supreme Court’s power to enforce the fundamental rights, and Article 141 of the Constitution of India, which makes the law declared by the Supreme Court binding on all courts.
As per this order, before an advertisement is printed/aired/displayed, advertisers or advertising agencies are required to submit a self-declaration on dedicated portals of the Ministry of Information & Broadcasting (“MIB”). The order also requires all advertisers to furnish proof of uploading the self-declaration to the concerned broadcaster/printer/publisher/T.V. Channel/electronic media. An advertisement would not be permitted to run on the relevant channels/platforms without uploading the declaration as per the directive of the Supreme Court.
Pursuant to the Supreme Court’s order, the MIB issued a circular for submitting a ‘Self-Declaration Certificate’ (“SDC”), attesting that the advertisement does not contain misleading claims and complies with all relevant regulatory guidelines. These SDCs have to be submitted on the Broadcast Seva portal (for TV and Radio Advertisements) and the Press Council of India portal (for print and digital/internet advertisements). Thereafter, the MIB also issued the Guidelines for using Broadcast Seva Portal/Press Council of India portal by Advertisers/Advertising Agencies for uploading Self-declaration Certificate (“SDC Guidelines”).
Salient features of the SDC Guidelines and the MIB circular are as follows:
- Applicability: The mandate applies to all advertisements, published on or after18th June 2024, across TV channel/print or digital media.
- Authorised Representative: As per the SDC Guidelines, an Authorised Representative of the advertiser/advertising agency must sign the SDC on behalf of the advertiser/advertising agency and submit the signed SDC on the MIB portal(s). The signature is to ensure accountability and authenticity of the declaration. The mobile number and email ID of the Authorised Representative would also be required for uploading the SDC.
- Details of Advertisements: As part of the submission process, certain details about the advertisement including inter alia product/service being advertised, brief description of advertisement, full script of the advertisement, URL/PDF of advertisement, and the proposed date first broadcast/publication will have to be provided.
- Documents to be submitted before submitting the SDC:
- Letter of Authorisation of the Authorised Representative as per the sample provided in the SDC Guidelines.
- Complete written script of the advertisement including all dialogues, voice overs texts displayed on screen, and any other verbal/written content featured in the advertisement.
- Actual video/audio file of the advertisement through a URL including visuals, audio, and any special effects or animations used in the advertisement.
- If applicable, copy of the certificate issued by the Central Board of Film Certification (CBFC).
- GST details (optional)
Our Take
The Supreme Court’s order, the MIB circular and the SDC Guidelines overlook various aspects of advertising, particularly online advertising, and are not practically workable as the requirement poses significant administrative and operational challenges. Some of the challenges are as follows:
- The mandate disregards the volume of advertisements and the scope is unclear: The mandate applies to ‘any advertisement’ that is to be printed/aired/displayed/broadcast and does not take into consideration the sheer volume of advertisements that are produced on a daily basis. At this stage, it is also unclear whether the mandate could potentially include online banners, social media posts, and endorsements within its ambit. Requiring submission of SDCs for all advertisements would add to the compliance and financial burden of the advertisers/advertising agencies.
- Remit of MIB circular & SDC Guidelines goes beyond the SC Order: The MIB circular and SDC Guidelines travel beyond the order of the Supreme Court by requiring advertisers/advertising agencies to follow a cumbersome compliance process and provide additional information and documents that are not required as per the order of the Supreme Court. Further, the MIB circular requires advertisers and advertising agencies to submit valid SDCs instead of simply providing the proof of uploading the SDC. The MIB circular places the onus of compliance with the mandate on broadcasters/publishers which does not seem to be the intent behind the mandate of self-declaration envisaged by the Supreme Court.
- Deters use of programmatic advertising and dynamic creative optimisation: The applicability of the self-declaration requirement on online/digital advertising will also affect the digital media industry as it cannot work practically with programmatic advertising and dynamic creative optimisation (“DCO”) functions that are often utilised in online advertising. Programmatic advertising and DCO use automated technology and algorithmic tools for ad placement by deciding, in real time, the publishers on whose site the ads will run. The advertiser is usually unaware about the publishers that will air the campaign and the personalisation carried out to the advertisement, making it impossible for advertisers to identify the publisher (for submission of proof of SDC), and provide details of the final advertisement (before its publication) for uploading the SDC.
- Delays in advertisement launches and increase in costs and compliance burden: The cumbersome process that has been stipulated in the SDC Guidelines and the potential portal overloads would likely lead to delays in launching the advertisements and impact market strategies adding to the costs and impact the operations of brand owners, advertisers, publishers etc.
While the intent of holding the advertisers and advertising agencies accountable is understandable, the practical effect of this requirement is questionable. Any action against violations by advertisers and advertising agencies, whether they have submitted a SDC or not (irrespective of the truthfulness of the SDC), will be taken under current laws and regulations. The submission of an SDC for every advertisement merely adds a rigorous administrative layer which ultimately will be dealt with in the same manner and have the same consequence for non-compliance for advertisements published without an SDC.
Nevertheless, in the interest of ease of doing business, the MIB circular and SDC Guidelines should ideally be made less onerous and should not exceed the directive of the Supreme Court.
Links
Supreme Court’s order dated 7th May 2024 – https://webapi.sci.gov.in/supremecourt/2022/24832/24832_2022_11_1_52927_FinalOrder_07-May-2024.pdf
MIB circular – https://new.broadcastseva.gov.in/digigov-portal-web-app/Upload?flag=iframeAttachView&attachId=140786277&whatsnew=true
SDC Guidelines – https://cbcindia.gov.in/cbc/uploads/mandate/Self_Declaration_Portal_Guidelines.pdf
