On May 7, 2024, the Supreme Court in Indian Medical Association & Anr. v. Union of India & Ors.,[i] issued a directive that requires all advertisers / advertising agencies to submit a “Self-Declaration Certificate” before publishing or broadcasting any advertisement on certain platforms. Read our earlier coverage here.
Following this directive, the Ministry of Information and Broadcasting (MIB) issued a press release stating that they added a new feature on its Broadcast Seva Portal for television and radio advertisements, and on the Press Council of India’s portal for print and digital/internet advertisements. These portals were activated on June 4, 2024. Read the MIB advisory here.
The Press Release
A. Self Declaration certificate
In its press release, the MIB has clarified that the Self-Declaration Certificate must certify that the advertisement: (i) does not contain misleading claims, and (ii) complies with all relevant regulatory guidelines, including Rule 7 of the Cable Television Networks Rules, 1994, and the Norms of Journalistic Conduct of the Press Council of India.[ii]
The Self Declaration Certificate has to be signed by an authorised representative of the advertiser and submitted through the Broadcast Seva Portal before the advertisement is telecast on TV channels. When it comes to print or digital/internet advertisements, the certificate has to be uploaded to the Press Council of India (PCI) portal.
Details of the advertisement are to be filled in the application, which includes the following points:
- Product/service being advertised;
- Advertisement Title;
- Brief description of advertisement in approximately 100-200 words, highlighting any specific features or claims made in the advertisement;
- Full script of advertisement (in a pdf file);
- URL of advertisement audio/video for TV/radio/internet advertisement, or, PDF of actual advertisement for print/static internet advertisement;
- Proposed date of first broadcast/publishing of advertisement.
You can access the detailed guidelines for the submission here.
Advertisers must provide this proof prior to any advertisement, that they have uploaded the mandated Self-Declaration Certificate, to various broadcasters, printers, publishers, or electronic media platforms, where they are planning to broadcast their advertisements, for records.
B. Timeline for the Self Declaration Certificate
Starting from June 18, 2024, all new advertisements must have a Self-Declaration Certificate, signed by an authorized representative of the advertiser or advertising agency, submitted through the relevant portals. Currently, ongoing advertisements do not require self-certification.
The Directive of the Supreme Court
The Supreme Court’s decision in Indian Medical Association v. Union of India, recognized the absence of a robust mechanism to ensure advertisers comply with the Guidelines for Prevention of Misleading Advertisements and Endorsements of Misleading Advertisements, 2022. Therefore, the Court invoked its powers under Article 32 under the Constitution of India, which provides for the enforcement of fundamental rights, to enforce the fundamental right to health, “that encompasses the right of a consumer to be made aware of the quality of products being offered for sale by manufacturers, service providers, advertisers and advertising agencies.” It has therefore been observed that the right of a consumer to be made aware of the quality of the products being offered for sale falls under the fundamental right to health under Article 21.
A self-declaration certificate must be submitted by advertisers or advertising agencies on the lines contemplated in Rule 7 of the Cable Television Networks Rules, 1994, before an advertisement is released.
Note: Rule 7 of the Cable Television Rules, 1994 prescribes standards for advertisements. It prohibits advertisements that deride any race, caste, colour, creed, or nationality, or that are against any provision of the Indian Constitution. Additionally, ads cannot incite crime, violence, or disorder, or present criminality as desirable. They must not exploit national symbols, leaders, or dignitaries, and must not portray women in a manner that emphasises passive, submissive qualities and encourages them to play a subordinate, secondary role in the family and society. The code also bans ads that promote social evils like dowry and child marriage, or that promote the production, sale, or consumption of cigarettes, tobacco, wine, alcohol, or other intoxicants.
The advertisers are required to upload a Self-declaration certificate before any advertisement is issued in the Press/Print Media/Internet. Proof of uploading the Self-declaration is to be made available by the advertisers to the concerned broadcaster/printer/publisher/T.V. Channel/electronic media, as the case may be, for the records.
“No advertisements shall be permitted to be run on the relevant channels and/or in the print media/internet without uploading the self- declaration as directed above” said the Supreme Court.[iii]
These directions were to be treated as the law declared under Article 141 of the Constitution of India, clarified the Supreme Court.[iv]
Conclusion & Comments
Article 32 and 141 of the Constitution
Article 32 provides for remedies of enforcement of the fundamental rights granted by Part 3 of the Constitution. By invoking this Article, the Supreme Court clarified that the right to be informed about the quality of the products being offered for sale falls under the fundamental right to health, which is a part of the fundamental right to life under Article 21.
Note: In the case of Bandhua Mukti Morcha v. Union of India,[v] it was held by the Supreme Court that dignity and health fall within the ambit of life and liberty under Article 21.
Here, it seems that the right of a consumer to be made aware of the quality of products has been recognized as a fundamental right by the Supreme Court, being a part of right to life under Article 21.
As the directions are to be treated as a “law declared by the Supreme Court” under Article 141 of the Constitution of India, it is important to note the meaning of this term. The Supreme Court has said in Sahara India Real Estate Corpn. Ltd. v. SEBI,[vi] that: “Article 141 uses the phrase “law declared by the Supreme Court”. It means law made while interpreting the statutes or the Constitution … under Article 141, law-making through interpretation and expansion of the meanings of open-textured expressions such as “law in relation to contempt of court” in Article 19(2), “equal protection of law”, “freedom of speech and expression” and “administration of justice” is a legitimate judicial function.”[vii]
In my opinion, inserting a new requirement for Self-Declaration Certificates would not be interpreting any law but rather adding to the list of obligations already present under various statutes. This could have been left to the legislature, rather than have the judiciary perform these functions, because it may not be considered as a normal judicial function.
Nevertheless, compliance with the present direction is crucial, as the intention of the Supreme Court is to ensure that various entities follow these standards for the benefit of the consumer.
FAQs and some concerns, requiring clarification from the MIB
- Who is considered as an Advertiser or Advertising Agency?
No clarity has been given either in the order or the press release, as to who will be considered as an advertiser or an advertising agency. However, we can refer to the definitions given under the Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022.
An “advertiser” means a person who designs, produces and publishes advertisements either by his own effort or by entrusting it to others in order to promote the sale of his goods, products or services and includes a manufacturer and service provider of such goods, products or services. While, an “advertising agency” means a person or an establishment providing services in designing and production of advertisements or other related services for a commission or fee.
Therefore, it could be assumed that any person intending to run an advertisement on television, radio, press, or digital/internet platforms must submit a self-declaration certificate.
- What is considered as a misleading claim?
The Self-Declaration Certificate must certify that the advertisement does not contain “misleading claims”, but there’s no clarity regarding what is considered as a “misleading claim”.
Reference could be taken of the Consumer Protection Act, 2019, wherein the term “misleading advertisement” has been defined. A “misleading advertisement” refers to any advertisement that falsely describes a product or service or provides false guarantees, misleading consumers about the nature, substance, quantity, or quality of the product or service.
However, even with this assumption, one cannot be sure if avoiding a “misleading advertisement” would fulfil the criteria of not being considered as a “misleading claim”. Therefore, specific guidelines can be given to understand what constitutes as a “misleading claim”, in order to avoid penalties.
- If the ads are in different language then will each advertisement need a different certification?
A different CBFC certification is required when a movie is to be released in a different language, so that the committee can examine if any translated dialogue would fall foul of its earlier criteria for certification.
In case of Self-Declaration Certificates, would a separate certificate be required, when the advertisement is uploaded in a different language? There is no clarity on this important aspect, as there are many instances where advertisements are shown in local languages translated on local channels, newspapers or social media pages from the original. However, drawing an analogy with CBFC certification, it would be prudent for advertisers to procure separate Self-Declaration Certificates for different languages of the same advertisement.
- Is the requirement for only new advertisements to be released post 18th June or for old ads also?
It has been clarified that “Ongoing advertisements do not require the self-certification currently.” Therefore, we can assume that only new advertisements (which are to be published after 18th June, 2024 whether made prior to 18th June or made after 18th June) would require a self-declaration certificate.
- Are digital advertisements also included ?
According to the order and the press release, Digital/Internet Advertisements would also require a self declaration certificate. This could mean that uploading an advertisement on any internet or digital platform, including on Instagram, Facebook, X, YouTube, etc., would require a self declaration certificate to be submitted.
It would have to be seen how these social media platforms ensure compliance given the large magnitude of advertisements on digital media.
- What kind of advertisements are excluded ?
It was directed by the Supreme Court that no advertisements would be permitted on relevant channels (assuming channels on TV and Radio), print media, or the internet without a self declaration certificate.
However, the MIB advisory mentions as under: “It may be noted 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”.
Therefore, it can be assumed that any advertisements other than the exclusions mentioned by the MIB would require the self-declaration certificate.
- What are the consequences if you don’t get the Self Declaration Certificate?
Any advertisement found to be broadcast/ published without the necessary self-declaration certificate may be in violation of the Supreme Court directive and appropriate action would be taken as per the CTN Act, 1995 and other relevant statutes.
Points of Concern
There are a few concerns following this directive for various stakeholders that could be addressed by the MIB or the Supreme Court:
- Meaning of advertiser for the purpose of uploading a Self-Declaration Certificate
If any person intending to run an advertisement on television, radio, press, or digital/internet platforms must submit a self-declaration certificate, then this would include everyone, even small shop vendors, or housewives who run businesses from their homes. This stipulation can therefore pose a significant hindrance for many people in India and interfere in their business activity, affecting it adversely.
2. The enforcement for “Internet” advertisements
There are various concerns raised online regarding the consequences of having such a wide ended directive. The “Internet” is a vast platform comprising of millions of different users and platforms. The process of certification is really close to impossible to work in automated and vast space of digital advertising, therefore, the extent of the term “Internet” with additional guidelines can be considered, in order to make it practicable for advertisers.
3. Territorial extent of the Self Declaration Certificates
Many advertisers from various foreign countries target users in India through the Internet. For example, does an advertisement on Instagram by a foreign fashion house that only ships its products in India, be required to submit a certificate, even though no operations are being done in India? It is very less likely that they would even be aware of this requirement. The policy therefore overlooks the global and uncertain nature of the “Internet”.
4. Delays and Costs associated for Advertisers and Brands
The complex procedures outlined in the Self Declaration Certificate Guidelines and the potential traffic on the portal are expected to cause delays in launch of advertisements, and increase the costs, and add to the already increasing compliances for brands. This may disrupt market strategies and affect the operations of brand owners, advertisers, publishers, and others involved.
While the intention behind this directive is commendable, its implementation raises concerns about whether it effectively addresses the mischief it seeks to remedy or if it inadvertently creates new hurdles for legitimate business activities.
Ultimately, while the directive strives to uphold consumer rights, it is essential for the MIB and the Supreme Court to consider these challenges and refine the guidelines to ensure they are practical, fair, and do not unduly burden advertisers, especially smaller entities. Addressing these concerns will help achieve a balanced approach that protects consumers without stifling economic activity.
End notes:
[i] Indian Medical Association & Anr. v. Union of India & Ors., WP(C) No. 645/2022.
[ii] https://pib.gov.in/PressReleaseIframePage.aspx?PRID=2022649.
[iii] Para 24, Supra 1.
[iv] Para 24, Supra 1.
[v] Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 812.
[vi] Sahara India Real Estate Corpn. Ltd. v. SEBI, AIR 2012 SC 3829.
[vii] Para 51, Ibid.
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