Supreme Court Mandates Self-Declaration Certificates for Advertisements

On May 7, 2024, the Supreme Court, in the case of Indian Medical Association & Anr. v. Union of India & Ors., issued a mandate requiring all advertisers and advertising agencies to submit a “Self-Declaration Certificate” before publishing or broadcasting any advertisement on specific platforms.

Following this directive, the Ministry of Information and Broadcasting (MIB) announced the addition of 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.

Self-Declaration Certificate Requirements

The MIB’s press release clarified that the self-declaration certificate must affirm 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.

Before the advertisement airs on TV channels, an authorised representative of the advertiser must sign this certificate and submit it through the Broadcast Seva Portal. You must upload the certificate to the Press Council of India (PCI) portal for print or digital/internet advertisements.

Advertisement Details Required

Advertisers are required to provide detailed information in their application, including:

The product or service being advertised
Advertisement Title
A brief description (100–200 words) highlighting specific features or claims
The full script of the advertisement is available in PDF format.
The URL for the audio/video advertisement on TV, radio, or the internet, or the PDF of the actual advertisement for print or static internet ads, should be provided.
The proposed date for the first broadcast or publication is unclear.

You can access the detailed guidelines for the submission here.

Before broadcasting any advertisement, broadcasters, printers, publishers, or electronic media platforms must receive proof of the uploaded self-declaration certificate.

Implementation timeline

Starting June 18, 2024, all new advertisements must have a self-declaration certificate signed by an authorised representative submitted through the relevant portals. Ongoing advertisements do not currently require self-certification.

Supreme Court Directive and Constitutional Basis

The Supreme Court’s decision recognised the lack of a robust mechanism to ensure compliance with the Guidelines for Prevention of Misleading Advertisements and Endorsements, 2022. The Court emphasized that consumers have a right to information about product quality, a component of their fundamental right to health under Article 21, by invoking Article 32 of the Indian Constitution, which enforces fundamental rights.

Rule 7 of the Cable Television Networks Rules, 1994, outlines standards for advertisements, prohibiting those that deride race, caste, colour, creed, nationality, or violate constitutional provisions. Advertisements must not incite crime, exploit national symbols, or portray women in a subordinate role. Additionally, we ban ads that promote social evils or intoxicants.

Advertisers are required to upload a self-declaration certificate before issuing any advertisement in the press, print media, or internet, with proof provided to relevant media outlets for records.

Concerns and comments

The Constitution includes Articles 32 and 141.

Article 32 provides remedies for enforcing fundamental rights. The Supreme Court clarified that informing consumers about product quality is part of the fundamental right to health under Article 21. Article 141, which involves law-making through the interpretation of statutes or the Constitution, treats the directions as “law declared by the Supreme Court.”

FAQs and some concerns, requiring clarification from the MIB

Who is considered as an Advertiser or Advertising Agency?

Neither the order nor the press release clearly define who will be considered an advertiser or an advertising agency. The Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022, provide definitions, though.

An “advertiser” is a person who creates, produces, and publishes advertisements to promote the sale of his goods, products, or services; this person may be a manufacturer or a service provider. Conversely, an “advertising agency” is a person or business that charges a commission or other fee for services in the design and production of advertisements.

Therefore, a self-declaration certificate would be required from anyone planning to broadcast an advertisement on radio, TV, in the press, or on digital or internet platforms.

What is considered as a misleading claim?

While it’s unclear what constitutes a “misleading claim,” the self-declaration certificate must attest that the advertisement is free of them.

One could refer to the Consumer Protection Act of 2019, which defines “misleading advertisement.” “Misleading advertisement” refers to any advertisement that misrepresents a good or service or makes untrue promises, deceiving viewers about its nature, content, quantity, or quality.

Despite this assumption, it remains uncertain whether simply avoiding a “misleading advertisement” would satisfy the criteria for a “misleading claim.” Therefore, we can provide specific rules to define a “misleading claim” in order to prevent fines.

If the ads are in different language then will each advertisement need a different certification?

While it’s unclear what constitutes a “misleading claim,” the self-declaration certificate must attest that the advertisement is free of them.

Is the requirement for only new advertisements to be released post 18th June or for old ads also?

It is now stated that “ongoing advertisements do not require self-certification currently.” Therefore, we can infer that only new advertisements—those scheduled for publication after June 18, 2024, irrespective of their creation date—will require a self-declaration certificate.

⁠Are digital advertisements also included ?

Digital and Internet advertisements would also need a self-declaration certificate, per the order and the press release. This might mean that submitting a self-declaration certificate would be necessary before uploading an advertisement on any digital or internet platform, such as Instagram, Facebook, X, YouTube, etc.

It will be interesting to observe how these social media sites guarantee compliance, considering the volume of digital media advertising.

What kind of advertisements are excluded ?

The Supreme Court ruled that without a self-declaration certificate, no advertising would be allowed on pertinent media (assuming channels on TV and radio), print media, or the internet.

The MIB advisory states that the self-declaration certification covers all advertisements, with the exception of classifieds, personal advertisements, statutory advertisements, public information notices, tenders, and advertisements related to public functions. However, self-declaration certification will cover classified ads directly related to consumer goods and services.

Therefore, any advertisements other than those the MIB lists as exclusions would require the self-declaration certificate.

⁠What are the consequences if you don’t get the Self Declaration Certificate?

Any advertisement that broadcasts or publishes without the required self-declaration certificate may violate the Supreme Court’s directive, in which case the CTN Act, 1995, and other relevant legislation would apply.

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

This would include everyone, even small shop vendors or housewives who operate businesses out of their homes, if they planned to run an advertisement on television, radio, press, or digital/internet platforms. Therefore, this restriction could pose a significant obstacle for many Indians, hindering their commercial operations, which would have a detrimental impact.

The enforcement for “Internet” advertisements

Online, there are a number of worries expressed about the fallout from a directive this broad. Millions of unique users and platforms make up the enormous “Internet.” Without certification, it is nearly impossible to work in the automated and vast field of digital advertising. Therefore, advertisers can consider the scope of the term “Internet” with additional rules to make it more workable.

Territorial extent of the Self Declaration Certificates

Many advertisers from foreign countries target Indian users via the Internet. For instance, should a foreign fashion house advertising on Instagram, which only ships products to India, be required to submit a certificate even if they have no operations in India? It is highly unlikely they would be aware of this requirement. Thus, the policy fails to account for the global and complex nature of the Internet.

Delays and Costs associated for Advertisers and Brands

We expect the complex procedures outlined in the Self-Declaration Certificate Guidelines, along with potential portal traffic, to cause delays in launching advertisements, increase costs, and add to the already extensive compliance requirements for brands. This may disrupt market strategies and impact 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 issues it aims to resolve or if it inadvertently creates new obstacles for legitimate business activities.

Ultimately, while the directive strives to uphold consumer rights, it is crucial 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.