The Advertising Standards Council of India (ASCI) released its draft guidelines for “Influencer advertising on digital media” in February, 2021. The main objective of the guidelines is to ensure that consumers should be able to distinguish when something is being promoted with an intention to influence their behaviour for an immediate or eventual commercial gain. Keeping that objective in mind the guidelines provide an updated definition of few terms and disclosure requirements.

A disclosure in the form of clarification that a piece of communication is an advertisement has to be made by the influencer or publishing account on which the advertisement is published, or the advertiser for whose brand the advertisement is. In the case of a brand using a virtual influencer, the onus of the disclosure is upon the advertiser.

The disclosure has to be of such nature that the consumer is able to recognise that something is an advertisement without having to click or interact with it. The guidelines restrict disclosure label options to #ad, #collab, #promo, #sponsored  and #partnership. No other labels are allowed as the consumer may not be familiar with short forms or other words to connote advertisements. This list will be periodically reviewed to add any new labels that become popular or recognised by an average consumer as a way to connote promotional communication.

As per the guidelines, the disclosure label has to be upfront, must be in English or translated into the language of the advertisement, in a way that it is well understood by the average consumer, viewing the advertisement. Blanket disclosures in a profile or bio are not  considered adequate as the visitor might read or watch individual video. In case of an advertisement of a picture or video not accompanied by a text post, the disclosure label should be superimposed on such video or picture. For videos that last 15 seconds or lesser, the disclosure label must stay for a minimum of 2 seconds. For videos longer than 15 seconds, but less than 2 minutes, the disclosure label stays for 1/3rd the length of the video. For videos which are 2 minutes or longer, the disclosure label must stay for the entire duration of the section. In live streams, the disclosure label should be placed periodically, for 5 seconds at the end of every minute so that users who see part of the stream can see the disclosure. In the case of audio media, the disclosure label must be clearly announced at the beginning and at the end of the audio.

Under the guidelines, the influencers are also required to exercise due diligence that the specific claim made in the advertisement is capable of scientific substantiation. The contract between the influencer and advertisement must also include clauses pertaining to disclosures, due diligence and use of filters.

In an event of consumer complaints concerning the violation of any guidelines or suo moto cognizance, the ASCI shall issue notice to brand owners and influencers.

The guidelines are open to feedback until March 21, 2021 and could be accessed here:

https://www.ascionline.org/images/pdf/guidelines-for-influencer-advertising-on-digital-media-draft-for-stakeholder-inputs.pdf. Based on the feedback and inputs, the final guidelines are slated to be issued by ASCI by March 31, 2021. The guidelines will be applicable to all promotional posts published on or after April 15, 2021.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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Niti Aayog, a policy think tank of the Government of India, released in December 2020, Draft Guiding Principles for the Uniform National-Level Regulation of Online Fantasy Sports Platforms in India (hereinafter referred to as “discussion paper”). The discussion paper states its view is“…to examine the fantasy sports industry structure and consider evolving guiding principles that can help the industry to grow by adhering to guidelines which are consistent and based on well-recognised principles.”

The discussion paper draws attention to the differential treatment faced by Online Fantasy Sports Platform (“OFSP”) users across India resulting in  legal ambiguity. It thereby expresses the need for uniform operating standards. It highlights that although fantasy sports received judicial recognition, fantasy sports contests have  no independent legal recognition and as a result, have to take shelter under an undefined exception to the state gambling and public order laws. Speaking of the reason behind the need for formal recognition of fantasy sports industry and regulation thereof, the discussion paper states the same would “…enable Indian OFSP operators to focus on innovation and achieve scale and expand their operations in a clear and principle-based regulatory environment, achieving the mission of the Aatma Nirbhar Bharat Initiative…”. Further, it suggests considering setting up of an independent and cost-effective grievance redressal mechanisms and concurs with the Sports Law and Policy Centre’s (SLPC) suggestion for “institution of clear guidelines and the creation of centrally administered and nationally available safe harbor for games of skills, adhering to these guidelines”. It mentions that pursuant to the deliberations with eminent persons from the industry a few principles and recommendations were agreed upon including a self-regulatory organization for fantasy sports with at least 66% registered fantasy sports users in India and an independent oversight board looking after the governance of self-regulatory organization.

The discussion paper provides that the formats of the fantasy sports contents offered by OFSPs should remain skill predominant and an independent evaluation committee, will undertake statistical and legal evaluation to ascertain that the format is skill-predominant in determining the winning outcome. It provides that OFSP operators are also required to keep statistical data to track player/user performance on their platforms and submit the same to a self-regulatory organization periodically to demonstrate that the formats are skill predominant. It also states that any pay-to-play formats will be subject to approval of the evaluation committee and should not be offered to users less than 18 years old

The discussion paper further provides that the terms of participation in fantasy sports contests should be fair and transparent, and participation should be provided a grievance redressal mechanism for their complaints and also lay down the provisions for advertising and promotion of fantasy sports contests. 

The discussion paper can be accessed here: https://niti.gov.in/sites/default/files/2020-12/FantasySports_DraftForComments.pdf 

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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In India, of late, much emphasis is being given by the Government of India (GoI) to Intellectual Property (IP) awareness particularly amongst higher educational  institutions such as technology institutes. The reason for such emphasis is heightened now more than ever before considering the recent pandemic and the need for Indian businesses and institutions to innovate, invest in research, and develop means of production (of goods and services) indigenously. This in turn results in IP generation. Towards promotion of IP awareness, GoI, through the Ministry of Education, has time and again stepped in and led various initiatives, the latest of which  is ‘KAPILA’ Kalam Program for Intellectual Property Literacy and Awareness launched in October 2020. 

One could argue that IP literacy and awareness at higher educational institutions like undergraduate and graduate level is perhaps more useful than at elementary or high-school level, but the changing times of an internet and tech savvy generation nudge us to give more thought to promoting IP awareness and education in schools as well. Accordingly, the author is of the view that it is imperative that IP awareness programs be carried out at even school level  such that the larger mission of protecting one’s own work and respecting the work of others is picked up at an early impressionable age. In trying to achieve this, GoI may look at unique ways adopted by various other countries including United States, Switzerland, Singapore, Denmark etc. to inculcate IP awareness as part of school curriculum. The National Intellectual Property Offices in each of these countries have taken up various initiatives focused at raising IP awareness right from the primary school level. Sensitizing primary school students by creative ways is a doable task. One way could be by integrating knowledge of IP within different subjects and curriculum throughout all educational levels. Others may include dissemination of knowledge on copyrights, brands,  designs etc., through skits, plays, musicals, art, craft, writing contests and workshops.

Currently, it can be seen that there are some initiatives that the GoI is taking towards educating school children, but most of the government initiatives are patent oriented and promote sensitizing relevant groups with respect to their rights and knowledge in the sphere of patents. While the direct correlation between patents and innovation cannot be overruled, it is important that awareness and education of other IPs such as Brands (Trademarks), Copyrights, Designs, etc.  be also promoted in adequate measure. 

The need to educate and sensitize children early on such that they are alive to counterfeit (of toys, pharmaceuticals, etc.) or piracy (of games/movies, etc.) as well as are encouraged to innovate and invent should be the driver of policies in new age India.  

[1] https://government.economictimes.indiatimes.com/news/education/national-ip-literacy-initiative-will-be-taken-up-soon-education-ministrys-cio/77648014

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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The Kris Gopalkrishnan Committee, in July 2020, suggested a framework for regulation of Non-Personal Data (‘NPD’) vide its Report on NPD Governance Framework (the ‘Report’). Pursuant to comments/suggestions from public thereto, a revised Report was released in December 2020 inviting suggestions/feedback till January 31, 2020.

Some of the notable changes/additions in the revised Report include addressing the interface between regulation of NPD and the Personal Data Protection (‘PDP’) Bill. The Report clarifies that mixed datasets comprising of both personal data and NPD will be governed by the PDP Bill. It suggests deleting Sections 91(3) and 93(x) of the PDP Bill which deal with a regulatory framework covering even NPD with a view “to ensure that the two frameworks are mutually exclusive…”. Further to the recommendation that consent should be obtained for anonymisation/use of personal data, the Report suggests that the Data Custodians should give notice and offer an option to the Data Principals – (i) to opt out of anonymization; or (ii) revoke consent (where personal data is to yet to be anonymized). It clarifies that cases concerning re-identification of NPD will strictly fall within the purview of the PDB Bill.  

 The Report defines ‘Data trustee’ as “…Government…or a non-profit Private organization…responsible for the creation, maintenance, data-sharing of High-value Datasets…”. It defines High Value Dataset (HVD) as “…a dataset that is beneficial to the community at large and shared as a public good…” and proposes mechanisms for creation and sharing of HVD which, inter alia, includes creation of an Innovation Advisory Body. Further, it specifies parameters for gauging the threshold limit to be set for mandatory registration of Data Businesses (viz. organizations meeting a threshold of data collection/processal) as gross revenue, number of consumers/households/devices handled and % of revenues from consumer information. It specifies that registration as ‘Data Businesses’ below the set threshold limit will be voluntary. It lists purposes for data sharing as sovereign (viz. for national security, legal etc.), public good (viz. research, innovation etc.) and business purposes. With respect to mandatory data sharing, it states “Outside of a Public Good purpose, private entity to private entity mandatory data sharing is not considered…”. It further specifies that NPD which likely to violate privacy or involves trade secrets/proprietary information will not be included for sharing.

The Report also, inter alia, analyses NPD framework from the perspective of Property Law, Copyright Law, Trade Secrets Law, IT Act, 2000, Competition law and the Indian Constitution.

The Report of Committee can be accessed here: https://static.mygov.in/rest/s3fs-public/mygov_160922880751553221.pdf

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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As COVID-19 swept the world, the consequent mandatory health protections, such as nationwide lockdown and social distancing resulted in traditional court system and physical hearings coming  to a halt. As a result, the legal profession was forced to adapt to  the technology-enabled virtual courts, which arrived much sooner than expected.

The Trade Marks Office (“TM Office”) also adapting to this novel situation, notified that it will commence show-cause hearings in  trademark matters through video conferencing.[1] However, the TM Office has not made these virtual hearings mandatory and  has provided that only those matters will be listed  wherein applicants or their authorised agents have consented (via email to the TM Office) to attend hearings through video conferencing.

The concept of virtual hearings is not new and was introduced by the Trade Marks Rules, 2017 with the objective of expediting the registration process. As a matter of fact, the TM Office even in the past has conducted virtual hearings , but it never attracted the attention of practitioners much . However, currently, with the pandemic radically changing the state of affairs, virtual hearings  in trademark matters is a much appreciated move. The same is reckoned to not only provide relief to cases drastically distressed by an absolute lockdown,  but also help in clearing  the backlog at the TM Office.

 Notably, at present, the TM Office has only specified that  virtual hearings  will be held in  show-cause matters. However, it should be taken into consideration that remote and virtual functioning is the new way of the world’s working and it is here to stay. Given the state of backlog in the contested/opposition matters at the TM Office, it is imperative that introducing a policy for conducting virtual hearings  in opposition matters as well be considered. We are seeing a total shift in outlook and approach at all levels, with the Supreme Court, the High Courts, and other judicial bodies attending to contested cases through virtual mode on a day-to-day basis. In light of this, the TM Office should also consider going fully virtual viz. even in contested/opposition matters. .

As the TM Office will likely continue its operations virtually for the time being, enabling attendance to opposition matters through virtual mode will only be a step  forward  and may very well be appreciated by practitioners and as well as the concerned parties. As of now, the TM Office continues to conduct virtual hearings in show-cause matters, however it will be interesting to see as and when the TM Office commences attending to contested matters virtually.

[1] Trade Marks Registry Public Notice dated August 26, 2020, < http://ipindia.nic.in/writereaddata/Portal/News/707_1_Public_Notice_TLA.pdf>, last accessed on December 30, 2020.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

Copyright: ALG India Law Offices LLP