Author: Vaidehi Gupta
Advertisers in India are now subject to a regime of self-certification under which every advertiser is required to submit a self-declaration for every advertisement to the effect that it does not contain any misleading claims and is compliant with applicable regulatory standards of advertising. Self-certifications for radio and print advertisements have to submitted on the Broadcast Seva portal of the Government of India, and self-certifications for print and digital/internet advertisements have to be submitted on the Press Council of India’s website. While the decision is undoubtedly well intentioned, in the author’s view, the requirement of submitting a self-declaration is not fit for its purpose.
The establishment of this self-certification regime has almost no effect on the extent and nature of liability an advertiser may face, since there is no legal theory under which the submission of a self-declaration in and of itself creates or extinguishes any liability. Instead, the self-certification regime has unduly increased the compliance burden of advertisers. Advertisers need to file a self-declaration prior to airing or publishing every single advertisement. Given the volume of advertisements in the industry, this translates to a significant compliance burden. The limited benefits of the self-certification mechanism are not commensurate with this burden.
Indeed, there is currently no robust regulatory mechanism for proceeding against advertisers who air or publish false or misleading advertisements and that is the raison d’etre for the widespread prevalence of such advertisements. However, in the author’s view, mandating self-certification by advertisers is not an appropriate solution to that social problem. Instead, a better solution would be to strengthen the capacity and enforcement posture of existing governmental authorities, and establish new authorities if required, to ensure that there sustained, prompt and effective enforcement action can be taken against delinquent advertisers.
To that end, the capacity of the newly established Central Consumer Protection Authority (CCPA) under the Consumer Protection Act, 2019 may be enhanced, to enable it to effectively pursue more actions against delinquent advertisers. Misleading advertisements are fundamentally a wrong against consumers. Therefore, the CCPA, as a specialized consumer regulator, is particularly well placed to take on the responsibility of enforcing fair advertisement standards.
The continued proliferation of misleading advertisements stems not from the absence of self-declarations, but from a lack of prompt and credible regulatory consequences. A self-certification regime that does not substantively alter an advertiser’s liability offers a limited deterrent effect. It merely introduces procedural complexity without addressing the underlying enforcement inadequacies.
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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