Advertising & Marketing 2023 Comparisons

Advertising practices in India are governed by a collection of acts, rules, and guidelines. There are some general laws for overall regulation of advertising. The Consumer Protection Act, and rules made thereunder, regulate misleading advertisements and other unfair trade practices. The self-regulatory body, the Advertising Standards Council of India (ASCI), recognised by various government departments and the Supreme Court of India, has issued a Code for Self-Regulation, which is the primary regulation for advertising practices in India. There are also some special statutes for regulating advertising of specific products or services. Some of them are as follows.

• The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 – prohibits any advertisement of cigarettes or tobacco products in any medium.
• The Drugs and Magical Remedies (Objectionable Advertisements) Act, 1954 – prohibits advertisement of magical remedies of diseases and disorders.
• Indecent Representation of Women (Prohibition) Act, 1986 – prohibits any advertisement exhibiting indecent representation of women.
• Emblems and Names (Prevention of improper use) Act, 1950 – prohibits the use of any name or emblem specified in the Schedule of the Act or any colourable imitation thereof without the prior permission of the central government.
• Young Persons (Harmful Publications) Act, 1956 – Section 3 of the Act imposes a penalty for advertising or making known by any means whatsoever that any harmful publication can be procured from or through any person. “Harmful publication” includes publications portraying commission of offences, acts of violence, cruelty, or incidents of a repulsive or horrible nature which would tend to corrupt a young person into whose hands it might fall.
• The Transplantation of Human Organs Act, 1994 – prohibits any advertising inviting individuals to provide, donate, or supply any human organ for payment.

Additionally, there are some other general laws which regulate advertising in India. The Indian Penal Code prohibits obscene, defamatory publication, and publication of a lottery and/or statements creating or promoting disharmony/enmity in society. The Cable Television Networks (Regulation) Act, 1995 prohibits advertisements which are not in conformity with the ASCI’s Code for Self-Regulation. Advertisements are also required to comply with intellectual property laws such as trade mark and copyright laws.

The Central Consumer Protection Authority (CCPA) has been established under the Consumer Protection Act which is charged with regulating matters relating to violation of rights of consumers, unfair trade practices, and false or misleading advertisements which are prejudicial to the interests of the general public, and specifically consumers, and to promote, protect, and enforce the rights of consumers as a class.

If an advertisement is found to be false or misleading, the Central Authority can issue directions to the concerned trader, manufacturer, endorser, advertiser, or publisher to discontinue or modify the advertisement.

Penalties can also be imposed on manufacturers and endorsers, with fines ranging up to 10 lakh rupees (INR1 million – approximately USD12,000) for the first contravention and up to 50 lakh rupees (INR5 million – approximately USD60,000) for subsequent contraventions.

CCPA can also prohibit an endorser from making endorsements for a specified period, and penalties can be imposed on any person involved in publishing misleading advertisements. Endorsers who have exercised due diligence to verify the claims made in the advertisement and individuals who published the advertisement in the ordinary course of business may be exempt from penalties.

When determining the penalty, factors such as population and area impacted by offence, frequency and duration of the offence, vulnerability of affected individuals, and revenue generated from the offence are considered. The person involved is given an opportunity to be heard before any order is passed.

The Consumer Complaints Council (CCC) of ASCI is a self-regulatory authority for regulating advertising practices in India. In addition to taking suo motu cognisance of misleading advertisements, the ASCI also deals with complaints from the general public, consumers, NGOs, government regulators, consumer groups, and industry bodies. The CCC comprises 40 eminent professionals, both from the industry as well as from civil society, who review complaints on a weekly basis and provide their recommendations. If an advertisement has been found in contravention of the ASCI Code, the advertiser will need to modify or withdraw the advertisement within a stipulated time.

Advertisers, advertising agencies, endorsers (including celebrity endorsers), publishers, traders, and manufacturers can be held liable for deceptive advertising.

The ASCI Code defines advertisement “as a paid-for communication, addressed to the public or a section of it, the purpose of which is to promote, directly or indirectly, the sale or use of goods and services to whom it is addressed. Any communication which in the normal course may or may not be recognised as an advertisement by the general public, but is paid for, owned, or authorised by the advertiser or their advertising agency would be included in this definition”.

Legislation and regulations pertaining to advertising and marketing in India do not mandate pre-approval of advertisements by any governmental authority.

However, advertisers must obtain permission from the local municipal corporation if they wish to publicise their products/services through billboards or posters.

Under the Cable Television Network Rule 1994, certain conditions apply when advertising a product that shares its brand name or logo with cigarettes, tobacco products, wine, alcohol, liquor, or other intoxicants on a cable service. If such advertisements are deemed genuine brand extensions by the Ministry of Information and Broadcasting, they must be previewed and certified by the Central Board of Film Certification before their telecast, transmission, or retransmission for unrestricted public exhibition.

As per the applicable intellectual property laws and right to publicity under Article 21 of the Indian Constitution, advertisements must refrain from including any content that violates or infringes upon the rights of others, such as privacy, publicity, or any other intellectual property rights. Moreover, advertisements should not incorporate any names, trademarks, or other elements protected by intellectual property laws, without explicit permission or licence from the owner of the intellectual property.

A person has proprietary rights over their name, picture, likeness, voice, and identity, and other personal attributes, and no one is entitled to use the name and likeness of a person without the consent of that person.

The ASCI is a self-regulatory authority that regulates advertising practices in India. It is now recognised by many legal and legislative frameworks in India, as well as government departments and the Supreme Court of India.

The ASCI’s authority extends to monitoring and regulating advertising across various media, including print, television, radio, and digital platforms.

Anyone, including consumers, organisations, and competitors, can file a complaint with the ASCI against an advertisement that they believe violates the ASCI Code. Complaints can be submitted online through the ASCI’s website, providing relevant details about the advertisement, the alleged violation, and supporting evidence. If a violation is established, the CCC issues appropriate directions to the advertiser to modify or withdraw the advertisement.

The available remedies include withdrawal of the misleading or deceptive advertisement, publication of a corrective advertisement, and imposition of a monetary penalty on the endorser, advertiser, or advertising agency.

Consumers in India have a private right of action to challenge advertising practices under the various general or specific statutes relating to advertising. Causes of action may include misleading advertisements, false claims, unfair trade practices, deficiency in services, or defective products. Remedies may include withdrawing of the misleading or deceptive advertisement, publication of a corrective advertisement, compensation for loss or damage, refund of purchase price, discontinuation of unfair trade practices, or any other appropriate relief.

In the ASCI Annual Complaints Report for the fiscal year 2022–23, real money gaming, education, and healthcare were identified as the most violative categories in terms of deceptive advertising. A staggering 92% of the reviewed gaming advertisements failed to comply with the guidelines for real money gaming, neglecting to inform consumers about the associated risks of financial loss and addiction.

Moreover, in 97% of the 503 misleading ads featuring celebrities that were examined by the ASCI, the celebrities failed to demonstrate evidence of the due diligence required by the Consumer Protection Act. Influencer-related violations accounted for 26% of the complaints processed by the ASCI, with a total of 2,039 complaints filed against them. Influencer misconduct was particularly prevalent in categories such as personal care, food and beverage, and fashion and lifestyle.

Advertisers in India should be mindful of certain taste and cultural concerns while creating and disseminating advertisements.

• Cultural sensitivity – India is a country with diverse culture, and numerous religions, languages, traditions, and customs. Advertisers should ensure that their content does not offend or disrespect any particular religious or cultural group.
• Respect for traditional values – Indian society places importance on traditional values and respect for elders, family, and social harmony. Advertisements should reflect and promote these values, avoiding content that undermines or challenges them.
• Gender sensitivity – gender representation and portrayal in advertisements should be respectful and avoid reinforcing stereotypes or promoting discrimination. Advertisers should strive for inclusivity and empowering depictions of both men and women.
• Religious observances and festivals – advertisers should be sensitive to religious observances, festivals, and cultural celebrations in India. Care should be taken to avoid commercialising or trivialising religious sentiments.
• Social issues and taboos – advertisements should exercise caution when addressing social issues or sensitive topics such as religion, sexuality, nudity, etc. It is important to handle such subjects with sensitivity, respect, and a constructive approach, avoiding content that may be controversial or offensive.

It is advisable to conduct research and consult with local experts to ensure advertisements resonate positively with the Indian audience. Adhering to these considerations can help create impactful and culturally appropriate advertisements in India.

The regulation of advertising and enforcement of advertising regulations have not been impacted by any change in political administration in India. There have been a lot of developments in the advertising landscape in India in recent years, but they are primarily because of the advent of social media and digital platforms and the growing awareness of the public.

According to Section 2(28) of the Consumer Protection Act, 2019, misleading advertisement in relation to any product or service, means an advertisement which:

• falsely describes such product or service;
• gives a false guarantee to, or is likely to mislead the consumers as to the nature, substance, quantity, or quality of, such product or service;
• conveys an express or implied representation which, if made by the manufacturer, seller, or service provider thereof, would constitute an unfair trade practice; or
• deliberately conceals important information.

Chapter I (4) of the ASCI Code states, “Advertisements shall neither distort facts nor mislead the consumer by means of implications or omissions.”

Implied claims are also subject to regulation. In general, it is seen as to how a reasonable consumer would interpret the message. The primary focus is on the overall fairness and honesty of the advertisement rather than requiring empirical evidence for every implied claim. However, the ads should not mislead the consumers by implications.

According to the ASCI Code, all descriptions, claims, and comparisons which relate to matters of objectively ascertainable fact, should be capable of substantiation by evidence and with adequate scientific basis. Advertisers and advertising agencies are required to produce such substantiation as and when called upon to do so by the Advertising Standards Council of India.

Where advertising claims are expressly stated to be based on, or supported by, independent research or assessment, its source and date should be indicated in the advertisement.

Section 6 of Chapter I of the ASCI Code permits obvious untruths or exaggerations in advertising that are intended to entertain or capture the consumer’s attention. However, it is essential that these claims are clearly identifiable as humorous or hyperbolic and are not likely to be perceived as literal or misleading. The determination of whether a claim falls under puffery or constitutes a misleading claim relies on the judgement of a reasonable person.

There is no restriction on product demonstration in advertising, provided such demonstration is not in contravention to any other law.

Section 13 of the Guidelines on Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements (2022) states that endorsements in advertisements should reflect the genuine and reasonably current opinion of the individual, group, or organisation involved. These endorsements should be based on adequate information or experience with the specific goods, products, or services being promoted, and should not be deceptive. Additionally, professionals, whether Indian or foreign, who are prohibited by law from making endorsements in relation to their profession, are not eligible to endorse such advertisements.

The commercial nature of an advertisement should not be hidden. An upfront and prominent disclosure is mandatory if there is any material connection between the advertiser and the endorser. Material connection is not limited to monetary compensation but also includes anything of value (such as free or discounted products or services, or other perks) given to the endorser to mention or talk about the advertiser’s product or service. A list of permitted disclosures for social media influencers includes:

• advertisement;
• ad;
• sponsored;
• collaboration;
• partnership;
• employee;
• free gift;
• “paid partnership” tag on Instagram;
• affiliate; and
• “includes paid promotion” tag on YouTube.

There is a greater burden of disclosure on health and financial influencers as in these sectors there could be substantial losses to consumers, owing to incorrect advice. The influencers of these sectors must have necessary qualifications and certifications, which they have to prominently disclose.

India does not have specific laws or regulations that directly address stereotyping in advertising or focus explicitly on inclusion, diversity, and equity in the advertising industry.

However, the ASCI has released a number of Guidelines that address stereotyping in advertising, such as:

• Guidelines for Advertising of Skin Lightening or Fairness Improvement Products – advertising should not communicate any discrimination as a result of skin colour.
• Guidelines on Harmful Gender Stereotypes – advertisements must not include gender stereotypes that are likely to cause harm or serious or widespread offence. Advertisements should not mock people for not conforming to gender stereotypes, their sexual orientation, or gender identity, including in a context that is intended to be humorous, hyperbolic, or exaggerated. While advertisements may feature glamorous and attractive people, they must not suggest that an individual’s happiness or emotional wellbeing depends on conforming to these idealised gender-stereotypical body shapes or physical features.

There are no special laws or regulations in India that apply to environmental claims in advertising or greenwashing. The Consumer Protection Act and Rules, along with the ASCI Code, regulate misleading environmental claims in advertising in India.

The ASCI has recently released Guidelines for Online Deceptive Design Patterns in Advertising, which were effective from 1 September 2023.

The Guidelines emphasise the need for transparent pricing, prohibiting drip pricing where elements of the price are undisclosed until the end of the buying process. They address bait and switch tactics, ensuring that ads do not mislead consumers by implying one outcome but delivering an alternative. False urgency, wherein limited quantities are falsely stated, is deemed misleading. Additionally, the Guidelines require clear disclosure of disguised ads, such as influencer posts or ads designed to resemble editorial content.

The Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements (2022) outline several provisions to protect children’s interests and wellbeing. The Guidelines prohibit advertisements that encourage dangerous behaviour, exploit children’s inexperience or loyalty, create unrealistic expectations, or condone practices detrimental to their health or mental wellbeing. Advertisements should not ridicule or make children feel inferior for not purchasing the advertised goods or services. Direct exhortations to children for purchases are prohibited, as well as the use of qualifiers to downplay additional costs. Advertisements should not feature children in ads promoting restricted products or personalities from sports, music, or cinema for products requiring health warnings or those unsuitable for children. Furthermore, advertisements should not mislead children about product size, characteristics, or performance, and should avoid exaggerating what can be achieved using the advertised product. Promotions requiring purchases and claims without scientific evidence are discouraged. Advertisements that promote negative body image or suggest superiority over natural or traditional foods should be avoided. Lastly, advertisements for junk foods should not be shown during children’s programmes or on channels exclusively for children, and promotional gifts to encourage unnecessary purchases or illogical consumerism should be discouraged.

According to the Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements (2022), where there exists a connection between the endorser and the trader, manufacturer, or advertiser of the endorsed product that might materially affect the value or credibility of the endorsement and the connection is not reasonably expected by the audience, such connection shall be fully disclosed in making the endorsement.

Under the Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements (2022), bait advertisements, surrogate advertisements, and free claims advertisements are subject to specific rules and regulations.

Advertisements should not entice consumers to purchase goods, products, or services without a reasonable likelihood of actually selling them at the advertised price. The advertiser must ensure an adequate supply of the advertised goods, products, or services to meet the expected demand generated by the advertisement. Additionally, the advertisement must clearly state any reasonable grounds for potential supply limitations, including stock limitations if the estimated demand exceeds supply, and should not mislead consumers by omitting any restrictions or conditions on availability. Lastly, the advertisement should not mislead consumers about market conditions or the availability of the goods, products, or services to induce them into making purchases under less favourable conditions than normal market conditions.

No surrogate advertisement or indirect advertisement shall be made for goods or services whose advertising is otherwise prohibited or restricted by law, by circumventing such prohibition or restriction and portraying it to be an advertisement for other goods or services, the advertising of which is not prohibited or restricted by law.

A free claims advertisement should not describe any goods, product, or service as “free” if the consumer has to pay for anything beyond the unavoidable cost of responding to the advertisement and collecting or delivering the item. The advertisement should clearly communicate the consumer’s commitment required to avail the free offer. Additionally, the advertisement should not describe goods, products, or services as free if the consumer has to pay for packing, handling, administration, or if the cost of response has been increased, except for unrelated factors. The quality or quantity of the goods, products, or services should not be reduced to qualify for the offer. Furthermore, if an element is included in a package price, it should not be described as free. Lastly, the term “free trial” should not be used to describe an offer that requires a non-refundable purchase.

Chapter IV of the ASCI Code discusses comparative advertising claims. Advertisements that contain comparisons with other manufacturers, suppliers, or products are allowed in the interest of healthy competition and consumer awareness, provided certain conditions are met. Firstly, the aspects of the advertiser’s product being compared to the competitor’s product should be clearly stated. The subject matter of the comparison should not create an artificial advantage or mislead consumers about the actual value offered. The comparisons should be based on factual and accurate information that can be substantiated. There should be no likelihood of consumer deception as a result of the comparison. Furthermore, the advertisement should not unfairly denigrate or attack other products, advertisers, or advertisements, directly or indirectly. Additionally, advertisements should not unjustifiably use the name, initials, or goodwill of other firms, companies, or institutions, nor should they resemble previous advertisements of other advertisers to the extent of suggesting plagiarism.

Further, the Indian judiciary has also evolved the following principles for the protection of competitor interests with regard to comparative advertising.

• A trades-person is entitled to declare his/her goods to be the best in the world, even though the declaration is untrue.
• He/she can also say that his/her goods are better than their competitors’, even though such statement is untrue.
• For the purpose of saying that their goods are the best in the world or their goods are better than their competitors’, he/she can even compare the advantages of their goods over the goods of others.
• However, he/she cannot, while saying his/her goods are better than the goods of their competitors, say that their competitors’ goods are bad. If they do so, they defame their competitors and their goods, which is not permissible.
• If there is no defamation to the goods or to the manufacturer of such goods, no action lies, but, if there is such defamation, an action lies and, if an action lies for recovery of damages for defamation, then the court is also competent to grant an order of injunction restraining the repetition of such defamation.

Comparative advertising is permitted under Section 30(1) of the Indian Trademark Act 1999, which reads as: “Nothing in Section 29 shall ... [prevent] the use of [a] registered trade mark by any person with the purposes of identifying goods or services as those of the proprietor, provided the use: (i) is in accordance with the honest practices in industrial or commercial matters; and (ii) is not such as to take unfair advantage of or be detrimental to the distinctive character or repute of the trade mark.” But there are certain limitations which are provided under Section 29(8) which reads as: “A registered trade mark is infringed by any advertising of that trade mark if such advertising: (i) takes unfair advantage and is contrary to honest practices in industrial or commercial matters; (ii) is detrimental to its distinctive character; or (iii) is against the reputation of the trade mark.”

Advertisers may challenge claims made by a competitor. Advertisers may approach the CCC of the ASCI. The remedies available to the ASCI include asking the advertiser or advertising agency to withdraw the misleading or deceptive advertisement, asking the advertiser or advertising agency to publish a corrective advertisement, imposing a monetary penalty on the advertiser or advertising agency.

Advertisers can also pursue legal action by filing a lawsuit in a court of law and seek remedies such as injunctive relief to prevent the competitor from making false claims, damages for any harm caused by the false claims, and a cease and desist order to stop the competitor from making further false claims.

There are no special rules in India related to ambush marketing. The aggrieved may seek relief under the Trademark Act or the Copyright Act.

Online advertisements, including advertisements on websites, and OTT (over-the-top) and social media platforms, have to comply with all the relevant statutes such as the Consumer Protection Act (2019), the Indian Penal Code, and the Information Technology Act (2000). They also have to adhere to the Code for Self-Regulation of the ASCI. Additionally, when social media influencers or their representatives publish advertisements, they must ensure that a disclosure label is prominently displayed to identify the content as an advertisement. This disclosure is necessary whenever there is a material connection between the advertiser and the influencer, even if the connection goes beyond monetary compensation.

When advertisers use content posted by others in their social media advertising, it is important for them to ensure that the content is responsible, and devoid of misleading, harmful, or offensive elements. Advertisers must also take steps to verify the accuracy of the content and have supporting evidence available when necessary. Liability also arises if there is any material connection between the advertiser and the endorser/influencer. In such a case, it is the advertiser’s responsibility to ensure that the post is in line with the ASCI Code and its Guidelines. If required, the advertiser may have to call upon the influencer to delete or edit an advertisement or the disclosure label to adhere to the ASCI Code and Guidelines.

The ASCI has published Guidelines for Influencer Advertising in Digital Media, which state that all advertisements published by social media influencers or their representatives must carry a disclosure label that clearly identifies it as an advertisement when a material connection exists between the advertiser and the influencer, where such material connection need not necessarily be limited to monetary compensation.

The rules for disclosures by influencers on social media are as follows.

• Disclosure should not be buried in a group of hashtags or links.
• If the advertisement is only a picture or video without accompanying text, the disclosure label needs to be superimposed over the picture/video.
• For videos of 15 seconds or less, the disclosure label must stay for a minimum of 3 seconds. For videos lasting for 15 seconds – 2 minutes, the disclosure label should stay for 1/3rd the length of the video. For videos longer than 2 minutes, the disclosure label must stay for the entire duration in which the promoted brand or its features are mentioned.
• In live streams, the disclosure label should be announced at the beginning and end of the broadcast, with appropriate disclosure mentioned in the text/caption if the post continues to be visible after the live stream is over.
• In the case of audio media, the disclosure must be announced at the beginning and end of the audio, and before and after every break, if any.

Online advertisements on social media platforms have to comply with all the relevant statutes such as the Consumer Protection Act (2019), the Indian Penal Code, and the Information Technology Act (2000). They also have to adhere to the Code for Self-Regulation of the ASCI.

Note that TikTok is not permitted to be used in India.

Advertisements have to be clearly distinguishable from editorial or entertainment content. The commercial nature of an advertisement should not be hidden.

The ASCI has published Guidelines for Influencer Advertising in Digital Media, which require that all advertisements published by social media influencers or their representatives must carry a disclosure label that clearly identifies it as an advertisement when a material connection exists between the advertiser and the influencer, where such material connection need not necessarily be limited to monetary compensation.

The following is the list of disclosure labels permitted. Any one or more can be used.

• Advertisement.
• Ad.
• Sponsored.
• Collaboration.
• Partnership.
• Employee.
• Free gift.
• Guidelines50.
• “Paid Partnership” tag on Instagram.
• Affiliate.
• “Includes Paid Promotion” tag on YouTube.

The disclosure should be in English or in the same language as the advertisement itself, and be presented in a way that is easy for an average consumer to understand.

A virtual influencer must additionally disclose to consumers that they are not interacting with a real human being. This disclosure must be upfront and prominent.

There is a greater burden of disclosure on health and financial influencers as in these sectors there could be substantial losses to consumers, owing to incorrect advice. The influencers of these sectors must have necessary qualifications and certifications, which they have to prominently disclose.

Responsibility of disclosure of material connection and also of the content of the advertisement is placed upon both the advertiser and influencer.

Influencers have to carry out due diligence regarding the substantiation of the claims made in the advertisement.

Responsibility of disclosure of material connection and also of the content of the advertisement is upon the advertiser for whose product or service the advertisement is, and also upon the influencer. For clarity, where the advertiser has a material connection with the influencer, the advertiser’s responsibility will be to ensure that the posted influencer advertisement is in line with the ASCI Code and its Guidelines. While the influencer shall be responsible for making disclosures required under the guidelines, the advertiser shall, where needed, call upon the influencer to delete or edit an advertisement or the disclosure label to adhere to the ASCI Code and Guidelines.

The Bureau of Indian Standards (BIS) has launched the Indian Standard (IS) 19000:2022 “Online Consumer Reviews – Principles and Requirements for their Collection, Moderation and Publication”, to curb fake and deceptive reviews on e-commerce platforms. The Standard is applicable to every online platform which publishes consumer reviews. “Review administrator” has been defined as an “organisation or individual responsible for managing the consumer review content, which may be the suppliers/sellers of the products and services being reviewed”. Review administrators who are inviting consumers to submit online reviews should send invitations to all those who are known to have purchased the product or service. In case the invitations are not sent to all those known to have purchased the product or service, it shall be collected using an objective and demonstrable process that minimises bias and prejudice.

The review administrator should not knowingly publish reviews that have been purchased.

A reward may be offered for review of a product or service, whether this review is unsolicited or solicited, but the reward shall not depend on the content of the review; ie, it should be irrespective of whether the review was positive or negative.

The review administrator has a duty to monitor the reviews.

India does not have any specific law that requires or regulates consent for email marketing. However, certain sections of the Information Technology Amendment Act (ITAA), 2008, may be broadly interpreted to suggest that the prior consent of a customer is necessary for email marketing. For example, Section 66A of the Act states, “any person who sends, by means of a computer resource or a communication device, any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience, or to deceive or mislead the addressee/recipient about the origin of such messages shall be punishable with imprisonment for a term which may extend to three years, [along] with fine.” Further, Section 67 of the Act stipulates punishment for publishing or transmitting obscene material in electronic form.

According to general practices, an opt-out must be given to the recipients.

Advertising through unsolicited calls and messages is regulated by the Telecom Regulatory Authority of India (TRAI). The TRAI has issued the Telecom Commercial Communication Customer Preference Regulations (2018) to curb a growing menace and effectively regulate unsolicited commercial calls (UCCs) and messages. Consumers can block all commercial communications (calls and SMSs) or can selectively block UCCs from seven specified categories:

• banking/insurance/financial products/credit cards;
• real estate;
• education;
• health;
• consumer goods and automobiles;
• communication/broadcasting/entertainment/IT; and
• tourism and leisure,

by registering his/her preference in the National Customer Preference Register (NCPR), also known as the DND Registry. A subscriber who is not registered with any access provider for the purpose of sending commercial communications, cannot make unsolicited commercial communication and in case any subscriber is sending commercial communication, telecom resources of the sender may be put under a usage cap. If the subscriber continues to send commercial communication despite notice given to him, all telecom resources of the sender may also be disconnected.

The TRAI has issued a notification prohibiting UCC through SMS. TRAI has stipulated that all principal entities (senders or businesses) have to complete the following activities before sending bulk communication:

• registration as principal entity (PE) with telecom service providers (TSPs);
• registration of header;
• registration of content template; and
• registration of customer’s consent.

Before sending commercial communication, explicit consent of the customer must be acquired through a registered consent template. Further, communications based on explicit consent must include a suffix providing for the procedure through which customers can revoke consent. Failing to follow any of the aforementioned steps will not allow one to send a commercial communication. Additionally, customers can register their preferences with the TSPs as to who can send commercial communication to them. Preference choices include the categories of commercial communication, mode of communication, time band, and type of day (ie, weekday/weekend, festival, national holiday, etc). Further, the TRAI deters SMS spam and unsolicited marketing from a pricing perspective, levying higher termination charges for “transactional SMS texts” to raise the costs of bulk SMS and make it uneconomical to send unsolicited SMS campaigns.

Commercial communications may be sent where prior relationship exists between sender and recipient, wherein the relationship may either be on account of business or commercial reasons, social reasons, or it may be because of a purchase made by the recipient or transactions entered into between sender and recipient. An implied consent, which can be reasonably inferred from the customer’s conduct or the business and the kind of relationship between the individual and the sender, is used. However, such communication may only continue for 12 months from the date of receiving the implied consent. In case of inquiry from the customer about the product or services, this time period is limited to three months.

Under the Digital Personal Data Protection Act 2023, organisations must not undertake tracking or behavioural monitoring of children or targeted advertising directed at children.

The Digital Personal Data Protection Act 2023 has laid down provisions for processing of personal data of children. The data fiduciary has to obtain verifiable consent of the parent of a child or the lawful guardian before processing any personal data of a child. No processing of personal data should be carried out that is likely to cause any detrimental effect on the wellbeing of a child. Also, a data fiduciary shall not undertake tracking or behavioural monitoring of children or targeted advertising directed at children. A penalty which may extend to 200 crore rupees (INR2 billion) may be imposed for breach in observance of additional obligations in relation to children under the Act.

Under Article 21 of the Indian Constitution, advertisements must refrain from including any content that violates or infringes upon the rights of others, such as privacy and publicity.

To date, there is no specific legislation in India which regulates competitions, sweepstakes, contests, prize draws, etc. The following statutes/regulations of law are normally considered for reviewing compliance of sweepstakes and contests:

•       Indian Contract Act, 1872;

•       The Consumer Protection Act, 2019;

•       Prize Competition Act, 1955;

•       Information Technology Act, 2000, and the Information Technology Rules;

•       Income Tax Act, 1961; and

•       The Copyright Act, 1957.

In India, there is no registration requirement for conducting sweepstakes or contests. The Consumer Protection Act 2019 prohibits the conduct of any contest, lottery, or game of chance or skill for the purpose of promoting, directly or indirectly, the sale, use, or supply of any product or any business interest. As long as no purchase or payment of any kind is required to enter or win the sweepstakes or contest, the same should not fall under the purview of the Consumer Protection Act 2019. In essence, no consideration should flow from the entrants to the sponsor which would ensure that no consumer relationship is established between the entrant and the sponsor. Then, the Consumer Protection Act 2019 will have no application.

The laws in India distinguish between contests of skill and games of chance. In India, games of skill are considered legal while games of chance are generally prohibited or subject to stricter regulations.

The definition of a game of skill is provided under various judicial pronouncements and legal precedents. According to the Supreme Court of India, a game of skill is one in which success primarily depends on the superior knowledge, training, attention, experience, and adroitness of the player. In a game of skill, the element of chance plays a negligible role compared to the skills and expertise of the participant.

The key factor that determines whether a game is a game of skill or chance is the dominant influence of skill over chance in determining the outcome. If the outcome of a game is determined predominantly by the skills, knowledge, strategy, and decision-making abilities of the participant, it is considered a game of skill.

On the other hand, games of chance are those where the outcome is primarily dependent on luck or random events, with minimal or no scope for skill or strategy. These games typically involve elements like dice rolls, card draws, or spinning wheels, where the result is determined purely by chance.

It is important to note that while games of skill are generally allowed, certain states in India have their own regulations and laws governing specific types of games, including online games and gambling activities.

There is no law or regulation in India which requires registration of chance-based games and/or skill-based contests.

According to the Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements (2022), a free claims advertisement should not describe any goods, product, or service as “free” if the consumer has to pay for anything beyond the unavoidable cost of responding to the advertisement and collecting or delivering the item. The advertisement should clearly communicate the consumer’s commitment required to avail the free offer. Additionally, the advertisement should not describe goods, products, or services as free if the consumer has to pay for packing, handling, administration, or if the cost of response has been increased, except for unrelated factors. The quality or quantity of the goods, products, or services should not be reduced to qualify for the offer. Furthermore, if an element is included in a package price, it should not be described as free. Lastly, the term “free trial” should not be used to describe an offer that requires a non-refundable purchase.

From October 2021, in accordance with the Directive of the Reserve Bank of India (RBI), banks, financial institutions, and gateways had to obtain user approval for auto-renewal programmes by conducting transaction notifications, e-mandates, and additional factors of authentication (AFA) before the transaction could be completed. Further, automatic payments in India are limited to INR5,000. This Directive does not apply to Unified Payments Interface (UPI) payments.

India does not have any rules or guidance related to the use of AI in connection with the development of advertising content, as of yet.

India does not have any rules or guidance related to making claims that a product is developed through the use of AI, is powered by AI, or has AI-related capabilities, as of yet.

India does not have any rules or guidance related to the use of chatbots, as yet.

According to the ASCI’s Guidelines for Advertising of Virtual Digital (VDA) and Linked Services, all ads for VDA products and VDA exchanges, or featuring VDAs, must carry the disclaimer: “Crypto products and NFTs are unregulated and can be highly risky. There may be no regulatory recourse for any loss from such transactions.” Such a disclaimer must be prominent and unmissable. The expressions “currency”, “securities”, “custodian”, and “depositories” may not be used in advertisements of VDA products or services as consumers associate these terms with regulated products. Advertisements should provide clear, accurate, sufficient and updated information and should not contradict the information or warnings that the regulated entities provide to customers in the marketing of VDA products from time to time. Minors should not be depicted in the advertisements. Returns for periods of less than 12 months shall not be included in the advertisements. VDA products and VDA trading should not be shown as solutions to money problems, personality problems, or other such drawbacks. The risk should not be downplayed and no guarantee for increase in profit should be made. The name and contact details of the advertiser should be provided.

There are no special laws or regulations in India that apply to advertising within the metaverse.

The following products and services are prohibited from advertising in India:

• cigarettes and tobacco products;
• donation of human organs for payment;
• magical remedies for illnesses and disorders;
• pre-natal sex determination services;
• endorsement of professionals in the field of medicine, such as physicians and doctors, and legal services such as advocates;
• alcohol advertising, including surrogate advertising – although some states in India allow ads through billboards, signboards, etc; and
• gambling activities including online gambling and betting.

Personalities from the field of sports and entertainment should not endorse products which, by law, require a health warning such as “………… is injurious to health” in their advertising or packaging.

The Self-Regulation Guidelines on Advertising of Foods & Beverages (F&B) require that health or nutritional claims, and regarding personal changes in intelligence, physical ability, or exceptional recognition, should not be made without substantiation. Advertisements should not undermine good dietary practice, importance of healthy lifestyle, and role of parental care. They should not encourage excessive consumption or portray foods or beverages as meal replacements.

For advertisements on social media relating to health and nutrition, the influencer should be qualified to make the claims, if any. They should have a medical degree, or be a certified nurse, nutritionist, dietician, physiotherapist, psychologist, etc, depending on the specific advice being given. The qualifications and registration/certification details must be disclosed prominently.

There is no specific law in India regarding product placement. All the laws and regulations concerning advertising, including the Code for Self-Regulation of the ASCI, are also applicable to product placement.

The Self-Regulation Guidelines for advertisements depicting automotive vehicles require that there should not be any portrayal of violation of traffic rules, stunts or actions, or speed manoeuvrability encouraging unsafe or reckless driving.

The ASCI Guidelines for advertising of online gaming for real money winnings require that there should not be any portrayal of minors playing the game. Advertisements should not suggest the “Online Gaming for Real Money Winnings” as an income opportunity, alternative employment option, or a way of success. The disclaimer stating, “This game may be habit-forming or financially risky. Play responsibly,” is mandatory.

The Guidelines for advertisements for charitable causes emphasise that advertisements should not make people feel ashamed or failing in their responsibility for not supporting a charity or its causes. Displaying graphic images of victims in distress or otherwise disrespecting the dignity of individuals on whose behalf an appeal is being made, is not permissible. Express consent should be taken for the use of images of beneficiaries. Images which may cause unjustified distress should be blurred and made visible only to those interested in clicking and knowing more. The percentage of the fee used for managing or raising funds and/or any other use of funds should be clearly disclosed.