New ad guidelines will lead to overregulation, government should review draft, says IAMAI

In its response to the proposed advertising guidelines, the Internet and Mobile Association of India (IAMAI) is likely to tell the government to review the new regulatory framework suggested for the sector as it will overburden the industry with compliances.

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In a draft response shared with its members, the association says there are concerns over various terminologies, provisions and disclaimers and applicability of guidelines on different stakeholders.

The IAMAI is likely to submit this feedback to the Consumer Affairs Ministry today.

The new provisions are at variance with pre-existing regulations and risks over-regulation and unnecessarily burdens for the industry, it says. The IAMAI will request the Consumer Affairs Ministry for a more closely tailored, harm-based set of guidelines with adequate consultation from all stakeholders, including the advertising industry.

According to IAMAI, the draft guidelines impose uniform wide-arching responsibilities on service providers (includes online platforms), manufacturers and advertising agencies without taking into considerations the limitations of scope or operations of them all. The responsibilities and liabilities are the same for all and not according to the knowledge of each entity and its degree of involvement in the life-cycle of a product.

Terms such as Advertising Agency, Endorser, and Trader have not been properly defined or defined in a scope with other existing provisions that risk misinterpretation of the terms, feels IAMAI.

According to the industry body, the guidelines seek to regulate various forms of advertising, including “bait advertising”; “surrogate advertising” and “comparative advertising”. However, these terms have not been defined in the guidelines, leading to ambiguity regarding the content on which the prescribed obligations are applicable.

The use of terminologies across the guidelines is also not consistent, IAMAI says.

For the sake of consistency and certainty, IAMAI has recommended that the same terminology be applied throughout the guidelines. The terms ‘service provider’ and ‘manufacturer’ should be defined in a manner that makes it clear that for the purpose of these guidelines, these terms include only manufacturers/service providers whose products/services are the subject of marketing communications.

Commenting on the overlaps with the existing regulatory framework, IAMAI said certain provisions of the guidelines contain restrictions on advertisements that are regulated under other frameworks as well.

"For instance, the guidelines prohibit surrogate advertising, which is specifically regulated under the Cable Television Network Rules (CTNR). The guidelines appear to not have made any reference to the provisions of these pre-existing regulations (described in earlier sections) and therefore risk legal viability," the IAMAI submission said.

The guidelines also do not distinguish between endorsements, reviews and feedback. This may result in any person who shares their experience of using a product being potentially held liable as an endorser. This could lead to a chilling effect on any user expressing their opinion or sharing their experience in relation to the use of a product, thereby restricting information that should be made available to the consumer, feels IAMAI.

"The scope and applicability section suggests these guidelines cover all advertising/ marketing communications regardless of form, format or medium, which unfortunately fails to do justice to various types of services and the mediums or channels utilised by advertising communications,” the industry body has said in its response.

According to IAMAI, the language of guidelines prescribing several additional obligations with respect to advertisements that are of interest to children is very vague and is likely to be the subject to inconsistent interpretations. It will impose additional obligations on a manufacturer/service provider or advertising agency to determine whether a certain advertisement would be of interest to a child, it said.

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