India’s Ministry of Information and Broadcasting (“MIB”), on June 13, 2022, issued an advisory (“Gambling Advisory”)1 to the media, including newspapers, private satellite television channels and publishers of news and current affairs on digital media, which has been the subject of much discussion and reporting.
The Gambling Advisory requires “print and electronic media to refrain from publishing advertisements of online betting platforms. All online advertisement intermediaries and publishers are advised not to display such advertisements in India or target such advertisements towards Indian audience”.
An earlier advisory, dated December 2020, issued to private satellite channels dealt with advertisement pertaining to online gaming, and specified Do’s and Dont’s for advertisement by online gaming companies2 (“Gaming Advisory”).
There has been some concern and confusion on whether the Gambling Advisory restricts advertising by online real money gaming platforms. In this post, we examine below how the Gambling Advisory may be read in the context of the Gaming Advisory and the existing Indian law on advertising.
Real Money Gaming and Gambling Platforms
The increased penetration of mobile connectivity in India, and a growth in users during the pandemic, has driven an exponential increase in engagement on online platforms, including online gaming.
While the majority of users play legally permissible online games of skill, several operators, typically based offshore, allow wagering on games of chance (which include slots, roulette, lotteries, and other games which do not involve a predominant element of skill) by users in India.
Under the Constitution of India, state legislatures are empowered to regulate gambling3. While a central enactment, the Public Gambling Act, 1867 (the “Gambling Act”), operates in multiple states and Union Territories in the country through enabling legislation, many states have enacted specific legislation to govern betting and gambling (collectively, “Gambling Legislations”).
Almost universally, Gambling Legislations and their interpretation by the Supreme Court and the various High Courts via their judgments, exclude from their ambit, the operation of permitted skill games. Indeed, courts4 in India have held that the operation of such skill-based games is protected under Article 19(1)(g) of the Constitution of India5.
The MIB regulates print newspapers and periodicals6, broadcast television7 and, under the recent ‘Code of Ethics and Safeguards in relation to Digital Media”8 publishers of news and current affairs, and online curated content9.
While there is no unified legislation governing advertisements in India, individual legislations prohibit the promotion of various types products or businesses or types of advertising including cigarettes and tobacco products10, alcohol or other intoxicants, and advertisements which exploit national emblems, present criminality or promote violence11.
Advertisements are regulated largely through a self-regulating origination, the Advertising Standards Council of India (“ASCI”). ASCI’s ‘Code for Self-Regulation in Advertising’12 (“Code”), includes parameters for advertisements across various sectors and has been recognised by the MIB under Rule 7(9) of the Cable Television Networks (Regulation) Rules, 1995.
The Code contains detailed guidelines on the content that advertisements may carry and Section 3.4 of the Code states that “advertisements should contain nothing which is in breach of law, nor omit anything which the law requires”.
In furtherance of the Gaming Advisory, ASCI had put out certain parameters for advertising of online games. These included requiring disclaimers, both textual and in audio/ video form, indicating financial risk, stating that games may be addictive and bringing out that gaming is not an alternative from of employment. Advertising by the regulated gaming industry in India is by and large compliant with the parameters set out in the Previous Advisory.
While Courts in India have held repeatedly that certain types of ‘advisories’ do not have a binding effect and are not ‘law’ under Article 13 of the Constitution of India13, to the extent such guidance reiterates positions of law or obligations under the Code, it will impact entities regulated by it.
The Impact of the Advisory
While the Gambling Advisory requires the media to refrain from advertising “Online Betting Platforms”, the Gaming Advisory permits “Online Gaming, Fantasy Sports, etc.”, to advertise, subject to compliance with the relevant restrictions.
From a combined reading, it is clear that the Gambling Advisory neither restricts, nor limits advertising under the Gaming Advisory. Indeed, it only restricts the advertising of “betting and gambling”, which is “illegal in most parts of the country” on grounds that such activity is “largely prohibited”.
Gambling operators (typically from offshore locations) specifically target Indian users with India specific imagery and advertisements14. Players, especially the new or young ones, often find it difficult to distinguish between permitted games of skill and wagering on illegal games of chance. Indeed, several illegal operations blithely state that they are legal in India. This makes the prohibition of gambling advertisement very critical.
A great way to avoid confusion here would have been to expressly clarify that advertisement of permitted platforms such as fantasy sports and other skill games could continue, subject to compliance with the Gaming Advisory. That said, even absent such language, it should be safe to carry over the long recognised distinction between gambling and online games of skill to our reading of the Gambling Advisory, and read it as only being restrictive of the advertisement of gambling.
As such, the intent of the Advisory, i.e. that of preventing the proliferation of increasingly common (and sometimes mainstream) advertisement for illegal gambling, is laudable. Issuing an FAQ (as done several times recently15) to clarify this intent, will help regulated entities safely read the Advisory in the manner intended.
3 List II, Entry 34, Seventh Schedule
4 State of Bombay v. RMD Chamarbaugwala MANU/SC/0019/1957, State of Andhra Pradesh v K. Satyanarayana MANU/SC/0081/1967 and Dr. K.R. Lakshmanan v. State of Tamil Nadu MANU/SC/0309/1996.
5 Varun Gumber v. Union Territory of Chandigarh and Ors MANU/PH/1265/2017, Gurdeep Singh Sachar v. Union of India, MANU/MH/1451/2019 Ravindra Singh Chaudhary vs. Union of India and Ors. MANU/RH/0499/2020, Avinash Mehrotra v State of Rajasthan MANU/SCOR/24761/2021 and Junglee Games India Private Limited and Others vs State of Tamil Nadu and Others MANU/TN/5230/2021
6 the Press and Registration of Books Act, 1867
7 Cable Television Networks (Regulation) Act 1995
8 Part III of the Information Technology (Guidelines for Intermediaries and Digital Media Code) Rule, 2021
9 definition 2(l) of the Information Technology (Guidelines for Intermediaries and Digital Media Code) Rule, 2021.
10 Section 5 of the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003
11 Rule 7 of the Cable Television Network Rules, 1994.
13 Syndicate Bank v. Ramachandran Pillai And Others, MANU/SC/0210/2011, see also Narendra Kumar Maheshwari vs. Union of India (UOI) and Ors. MANU/SC/0388/1989
15 FAQs on the Cyber Security Directions dated April 28, 2022 and FAQs on Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021