With a growing user base and an increasing number of operators vying for the attention of consumers, gaming advertisements in India have become edgier, more colorful, and plentiful across platforms – be it print, radio, television or digital. While that has struck a chord with users, it has also caught the attention of the regulators. Therefore, it is increasingly pertinent for advertisers to educate themselves with the laws applicable to the industry and be mindful of the repercussions in the event of non-compliance. This article seeks to provide a broad overview of what to expect from the regulatory landscape for online gaming advertisements in India, along with recent developments that can impact the marketing ecosystem.
Laws that govern gaming advertisements in India
Advertising laws in India are scattered. They have been formed keeping several considerations in mind, such as what product is being advertised; the content used in the advertisement; and where the advertisement is being publicised. From this lens, we have covered laws that apply to gaming advertisements in India from a product, content and platform perspective.
Product and content specific laws
Gaming laws
Gaming in India is regulated by each state (province) and is bifurcated into two categories of skill and chance. Most state laws permit offering games of skill, with games of chance for stakes i.e. gambling being prohibited. Their advertisements are mainly disseminated via – radio, newspapers, broadcast and digital media. Some state gaming laws which prohibit the offering of or conducting gambling activities also prohibit the printing, publishing and distribution i.e. advertisement of gambling operations. The laws consider such activities as aiding and facilitating gambling, and impose imprisonment terms ranging from a few months to a couple of years, along with a monetary fine on advertisers. States that permit skill games for money or money’s worth do not place any prohibition on advertising thereof – subject to such advertisements being complaint with other laws discussed below.
Content
Agnostic of the medium and category of advertisements, there are several laws that regulate their content. To name a few, the Indian Penal Code 1860 and Information Technology Act 2000 penalise the transmission of any obscene material over the physical and electronic medium, with the Indecent Representation of Women (Prohibition) Act 1986 prohibiting advertisements from showing women in a vulgar or obscene light. Similarly, if an advertisement carries or displays the Indian national flag without due permission, the Emblems and Names (Prevention of Improper Use) Act 1950 gets triggered. Violation of these laws are criminal offences which are punishable with up to five years in jail, along with monetary fines ranging from INR 500 (approx. $6) to INR 1,00,000 (approx. $1,265).
Consumer protection
In addition to the above laws, India’s central regulation on consumer protection, the Consumer Protection Act 2019 (CPA) inter alia aims to safeguard consumers against misleading advertisements that falsely describe products or services, conceal relevant information or give a false guarantee of the product to mislead consumers. The statutory authority under the CPA has also recently issued Guidelines for the Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements 2022 (Misleading Advertisement Guidelines), which impose specific conditions on advertisements across all formats and mediums. The Misleading Advertisement Guidelines require promotional material to be truthful and honest in their representation by not making tall or unsubstantiated claims about their products or services. They also prohibit all forms of surrogate advertising i.e. advertising something prohibited or illegal under the pretext of advertising something that isn’t prohibited. They have also introduced conditions when disseminating advertisements that are specifically targeted at minors and impose due diligence requirements on endorsers involved in an advertisement. Advertisers guilty of misleading consumers can have their advertisements taken down by the central authority and be subject to heavy monetary fines.
Platform-specific considerations
Guidelines issued by the Advertising Standards Council of India (ASCI)
India has no overarching central law for advertising. However, there are medium and sector-specific laws, along with a voluntary self-regulatory body, the Advertising Standards Council of India (ASCI). ASCI has issued an advertising code (ASCI Code) prescribing broad guidelines for advertisements, including for them to be honest and truthful in general. While ASCI is not a government regulator, the ASCI Code has been given statutory force by being mandatorily applicable to all advertisements on cable and satellite television, as per the Cable Television Network Rules 1994, framed under the Cable Television Networks (Regulation) Act 1995 (Cable Television Act). Accordingly, television broadcasters must mandatorily adhere to it for the purposes of advertisements. The Supreme Court of India has also noted that the ASCI Code is part of the existing complaint redressal mechanism for television programs. Thus, advertisements broadcast on cable television, DTH, IPTV or other broadcasting media regulated under the Cable Television Act must adhere to the ASCI Code.
ASCI has also issued specific guidelines on online real-money gaming advertisements (RMG Guidelines) which, inter alia, require: (i) cautionary disclaimers in gaming advertisements about the element of financial risks involved (ii) that the games not be promoted as a successful or full-time income opportunity for users and (iii) not advertising to or depicting minors in any promotional material. ASCI receives complaints and issues notices to campaigns not in conformity with the ASCI Code, and offers advertisers the opportunity to either withdraw or modify their advertisements. If advertisers fail to adhere to ASCI’s directions on such advertisements, ASCI can, as a last step, forward the complaint to the concerned regulatory authority or government department for appropriate action.
Radio
Radio stations follow a Code for Commercial Advertising applicable to all radio stations. It defines an advertisement as any item of publicity for goods or services inserted during the radio broadcast. It expressly prohibits radio stations from broadcasting advertisements on lotteries, other than those organised by a central or state government. It also prohibits advertising of betting tips relating to horseracing or any games of chance.
Print media in India is regulated by a statutory body, the Press Council of India, which in addition to the ASCI Code has issued Norms of Journalistic Conduct prohibiting newspapers and other print periodicals from publishing advertisements that are unlawful or illegal. Since most states in India consider gambling to be illegal, advertisers must analyse the relevant gaming laws in each state before marketing their products in the print media.
Broadcast
As mentioned above, television broadcasters in India are regulated by the Cable Television Act and its allied rules. In addition to the ASCI Code and RMG guidelines, broadcasters must also adhere to the Advertisement Code under the Cable Television Act, which regulates the content of advertisements by prohibiting those that are, inter alia, vulgar, obscene or discriminatory in nature. A violation of the Cable Television Act or rules can result in a jail term of up to two years and/or a fine of INR 1,000 (approx. $12) with subsequent offences attracting up to five years in jail and with a fine of INR 5,000 (approx. $63).
Digital Media
Given the rapid penetration and impact of the internet, advertising on digital media is by far the most lucrative market for advertisers - whether it’s on social media, OTT platforms or any other platform on the internet. Currently, India does not have a uniform regulatory regime for digital media marketing but, as good practice, digital media platforms comply with the ASCI Code and their allied guidelines to the extent possible.
Other Relevant Developments
In addition to the above laws, there has been a recent heightened increase in governments monitoring the advertising space. In June 2022, the central ministry for Information and Broadcasting issued an advisory to media outlets (print, broadcast and digital) to refrain from displaying advertisements of online betting platforms. According to the Government, promoting activities that are largely prohibited in India can have socio-economic effects to the detriment of the younger members of society.
The state Government of Tamil Nadu, a southern state of India, recently set up a committee to recommend a new law for online gaming, including studying the possibility of banning advertisements of online gaming in the state.
Lessons to Learn
With the meteoric rise of online gaming in India, governments are looking to regulate the industry, with a check on its marketing equally being on the agenda. A recent report from ASCI observed that in comparison to last year there has been a 472% increase in the number of advertisements they examined; with 94% violating the ASCI Code and RMG Guidelines in one way or another.
In the hope of getting a bigger piece of the gaming pie in India, advertisers should ensure they don’t offer prohibited products or market themselves illegally. Before publishing advertisements, they must study: the regulatory position of gaming in each state; the advertising laws applicable across each medium; ensure truthful representations; not mislead consumers or violate content or obscenity laws in their dissemination.
