Legal guidelines of digital promoting – Lexology


With the advent of the digital age, ads that have already played a crucial role in shaping the business have become increasingly important. Online advertising became a major economic engine in the Internet economy as many websites and services were funded by advertising. Due to the competitiveness of the market and the vulnerability of consumers, misleading advertising can run the multiple risks of goodwill. Investment related to advertising has grown exponentially and a well-developed regulatory system is needed to ensure that all stakeholders are equally represented and cared for. In India there is no comprehensive strategy framework that regulates advertising. This is a worrying topic because of the stakes associated with advertising. Advertising is therefore subject to industry-specific regulations that expose stakeholders to many risks. There is no single law on advertising; However, there are many laws that ensure that stakeholders are adequately informed.

With the growth of the Internet and digital media, advertising has changed rapidly. The legislation that deals with advertising needs to ensure that these changes are taken into account and that consumers are not lost. The advertising industry needs the legislature to consolidate the various industry-specific rules and regulations and to create a uniform law.

Digital advertising

The internet acts as a link between various advertisers and markets around the world with interactive text graphics, audio and video. No specific definition of online advertising has been established under Indian law. Digital advertising refers to any form of advertising served on the web either through your web browser, social media application, or video streaming services. There are three main drivers in the digital advertising industry that include consumers, advertisers, and intermediaries. Recently, online advertising has become one of the most important channels for businesses and markets around the world as online buying decisions become more common. A large population is connected through the internet. Online advertising therefore offers greater reach with minimal resources. In addition to marketing efforts, ethical marketing techniques also play an important role in creating an advertisement that is not involved in misleading responses and untrue practices. The disputes that arise between advertisers and consumer intermediaries mainly concern consumer privacy and trademark infringement.[1] Using trademarks fairly and preventing fraudulent practices must be a primary goal of any regulator that regulates advertising. The advertising laws that apply to other forms of advertising also apply to digital advertising in addition to the provisions of the Information and Technology Act. The law provides guidelines that protect businesses and consumers, and help maintain the credibility of the internet.

Digital Advertising Rules

There is currently no central legal authority in India that can regulate the advertising industry and have uniform legislation. The advertising industry in India is regulated by a non-statutory body known as the Advertising Standards Council of India (ASCI). The businessman who wants to advertise must ensure that all regional and national laws are observed. The Advertising Standards Council of India was founded in 1985 and is responsible for advertising that builds public trust.[2] The council assures that the presentation and things that are made through the advertisement are true and honest. The advertising should not be offensive to any group of people and should maintain the standard of public decency. The self-regulatory code for advertising has been adopted by ASCI and can be applied to cases where the advertising is being created. This code has been recognized under various Indian laws, although ASCI has no legal status. The ASCI Code only supplements and does not replace or replace any of the regional and national laws of India.

The Code applies to advertisements from Indian companies or to advertisements originating outside of India.[3] All advertisements directed to Indian consumers must adhere to ASCI guidelines. Compliance with the ASCI code is voluntary and not required by law for online advertising. For television advertising, these course guidelines must be followed. Some laws also prohibit certain types of content that can be advertised.

There are various Indian laws relating to different sectors that complement the Code. Some of these are India’s Criminal Code of 1860, the Indecent Representation of Women (Prohibition) Act 1986, the Cigarettes and Other Tobacco Products (Prohibition of Advertising and Regulation of Trade and Industry, Production, Delivery and Distribution) Act of 2003, etc.[4] Under the Indian Criminal Code, no advertiser can advertise a document that is grossly indecent. Similarly, the Indecent Representation of Women (Prohibition) Act of 1986 prohibits the indecent representation of women in any form. The 1986 Consumer Protection Act also aims to ensure that consumers’ right to information is protected from the unfair commercial practices referred to in Section 2 (r). The Consumer Protection Act also provides for punitive damages to stop unfair trading practices.

In addition, the advertising of cigarettes and other products in the form of visual, acoustic and printed media is prohibited under the Act on Cigarettes and Tobacco Products (Prohibition of Advertising and Regulation of Trade and Production, Supply and Distribution of Trade and Industry, 2003) under Section 5. The distribution of advertisements that promote disharmony, hatred and displeasure between different races, religions and language groups is prohibited under the Cable TV Networks Ordinance of 1995.[5] This is to prevent disturbance of the public tranquility. There are also many guidelines for the use of national symbols. The flag code of India, 2000, banned the use of the national flag in any form of advertising. The content providers promoting the products must ensure that the content posted in any form on the platform does not violate the applicable laws in India. If they fail to do so, they may face civil and criminal liability.

Various restrictions have been set for advertising. Products such as cigarettes, tobacco, alcohol, infant milk substitutes, drugs and pharmaceuticals, lotteries, etc. cannot be advertised. There have been no specific online advertisements, but the restrictions and prohibitions apply regardless of the medium in which they are published. In addition, advertisements of human organs, magical remedies, prize money, and money circulation programs under various conditions are prohibited by legislation. The Constitution of India gave states the right to legislate on gambling and betting activities. The Information Technology Act was amended, banning gambling and wagering on online websites. Advertising relating to false information about the Securities and Exchange Board of India can be treated as an unfair trading practice and is prohibited under the Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trading Practices Related to the Securities Market) of 2003.

Content Provider Liability for Digital Advertising

According to Section 79 of the Information and Technology Act, an online service provider falls under the definition of an intermediary. An intermediary cannot actively participate in the modification of information that is displayed or transmitted. A service provider can only play a passive role in order to enjoy legal immunity. Any search engines or platforms like Facebook, YouTube, etc. that allow video self-publishing were immune to content posted by users. These platforms were neither the originator nor the recipient of the content. They are therefore not liable for the legality of the content distributed and published by them. According to the new guidelines for intermediaries, social media platforms such as Facebook, Twitter, YouTube etc. are responsible for the advertising and content on their platforms. The immunity granted to them is no longer available and they would be held liable if a full unlock action is taken on their platform


With the rapid growth of online advertising, various legal problems will inevitably arise. A unified principle is a mast because it would prevent the uncertainty caused by different laws. In addition, online advertising should not be bound by borders as it is comprehensive and national guidelines need to be taken to ensure that the rights of interest groups are protected. The principles established for all jurisdictions would ensure that market communication is reliable and possible. The global structure that an institution or organization specializing in advertising can be ensures that there is a supranational authority to enforce the decisions. This would increase consistency and confidence in online advertising and the benefits of this will reach both consumers and advertisers.

Persistent law will not promote the developing and competitive market, and only basic principles need to be laid down to avoid the confusion of interpretations and provisions. These principles should not harm innovation in various industries. The collection of user data to promote and convince consumers is also a problem and consumers need to be protected from misleading advertisements to prevent invasion of privacy. The balance between creating a competitive environment and consumer safety must be struck in online advertising in order to maintain a fair business environment.

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