The Ministry of Information and Broadcasting (MIB) has submitted an affidavit to the Supreme Court recommending one ‘self-declaration certificate’ for all media, on August 23.
The Ministry has suggested the provision for all ads by advertisers in one portal only for the Food and Health sector.
Additionally, it has recommended the exemption of advertising agencies, print media, ASCI members, small and micro companies (start-ups) from the mechanism.
Read more: Relief for advertisers as MIB restricts SDC for ads to food and health sectors only
It is suggested that the period from June 6 till the final verdict in this case is delivered by the Court should be treated as a trial period.
The affidavit follows the top court’s order of July 30 wherein it directed the Ministry to submit an affidavit within three weeks, detailing recommendations on the ‘self-declaration certificate’ (SDC) mechanism for advertisements. The directive had come from a bench comprising Justice Hima Kohli and Justice Sandeep Mehta on July 9, 2024.
The affidavit, filed by Senthil Rajan, Joint Secretary in the MIB, sought exemption for advertising agencies and exclusion of programmatic ads and user-generated content from the SDC mechanism.
“Creative agencies focus on developing ads based on the advertiser’s mandate and claims about their products or services. Media agencies handle media planning and purchasing. Performance Agencies use data, technology, and expertise to achieve success in the digital space. Therefore, these agencies should not be compelled or made liable to upload SDC because one advertiser can have multiple agencies,” it said.
It was stated that SDCs may not be feasible for programmatic advertisements published on digital platforms as these are carried through network agencies and real-time bidding from the open market.
Read more: BREAKING: SC directs MIB to file affidavit within three weeks with recommendations on SDC
Also, for internet advertisements, it was suggested that the definition of ‘advertiser’ should not include ‘user-generated content’ and online advertisements may be excluded from the SDC mandate.
The affidavit suggested exemption of Advertising Standards Council of India (ASCI) members as they undertake to be compliant with the ASCI Code, which is harmonious with various advertising laws of the country and ASCI members have demonstrated a track record of voluntarily complying with the ASCI Code.
Further, suggestion was made to exempt print media from seeking SDC since the print media industry is already governed by regulations of ASCI and Press Council of India.
Scope of self-declaration mechanism
In its affidavit to the top court, the MIB suggested restricting SDC mandate to medical-related ads with claims of healing etc. to address the primary concern of misleading health claims.
Also, advisory should be limited to Ayurvedic products which is the subject matter of instant litigation, it was suggested.
For administrative efficiency, the Ministry suggested that a user-friendly, single portal accessible to relevant stakeholders is more effective.
Additionally, it sought exemptions for all platforms from taking proof of uploading SDCs on the ground since advertisers are uploading SDCs with a commitment to the government of not issuing misleading ads then there is no need to add one more step where the advertiser has to go to all and give them SDCs.
The affidavit mentioned recommendations on behalf Association of Radio Operators for India (ARON), Internet and Mobile Association of India (AMAI), Broadband India Forum (BIF), Indian Newspaper Society (INS), Indian Society of Advertisers (ISA) and Advertising Agency Association of India (AAAI) also, which included the request for a single portal. Also, the bodies suggested the mandate for filing SDCs to be made applicable for private companies/ advertisers and not advertising agencies.
Additionally, the scope of self-declaration certificates by advertisers may be circumscribed to advertisements of products and services from Food and Health sectors- wherein products and services of both sectors are defined by Ministry of Consumer Affairs, Food and Public Distribution, Ministry of Health & Family Welfare and Ministry of Ayush.
It was also suggested that the SDC should be taken as a blanket certification for all advertisements intended to be released throughout the year and could be made as part of the annual financial statement.
Lastly, request was made to exempt micro, small enterprises and start-ups, following the infant industry argument.