Introduction

In line with the government's continued efforts to curb the broadcasting and publishing of advertisements relating to online betting platforms, the Ministry of Information and Broadcasting ("I&B Ministry"), on 3 October 2022, issued two advisories1 ("Advisories") to (i) publishers of news and current affairs content on digital media and publishers of online curated content2, and (ii) private satellite television channels3 ("Media Platforms"). The Advisories strongly recommend that Media Platforms should refrain from broadcasting advertisements of online offshore betting platforms and / or their surrogate news websites or any such product / service depicting such online betting platforms in a surrogate manner.

The Advisories brought forth are in continuation to the previous advisory issued by the I&B Ministry on 13 June 2022 ("Previous Advisory") in the same regard, after the industry witnessed a sharp increase in the number of advertisements broadcasted by online betting websites / platforms on print, electronic, social and online media.

Recent developments

The Previous Advisory was issued to print, electronic and digital media directing them to refrain from advertising and promoting online betting platforms in India or towards the Indian audience, both online and in print.4 The Previous Advisory recognized the potential detrimental effects that betting may have on the youth of India, with the I&B Ministry emphasizing on the need for such advisory in the larger interest of the public. Further, the advisory sought to ensure that (a) Indian print and digital advertisers do not advertise online betting platforms; and (b) the Indian audience is not exposed to any advertisements promoting online betting platforms.5

In the last few years, the government has incorporated various provisions under the newly introduced legislations and guidelines to address the rising concern of broadcasting advertisements of online betting and gambling platforms. On 25 February 2021, the Ministry of Electronics and Information Technology published the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 which requires a social media intermediary (i.e., an intermediary which enables online interaction between users and allows them to create, upload, or share information using its service) to have appropriate regulations in place to ensure that users of such intermediary do not create, upload, or share any such content or information which promotes gambling.6 On 10 June 2022, the Ministry of Consumer Affairs, Food and Public Distribution issued the Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements 2022 ("Misleading Advertisements Guidelines") which prohibits all forms of surrogate advertising and specifically states that "An advertisement shall be considered to be a surrogate advertisement or indirect advertisement, if (a) such advertisement indicates or suggests directly or indirectly to consumers that it is an advertisement for the goods, product or service whose advertising is prohibited or restricted by law; or (b) such advertisement uses any brand name, logo, colour, layout and presentation associated with such goods, product or services whose advertisement is prohibited or restricted."7

The issue at hand

In an attempt to circumvent the restrictions imposed by the government in relation to broadcasting or publishing of advertisements of online betting platforms, few betting platforms have undertaken the provision of certain ancillary / alternate services such as operating blogs, news content platforms, etc, with the same brand name and logo as their corresponding online betting platforms.8 Online betting companies have collaborated with Media Platforms for advertising their ancillary / alternate service platforms and by doing so the companies have thereby continued to gain visibility for their online betting platforms as well, courtesy the identical names and logos associated with the ancillary / alternate service platforms thereby circumventing extant advertising regulations in the country. To give a few examples of this, the government has, in the Advisories, cited various exhibits of such advertising of online betting platforms undertaken by Media Platforms including advertisements of '1XBet' on OTT Platforms, 'fairplay news' on 'Star Sports' channels, 'betway.net' on 'Sony' channels, Pari match, an online sports betting company, advertises itself through the use of an alternate news platform called 'Pari Match news' on various digital media platforms, etc.

The Advisories accordingly strongly recommend the Media Platforms to refrain from broadcasting advertisements of online betting platforms and / or their surrogate news websites or any such product / service depicting these platforms in a surrogate manner. Further, any contravention of the provisions of the Advisories by any publisher or broadcaster will entail penal actions under the applicable laws. While the Advisories do not mention a specific penalty as such, given that the Advisories are issued under the Information Technology Act, 2000 and the Cable Television Networks (Regulation) Act, 1995, respectively, the penalty may include a monetary fine as well as imprisonment in certain cases, and the officers of the company who were in charge / responsible at the time when the contravention was committed will be liable to be proceeded against and punished accordingly. Further, a contravention may also entail confiscation of broadcasting / publishing related equipment and / or computer systems.

Khaitan Comment

The I&B Ministry has repeatedly flagged online betting platforms as significant financial and socio-economic risks to the society, especially the youth and the children. Accordingly, in order to safeguard the consumers from such risks of the online betting industry, the government is undertaking proactive steps including introducing new regulations, issuing advisories, penalising violators etc. While the Advisories are not the first attempt by the government in its effort to clamp down on broadcasting advertisements of online betting platforms, it remains to be seen the manner and effectiveness with which the government will implement the provisions of these Advisories on an industry which has only exponentially increased in size with each passing year.9

One interesting aspect will be to see whether advertisers or Media Platforms look to interpret the application of the restrictions in the Advisories to include companies engaged in real money fantasy sports. The gaming industry in India has grown leaps and bounds over the past few years and while there remains a debate on whether the games operated by some of them are games of skill or games of chance (effectively gambling), should Media Platforms choose not to air the advertisements of such companies given these ambiguities, it would come as a blow to such companies and be detrimental to the growth of such an industry. A number of teams in franchised or league-based sports in India (e.g., the Indian Premier League for Cricket, the Pro Kabaddi League for Kabaddi, the Indian Super League and I-League for Football etc.) are sponsored by such gaming companies and the Advisories could have an impact on how such teams or franchises select these companies as their sponsors. Several industry stakeholders have called on the government to reconsider its restrictions on the online betting industry by introducing a central and uniform set of regulations to ensure greater transparency within the gaming industry.

Footnotes

1. The power to issue advisories for online platforms and OTT stems from the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 issued under the Information Technology Act, 2000 whilst for private satellite television channels, it stems from the Cable Television Networks (Regulation) Act, 1995.

2. Ministry of Information and Broadcasting, Government of India, https://mib.gov.in/sites/default/files/Advisory%20to%20Digital%20News%20Publishers%20and%20OTT%20Platforms%2003.10.2022%20%281%29.pdf.

3. Ministry of Information and Broadcasting, Government of India, https://mib.gov.in/sites/default/files/Advisory%20to%20Private%20Satellite%20TV%20Channels%2003.10.2022.pdf.

4. Advisory on Advertisements of Online Betting Platforms, https://mib.gov.in/sites/default/files/Advisory%20on%20online%20betting%20advertisements%2013.06.2022%282%29.pdf.

5. Ibid.

6. Rule 3(b)(ii), Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, https://mib.gov.in/sites/default/files/IT%28Intermediary%20Guidelines%20and%20Digital%20Media%20Ethics%20Code%29%20Rules%2C%202021%20English.pdf.

7. Paragraph 6, Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements 2022, https://consumeraffairs.nic.in/sites/default/files/file-uploads/latestnews/CCPA%20Notification.pdf.

8. Exhibit II, Advisory on Advertisement of Online Betting Platforms, https://mib.gov.in/sites/default/files/Advisory%20to%20Digital%20News%20Publishers%20and%20OTT%20Platforms%2003.10.2022%20%281%29.pdf.

9. Sports Betting Market Size Is Likely to Experience a Tremendous Growth of USD 167.66 billion by 2029, registering a CAGR of 10.26 % by Size and Share, Industry Growth, Regional Outlook, Challenges and Analysis, https://www.globenewswire.com/en/news-release/2022/07/14/2479929/0/en/Sports-Betting-Market-Size-Is-Likely-to-Experience-a-Tremendous-Growth-of-USD-167-66-billion-by-2029-registering-a-CAGR-of-10-26-by-Size-and-Share-Industry-Growth-Regional-Outlook-.html.

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