Online Gaming Advertisements To Be Self Regulated

Background:

With the spurt of new entrants in the market and the rising competition, online gaming apps have used the TV commercials route i.e., both cable TV as well OTT platforms to target consumers. Concerns seem to have been raised about their misleading claims and their non-adherence to the required Advertising Code laid down under the Cable TV Network (Regulation) Act, 1995.

Due to the rapid growth and the negative impacts associated with such advertisements, the Ministry of I&B stepped in and held a meeting on November 18, 2020, to discuss the matter with the stakeholders including the Advertising Standards Council of India (ASCI), News Broadcasters Association (NBA), Indian Broadcasting Foundation (IBF), All India Gaming Federation (AIGF), Federation of Indian Fantasy Sports (FIFS) and Online Rummy Federation (ORF).

The discussion had resulted in ASCI taking up the responsibility to frame the appropriate guidelines for the benefit of the advertisers, broadcasters and consumers as well.

Accordingly, the ASCI has introduced the necessary Guidelines to make real-money gaming advertising safer and more responsible for the consumers. These guidelines are to be effective from December 15, 2020 and are applicable for the legally permitted advertisements only. These guidelines have been framed to ensure that such advertisements spread awareness about the risk associated with playing such games.

The ASCI Guidelines:

The ASCI guidelines, which are to be effective from December 15, 2020, are as follows:

1. No gaming advertisement may depict any person under the age of 18 years, or who appears to be under the age of 18.

2. Every such gaming advertisement must carry the following disclaimer - "This game involves an element of financial risk and may be addictive. Please play responsibly and at your own risk".

In the case of print/static advertisement: the disclaimers should be legible and shall be no less than 20% of the space and also meet ASCI's disclaimer guidelines.

In the case of audio/video advertisement: the disclaimer must be placed in a normal speaking pace at the end of the advertisement and it must be in the same language as the advertisement. Further, for audio-visual mediums, the disclaimer needs to be in both audio and visual formats.

3. The advertisements should not present 'Online gaming for real money winnings' as an income opportunity or an alternative employment option.

4. The advertisement should not suggest that a person engaged in gaming activity is in any way more successful as compared to others.

ASCI: Power & Jurisdiction:

The Cable Television Networks (Regulation) Act, 1995 ("Act") regulates the operation of cable television networks and the content carried on the cable service. Sections 5 and 6 of the Act defines the program code and advertisement code. As per Section 6 of the Act "No person shall transmit or re-transmit through a cable service any advertisement unless such advertisement is in conformity with the prescribed advertisement code."

Rule 7 of "The Cable Television Networks Rules, 1994" ("Rules"), framed in exercise of powers conferred under Section 22 of the Act, prescribes the advertising code, which states that: any advertising to be carried out in the cable service should be in conformity with the laws of the country and should not offend morality, decency and religious susceptibilities of the subscribers. Further, Rule 7(2) enlists the advertisements that would not be permitted to be broadcasted by the cable operators.

To regulate the advertisements, the Advertising Standards Council of India (ASCI), was established in 1985. The ASCI is a Self-Regulatory body registered as a the not-for-profit company under Section 25 of the Indian Companies Act.

For cable operators to be compliant with the ASCI, the Rules were amended through the Cable Television Networks (Amendment) Rules, 2006 on 02.08.2006 [with G.S.R.459(E)]. The amended Rule 7(9) reads as "No advertisement which violates the Code for self-regulation in advertising, as adopted by the Advertising Standards Council of India (ASCI), for public exhibition in India, from time to time shall be carried in the cable service."

By virtue of the amendment, the ASCI is recognized as the self-regulatory body that addresses all complaints related to advertisements pertaining to cable television. Further, the self-regulatory element and nature of ASCI were recognized and acknowledged by the Hon'ble the Supreme Court in the case of Common Cause (A Regd. Society) vs. Union of India (UOI) and Ors.

Will Fantasy Sports be affected?

Although the Guidelines does not specifically mention the "Fantasy Sports" apps however since the guidelines are premised on the "gaming advertisement" and more specifically "online gaming for real money winnings", it is pretty evident that these guidelines are indeed applicable for the Fantasy Sports app as well. Even though playing on the Fantasy Sports platform is considered as a game of skill, in the end, they are online (fantasy) games and the winnings in the said platforms are "real money" too.

Conclusion:

While the issue of legality about the Fantasy sports would be duly addressed by the Hon'ble Court through the matter pending before it, this is indeed a welcome move by the Ministry of I&B to get the necessary guidelines in place through ASCI.

While these gaming advertisements were alleged to be targeting youth, some of them were seen to be inducing them to consider it as a new source of income, obviously by suppressing the facts about the real possibility of losing money. Needless to mention, the addictiveness of these games made it imperative that these advertisements were regulated so they do not end up being misleading and harmful. Hence, the new guidelines will surely be helpful in establishing transparency and giving a reality check to all the online gamers engaged in playing such games.

Santosh Vikram Singh is Partner & Sidheswar Sahoo is a Legal Intern at Fox Mandal & Associates. Views are personal.