India: Advertising & Marketing
1. Please provide a brief overview of the legal and regulatory framework governing advertising and marketing in your market. In particular, please explain if there is a self-regulatory system, a statutory system and/or ability for competitors or consumers to bring claims against advertisers.
The right to advertise has repeatedly been observed in judicial precedent to have been guaranteed by the Indian Constitution under the purview of the right to freedom of speech and expression- specifically as the right to commercial speech. Accordingly, only reasonable restrictions may be placed on this right by the government in the interests of the likes of sovereignty of the Indian state, public order and morality. While this freedom of commercial speech is not absolute, it can only be restricted when not in the public interest.
While there is no single specific law central law that applies to advertising, there are a host of laws that apply to ads, including but not limited to the Cable Television Network Rules 1994 (“Cable Rules”) and Consumer Protection Act 2019 (“CPA”) as well as a number of sector specific laws such as:
- The Drugs and Cosmetics Act 1940 which prohibits the advertising of scheduled drugs.
- The Advocates Act 1961 prohibits lawyers from advertising their services.
- Public Gambling Act 1967 regulates gambling and advertisements promoting gambling.
- The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act 2003 prohibits the advertising of tobacco products.
- The Indian Medical Council Act 1956, which prohibits the advertising by physicians for their services.
- The Representation of People Act, which places restrictions on political advertisements.
Other more general laws that may have an impact on advertising include the Competition Act 2002 (where such advertising may be viewed as anti-competitive), violative of the intellectual property of a third party such as under the Copyright Act 1957 or the Trade Marks Act 1999
