India Gambling — Marketing: Can we advertise?

The advertising and marketing of gaming activities in India are governed by the Online Gaming Act, the Consumer Protection Act, 2019 (“CPA”), applicable Gaming Enactments, the BNS, sector-specific advertising regulations and applicable self-regulatory standards. Under the Online Gaming Act, no person may make, cause to be made, aid, abet, induce or otherwise be involved in making any advertisement, through any medium, including electronic means, which directly or indirectly promotes or induces any person to play an online money game or engage in any activity promoting such game. Accordingly, advertisements promoting online money games are prohibited irrespective of whether the underlying games involve skill, chance or both. The prohibition also extends to surrogate advertising and promotional arrangements that indirectly encourage participation in prohibited online money games. Besides the Online Gaming Act, the following laws and regulations are relevant to advertising and marketing activities: - Consumer Protection: The CPA classifies the offering of prizes with the intention of not providing them as offered and the conduct of a contest, lottery, game of chance or skill for the purpose of promoting a product/business interest as an ‘unfair trade practice’. - The Consumer Protection (General) Rules, 2020 clarify that the following are not covered under the ambit of unfair trade practices: lotteries permitted under the Lotteries (Regulation) Act, 1998, and games of chance or skill not prohibited under the Public Gambling Act, 1867, which are not gambling, and wherein success depends to a substantial degree upon skill, and not chance. However, this exemption does not authorise activities or advertisements otherwise prohibited under the Online Gaming Act or other applicable laws. - The Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022 (“Misleading Ads Guidelines”), issued by the Central Consumer Protection Authority (“CCPA”), regulate misleading advertisements, endorsements and surrogate advertisements. Advertisements promoting products or services prohibited under applicable law cannot be justified through surrogate branding or endorsements. - Criminal laws and Gaming Enactments: The BNS prohibits advertisements for lotteries, unless they comply with the provisions of the lottery laws, including Lotteries (Regulation) Act, 1998 and state lottery regulations. Separately, the PCA prohibits advertisements of prize competitions, unless duly authorised by the relevant authority. Applicable Gaming Enactments may also impose restrictions on the advertisement or promotion of gambling activities, including land-based gaming operations. - Content-related Laws: Games and gaming websites in India are subject to content-related laws. For example: the BNS and the Indecent Representation of Women (Prohibition) Act, 1986 and the IT Act penalise obscene content. - Cable Television: The Cable Television Networks Rules, 1994 prohibit the public exhibition of advertisements that violate the Advertising Standards Council of India (“ASCI”) Code for Self-Regulation of Advertising Content in India (“ASCI Code”) on cable service only (i.e., broadcast on television). Please refer to the ‘Self-regulation’ sub-section below for more details. - Additionally, the Programme and Advertising Codes prescribed under the Cable Television Networks Rules, 1994 lay down certain guidelines for advertisements on cable services only, such as not inciting people to commit crime, cause disorder, violence, breach of law, glorify violence or obscenity in any way and not presenting criminality as desirable. Further, in February 2024, ASCI and the Department of Consumer Affairs held consultations with stakeholders including online gaming associations on measures to curb rampant surrogate ads, including by offshore gaming operators. - Additionally, in March 2024, ASCI entered into a partnership with CCPA, where ASCI agreed to forward any advertisement to the CCPA that is non-compliant with the ASCI Code and could potentially violate the CPA or its accompanying guidelines. This is in furtherance of ASCI and CCPA’s collective effort towards promoting transparency and fairness in advertising and jointly addressing violations. - Marketing: Marketing communications sent through telecom networks, including promotional calls and messages, are subject to the Telecom Commercial Communications Customer Preference Regulations 2010, which prohibit unsolicited commercial communications to persons that have opted out of receiving them. These regulations also provide that telemarketing can only be carried out by operators that obtain a licence from the Telecom Regulatory Authority of India. Enforcement: Direct and surrogate advertising of foreign sports betting platforms in India has come under significant scrutiny by the Ministry of Information and Broadcasting (“MIB”) and the Department of Consumer Affairs in recent times, specifically before the enactment of the Online Gaming Act. In consultation with the Department of Consumer Affairs, the MIB has issued five advisories between June 2022 and March 2024 to newspapers, TV channels, digital news publishers, intermediaries OTT platforms, endorsers, and influencers on social media strongly advising them against showing: - advertisements of online sports betting platforms; and - surrogate advertisements for offshore sports betting platforms in the guise of sports news websites (and targeting such advertisements towards Indian audiences). The advisories contained examples of such online advertisements, specifically illustrating several prominent offshore sports betting platforms. The advisories indicated that such advertisements are prohibited under the CPA and the Misleading Ads Guidelines. They also suggest that MeitY has the power to direct intermediary platforms to take down such advertisements if they appear on such platforms. Further, in March 2024, the CCPA published an advisory on “Prohibition of Advertising, Promotion, and Endorsement of unlawful activities prohibited under various laws” (“CCPA Advisory”). The CCPA Advisory stated that there has been a rise in the instances of direct and surrogate advertisements as well as endorsements of activities like betting and gambling. The CCPA Advisory quoted the advisories published by MIB and relevant sections of the Misleading Ads Guidelines, stating that “advertisements expressly prohibited in prevalent laws are also prohibited under the Misleading Ad Guidelines” and were subject to rigorous scrutiny. News reports suggest that Bollywood celebrities and other individuals associated with promotions of illegal gambling platforms have received notices from the CCPA for violation of the Misleading Ads Guidelines, which, inter alia, prohibit surrogate advertising. Further, pursuant to the Advisory, the Authority called upon entities whose operations, services or platforms may facilitate online money gaming, including advertising agencies, social media intermediaries, OTT platforms and other technology service providers, to review their internal policies, discontinue activities contravening the Online Gaming Act and implement appropriate internal compliance systems and safeguards. ## Self-regulation ASCI is a self-regulatory industry body that has been set up for the regulation of advertisements on television/broadcasting. With regard to prohibitions under the Gaming Enactments, the relevant police/judicial authorities in the respective States implement and enforce the Gaming Enactments. The ASCI Code is self-regulatory for all types of advertisement, except for cable television advertising as the Cable Television Networks Rules, 1994 include the ASCI Code. The ASCI Code defines an advertisement as “a paid-for communication, addressed to the public or a section of it, the purpose of which is to influence the opinions or behaviour of those to whom it is addressed. Any communication which in the normal course would be recognized as an advertisement by the general public would be included in this definition, even if it is carried free-of-charge for any reason.” Under the ASCI Code, advertisements which are in breach of the law, or that (directly or indirectly) propagate products which are banned under law are prohibited. ASCI had previously issued guidelines governing advertisements for online gaming involving real-money winnings, including prescribed disclaimers concerning financial risks and restrictions on advertisements targeting minors or presenting such gaming as an income opportunity. However, these guidelines do not appear to be in circulation any longer, as advertisements for online games involving real-money winnings are now prohibited.