The Advertising Standards Council of India (“ASCI”) has come up with a guideline for “Online Gaming For Real Money Winnings” (“Guideline”), which is effective from December 15, 2020. The ASCI had consulted the Ministry of Information & Broadcasting, the Department of Consumer Affairs as well as Ministry of Electronics & Information Technology, who have provided their full support to the Guideline as it comprehensively addresses the growing concerns about the potentially misleading and harmful advertisements in the sector. ASCI even consulted the All India Gaming Federation, the industry body for online skill gaming in India before releasing the Guideline. The Guideline has been developed to guide advertisers so that their advertisements do not violate the ASCI code pertaining to misleading advertisements, or of being harmful to society or individuals. These guidelines would be applicable to the content of all advertisements of “Online gaming for real money winnings”. ASCI can process complaints regarding the advertising content of “Online Gaming for Real Money Winnings”, when such advertisements potentially violate the ASCI code.
The Guideline prescribes that they should not depict any person under the age of 18 years, or who appears to be under the age of 18, engaged in playing a game of OGRM or suggest that such persons can play these games. The advertisements should not present “Online gaming for real money winnings” as an income opportunity or an alternative employment option. The advertisement should not suggest that a person engaged in gaming activity is in any way more successful as compared to others. Every such gaming advertisement must carry a disclaimer saying that “This game involves an element of financial risk and may be addictive. Please play responsibly and at your own risk.” Such a disclaimer should occupy no less than 20% of the space in the print advertisement and should also specifically meet disclaimer guidelines 4 (i) (ii) (iv) and (viii) laid out in the ASCI code. In audio/visual media, such advertisement must be placed in normal speaking pace at the end of the advertisement, in the same language as the advertisement and in both audio and visual formats.
If we look at other regulations on the subject-matter, we find that the Telecom Commercial Communications Customer Preference Regulations, 2010 issued by The Telecom Regulatory Authority of India had the objective of prohibiting “Unsolicited Commercial Communications” – which includes spam calls or SMSs and any sort of unsolicited commercial communication pertaining to gambling or betting. The Cable Television Network Rules, 1994 prohibit the advertisement of gambling activities with exception of games of skills, such as horse racing, rummy and bridge. Finally, if any contest or lottery or game of chance or skill promotes betting or gambling, such means employed for promotion would be considered unfair trade practice under the Consumer Protection Act, 1986. Though the Sports (Online Gaming and Prevention of Fraud) Bill, 2018 was introduced in Lok Sabha in 2018 as a private members bill, it lapsed with the dissolution of the Parliament and was not re-introduced.
The Public Gambling Act, 1867 (“PGA”) is the main enactment dealing with gaming in India and criminalises the act of gambling in a public forum in India with an exception to the games of skill. Currently, fourteen (14) States/Union Territories have passed enactments adopting the PGA as it is, namely: Andaman & Nicobar, Arunachal Pradesh, Chandigarh, Dadra and Nagar Haveli, Haryana, Himachal Pradesh, Lakshadweep, Punjab, Madhya Pradesh, Chhattisgarh, Manipur, Mizoram, Tripura and Uttarakhand. Other States have resorted to enacting their own gambling legislations. While States like Assam and Odisha have banned real money based card games, other States like Telangana, Andhra Pradesh and Tamil Nadu (Karnataka to follow) have banned online gaming recently.
Neeraj Dubey, Partner – Corporate Law