The unchecked spread of misleading drug advertisements on Big Tech platforms, coupled with their legal immunity and regulatory inaction, has emerged as a grave public health issue, eroding legal accountability and constitutional sovereignty.

Historical Background on Drug Advertising in India

• Early Concerns (1927): The issue was first raised by Sir Haroon Jaffer in the Council of State, highlighting the need to regulate false drug claims.
• Legislative Response (1954): The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (DMRA) was enacted to prohibit advertisements for drugs claiming to cure or prevent 54 listed medical conditions (e.g., diabetes, cancer) without approval.

Rise of Internet-Based Advertising

• Shift in Medium: The rise of the Internet and social media replaced traditional print and broadcast advertising, creating new regulatory challenges.
• Regulatory Blind Spot: Big Tech platforms — including search engines, social media, and e-commerce sites — routinely publish unverified and misleading health advertisements for ayurvedic and homeopathic products.
• Cross-Border Challenge: The digital nature of advertising and foreign ownership make it difficult for Indian regulators to enforce compliance.

Big Tech’s Disregard for Indian Law

• Violation of DMRA: Platforms ignore prohibitions under the DMRA, hosting ads that make false therapeutic claims.
• Double Standards: In contrast, in the United States, these same companies follow strict ad-screening policies in compliance with FDA regulations.
• Past Violations: Big Tech has also violated the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PNDT) by allowing illegal ads, but escaped accountability through legal loopholes.

Reasons for Big Tech’s Impunity

• Corporate Contempt: Many American corporations show systemic disregard for Indian lives and laws, reflecting a legacy of corporate arrogance and racial bias.
• Judicial Inaction: Delayed judicial proceedings and lenient enforcement embolden these platforms to continue violating Indian regulations.
• Misuse of Intermediary Status: Despite being publishers that solicit and profit from advertisements, Big Tech falsely claims to be mere intermediaries to escape liability.
• Jurisdictional Loopholes: The parent company abroad cannot be easily prosecuted, while the Indian subsidiary is treated as a separate entity under law.

Systemic Gaps in Enforcement

• Weak Institutions: Health and IT regulators lack the capacity and coordination to monitor digital advertisements.
• Judicial Delays: The slow pace of litigation reduces the deterrent effect of laws like DMRA and PNDT.
• Fragmented Oversight: Overlapping mandates between Health, IT, and Consumer Affairs Ministries lead to regulatory ambiguity.
• Opaque Ad Systems: Algorithmic advertising models make it difficult to trace accountability for specific violations.
• Absence of Penalties: Lack of swift punitive measures encourages repeated violations.

The Need for Reform

• Public Health Priority: Addressing Big Tech’s violations must be recognised as a national public health and governance priority.
• Criminal Accountability: The government should initiate criminal proceedings against responsible executives of these companies.
• Legal Reform: Amend laws to empower Indian courts to summon parent companies and senior management based abroad.
• Reform of Intermediary Liability: Modify IT intermediary rules to revoke immunity for platforms that repeatedly publish illegal health advertisements.
• Indian Sovereignty: Ensure key managerial personnel handling content and ad policies are Indian citizens answerable to Indian courts.

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Way Forward

• Strengthen Regulatory Mechanisms: Establish a Digital Advertising Regulatory Authority under the Ministry of Health to oversee and penalise violations.
• Mandate Local Accountability: Require India-based compliance officers responsible for health-related content and advertising.
• Revoke Immunity on Non-Compliance: Withdraw intermediary protection for platforms that fail to enforce Indian laws.
• Ad Pre-Screening System: Introduce mandatory pre-screening of all health-related ads, as practiced in the U.S.
• Inter-Ministerial Coordination: Enhance cooperation between Health, IT, and Consumer Affairs Ministries for unified enforcement.
• Public Awareness: Promote digital literacy campaigns to help citizens identify and report fake health claims.

Conclusion

Safeguarding public health in the digital era requires strict enforcement of Indian laws, stronger corporate accountability, and localised regulation to ensure Big Tech platforms operate within the bounds of constitutional morality, rule of law, and ethical governance.

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