IPR: Patent pools and competition law

In today’s era of modernisation, both intellectual property rights (IPR) and competition law are crucially relevant. It is often said that IPR and competition law are contrary to each other however this might not be the reality as the primary aim of both IPR and competition law is the accumulation of wealth. Patent pools can be understood as “the agreement between two or more patent owners to licence one or more of their patents to one another or the third party.”

Continue reading

Indian Sports Policy With Reference To The Competition Law

India introduced a new Sports Policy in 2001 replacing the last sports policy created in 1984. The policy aimed to promote India’s competitiveness at a global level, to achieve greater athletic excellence. However, even after the implementation of the policy, many issues relating to the competition have arisen, in both performance & business aspects. 

Continue reading

CCI’s Antitrust Probe against Amazon and Flipkart: All you need to know

Amazon and Flipkart have found themselves in a spot of bother after the Supreme Court ruled that there would be no stay on an ongoing inquiry against them by the Competition Commission of India (CCI). 

History of the Probe

Delhi Vyapar Mahasangh (DVM), a group that represents small and medium business houses in India, filed a complaint at the CCI against Flipkart and Amazon for engaging in anti-competitive conduct. The CCI decided to undertake a probe and the companies then decided to challenge the probe. 

The Karnataka High Court decided on the matter and upheld the CCI’s decision. The companies decided to further take it up to the Supreme Court and the apex court ruled that the probe should continue saying that, “Big Corporates like Amazon and Flipkart should be subject to transparency and inquiry.”

What was the probe all about?

DVM, the complainant, alleged that Flipkart and Amazon were entering into anti-competitive agreements and also abusing their dominant position in the market. The aforementioned two situations are prohibited under Section 3 and 4 of the Competition Act, 2002. 

What was the first allegation?

With regard to the first allegation of anti-competitive agreements, DVM claimed that the two companies were entering into vertical arrangements with sellers leading to ‘foreclosure of other sellers from the marketplace’ which in this case is online. Deep discounting, preferential listing and exclusive tie-ups were supposedly done with these few sellers. DVM also named these sellers and provided proof as to how agreements were entered into. These were obtained through communication made during the companies’ famous Big Billion Day Sale (Flipkart) and the Great Indian Festival (Amazon). Further, it was claimed that Flipkart brands certain sellers’ products as ‘Assured Seller’ and Amazon brands them as ‘Fulfilled’ without there being a solid explanation or basis on what exactly they are. 

What did DVM allege about abuse of dominant position?

The allegations with respect to abuse of dominant position stated that the two companies were limiting the influence and provision of services of MSMEs and other such retailers. So even if products of these companies were listed, they would appear in the final few pages even if they had the same ‘user rating’ as that of the top sellers. The dominance in the market was proved by pointing out the huge market share of the companies as well as their ability to unilaterally terminate agreements. DVM concluded that the entire model of Flipkart and Amazon as e-commerce entities was anti-competitive. 

What was the CCI’s verdict?

The CCI then looked at the matter and decided that the arguments made had substance and that there was a prima facie case that needed investigation by the Director General. 

What happened after the investigation was ordered?

Flipkart and Amazon refused to cooperate with the investigation that was ordered and decided to file an appeal. A Single-Judge Bench and subsequently a Division Bench at the Karnataka High Court ruled that the companies had to join the investigation process soon. Taking it up finally with the Supreme Court, a bench led by CJI NV Ramana and two more Justices refused to stay the inquiry and gave the companies four weeks’ time to cooperate. The SC criticized the two companies for refusing to join the investigation and stated that the appeals seemed merely like attempts made to ensure that the CCI’s action does not attain ‘finality’.

What next for Flipkart and Amazon?

Flipkart and Amazon now have no choice but to comply with the Supreme Court’s order and cooperate with the investigation. If found guilty of entering into anti-competitive agreements and abusing their dominant position, they will be sanctioned with huge fines and directed to do away with the anti-competitive conduct. 

Conclusion

In today’s fast-paced digital world, e-commerce companies like Flipkart and Amazon have become part and parcel of day-to-day life. Even as these companies are growing by the day, they do have an obligation to ensure there is fair competition in the market. Anti-competitive conduct is by no means welcome and DVM was right in bringing the issue up. The CCI, HC and SC orders have all come as a blow to the companies and it remains to be seen how the investigation now unfolds.

Non-Disclosure Agreement and It’s essentials

Nevin Clinton,Flywork.io TeamFlywork.io. 

    A non-disclosure agreement (hereinafter referred to as NDA) is an agreement where the parties agree to not disclose content or the information in the agreement. Such agreements can be entered into between two companies, individuals, an individual and a company, and so on. NDAs are customary around the world when information is required to be kept confidential. In India as well, the agreement is quite common. It is governed by the Indian Contract Act, 1872 here and such an agreement becomes valid and enforceable when stamped. 

Why is a non-disclosure agreement signed?

An NDA is signed in order to protect trade secrets while entering into business deals. This becomes extremely important especially in the case of protecting intellectual property rights and more so for modern-day startups. Let’s assume that a company has to hire an adviser from outside the company to help give inputs for a novel product. In such a case, the adviser can be asked to sign an NDA so that he does not disclose information about the product to the company’s competitors or anybody else. 

An NDA could be unilateral, bilateral, or multilateral

An NDA can be both unilateral where just one party agrees not to disclose sensitive information and bilateral where both parties agree to maintain secrecy. There can also be multilateral NDAs that are signed by three or more parties. These help in doing away with the need for multiple agreements. Also, it does not have to be only business deals where an NDA can be signed as it can be signed even between an employee and employer of a company or a non-disclosure clause can be inserted in just about any contract. 

Essentials of a non-disclosure agreement

  • Must be an agreement: First and foremost, an NDA must have all the essentials of an agreement. For this, broadly, there must be an offer, acceptance, creation of a legal relationship, and consideration. 
  • Protected information: With regard to the non-disclosure part of the agreement, it must have the information that is protected. The parts of the agreement to be kept confidential also have to be mentioned. This can be done so by marking certain documents as ‘confidential. Along with the same, a time period must also be mentioned up to which the agreement must be maintained.
  • Imposition of duties: Certain duties can be imposed with regard to the information in the agreement. For example, mentioning how to convey sensitive information and whom to. Consequently, failing to adhere to the said duties must result in punishments and the same must be mentioned as well. Certain exceptions can also be given where sharing the information would not attract consequences. 
  • Dispute resolution: Referencing as to how to settle disputes arising out of the agreement can be provided, though it isn’t of too much importance. Here, a ‘jurisdiction clause’ that mentions the court to have jurisdiction in case of a dispute can also be inserted. There can also be clauses mentioning that disputes must be settled through arbitration only and so on. It is worth noting that such jurisdiction clauses are not ‘essentials’ as such as an NDA can do without them as well, but including them can make things easier if a dispute arises in the future.

Importance of a well-drafted non-disclosure agreement

Firstly, a non-disclosure agreement is important as it helps maintain the confidentiality of information that could be misused. Further, such agreements help in building trust and confidence among the parties thereby further benefiting the business. This is because they help in knowing obligations and adapting to them. If confidentiality is kept, there is bound to be an increase in trust. 

    Due to the importance of NDAs, it is important that they are well-drafted. If such an agreement lacks sharpness, it could result in a lack of clarity leading to the confidentiality being broken or causing a confusing situation. If that happens, it could result in lengthy litigation to resolve the issues. This is exactly why legal personnel should be the ones to draft a Non-Disclosure Agreement. It is an absolute must for the parties concerned to read and understand each and every term in the agreement. If there are terms that are difficult to understand, they must be clarified as this might lead to a number of issues or disputes in the future. 

Let the qualified curated professionals at Flywork.io assist you to resolve any legal and allied issues. For more details visit us at Flywork.io.

 

ALL YOU NEED TO KNOW ABOUT: Net Neutrality

 

Internet is built around the idea of openness. It allows people to connect and exchange information freely, if the information or service is not illegal. Much of this is because of the idea of net neutrality. If we want the current state of affairs to remain intact then it’s important to know what is meant by net neutrality.[1]

What is net neutrality?

By definition net neutrality requires that internet service providers (ISP’s) to enable access to all content and applications regardless of the source, and without favouring or blocking particular products or websites unless they are illegal. In simple terms it means the internet that allows everyone to communicate freely.[2] The idea of net neutrality has been derived from and is akin to the manner in which telephone lines have been used since the very beginning. In case of a telephone line we can dial any number and it does not matter from where we are calling and whom we are calling, whether it is a restaurant or a drug dealer. The operators neither block the access to a number nor deliberately delay connection to a particular number, unless forced by the law. So, when the internet started to take off in 1980s and 1990s, there were no specific rules that required internet service providers to follow the same principle but they adhered to the same principle i.e. of net neutrality.[3]

Now because the internet service providers follow the principle of net neutrality, today when we start our computers or phones and open a web browser such as Chrome or Safari, we can access over 100million domain names with just a few clicks. Our data costs do not change whether we open Flipkart or Gmail or whether we download an application or download a video or order a pizza. Our data provider does not discriminate between different kinds of content. This is the benefit of a neutral net, a system which has worked to the advantage of both internet users and numerous start-ups.[4]

How did net neutrality shape the internet?

Net neutrality has shaped the internet in two fundamental ways. One, web users are free to connect to whatever website or service they want. ISPs do not bother with what kind of content is flowing from their servers. This has allowed the internet to grow into a truly global network and has allowed people to freely express themselves. Two, net neutrality has enabled a level playing field on the internet. To start a website, you do not need a lot of money or connections. Just host your website and you are good to go. If your service is good, it will find favour with web users. Unlike the cable TV where you have to forge alliances with cable connection providers to make sure that your channel reaches viewers, on internet you do not have to talk to ISPs to put your website on the World Wide Web. This has led to the creation of Google, Facebook, Twitter and countless other services. All of these services had very humble beginnings. They started as a basic websites with modest resources. But they succeeded because net neutrality allowed web users to access these websites in an easy and unhindered way.[5]

What will happen if there is no net neutrality?

If there is no net neutrality, the internet will not function as we have known it to function. It will mean that ISPs will be able to charge companies like YouTube or Netflix as they consume more bandwidth, and eventually the load of the extra sum will be pushed to the consumers. Similarly, ISPs can also create slow as well as fast Internet lanes, which will mean all websites cannot be accessed at the same speed and one can do so only on paying an additional sum. For instance, currently you have a standard data package and access all the content at the same speed, irrespective of whether it is an international website or an Indian website. Similarly, ISPs can also charge extra for the free calls you make using services like Whatsapp, Skype, etc.[6]

Lack of net neutrality will also spell doom for innovation on the web. It is possible that ISPs will charge web companies to enable faster access to their websites. The websites of those who do not pay requisite charges will open slowly. This means that bigger companies like Google will be able to pay more but a start-up will be disadvantaged by this mandate.[7] Therefore, this means that if net neutrality does not exist then ISPs will definitely gain and earn more revenue but start ups will be pushed out of the market.

What is the state of net neutrality in India?

Legally, the concept of net neutrality does not exist in India. Sunil Abraham, Director of Centre for Internet and Society in Bangalore, had said that Telecom Regulatory Authority of India (TRAI), which regulates the telecom industry, had tried to come up with some rules regarding net neutrality several times. For example it had invited comments on the concept of net neutrality from industrial bodies and stakeholders in 2006. But no formal rules were formed to uphold and enforce the concept of net neutrality in reality. However, despite the lack of formal rules, ISPs in India mostly adhere to the principal of net neutrality.[8]

What is the state of net neutrality in U.S.A?

Net neutrality is not a new concept in the west; activists have been battling to achieve this for a long time. In 2010, Federal Communications’ Commission (FCC) had passed an order to prevent broadband ISPs from blocking or meddling with the traffic on the web, known as the ‘Open Internet Order’. This ensured that internet remained a level playing field for all. However, in 2014, the Court rules that the FCC lacked the authority to do so and enforce rules. This means, telecom companies who were earlier forced to follow the rules of net neutrality started adopting unruly ways. This also paved way for ISPs to monitor data on their networks and also allowing governments to ban or block data. Recently, FCC has approved net neutrality rules that prevent internet providers from slowing or blocking web traffic or from creating internet fast lanes that content providers such as Netflix must pay for. European Union member states have also been striving for net neutrality.[9]

What is the difference in the position of India and U.S.A on the issue of net neutrality?

India is currently debating the merits of net neutrality. However, the Indian population’s access to and use of the internet provides unique parameters to this discussion.  For starters, although India has the third largest number of internet users, only 19 percent of the Indian population currently has Internet access.  In comparison, 87 percent of the U.S. population can access the internet.  On the losing end of India’s digital divide is India’s poor and often rural class, where internet access is limited, or if available, too expensive for marginal customers.  India also lacks the large scale infrastructure necessary for broad fixed-line Internet access.  For this reason, mobile platforms are the easiest way to make internet accessible to the population, particularly to the less affluent and rural areas of the country where residents suffer not only from poor broadband infrastructure, but also from the lack of basic access to the electricity needed to power fixed internet lines.[10]

The net neutrality debate got yet another blow in India with the announcements made by Reliance and Airtel. In India, Facebook has teamed up with Reliance Communications in an effort to bring Internet.org to smart phone as well as feature phone users.[11] In order to keep up with Reliance, Airtel has come up with a new marketing platform called Airtel Zero. Through this plan developers who sign up for Airtel Zero will pick up the data charges for parts or all elements of their application, hence making the data charges for the application free for consumers. And it has been reported that Flipkart has signed up for Airtel Zero, which means that users of Airtel’s network will get access to the Flipkart app without any data costs.[12]  But with the public opinion and criticism to such licensing agreement, Flipkart was forced to walk away from Airtel Zero.

To a large extent, India’s net neutrality debate is comparable with the recent debate in the United States, and Indian net neutrality proponents have adopted their U.S. counterparts’ arguments when criticizing zero-rating projects. However, the disparity between mobile and fixed-line internet access marks an important difference between the net neutrality debate in India and in the U.S.  Due to widespread internet access in the United States, the domestic net neutrality debate was able to focus largely on the quality of internet access.  But in India where internet access is beyond the reach of multitudes, the calculus may be very different.[13]

 

[1] “What is net neutrality and why is it important?”, Times of India, 20 Jan, 2014, available at http://timesofindia.indiatimes.com/tech/tech-news/What-is-net-neutrality-and-why-it-is-important/articleshow/29083935.cms (last visited on 17 Jan, 2016)

[2] Naina Khadekar, “What is net neutrality and why is it important in India”, available at http://tech.firstpost.com/news-analysis/what-is-net-neutrality-and-why-it-is-important-in-india-262120.html (last visited on 17 Jan, 2016)

[3] Supra note 1

[4] Dhruva Jaishankar, “Digital India vs. Net Neutrality”, Indian Express, 25 December, 2015, available at http://indianexpress.com/article/opinion/columns/digital-india-vs-net-neutrality/ (last visited on 17 Jan, 2016)

[5] Supra note 1

[6] Supra note 2

[7] Supra note 1

[8] Supra note 1

[9] Supra note 2

[10] Shruti Barker, “The Net Neutrality Debate in India”, The NAT Law Review, 5 May, 2015, available at http://www.natlawreview.com/article/net-neutrality-debate-india (last visited on 21 Jan 2016)

[11] Supra note 2

[12] Sahil Mohan Gupta, “Everything you need to know about Net Neutrality in India”, India Today, 13 April, 2015, available at http://indiatoday.intoday.in/technology/story/everything-you-need-to-know-about-net-neutrality-in-india/1/429887.html (last visited on 21 Jan 2016)

[13] Supra note 10

 

Picture Courtesy:
http://lisamccormick.org/mccormick-says-net-neutrality-is-an-enormous-victory/

FREE BASICS NOT SO FREE AFTER ALL

 

-The author is a practicing Advocate at Madras High Court

Free!!!” A word that garners instant recognition to any product it is associated with; that, along with the country’s favourite social networking site promoting it. Seems like an outright bonanza for any internet user doesn’t it? Sadly, like all things “free” there’s a catch. It’s not free after all!.

With newsfeeds flooding with notifications in support of free basics, one could hardly resist the temptation to go with the crowd at least until realising that an average minded internet user with half baked curiosity would pledge non-committal support to anything new that’s on social media. But facebook’s vehement campaign with billboards, first page newspaper ads and the like makes one wonder if there’s more to what meets the eye. And apart from getting people addicted to the internet free basics does very little to the proposed benefiters.

Freebasics an exaggerated version of the internet.org seeks to encourage subsidised data to those who cannot afford to access the internet. This they plan to do with the aid of mobile operators through smart phones. Emerging as the face of this so-called revolutionary concept, it free rides on the ignorance of the masses, the funds of the government and the costs borne by the mobile operators which no doubt would be reimbursed by the paying users. The actual benefiter being facebook, by providing passage to the web would get access to billions of people and their potential without investment, save the advertisement and campaign costs.

Free basics does exactly what a movie trailer does for you. The idea is to give the user a taste of the internet, just long enough for him to get dependent and then optimise the internet user to make him access the paid and premium parts. Surprisingly, facebook has not tried to hide this fact as it takes its place in the set of goals that freebasics and its content givers should aspire to attain. While Freebasics boasts of adfree services, it is highly unlikely that it would continue that way forever. However, being part of freebasics itself can be seen as a platform for advertisement and agreeably these bits of advertisements do contain some relevant data.

Facebook’s revenue model is based on monetising our personal data and selling them to advertisers. Facebook doesn’t pay a single paise as tax despite the revenue it generates from India. It refuses to be sued in India for violations on competition and advertisement laws that prohibits the use of generic words to brands and products. Only recently facebook was criticised for conducting a project without the consent of the participants as to see whether people’s views could be manipulated based on the content in their newsfeed and the results were positive. If so by being able to manoeuvre the views of the masses, in collaboration with certain elements, it could create a revolution, revolt, a change for the better or the worse. Such collaborations could be political, economic or social with the potential to create an economic crises, a political uprising or even a war. Much like how it tried to manipulate people into believing that free basics was free or the manipulated statistics it sent in support of free basics to the consultation paper floated by the Telecom Regulatory Authority of India (TRAI).

Not only that, facebook has been slammed for breaching consumer privacy while selling data. Facebooks license agreement would apply to free basics as well and any content uploaded as part of freebasics would need to pass through facebooks servers and it reserved the right to reject applications of the content producers who ultimately would be forced to comply with facebooks terms.

And yes facebook is ambitious, it has started 2016 with the bold claim that it intends to eradicate phone numbers and replace web browsing planning to be the centre of the world. “Internet” in the present day scenario is fundamental to the functioning of the world and spreading its tentacles to get its hold on almost everything. By promoting a concept that is the exact opposite of net neutrality that involves the principle that users must have access to all content without discrimination to the source and content of the data accessed, and breaching the competition laws of the country; it aspires to get hold of this indispensible necessity that will control the future.

The consultation paper that TRAI released had insightful views as to why discriminatory pricing policy even as an exception should be pro-competition, transparent, non discriminatory and non predatory. Had TRAI ruled against net neutrality, there would have been yet another demonstration to distribute smart phone and if it doesn’t accuse the government of wanting to keep its citizens in the dark by not providing them the right to information. Thankfully following suit from countries like Egypt and Brazil, the Telecom Regulatory Authority had ruled in favour of net neutrality, temporarily stalling facebook’s ambitious schemes.

Undeniably, India is paying higher prices for data than most other countries. There certainly are more cost-effective ways that India could opt for instead than to put itself at the mercy of a private company with its roots in a capitalistic economy. Mark Zuckerburg argued that internet to those below poverty is priceless, its high time one reminded him that for those below poverty food, clothing, medication, education and shelter are priceless.

If you don’t have bread, update status”

Being the facebook era Marie Antonette are we Mark Zuckerberg?

 

Picture Credits: http://www.youthkiawaaz.com/2015/12/10-facts-about-free-basics/

Do celebrities owe us a duty for the claims they make in advertisements?

Do celebrities owe us a duty for the claims they make in advertisements?

The favorite midnight snack of many, Nestlé’s Maggi has been banned by the Food Safety and Standards Authority of India (FSSAI) because of problems associated with the quality and labeling of the product. The notices issued to various celebrities who had been endorsing Maggi noodles and the orders for lodging FIR against them have reignited an extremely important legal debate concerning the liability of celebrities for the product endorsements they make. This article discusses the duty of celebrities for their endorsements, relevant laws in India and the precedents in some other countries.

 

Making a case for celebrity endorsement

There are many questions which crop up when we seek to make celebrities liable for their claims in advertisements. First among them being do the people actually believe in the claims celebrities make? Are the products bought because of endorsements or are they bought first and endorsements only reassure the consumer? Well, there is no straitjacket formula to these questions unlike believed by some. It certainly depends on “the context, the product or service endorsed, the expertise of the celebrity in that area, the mass appeal of the celebrity and the reliance of individual consumer”. This brings us to a more nuanced argument. Does the fact that celebrities have a right to publicity which they harness economically while advertising, impose a duty on them to not use this right in a manner detrimental to the general public? Or since the celebrities have a right to publicity, the audience has a reciprocal right of reliance? After all, unlike the movies, the fact that the plot and characters are fictional is never reflected/shown in an advertisement. In fact the representations made by the likes of Ms. Padukone are a “cause in fact” of the pecuniary loss to the consumers to the extent of the difference between an effective gym equipment for losing one’s weight and the Kellogg’s Special K. Similar arguments can be made for every misleading advertisement. Some make a superficial distinction between the celebrities giving personal testimonies versus the celebrity playing a role in the advertisement, for instance Ms. Dixit is playing the role of a mother in the Maggi advertisement. It is argued that a celebrity should be liable only when (s)he is making a personal testimony and not when (s)he is playing a role of another. However, it is extremely difficult to accept this difference. Audience generally does not think this way when relying upon the claims. Further, as stated above, unlike films, the fictional and impersonalized role is not emphasized in advertisements, thus making no space for this argument. Another argument put forth by the people disagreeing with making celebrities liable is based on the fact that celebrities have to no way in which they can identify the truthfulness of the statement which they are made to say in the testimonial by the ad-gurus. However a simple counter to this is requiring celebrities to test, try and experiment the product to find out. Similar has been legislated upon in various countries as we will see in the next section. While this may sound a little far-fetched in the case of Maggi noodles, after all, checking the amount of lead is the duty of the FSSAI and not Ms. Dixit’s and every single pack can certainly not be checked by the celebrities, yet celebrities can certainly be made liable for making sweeping claims like a person drinking Drink X can grow twice as taller as (s)he would grow drinking Drink Y (the ad for the health drink Complan). Therefore, there remains a strong case for making celebrities liable.

 

What are our neighbors and partners in trade doing about it?

In the USA, the Federal Trade Commission Guidelines prohibit deceptive and misleading endorsements by celebrities and make celebrities liable for the same. The endorsers are required to reflect their “honest opinions, findings, beliefs, or experience” in the advertisements. In fact, the advertisers can continue to use the endorsements only as long as the advertiser has a good reason to believe that the endorser continues to remain a bona fide user of the endorsed product. In Europe, the celebrities follow a self-imposed code whereby they refrain from endorsing products harmful to the health of the general public like alcohol, medicines etc. Korea on the other hand has an Advertising Self-regulation Institution which issues guidelines with respect to endorsements and reviews the endorsed advertisements making false advertisements a rarity. Among our neighbors, China makes the endorsers jointly liable with the service provider for the harm caused by the product. Pakistan also has laws forbidding false and misleading advertisements, however it is uncertain whether these laws will also include liability of celebrities for their endorsements. The Malaysian Code of Advertising Practice requires that the endorsements or testimonials contained in advertisements should be based on genuine experience of the endorser over a period of time. Malaysia also has special guidelines for “[p]ersons, characters or group who have achieved particular celebrity status with children”. These celebrities are forbidden from promoting food or drinks in a manner that may undermine the need for a healthy diet however the endorsers are not liable for the same since sanctions are in the form of “withholding of advertising space from advertisers and the withdrawal of trading privileges from advertisers/ advertising agencies”. Singapore has similar laws  relating to false advertisements and is also cogitating to put into place specialized guidelines pertaining to children. In Japan on the other hand celebrities participating in false endorsements are made to apologize publicly. This harms the reputation of the endorser decreasing the employment opportunities of these people, forcing celebrities to refrain from making claims with regard to the quality or effectiveness of a product.

 

What is the law in India?

Section 24 of the Food Safety and Standards Act, 2006 puts restrictions on misleading advertisements. It states, that “no person” shall be allowed to engage in misleading representation concerning the “standard, quality, quantity or grade-composition” and “need for, or the usefulness” of a food product. (S)he should not make any statement which “gives to the public any guarantee of the efficacy [of the product] that is not based on an adequate or scientific justification thereof.” Section 53 of the Act describes the penalty for such false advertisements which can extend to ten lakh rupees. This penalty applies to “any person” and hence should ideally include the celebrities; however there is no case law to support this proposition. The Central Consumer Protection Council (CCPC) has also decided to issue specific guidelines to this effect after the MP High Court directed to set up an advertisement monitoring panel as per the Vibha Bhargava Commission. These guidelines if enforced will allow consumers to claim compensation from celebrities for misleading claims made regarding a product, recklessly or with knowledge that the claim is false.

 

Conclusion

The case for celebrity endorsement is a strong one considering the status which is accorded to the claims made by these stars and the money which is used in these endorsements. This has been understood across the world and many countries have laws to the effect of punishing celebrities for misleading claims. Indian laws are also developing in this regard and stars in India are becoming more aware with respect to the duty they owe to their fans. For instance recently Amitabh Bachchan stopped promoting Pepsi after a young girl questioned him as to his reasons for endorsing Pepsi which her teacher had termed as poison.

Being a Sports Lawyer in India

As young budding lawyers, generally when asked about sports law, we have no clue about it. What is sports law? Is there any special Act dedicated to this field of law? If not, then which Acts are usually referred? Most of us would be as perplexed and confused as a non-law student would be.

Sports law in simple words is an umbrella term describing the legal issues related to sports. With regards to this specific area of law, a lot of questions may arise; the First, among those would be, is recognising and playing a sport for a reasonably long time enough to qualify as a sports lawyer? The answer to that is a NO! To become a sports lawyer, one should have keen interest in the administration and management of sporting activity. Moreover, it is required to substantiate such knowledge and to have great proficiency in law applicable to commercial activities. One should have expertise in law related to Contract, Media, Competition, Drafting and Negotiation. The study of the legislations controlling sporting activities and its structure of management in India would prepare one to take up sports law as a career in India.

Sports law is not a lawyer friendly term for many practitioners in India as it creates confusion in the minds of most of them. Confusions as to, what is the ambit of sports law? What would one do being a sports lawyer? Is there any work in this field that requires the attention of lawyers? The reason to all these questions and many more lies in the confusion caused between the functions of an administrator and a lawyer. In this field of law, there seems to be an intrinsic overlap of functions between these two service providers. Therefore,to establish as a sports lawyer in India is extremely tough. It might be astonishing to many that in a country like India with 1.2-billion population (approx.) the one and only name or face of the country successfully practicing sports law is Mr. Nandan Kamath. It also cannot be disregarded by the fact that the amount of support and participation GoSports Foundation gains exhibits that there is a keen interest among the young legal enthusiast to pursue a career in the legal side of sports. Few other Sports firms/companies where the legal front seems to be an important focus are: GameChange, GameChanger[1], which has its offices in Delhi and Bangalore in India; LAWNK in Bangaloreand TMT Law Practice[2] (Chennai, Bangalore, Delhi) which has Sports and Entertainment litigation listed as its area of practice. But, due to lack of substantial avenues and necessary spread of awareness amongst law students and young lawyers Sports Lawyering hasn’t emerged as a career option.

Another interesting thing to note is that the new generation Law schools have Law companies/firms coming down to their doorsteps to offer jobs to the graduating batch of students. The day for such on-campus-recruitment is colloquially called “Day Zero”. Of course not all potential recruiters make it on that one day; but the point being, that Sports Law firms don’t somehow feature in these list of firms visiting the law schools.

However in Europe or Australia, Sports lawyering is a big thing. People understand the importance of legal nuances in sports and provide for all the facilities possible to explore this area.

In India, when a sports lawyer tries to make his/hermark in this field, he is required to immensely engage in the field of administration. Apart from taking care of any future legal dispute, he is expected to carry out the work of agents, wherein he does managerial work of maintaining the player’s portfolio, advertisement, sponsorship, etc. As a consequence of this conflict of lack of definite identity in the kingdom of law, it becomes complicated for legal practitioners to establish themselves as a sports lawyer. What some of the existing sports administrators in fields like Tennis Officiating usually do before joining the professional turf is fetch themselves a Diploma Post Graduation Degree in Sports Management. There are a few institutes that offer these courses; and  Indian Institute of Social Welfare and Business Management which has been offering this course since 2010-2011 is one such institute operating in Kolkata. But, it isn’t quite clear if sports lawyer enthusiasts should get such a Diploma degree or not if they are to make more sense out of their work in managing legal disputes relating to Sports or would a legal degree in Law suffice.

The ambiguity of their role and the overlap of functions create an uncertainty among the clients of their existence. Therefore, the first and the foremost challenge of a sport lawyer in India, is to justify their existence, not just their existence in the field per say but also the existence of the field itself.

Going back to law schools; majority of the law students discover their area of interest while they study law. In addition, they work towards enhancing their knowledge in the field of their interest throughout law school period. In this exercise, law schools aid the students substantially by providing elective choice of subject, having conferences and having various research centers working on different fields of law. However, it is witnessed that in terms of sports law there is a gap, which stays unfilled. Most of the law students who graduate from law school do so without gaining even the basic idea of what a sports lawyer does. Unexpectedly, the foundational knowledge of the legislation governing sports law in India is unheard of by many. Such a lacuna suppresses the interest of the few who might be interest in taking up Sports Law as profession. Two main reasons due to which interested law students get discouraged to pursue this field of law; firstly, the lack of adequate teaching mechanism and secondly, lack of exposure between the students and the existing lawyers in the field of sports law.

 Problems or the negative side of sporting activity is well witnessed in IPL fiasco, the CWG catastrophe and the weight-lifting shame etc. -. Many questions have been raised by the critiques but unfortunately most of these questions have remained unanswered; since no one looks into the reasons for the same. A questions lead to more questions and the blame game goes on. The root of the matter stays unaddressed – Indian sports lacks good governance and a dynamic regulatory framework. Enlightenment of such matters is of utmost importance and to become a sports lawyer especially in a country like India.

Being a Sports lawyer in India is much different from being one  in Australia. Unlike India, in Australia there is national Act i.e. Australian Sports Commission Act, 1989. It was enacted to establish the Australian Sports Commission (“ASC”). It is a statutory authority of the Australian Government that is governed by the board of Commissioners appointed by the Minister for Sports.  It is responsible for distributing funds and providing strategic guidance for sporting activity in Australia. The “ASC’s roles and responsibility are prescribed in the Australian Sports Commission Act, 1989. It is also involved in the implementation of major policy decision principally through three divisions, the Australian Institute of Sports, Community Sport and Sport Performance and Development. For the efficiency of the implementation of these policy decisions it works closely with a range of sporting organisations, state and local governments, schools and community organisations. This ensures that sports in the country is run well and is accessible to all. Therefore, there is recognition of this field more than in India and that makes it much simpler for one to establish themselves in this field of law there, than here.Hence, there is an imminent need that we strive to create awareness along with educational facilities to understand Sports Advocacy better.

[1] http://gamechangerindia.com/Corporate/team/

[2] http://www.tmtlaw.co.in/index.html

Picture Credits: http://www.sportsnetworker.com/2013/10/28/law-jobs-in-sports-11-career-paths/