Since 1927, when the topic of drug regulation was first discussed in the Council of State after Sir Haroon Jaffer sought a resolution regarding the "control of the craze for medicinal drugs", the issue of advertisements of drugs claiming to have a therapeutic effect on humans has been a serious public health concern.

It took 27 years before India tackled the issue through the Drugs and Magic Remedies (Objectionable Advertisements) Act (DMRA), 1954. This law prohibits any advertisements of any drugs, whether approved or not by the regulator, for a list of 54 medical conditions. For example, the law prohibits the advertisement of any drug for the treatment of diabetes, regardless of whether its efficacy has been clinically established.

The advent of Internet-based advertising

A lot has changed since 1954, especially in the world of advertisement. The Internet and the rise of Big Tech platforms, in the nature of search engines, social media platforms, video-sharing platforms and online marketplaces for goods, have steadily eaten into the traditional avenues of advertising in print and broadcast formats. This shift has not only upended print journalism across the world which was reliant on advertisements, but also made it far tougher for governments across the world to police advertisements published on these Big Tech platforms headquartered in the United States.

In a deep dive on the advertising policies and practices of the most popular American Big Tech platforms in India, we were astonished to note that not a single one of them warns advertisers not to submit for publication, advertisements which are in violation of the DMRA. Thus, it is no surprise that all Big Tech platforms routinely publish a wide variety of misleading advertisements, especially for ayurvedic and homeopathic products. For example, a simple search for "ayurveda" + "blood pressure tablets" or "homeopathy" + "diabetes" on the most popular search engine and online market place in India will throw up a variety of advertisements on these platforms under the "sponsored" tag, indicating that they have been paid for by advertisers.

One of the most popular social media platforms features video advertisements by a notorious godman with the claim of being able to cure all kinds of diseases using ayurvedic products.

Similarly, a search of the online ad-libraries of these Big Tech platforms reveals a long list of offending advertisements, including those for cow-urine based products to treat cancers; these advertisements were supported by a charitable programme run by the Big Tech platform. All these advertisements are in violation of the DMRA.

None of these Big Tech platforms runs similar advertisements in the United States for ayurvedic and homeopathic products. The policies of these platforms for advertisements for health-related products to be displayed to users based in the U.S. are elaborate, with some even having pre-screening mechanisms that are meant to ensure compliance with tough American laws; these laws prohibit advertisements for therapeutic claims that are not approved by the drug regulator. In the U.S., violation of American law can attract swift criminal prosecution.

Disregard for Indian law

So, what explains Big Tech's brazen disregard of Indian laws such as the DMRA?

The first reason could be the traditional contempt that American corporations, dating back to Union Carbide, have shown for the lives of Indians. It is possible that this contempt arises from systemic racism that afflicts the management of American corporations, wherein Indian lives are not considered to be comparable to American lives.

The second is that Big Tech has escaped serious punishment earlier for violation of another law called The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PNDT). This law prevents advertisements for products and services related to determination of the sex of the unborn foetus. A PIL was filed in 2008 by an activist before the Supreme Court of India pointing out how Big Tech platforms were in brazen violation of this law. Before the Court, Big Tech was evasive on the point of instituting proactive measures to block such advertisements, insisting that it was under an obligation to remove offending advertisements only if government or others informed them about such violations. To make a long story short, Big Tech fell back into a familiar pattern of deception, by claiming that it was the "intermediary" not the "publisher".

Under Indian law, intermediaries have qualified immunity from legal liability for content generated by their users because they are presumed to lack knowledge of each piece of content that is posted by users. But when it comes to advertisements, Big Tech knows very well that it is the "publisher" and not the "intermediary". The marketing teams of Big Tech on the ground in India actively pitch for advertisements, sign contracts with advertisers and accept payments for the purpose of displaying the advertisement on their platform. They have complete knowledge about these advertisements; hence, they are publishers and not mere intermediaries who can claim immunity under the law.

The PIL regarding the violation of the PNDT languished for nine years before ending with the usual insipid orders for the creation of a government committee to look into the issue. Criminal prosecution was never ordered by the Court despite being the prescribed punishment under the PNDT Act. The abject failure of the Court to enforce the law by ordering criminal prosecutions, and the process which frustrates litigants who represent public interest in such cases undoubtedly emboldened Big Tech's sense of impunity in India.

The third reason is that Big Tech is aware that the U.S. government would never extradite top managerial personnel from America to face criminal prosecution in India for violating the DMRA. Big Tech's employees running Indian subsidiaries located on Indian territory cannot be prosecuted because the Indian subsidiary is a different legal entity from its parent company located in the U.S., which legally owns and operates the advertising platforms in India. Undoubtedly, this implicit immunity is what fuels Big Tech's bad behaviour in India.

The need for reforms

Tackling Big Tech's dangerous violations of the DMRA should be an urgent priority in a country such as India which self-prescribes medicines and has an inherent bias toward "nationalist" tropes.

Registering criminal complaints before courts of competent jurisdiction against the management of these platforms would be a good first step. If Big Tech declines to produce its competent managerial personnel before an Indian court to face these charges, the government will be compelled to ensure reforms that will make Big Tech answerable to Indian sovereignty.

It is perhaps time for India to take a page from the new American playbook to regulate Tik Tok and create new regulatory mechanisms. This is to ensure that the managerial personnel responsible for creating and enforcing content and advertising related policies in India are Indian citizens who are based in Indian territory and answerable to Indian courts. Anything short of the threat of jail time for key managerial personnel will fail to ensure that Big Tech's complies with Indian law.

Further, a failure of Big Tech to comply with these legal requirements should result in a revocation of the immunity granted to Big Tech under Indian intermediary laws from legal action for user-generated content. Big Tech cannot be allowed to enjoy these benefits under Indian law if it does not enforce relevant Indian laws to protect public health in India.

Dinesh S. Thakur is the author of 'The Truth Pill: The Myth of Drug Regulation in India' (Simon & Schuster). Prashant Reddy T. is the co-author of 'The Truth Pill: The Myth of Drug Regulation in India' (Simon & Schuster)

Big Tech's contempt for Indian public health