Digital Deception, Big Tech’s Selective Contempt for Indian Public Health and the Urgent Need for Sovereignty

Digital Deception, Big Tech’s Selective Contempt for Indian Public Health and the Urgent Need for Sovereignty

In the annals of Indian public health, the year 1927 marks a significant, if overlooked, milestone. It was then, in the Council of State, that St. Haroon Jaffer first raised a resolution concerning the “control of the craze for medicinal drugs,” igniting a debate that would take nearly three decades to crystallize into law. The eventual outcome was the Drugs and Magic Remedies (Objectionable Advertisements) Act (DMRA) of 1954—a piece of legislation designed to protect a vulnerable populace from the predatory promises of miracle cures. Today, nearly a century after Jaffer’s initial concern, this foundational law is facing its greatest challenge not from local quacks, but from the most powerful corporations of the modern era: American Big Tech platforms. Their systematic and brazen disregard for the DMRA represents a profound crisis of regulatory jurisdiction, corporate ethics, and digital sovereignty, demanding a fundamental re-evaluation of how India governs its digital public square.

The DMRA: A Legacy of Protection in a Pre-Digital Age

Enacted in a India still finding its post-independence footing, the DMRA was a forward-thinking piece of legislation. Its core premise was simple yet powerful: to prohibit advertisements for drugs and remedies claiming to treat a specific list of 54 serious diseases and conditions. This list includes ailments like diabetes, heart conditions, epilepsy, and cancer. The law’s genius lies in its absolute nature. It does not merely ban advertisements for unapproved drugs; it bans any advertisement for any drug for these conditions, regardless of whether the drug is officially approved.

The logic is rooted in public welfare. By creating a blanket prohibition, the law prevents companies from exploiting desperate patients by making inflated claims, bypassing the necessary, rigorous scientific validation. It recognizes that the decision to seek treatment should be based on medical advice, not on persuasive marketing. For decades, this law primarily applied to newspapers, magazines, radio, and later, television. While enforcement was never perfect, the framework was clear, and the publishers, being within national jurisdiction, were accountable.

The Digital Onslaught: How Big Tech Undermines a Public Health Framework

The advent of the internet and the rise of global advertising platforms have fundamentally broken this enforcement model. As detailed in the analysis by Dinesh S. Thakur and Prashant Reddy T., the world of advertising has migrated from print and broadcast to a handful of American-owned “platforms”—search engines, social media networks, video-sharing sites, and online marketplaces. This shift has had a catastrophic effect on the integrity of India’s public health information ecosystem.

The authors’ deep dive reveals a startling reality: “not a single one of them was advertised to submit for publication, advertisements which are in violation of the DMRA.” The consequence of this willful neglect is a digital landscape flooded with deceptive and illegal advertisements. Simple searches on the most popular search engine and e-commerce platform for terms like “ayurveda” + “blood pressure tablets” or “homeopathy” + “diabetes” yield a plethora of “sponsored” results—advertisements paid for by unscrupulous actors and knowingly published by the platforms.

Even more egregious are the examples cited: a notorious godman promoted on a major social media platform with claims of curing “all kinds of diseases” using ayurvedic products, and advertisements for cow-urine-based products claiming to treat cancer, some even supported by the platform’s own charitable programs. Each of these is a direct and unambiguous violation of the DMRA, posing a direct threat to public health by luring patients away from evidence-based medicine towards unproven and potentially dangerous alternatives.

Systemic Hypocrisy: A Tale of Two Enforcement Regimes

What makes this negligence particularly galling is its selective nature. The investigation highlights a critical double standard: “None of these Big Tech platforms runs similar advertisements in the United States.” In their home country, these platforms maintain “elaborate” policies for health-related advertisements, complete with “pre-screening mechanisms” designed to ensure strict compliance with the robust U.S. Food and Drug Administration (FDA) regulations. In the U.S., making unsubstantiated therapeutic claims can lead to swift and severe criminal prosecution, product seizures, and massive fines.

This stark contrast in policy enforcement reveals that the problem is not a technical inability to screen content. These companies possess the sophisticated AI and human moderation resources to do so. The difference is a calculated business decision. They choose to deploy their rigorous safeguards in a jurisdiction where the cost of non-compliance is unacceptably high, while deliberately disabling them in a market like India, where they perceive the risk of meaningful punishment to be negligible.

The Roots of Impunity: Why Big Tech Feels Empowered to Flout Indian Law

This brazen disregard for Indian law is not an isolated incident but part of a deeper pattern, fueled by three interconnected factors.

1. A Legacy of Corporate Contempt and Systemic Bias:
The authors point to a “traditional contempt that American corporations, dating back to Union Carbide, have shown for the lives of Indians.” The Bhopal Gas Tragedy remains the quintessential example of a American corporation being implicated in a massive industrial disaster on Indian soil with a subsequent perception of inadequate accountability. This historical precedent feeds into the argument that a form of “systemic racism” influences corporate decision-making, where Indian lives and laws are not accorded the same gravity as American ones. When the potential for harm is weighed against the certainty of advertising revenue, the calculus in some corporate boardrooms appears to skew dangerously towards profit in markets perceived as less consequential.

2. A Precedent of Legal Evasion and Judicial Impunity:
Big Tech’s current behavior regarding the DMRA was foreshadowed by its actions concerning another Indian law: The Pre-Conception and Pre-Natal Diagnostic Techniques (PNDT) Act, 1994. In 2008, a Public Interest Litigation (PIL) was filed with the Supreme Court of India, highlighting how these platforms were brazenly hosting advertisements for sex-determination services, which are illegal under the PNDT Act.

In court, the platforms retreated into a “familiar pattern of deception,” claiming they were “intermediaries” and not “publishers.” Under Indian law (Section 79 of the IT Act, 2000), an intermediary—a mere conduit for user-generated content—enjoys a “safe harbor” immunity from liability for that content, provided they remove it upon being notified. However, this defense is legally and logically bankrupt when applied to paid advertisements. The platforms’ own marketing teams in India actively solicit these ads, negotiate contracts, and accept payment for their publication. They have complete prior knowledge and control, making them publishers in every sense of the word.

Despite this, the PNDT case “languished for nine years” before concluding with the typical Indian judicial response to complex technological issues: the formation of a committee. The “object failure of the Court to enforce the law by ordering criminal prosecutions” sent a powerful message to Big Tech: the Indian legal system is slow, its consequences are avoidable, and its ultimate penalties are a distant threat.

3. The Shield of Extraterritoriality and Corporate Structure:
Perhaps the most significant factor emboldening Big Tech is its sophisticated corporate structure, which creates a shield of impunity. As the authors note, the U.S. government would never extradite top American executives to face trial in India for violating the DMRA. Simultaneously, the employees of the Indian subsidiaries are protected because the subsidiary is a separate legal entity from the U.S. parent company that owns and operates the platform. The individuals in the U.S. who design the global advertising policies that fail to respect Indian law are beyond the reach of Indian courts, while the employees in India who implement these policies can claim they are just following global corporate directives. This legal loophole creates a perfect storm of unaccountability.

The Path to Accountability: Reforms for Digital Sovereignty and Public Health

To break this cycle of contempt and protect Indian citizens, merely tinkering with existing frameworks is insufficient. A fundamental overhaul in approach is required, built on the principle that digital sovereignty is non-negotiable.

1. Targeted Criminal Prosecution and Piercing the Corporate Veil:
The government must begin by aggressively pursuing criminal complaints under the DMRA and other relevant laws. Prosecutors must creatively argue for piercing the corporate veil to hold key managerial personnel in India directly accountable for the content published on their platforms. The threat of arrest, bail hearings, and the prospect of jail time for country managers and legal heads is a language these corporations understand far better than committee reports or fines that they can easily absorb as a cost of doing business.

2. Legislative Reforms to Condition Safe Harbor Immunity:
India’s intermediary liability regime needs a urgent update. The safe harbor immunity granted to platforms under the IT Act should be conditional upon demonstrable compliance with all Indian laws, including the DMRA and PNDT Acts. A platform that systematically profits from illegal advertisements that endanger public health should forfeit its right to protection from liability for other user-generated content. This would create a powerful financial and operational incentive for proactive compliance.

3. The “TikTok Model”: Mandating Local Management and Liability:
As the authors suggest, India should “take a page from the new American playbook to regulate Tik Tok.” The U.S. concern over TikTok’s Chinese ownership led to proposed legislation that could force its divestment or, alternatively, mandate that the platform be managed by U.S. citizens answerable to U.S. law. India should enact similar regulations for critical digital services, requiring that the key managerial personnel responsible for content and advertising policy in India be Indian citizens based on Indian territory and fully answerable to Indian courts. This would finally place decision-making power within the jurisdiction of the legal system it is meant to respect.

Conclusion: A Test of National Resolve

The flooding of the Indian digital space with illegal medical advertisements is not a minor regulatory lapse; it is a direct assault on public health and national sovereignty. It demonstrates how global power, when left unchecked, can create zones of exception where the laws of a sovereign nation are rendered moot by corporate structure and extraterritorial maneuvering.

The fight to enforce the DMRA in the digital age is a test case for India’s ability to govern itself in the 21st century. It is a struggle to determine whether the hard-won public health protections of the 20th century will be dismantled by the platform power of the 21st. The solutions—legal, legislative, and diplomatic—are complex but clear. They require a resolve that matches the scale of the challenge. The health of millions of Indians and the very principle of a nation’s right to self-governance depend on the outcome. The time for committees and gentle reminders is over; the era of stringent accountability must begin.

Q&A Section

Q1: What is the Drugs and Magic Remedies Act (DMRA), 1954, and why is it considered so strict?

A1: The DMRA is a landmark Indian public health law designed to prevent the exploitation of patients through false medical advertising. Its core strength and strictness lie in its blanket prohibition. It outlaws the advertisement of any drug or remedy for a specified list of 54 serious diseases and conditions (like diabetes, cancer, and heart disease), regardless of whether the drug is officially approved by the regulator. This approach recognizes that even a legitimate drug should be prescribed by a doctor based on medical need, not marketed directly to vulnerable and often desperate individuals. It preemptively shuts down the avenue for companies to make exaggerated “miracle cure” claims that could lead patients to forego proven, evidence-based treatments.

Q2: The article claims Big Tech is a “publisher” of these ads, not an “intermediary.” What is the legal significance of this distinction?

A2: This distinction is the crux of the legal battle over accountability.

• Intermediary: Under Indian law (IT Act, 2000), an intermediary is a neutral conduit, like an internet service provider or a web hosting service, that simply transmits or stores content created by users. They are granted a “safe harbor” immunity from liability for this user-generated content as long as they remove it when notified. They are not expected to have prior knowledge of every piece of content.

• Publisher: A publisher actively curates, commissions, and takes responsibility for the content it disseminates. A newspaper, for example, is a publisher of the ads it prints.

Big Tech’s advertising business aligns perfectly with the role of a publisher. Their sales teams actively solicit advertisers, negotiate contracts, set prices, and accept payment for the specific purpose of displaying an ad. They have complete prior knowledge and control over the advertisements. By falsely claiming to be “intermediaries,” they seek to enjoy the legal immunity meant for passive conduits while actively running a global publishing business, thus creating an unfair and dangerous shield against liability for illegal content.

Q3: How does Big Tech’s enforcement of ad policies in India differ from its practices in the United States?

A3: The difference is stark and indicative of a calculated double standard.

• In the United States: Big Tech platforms have elaborate, strictly enforced advertising policies for health-related products. They employ pre-screening mechanisms and require advertisers to provide proof of certification from bodies like the FDA. This is because U.S. laws, enforced by the Federal Trade Commission (FTC) and FDA, are stringent, and violations can lead to swift criminal prosecution, massive fines, and reputational damage.

• In India: The same platforms appear to disable these rigorous safeguards. They routinely publish advertisements for ayurvedic, homeopathic, and other products making direct therapeutic claims for diseases listed in the DMRA, which are illegal. This selective enforcement shows that the companies possess the technical and operational capability to comply but choose not to in jurisdictions where they perceive the risk of meaningful punishment to be low.

Q4: What was the significance of the earlier legal case involving the PNDT Act?

A4: The Public Interest Litigation (PIL) concerning the violation of the PNDT Act (which bans sex-selection advertisements) was a critical precedent. It demonstrated Big Tech’s playbook for evading Indian law:

1. The “Intermediary” Defense: They used the same legal argument, claiming they were not publishers but mere intermediaries.

2. Judicial Delay and Inaction: The case languished in the Supreme Court for nine years without resulting in criminal prosecutions, which is the prescribed punishment under the PNDT Act.

3. The Creation of Impunity: The outcome—typically the formation of a committee rather than decisive punitive action—signaled to Big Tech that the Indian legal system was unlikely to impose serious consequences. This emboldened them to extend the same contemptuous approach to other laws, including the DMRA.

Q5: What are some of the key reforms suggested to hold Big Tech accountable?

A5: The authors propose several robust reforms:

• Aggressive Criminal Prosecution: Actively filing criminal cases against key managerial personnel of these platforms in India to pierce the corporate veil and create personal liability.

• Conditioning Safe Harbor Immunity: Amending Indian law to make the valuable “intermediary” immunity conditional upon demonstrable compliance with all Indian laws. A platform profiting from illegal ads would lose its protection from liability for other user-generated content.

• The “TikTok Model” of Local Liability: Legislating a requirement that the senior executives responsible for content and advertising policy in India must be Indian citizens residing in India and fully answerable to Indian courts. This ensures that decision-makers are within the jurisdiction of the law they are flouting.