This article is written by Udita Prakash, pursuing law from UPES, Dehradun. This article deals with online advertising and its importance. I have briefly dealt with the laws which are already existing in India related to the advertising law and also the conflicts between the regulating mechanism and online advertising. The misleading advertisement and how to deal with them accordingly, and at last the scope and the future endeavours of the Advertising law.
Advertising is the centre of a business debate that the Supreme Court has determined to be part of freedom of speech and is a fundamental right under Article19(1)(a) of the Constitution of India. In fact, without communication services with the general public, many industries and commercial companies are forced to close doors, and employers are banished. The definition of work and economy will disrupt advertising. It offers the most compelling sale possible at the lowest cost. So, it’s really a promotional message, the idea of a sale.
Online advertising is defined as an Internet-based commercial marketing activity used to increase consumer awareness of the value, presence and/or availability of a particular service or product. Various laws relating to online advertising take various forms, including the moral and ethical promotion of legitimate and illegitimate advertising strategies intended to ethically express details and functions pertaining to the product or service in question and existing in the jurisdiction. These laws and statutes are adopted to protect the rights and interests of consumer groups and legitimate business rights granted to some or all business activities and operations.
Advertising law – an overview of the existing regime
Advertising in India has undergone a major transformation. However, as the misuse of Doordarshan and Prasar Bharti advertising forms to modern television channels and media, such as banned drug advertising and alcohol advertising, has increased, the government has put in place various laws to control such advertising. The laws responsible for managing misleading ads are:
The Consumer Protection Act of 1986
Section 6 of the Consumer Protection Act, 1986 deals with the right to information regarding quality, quantity, potency, purity, etc. To protect trade and unfair practices, Section 2(r) of the Consumer Protection Act defines unfair business practices that cover the scope of false advertising and false deception.
- The Indian Penal Code, 1860 – Advertising and terrorism-related crime, hiring contract killers, or inciting violence is illegal and punished under Indian criminal law.
- The Cable Television Regulation Act, 1995 (Cable Television Amendment Act, 2006) – Under Section 6 of the Act, the announcement may not be broadcasted via a cable service announcement unless it complies with the advertising code. It is stipulated that Section 7 of the Cable Television Regulation Act ensures that advertising codes must not compromise people’s morals, dignity, or religious aspects.
- The Cigarette and Tobacco Act, 2003 – Section 5 of this Act prohibits direct and indirect advertising of tobacco products in all forms of audio-visual media.
- The Food Safety Standards Act of 2006 – It prohibits advertising related to grade standards, quality, quantity, or composition and states the need or use of food that is misleading, deceiving, or violates cannot be done.
- The Young Persons (Harmful Publications) Act of 1956 – It is against criminal and violent atrocities, or otherwise against persons under the age of 18.
In a groundbreaking case between Tata Press Ltd v. Mahanagar Telephone Ltd (MTNL), (1995), the Supreme Court examined whether Tata Press was allowed to publish phone books and sell ads on yellow pages. The court found that while advertising or commercial speech was equated with the fundamental right of expression stipulated in the Constitution, the business entity was also protected.
The conflict between regulating mechanisms and online advertising
The term “online advertising” is not defined by Indian law. However, laws regulating the publication or advertising of content in the physical form are media-independent and apply to content on the internet. Therefore, content posted or promoted on the Internet must comply with applicable laws of Indian content and advertising. In India, there is a mechanism to regulate advertising, which is self-regulation and is regulated through statutory rules and regulations. However, most of the regulation of advertising is printed and electronic media is in the area of self-regulation.
For printed matter and electronic media, there are several self-regulatory bodies responsible for regulating media content. These organizations include the News Broadcasting Association (NBA), the Indian Broadcasting Foundation (IBF), and the Indian Publishing Guild, which are primarily related to printed and electronic media content. On the other hand, India’s Advertising Standards Council (ASCI) is the leading self-regulatory body that regulates advertising in the media.
Rules against misleading online advertising
In addition to certain industry-specific laws, the cost per action specifically prohibits the following business practices used to promote the sale, use, or supply of goods:
- Misrepresents a product or service as a particular standard, quality, quantity, style, or model.
- Rebuilt, used, reconditioned, refitted, or old as new deceptive items.
- It represents that a product or service has sponsorship, approval, performance, characteristics, use, or benefits that said product or service does not have.
- Make false or misleading statements about the need or usefulness of a product or service.
- Generally provides warranties or guarantees of product performance or efficacy that are not based on adequate testing.
- Allows the publication of advertisements related to the sale of goods or services at bargain prices that are not intended to be sold at bargain prices.
The Indian Advertising Standards Council (ASCI) is a self-regulatory body for the advertising industry. ASCI has created a self-regulatory code in the advertising industry intending to achieve fair acceptance of advertising practices in the best interest of end consumers. ASCI also has a similar code from time to time for advertising in specific sectors/industries. However, this standard is a voluntary discipline that people involved in the industry must follow and is in no way mandatory. As a result, code compliance is rare and ASCI rarely receives complaints about non-compliance. However, the Cable Television Network (Amendment) Regulation of 2006 requires that all advertisements published by cable services comply with the Cable Television Network Rules, 1994 under Section 7(9). According to the ASCI Code, anyone who finds them false, misleading, offensive, or unfair can file a complaint about diverted ads. The Consumer Complaints Redressal Council (CCRC) reviews complaints received from the general public, including complaints from government officials, consumer groups, certain advertisers, and even suo moto complaints from the ASCI Board of CCRC members.
Advertising of products such as tobacco, and its derivatives, alcohol, milk substitute, drugs, firearms, lottery, etc. is prohibited by various laws on the internet. But, there are no special prohibitions regarding advertising in online spaces. These restrictions and prohibitions are moderately independent.
The main obligation under Indian law lies with the content provider as they must ensure that the hosted or posted content does not violate any applicable law. Depending on the nature of the infringement, content providers may be subject to civil and criminal liability. However, electronic intermediaries such as internet service providers, search engines, and online marketplaces can benefit from the safe harbour provisions of IT law. To qualify for the benefits of the Safe Harbor Act, 2008 intermediaries must meet certain conditions, including:
- The role of the intermediary should be limited to facilitating access to information provided by third parties.
- The intermediary will not initiate the transmission of data made available by third parties.
- Do not select a transmitter/receiver.
- Do not select or change the information contained in the transmission. One must also prove that the broker “complies with due diligence in performing its duties under Telecom Implementation Law and Telecom Implementation Broker Regulations, which means that the broker collusions, incites, supports, or induces entrustment of illegal activity. Request that you do not, and once you receive the knowledge, quickly remove or disable access to unwanted content.
- Shah Rukh Khan promotes equity cream to build consumer confidence in your brand or product. Madhuri Dixit feeds children instant noodles as a healthy snack and makes customers believe in the product. Even if viewers realize that celebrity-recommended products are just marketing gimmicks and may not be used by celebrities, the impact of this will increase product sales.
- The Consumer Complaints Council (CCC) affirms Hindustan Unilever Co., Ltd. (HUL) claim for their Lever Ayurvedic soaps, based on the 5000-year-old Ayurvedic scriptures containing 15 Ayurvedic herbs.
- Online offers companies that target well-educated, innovative and wealthy men or students with great potential for success because their segment is so representative. Products with a high degree of information aggregation and a large number of purchasers participation are also suitable for online promotion due to their high information capacity and low cost. The distribution opportunity is especially suitable for growing mail-order product channels. Companies with a low product or audience fit can use branding to establish user links or simply learn about interactive media. Traditional advertising is consumed passively, and its online implementation requires the understanding, commitment, and resource allocation of business owners to function properly. The marketing department must be responsible for developing and implementing online strategies, along with the advice of competent advertising agencies.
Scope for recommendations and future endeavours
Online advertising is steadily taking market share away from traditional media advertising. Given the growth potential in India and increased internet penetration, online advertising will skyrocket in the coming years. According to an IAMAI survey, 38.5 million Indian internet users are the main targets of many advertisers who are clouding the web. To take advantage of this growth, many online advertising networks have sprung up in India in recent years. This is an overview of the current group of online ad networks in India.
Examples of online advertising
Komli is India’s leading online advertising network, providing publishers with tools to help them manage, optimize and get the most out of their online advertising. Meanwhile, advertisers have access to millions of customers around the world to increase consumer engagement, brand awareness, leads, and sales. They offer a variety of options such as CPM and performance-based CPC and CPA marketing. Solutions for publishers and advertisers include the Komli Premium Network and the Komli Performance Network. Komli Premium Network offers a host of ad formats and many of the best brands using the latest web technology, giving advertisers a rich and targeted way to connect with consumers.
Tyroo is an Indian-based online advertising network that uses proprietary targeting technology to ensure that advertisers are accessing the right website through the publisher’s inventory. internet company Yahoo acquired at least 35% of Tyroo’s stake in July 2007 for a private amount. Incubated by Smile Interactive Technologies Group, a digital media company based in Delhi, Tyroo is an HT media group. Tyroo recently claimed to have reached 2.5 billion ad impressions a month. According to Tyroo, a strong network of 2,500 publishers includes Perfspot, Facebook, Dotdasht.com, SantaBanta, Smashits, Yatra and OneIndia. The company counts Microsoft, General Motors, PepsiCo, ICICI and Yahoo as advertisers.
Though not in India, Google is the most popular ad network not only in India but all over the world. The five or more publishers listed above claim to be the largest ad network in India. With a market share of over 75% is Google.
The current bend towards what advertising is, what it contains and how it is designed has been shaped by the technical possibilities and limitations of traditional media. Due to the many formats and uses of advertising, it is difficult to make a complete generalization of what advertising is, but many different characteristics of advertising can still be observed.
Currently, many regulations in India monitor the display of obscene and misleading advertisements. In reality, most advertisements are ignored by consumers and go unnoticed by statutory agencies. Therefore, implementation of law always takes time to enforce. Advertising violates the public’s trust and regulators must take immediate action. The Broadcasting Bill proposed in 2007 is expected to revolutionize the advertising mechanism. The need for a unified statutory framework to regulate advertising is increasingly urgent, and we hope that the request for such a codification of the advertising law must be recognized by the national parliament.
In conclusion, advertising on the world wide web has many advantages and disadvantages. In my opinion, the strengths outweigh the weaknesses. By leveraging online advertising to show ads around the world, you can take your business to a whole new level, targeting a wider audience. Its low cost allows small businesses to invest in online marketing, which reduces the initial cost of marketing. The vast expanse of the internet also allows users to experience more of the services your business offers every day, making it a convenient place for shoppers. It allows people to take more time out of their lives, other traditional shopping methods, such as driving to a store to pay the bills. The internet has helped us humans in many ways. The most important thing is always the disadvantages. But in my opinion, as stated earlier, the most important thing is that the strengths outweigh the weaknesses. The world wide web is constantly evolving, creating a better place for online advertising in this case. It has proven to be the most important advertising method along with all other media and guarantees results from every time.
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