In this blog post, Pranav Rudresh, a student of Lloyd Law College, Greater Noida, discusses the Laws governing the advertisement in India.
Introduction to Advertisements
Advertisements are the method of promoting the sale, generally used to promote marketing strategically. One should not get confused between advertisement and propaganda; propaganda is what the governments use to promote their policies. Advertisement can be done by both printed and digital methods. Television, radio, newspaper, internet all can be used for the purpose of advertisement. According to a survey, an average of 600 US billion dollars is used worldwide in advertisements.
Human civilization has seen a different form of advertisements right from the ancient period. Wall paintings, announcements, campaign displays were the form of advertisement during the ancient times. These methods are however even now being used in some parts of Asia. With modernisation, new methods of advertisements have been introduced. However several issues of misuse of advertisements have been observed, and this has forced the governments all around the world to enforce strict laws to keep a check upon misuse of advertisements. This article is trying to explain how the advertising law works in India and what organization is responsible for keeping a check on it.
Advertising laws in India
In the previous few years, advertisement in India has seen the vast transformation. From the Doordarshan and Prasar Bharti way of advertising to the modern television channel and media, however with increasing misuse such as promoting a prohibited medicine, promotion of alcohol, promotion of toxic substance such as cigarette tobacco, etc. forced the government to pass several laws to keep in check such sought of advertisements. Let’s take a look at the several legislations that are responsible for controlling misleading advertisements:
- Press Council of India Act, 1978
- Cable television regulation act, 1955 and Cable television amendment act, 2006
- Establishment of the ASCI (Advertisement standard council of India), 1985
The Advertising Standard Council of India was established as a nonstatutory tribunal. It created a self-regulated mechanism of introducing the advertising ethics in India. The ASCI judges the advertisements based upon its Code of Advertising Practice, also known as the ASCI code. This Code applies to advertisements read, heard or viewed in India even if they originate or are published abroad so long as they are directed to consumers in India or are exposed to a significant number of consumers in India.
Survey of FICCI regarding functioning of self regulation in advertising
To understand whether the ASCI is functioning properly or whether the guidelines of ASCI are sufficient enough to check the misleading advertisements, FICCI sent a questionnaire to all the top-tier official advertising managements. To mention a few, the questionnaire was sent to:
- Advertising agencies
- BTL agencies
- Market research
- Marketing Institutes
The findings of the survey on self regulation of advertising
According to the survey, it was found out that among the sectors as mentioned above, 31% believed that the ASCI framework is ok and enough to act and check upon the advertisements. They believed that very limited instances where the ASCI had failed to perform adequately. 13% believed that the ASCI framework is adequate but needs some reforms so as to be more effective. While shockingly a 56% believed the framework to be inadequate and ineffective. They said that there is not enough knowledge among the stakeholders regarding the regulatory mechanism and process of complaint making. They also indicated that there are ads which making false claims, and there is no medical research to substantiate the claim. The message is not conveyed in the right spirit, and the present framework is not addressing this.
Laws and acts governing advertisement
In India several laws and acts related to advertisement control. Let’s mention a few of them.
The consumer protection Act, 1986 and advertising
The Section 6 of this Act grants consumers the right to be informed about the quality, quantity, potency, purity, standard and price of goods or services, as the case may be to protect the consumer against unfair trade practices. Section 2(r) of the Act, under the definition the term “unfair trade practice”, it also covers the gamut of false advertisements including misrepresentations or false allurements. And to redress against such unfair trade practices on false advertisements may be sought under the Act.
The cable television network Act, 1995& the Cable Television Amendment Act, 2006 and advertising
Section 6 of the Cable Television Networks (Regulations) Act, 1995 provides that no person shall send or transmit through a cable service any advertisement unless such advertisement is in conformity with the advertisement code prescribed under the Cable Television Networks (Amendment) Rules, 2006. However, the provision above does not apply to programs of foreign satellite channels which can be received without the use of any specialized gadgets or decoder.
Also the Rule 7 of the Cable Television Networks (Amendment) Rules, 2006 lays down the “Advertising Code” for cable services which have been formulated to conform to the laws of the country and to ensure that advertisements do not offend morality, decency and religious susceptibilities of the subscribers.
Restrictions on advertising under the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Act, 2003
Section 5 of this Act, prohibits both direct & indirect advertisement of tobacco products in all forms of audio, visual and print media.
Advertising regulations under Drug and Magic Remedies Act, 1954 & Drugs and Cosmetics Act, 1940
This Act is for regulating the advertisements of drugs in certain cases and to prohibit the advertising for certain purposes of remedies alleged to have magic qualities and to give for matters connected therewith; – Section 29 of the Drugs and Cosmetics Act,1940 imposes a penalty upon whoever uses any report of a test or analysis made by the Central Drugs Laboratory or by a Government Analyst, or any extract from such report, for the purpose of advertising any drug. The punishment prescribed for such an offense is fine which may extend up to five hundred rupees and imprisonment up to ten years upon subsequent conviction.
Advertising restrictions under Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 & Young Persons (Harmful Publications) Act, 1956
Advertisement in any manner regarding facilities of pre-natal determination of sex available at any genetic counselling centre, laboratory, clinic or any other place is prohibited under this Act and has been made a punishable offence under the Act (Section 22); – Section 3 of the young person harmful Publication Act,1956, inter alia, imposes penalty for advertising or making known by any means whatsoever that any harmful publication (as defined in the Act) can be procured from or through any person.
The Indian Penal Code and criminality of advertisements:
The IPC, vide an array of provisions, prohibits obscene, defamatory publication, publication of a lottery and statements creating or promoting disharmony/ enmity in the society. While it is not implicitly written, any advertisement that related to an offence, like hiring a contract killer or inciting violence, terrorism or a crime is illegal and will be punished under IPC or other applicable provisions.
Summary of advertisement laws in India
As a summary of the advertisement acts in India, it can be virtually said that various laws about advertisement in general and those relating to specific sectors and malpractices have created a sense of fear in minds of those who use wrong methods of advertising unethical materials. However, the absence of a single statutory, regulatory body further aggravates the problem. A comprehensive law/ regulation on advertising in all forms of media which shall provide clarity in the matter and act as a one-stop window for all matters relating to advertising is highly desirable. The advertising sector needs to be ethical, which means they should not be advertising just for the sake of profit motives rather it must follow some ethics. Public advertisements of alcohol, cigarette and other health-harming products, unnatural medicines, etc. should be avoided.
The advertisement makers must follow the following ethical values:
- Should be true.
- Must not be illegal.
- Must not misguide the society, especially children.
It must be however the duty of the related authorities to offer a safeguard against the violators. The aim of such bodies must be as follows:
- To provide a safeguard against the indiscriminate use of advertising for the promotion of products which are regarded as hazardous to society or people to a degree or of a type that is not acceptable for the society at large.
- To ensure that advertisements observe fairness in the competition so that the consumer’s need to be informed of choices in the marketplace and the canons of generally accepted competitive behaviour in business is both served.
- No advertisement shall be permitted that derides any race, caste, nationality. Also, such advertisements must be avoided which is against the constitution of India, presents criminality as desirable, exploits national emblem or security.
Well, it was once famously said that advertising was legalised way of lying. This reflects the dilemma of advertising and its effect on consumers. In an environment of jealous competition in the foreground of a market economy, advertisements often tend to exaggerate and misrepresent facts which ultimately affect impressionable minds. This is exactly what all legal systems including India must seek to address.