Menu

ADVERTISEMENT AND LAW

Publications

ABSTRACT

Advertisements are the core source of spreading awareness. It is a well-accepted fact that, the role of advertising, in the twenty first century, has grown exceptionally. Not only in earlier times people used to rely on advertisement for information but even to this day it is considered as one of the most influential mediums in the modern times. The research paper focuses on the historical background, different laws governing advertisements in India with attention on what is prohibited in advertisements and how ethical advertising can help in avoiding controversial advertising.

“Stopping advertising to save money is like stopping your watch to save time.”

— Henry Ford

Key Words: Advertisement, ASCI, Controversial Advertising, Ethics, History, Law.

INTRODUCTION

WHAT IS AN ADVERTISEMENT?

Advertising plays a crucial role by creating primary demand for the product or service and its usage thus increase in customers. Advertising stimulates the product distribution and builds brand preferences and loyalty.

An advertisement is the promotion of a product, brand or service in order to attract interest, engagement and sales. Besides promoting goods for sale, advertising methods are used to encourage people to drive safely, support charities, vote for political candidates, etc.

“Advertising may be described as the science of arresting the human intelligence long enough to get money from it.” – S Leacock

RESEARCH METHODOLOGY

Doctrinal method of research has been used throughout the research paper. In this type of methodology secondary sources are used and data is collected from various articles, annual reports, websites etc.

REVIEW OF LITERATURE

HISTORY OF ADVERTISING IN INDIA

After the industrial revolution in the United Kingdom, advertising slowly began to emerge as an industry itself. As a part of the British colony, India was not lagging behind in the developing sector that was advertising and marketing.

Indian Advertising started with the hawkers calling out their goods from the time when cities and markets first began. Concrete advertising history began with classified advertising. Until the end of the eighteenth century, the early newspapers and periodicals announced births, deaths, arrivals of ships from England, sale of household furniture. Some journals like the Bengal Journal (first published in 1785) offered to print government advertisements for free. Ads appeared for the first time in print in Hickey’s Bengal Gazette, India’s first newspaper.

Later, the power of advertising increased swiftly with the growth in trade and commerce. ‘Agents’ bloomed as space contractors, obtaining advertisements for newspapers and periodicals on a commission basis. Leading newspapers like ‘The Statement’ and ‘The Times of India’, which had their own advertising departments, offered their facilities to ‘agents’. This practice was accountable for turning advertising into a distinct profession.

ADVERTISING IN THE EARLY 20TH CENTURY

Two key events responsible for growth of Indian advertising agencies were:

  1. The Swadeshi Movement (1907-1911), which gave rise to indigenous industries,
  2. The installation of first rotary linotype machine by the Statesmanof Calcutta in 1907.

By the 1930s, many Indian and foreign advertising agencies had established in India. One of the notable milestones that happened during this era was the launch of Dalda in 1939 by Lever’s advertising department – a brand and marketing campaign specifically established for India.

THE INTER-WAR YEARS (1918-1939)

During the inter-war years a few Indian agencies emerged, the most eminent ones being the modern Publicity Co. in Madras, the Calcutta Publicity, and the Oriental Advertising Agency in Tiruchirappalli.

In 1931, first Indian Ad Agency, the National Advertising Service, was established. The formation of the Advertising Agencies Association of India (AAAI) in 1945, and the Audit Bureau of Circulation (ABC) in 1948 facilitated some order to the competitive field.

POST-INDEPENDENCE ADVERTISING

Subsequent to World War II and the Indian Independence, the British-owned agencies were sold to Indian business. The introduction of multi-color printing, improved printing machines, and the development of commercial art gave the Ad business a further jump. The remarkable growth in the media, especially television and cable has advanced the Indian advertising.

By the 90s, advertising had become pretty skilled and the decade saw agencies open new media shops, go ‘virtual’ through websites and Internet advertising. 1993 saw the birth of India’s only advertising school, MICA (Mudra Institute of Communications Ahmadabad). The internet has made advertising take on new set-ups and platforms, with social media sites controlling the markets. 

ADVERTISEMENT AND LAW

REGULATION OF ADVERTISEMENT IN OTHER COUNTRIES

  • Germany puts restrictions on junk food advertising to children.  Germany bans tobacco advertising in print media, radio, and internet.
  • China: No celebrity endorsers can be under 10-years-old. Banning of cigarette ads in public places and in mass media.
  • Brazil:

-Always having a safeguard warning about the risks of alcohol, including overconsumption.

-Ads cannot associate drinking with driving, healthy activities, professional success, or sexual performance

-Alcoholic beverages on radio or television can only be aired between 9pm and 6am

  • Australia:

-commercial websites are not allowed to collect information from children who are younger than 13.

-Environmental claims:statements about environmental-friendly products cannot exaggerate benefits.

-Prescription drugs: must provide information about side effects and only be advertised for the specific use for which it was approved.

  • France: Alcohol marketing is regulated in France despite the country’s famous wine industry. French law prohibits alcohol advertisements on TV and in movie theatres. Where alcohol advertising is allowed in France, it must contain a warning that alcohol abuse is dangerous to one’s health.

The organizations that self regulates the advertising in different countries are:

1)Australia Advertising Industry Council 2) Brazil CONAR 3) France National Advertising Council 4) Denmark Institute of Consumer Ombudsman.

REGULATION IN INDIA

In the complex environment of local, state and federal rules and regulations, most of the advertising and business sponsored associations, consumer groups and organizations and the Media produce honest, truthful and refined advertising through their own self-regulation and guidelines. The nature and content of advertisements that offend, mislead and cheat consumers are of major concern to many advertisers. Therefore, the regulation of advertising is of the greatest importance. Most of advertisers, advertising agencies and the media have realized the importance of maintaining consumer trust and confidence, hence take the initiative to develop systems of self-regulation.

The Advertising Club, Mumbai in April 1982, organized a workshop on “Code for Self-Regulation in Indian Advertising”, in Collaboration with the International Advertising Association (IAA). This resulted in setting up of a committee on self-regulation code in India. This was set out to ensure protection of consumers against false advertising and ensure that norms of morality are maintained. Subsequently the Advertising Standards Council of India (ASCI) was set up to regulate misleading and unethical advertisements. Another body known as Consumer Education Research Centre (CERC) is also providing creditable service in creating awareness among the consumers against unethical and misleading advertising and fighting the cases against offending advertisers.

Few excerpts from code of ethics for advertising issued by the Advertising Council of India:

  1. Advertisement should comply with the laws and also to the morals, aesthetic and religious sentiments of the country.
  2. Advertisement should be truthful and avoid misrepresenting facts and misleading the public by means of implications and omission.
  3. Advertising should aim to gain the goodwill of public on the basis of merits of good, or services advertised.
  4. Vulgar, suggestive, disgusting or offensive theme or treatment should be avoided in all advertisements.
  5. Use of national emblem is prohibited by law in advertisements, trademarks, etc.

The Indian advertising market is regulated and controlled by a non-statutory body, the Advertising Standards Council of India (ASCI). Advertisers are responsible to ensure that an advertisement is in compliance with all local and national advertisement laws.

Role of the Advertising Standards Council of India (ASCI)

ASCI is a voluntary self-regulatory council established in 1985 to promote responsible advertising and deepen public confidence in advertisements. The council’s objectives are:

  • To ensure the truthfulness and honesty of representations and claims made by advertisements.
  • To ensure that advertisements are not offensive to generally accepted standards of public decency.
  • To protect against the indiscriminate use of advertising for the promotion of products regarded as hazardous to society or to individuals.
  • To ensure that advertisements observe fairness in competition.

STATUTORY LAWS OF ADVERTISING

Legislations that are responsible for controlling misleading Advertisement are: –

Laws Governing Media

  • The Press Council Act,1978.
  • Cable television regulations act,1995 and cable television amendment act ,2006: Section 6 of the act, says that no person will transmit through cable service Advertisement unless Advertisement is in accordance with Advertisement code. Under rule 7, it ensures that Advertisement code should not offend the morality, decency and religious aspect of the people.
  • Code for Commercial Advertising on Door darshan and All India Radio[1].

Laws Protecting Society and the Consumer

  • Emblems and Names (Prevention of Improper Use) Act, 1950
  • Companies Act, 1956
  • Indecent Representation of Women (Prohibition) Act, 1986
  • Consumer protection act ,1986 and advertising: – Under this act, section 6 talks about the right to inform about the quality, quantity, potency, purity, etc to protect unfair trade and practice. While section 2(r) of the act defines unfair trade practise which covers false Advertisement and false allurement.
  • Laws related to intellectual property rights.

Industry-Specific Laws

  • Drugs and cosmetic act 1940: – Section 29 imposes a penalty on who use report of a test or analysis made by the Central Drugs Laboratory for purpose of Advertising any drugs.
  • Transplantation of human organ act ,1994: – This law provides for the regulation of removal, storage and transplantation of human organs for therapeutic purposes and for the prevention of commercial dealings in human organs. This law prohibits any advertising inviting persons to supply, offering to supply, any human organ for payment.
  • Prenatal diagnostic techniques (regulation and prevention of misuse) act, 1994. Advertising regarding prenatal determination of sex available in genetic counselling centre, laboratory is prohibited under this act.
  • Advocates Act, 1961: – The Bar Council of India Rules formulated under the Advocates Act 1961 strictly enforce the advertisement ban and publicity rules governing law firms’ websites. These rules were enacted and enforced to limit the false advertisement of lawyers to gain publicity to attract clients.
  • 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 and indirect Advertisement of tobacco products in all forms of audio, visual media.
  • The Indian penal code and criminality of advertisement: -Advertising related to offence, hiring of contract killer or inciting violence, terrorism is illegal and punishable under Indian Penal Code.

Regulations Related to Product and Service Advertising[2]

  1. Alcohol (Beer, Wine, and Spirits)

The Cable Television Network Rules, 1994, the Advertising Codes of Door darshan, and the All-India Radio and Norms for Journalist Conductissued by the Press Council of Indiaprohibit any advertisement directly or indirectly promoting the sale, production or consumption of cigarettes, tobacco products, liquor, wine or other intoxicants. The ASCI Code prohibits use of minors for advertising alcohol products.

  • Firearms, Weapons, and Ammunition

Sale and purchase of such items necessitates a license from government authorities. Therefore, advertisements of such products are not permissible in India under the Arms Act, 1959.

  • Gaming (gambling, games of chance)

Constitution of India clearly gives the States the right to legislate upon “gambling and betting”. The Public Gambling Act, 1867 prohibits gambling activities in India. However, the Public Gambling Act permits games of mere skill. The Lotteries (Regulation) Act, 1998 gives power to the concerned State government to hold lotteries subject to prescribed conditions. Under section 294-A of the Indian Penal Code, advertisements of a lottery unless it is in accordance with the Lotteries (Regulation) Act shall be punishable. In April, 2011, the Information Technology Act, 2000 was also amended to ban Internet gambling and online betting websites.

  • Securities

The Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 2003 issued under section 30 of the Securities and Exchange Board of India Act, 1992prohibits fraudulent or unfair trade in securities. These regulations further provide that dealing in securities shall be considered defrauding or an unfair trade practice if it involves an advertisement that is misleading or contains distorted information and which may impact the decision of the investors[3].

Advertising to Children

The Young Persons (Harmful Publications) Act, 1956 prohibits advertisements relating to any harmful publication i.e., any publication that tends to corrupt a child (person under the age of 18 years) by provoking or encouraging him or her to commit offenses or acts of violence or cruelty or in any other manner.

According to the ASCI Code, advertisements addressed to minors shall not contain anything, whether in illustration or otherwise, which might result in their physical, mental, or moral harm or which exploits their vulnerability. For example, advertisements may not:

  • Encourage minors to enter strange places or communicate with strangers in an effort to collect coupons, wrappers, labels.
  • Feature dangerous or hazardous acts which are likely to encourage minors to imitate such acts in a manner which could cause harm or injury.
  • Show minors using or playing with matches or any inflammable or explosive substance or playing with or using sharp knives, guns, or mechanical or electrical appliances, the careless use of which could lead to their suffering cuts, burns, shocks, or other injury.
  • Display minors in promoting tobacco or alcohol-based products.

Furthermore, the ASCI Code states that no advertisement shall be allowed which:

  • Ridicule any race, caste, color, creed, or nationality
  • Tends to provoke people to crime or to promote disorder and violence or intolerance
  • Presents criminality as desirable or directly or indirectly encourages people, particularly minors, to imitate it or conveys the modus operandi of any crime
  • Adversely affects friendly relations with a foreign state.

CONTROVERSIAL ADVERTISING- RECENT ADS THAT HURT INDIAN SENTIMENTS

In the era of globalization, everyone is in competition with others. Advertising industry is also not an exception. At any cost, advertisers want to attract the attention of the viewers towards their product. Some also get into controversial issues either intentionally or not, which can harm their brand image. When protest breakout, either the advertisers drop those advertisements from being broadcasted for a temporary period or move up to the court to fight for their reasons. This part of the research paper focuses on the violation of the advertising ethics in Indian advertising being practiced and to find out the loopholes in the controversial advertisements.

  1. SABYASACHI MANGALSUTRA CONTROVERSY

The designer had received severe criticism when his ad campaign for luxury Mangal sutra was linked to a ‘lingerie’ and a ‘condom’ ad, given the intimate nature of the pictures. Sabyasachi had launched the Royal Bengal Mangal sutra as part of his latest jewellery collection. The campaign  was later withdrawn.

Tanishq had withdrawn one of its ads last year, after receiving social media backlash for showing an interfaith marriage. The ad was of a pregnant young Hindu woman finding love, respect and acceptance in the Muslim family she is married into. The 43-second commercial shows a pregnant woman being led to her bridal shower, a Hindu custom called ‘godh bharai’, by a woman as her mother-in-law. A beautiful union of two different religions, traditions, cultures is shown. But people started boycotting the brand, claiming that it promoted love jihad by celebrating an interfaith marriage[4].

  • MANYAVAR-MOHEY

A wedding advertisement by clothing brand Manyavar-Mohey had become the talking point on Twitter. The backlash from latest advertisement that features Bollywood actress Alia Bhatt is shown at a Hindu wedding ‘mandap’ awaiting the rituals before the marriage is considered finalized, the ad focuses on how often girls in India are considered a burden and sometimes seen as a liability to only marry off. Even though, the ad intended to address the sexism in the practice, a section of Twitter saw the ad as an attack on Hindu wedding rituals by calling the practice of Kanya-daan in itself regressive.

  • KENT RO

Last year, during the COVID-19 pandemic, water purifier brand Kent RO withdrew its controversial ad, issuing an apology after it received immense criticism on social media for portraying domestic help as coronavirus infection carriers.

The advertisement was for its atta and bread maker that said, “Are you allowing your maid to knead atta dough by hand? Her hands may be infected.” It went on to urge people not to “compromise on health and purity” and chose the company’s atta maker instead. The ad backfired for Kent with many denouncing it as being “classist”, “misogynist” and “discriminatory”.

ETHICAL ADVERTISING- How controversy in advertising can be avoided?

Advertising Industry has been facing massive criticism in the recent times as the advertising practices have not always been ethical. Advertisements should be culturally, socially and morally ethical. In today’s competitive market, advertisers are sometimes following the unethical practices to match the competition.

Ethics is a choice between good and bad; and between right and wrong. Thus, ethics in advertising means a set of definite principles which govern the ways of communication between the seller and the buyer. An advertisement must be truthful and ethical. If an advertisement is deceptive, the character of the organization is lost[5].

An ethical ad is the one which doesn’t lie, doesn’t make fake or false claims and is in the limit of decency. Advertising is a significant business activity and any breach in ethical standards can be risky for the company[6]. Advertising is considered unethical when it involves:

  • Vulgarity or Obscenity used to gain consumers attention
  • Misleading information and deception
  • Puffery
  • Stereotypes
  • Racial issues
  • Controversial products (e.g., alcohol, gambling, tobacco etc.)

SOLUTION TO THE PROBLEM OF UNETHICAL ADVERTISING

Advertisements affect the values and lifestyle of people. Therefore, it is necessary to regulate advertisements and take measures to curb unsocial and unethical advertising. Advertising ethics covers ethical concerns about the advertising message, the consumers targeted, advertising of controversial products and services and the effects of advertising on social values.

Some of the suggestions to curb unethical advertising are:

  1. consumers place high an incentive in legit and moral advertising. Therefore, all involved in the creation of an ad should share a common objective of truth in order to better appeal to a wide audience and maintain their ethics.
    1. Advertisers should have an obligation to follow high personal ethics in creating and sharing true and ethical advertisement while demonstrating high degree of professionalism.
    1. Advertisers must clearly disclose all material conditions and endorsement identities and maintain transparency.
    1. An advertiser must treat all consumers fairly based on the nature of the audience. Additional consideration must be given when advertising to youngsters and other helpless crowds to abstain from abusing them. Advertisers should be careful on the idea of the item or administration, particularly liquor and physician endorsed drugs.
    1. Advertisers must never compromise consumers personal privacy and their choices as to whether in providing their information should be transparent and easily made.
    1. Advertisers should discuss any potential ethical concerns when making ad campaigns. Ethical advertisers must always consider what is best for the consumer and they should apply the highest ethical standards and ensure that the advertisement adheres to those standards.
    1. All advertisers should comply with the legal regulations that apply to the industry.
    1. Trust should be built between advertising and public relations business partners, including clients and their agencies, media vendors.
    1. Advertisers design self-regulatory codes in their companies including ethical norms, truth, decency, and legal points and they should inform the customers about the codes of the company.
    1. Advertisers should keep tracking the activities and remove ads which don’t fulfil the laws and codes.
    1. Advertising companies must pay close attention on the complaints coming from consumers about the product ads. And try to rectify the issue.

When all the above points are implemented:

  • It makes the company answerable for its activities.
  • it will reduce the chances of getting pointed out by the critics or any regulatory body.
  • It will reduce unethical and controversial advertising.
  • It will help gain confidence and trust on the company and their products of the customers.

Thus, in order to curb unethical practices, there need to be stringent laws with their effective implementation so as to censor all the deceptive or false advertisements and deliver ethical advertisements.

CONCLUSION

The ethical aspect of Indian advertisement is extremely important for restoration of our Indian culture and heritage. At present there are numerous regulations tracking obscene and misleading advertisement in India. Telecasting and publication of obscene, indecent advertisements clearly shows the percolation of western culture in India so, to save our culture, norms and ethics regulations of such unethical advertisements is important. The lack of implementation of the laws are pouring in unethical and obscene advertisements. Hence, strict implementation of the laws is highly required in our country.  In reality most of the advertisements are ignored by the consumer and are overlooked by the Statutory Bodies so in order to enforce the regulations, whenever an advertisement breaches public confidence, the Regulators should take immediate actions. By following ethical advertising, we can avoid controversial advertising and we can retain the trust of the customers in the long run.

JHANVI SHUKLA

UNIVERSITY OF MUMBAI LAW ACADEMY

BBA LLB(HONS.)

[1] RM Kamble, Laws overning advertisement in India: An overview, Research gate, https://www.researchgate.net/publication/351577484_Laws_Governing_Advertisement_in_India_An_Overview (Last visited Feb 7,2022)

[2] Hemant Goyal, advertising and marketing law in India, Globaljurix, http://www.globaljurix.com/our-publications/advertising-and-marketing-law-india.pdf

[3] Advertising Laws in India (legaldesire.com) https://legaldesire.com/advertising-laws-in-india/ (Last visited Feb 9,2022)

[4] Dr. Somak Sen, Controversial advertisements in brand development and violation of advertising ethics, caluniv, http://www.caluniv.ac.in/global-mdia-journal/Comm-Nov-2017/C2.pdf

[5]https://www.managementstudyguide.com/advertising-ethicshtm.(last visited Feb 6,2022)

[6] https://blog.ipleaders.in/advertising-ethics-and-consumer-protection-a-legal-analysis/ (Last visited Feb 8,2022)