It has been rightly stated by Alvin Toffler who prophesied
“The illiterate of the 21st century shall not be those who cannot read or write, but those who cannot learn, unlearn, and relearn.”
Advertising began innocuously enough, starting off with the intent to inform a consumer about the utility of a certain product or by product. Advertisements made use of visual cues, punch-lines and discounts to attract its consumer base. The power of advertisements has been increasing with the passage of time and gained a stronghand in contemporary gambit.
In the Indian context, the advertising and media industry is controlled and regulated by several provisions and statutes, such as The Press Council Act 1978, which boasts of the twin objectives of safeguarding the freedom of the press and maintaining, regulating and improving the standards of newspapers and newspaper agencies. The Cable Television Network Rules 1994 & The Cable Television Network (Regulation) Ordinance, are acts which grant some degree of legitimacy to Advertising Standards Council of India (ASCI), both stating that any Advertisement that violates ASCI’s Code of Self Regulation shall not be broadcasted in any form. The Code for Commercial Ads on Doordarshan and All India Radio is a formidable effort, which lays down guidelines for creating advertisements in several spheres and inspires the faith of the public in its mechanisms.
Despite such a well drawn out mechanism, instances of several grievances and complaints from consumers regarding the standards, reliability, viability, quality and quantity, as well as the safety of the advertised products have been questioned. The efficacy of the elaborate mechanism has been questioned because of the stronghold of
Advertising Standards Council of India (ASCI) guidelines over the others. The existing mechanism has failed to inspire faith of the consumer in the ethical aspect of advertisements. This article is based on the underlying recommendation of several facets for a uniform, standardized statutory body to replace Advertising Standards Council of India (ASCI) and the repeal of several provisions under The Cable
Television Network Rules 1994 & The Cable Television Network (Regulation) Ordinance which grants legitimacy upon the Advertising Standards Council of India (ASCI) code, which is seldom followed.
Advertising Standards Council of India (ASCI)- An Overview
Advertising Standards Council of India (ASCI) is a self regulated voluntary body which regulates the quality of advertisements displayed keeping the consumer base in mind. ASCI was set up in 1985 under Section 25 of the Indian Companies Act 1956, which lays down the provision regarding " managing agent" which means any body corporate which is entitled, subject to the provisions of this Act, to the management of the entirety, or a substantial part, of the affairs of a company by nature of an agreement with the company, or by means of a memorandum or articles of association, and includes any entity occupying the position of a managing agent, by whatever name called.[i]
ASCI has been recognized by the Supreme Court of India, under Common Cause (A Regd Society) v Union of India and Ors.[ii] where the court gave approbations towards the attempts made by Advertising Standards Council of India (ASCI) towards self regulation, while also according recognition upon the Code of Self Regulation and Consumer Complaints Council. The court further agreed with the assertions of the central government that self regulation is a step in the right direction and ASCI needs no interference.
The ASCI has also partnered with and recognized by the Department of Consumer Affairs (DoCA), Food Safety and Standards Authority of India (FSSAI) and various authorities of distinction. It has also entered into a Memorandum of Understanding with several consumer welfare bodies. The Cable Television Network Rules 1994 & The Cable Television Network (Regulation) Ordinance, which grants some degree of legitimacy to the Advertising Standards Council of India (ASCI), both stating that any Advertisement that violates ASCI’s Code of Self Regulation shall not be broadcasted in any form.
It can be gauged that ASCI is at its zenith when it comes to authority accorded to a non statutory body. However, there are several lacunae and grey area due to the status of ASCI as a non statutory body that leads to non compliance, lack of adherence and disputes raised by the advertisers over the decisions of Advertising Standards Council of India. The need for a statutory body is a pre-emptive force.
Challenges faced by Advertising Standards Council of India
Despite being the Dark Horse of the Indian advertising milieu, Advertising Standards Council of India faces several difficulties, most of which are attributable to the fact stated best by Mrs Shweta Purandare (Secretary General of ASCI), that the recognition accorded by the Supreme Court will not enable Advertising Standards Council of India to take any legal action. This leaves ASCI grappling for power not only in the form of lack of authority, but diverse facets which has reduced the seriousness of the regulations drafted by the Advertising Standards Council of India.
The power of the Advertising Standards Council of India (ASCI) is threatened mainly by the following factors-
1. Non Compliance by Advertising Agencies
2. Non Adherence to the guidelines unless invoked under Cable Television Networks (Regulation) Ordinance 1995.
3. Decisions of Advertising Standards Council of India’s Consumer Court Council (CCC) has been challenged by several advertisers.
4. No system or procedure regulating the appointment, salary, functions, and rules and regulations to govern the members of ASCI.
5. Lack of transparency regarding the appointment of Board of Governor’s or members.
6. Vague guidelines regarding appointment of members- The guidelines only state that 12 members shall be selected from “Civil Society” , while 9 shall be
“Advertising Practitioners”.
7. No role of government in the appointments stated in (5.) and (6.)
8. No appeal shall lie against the decision of the Consumer Complaints Council (CCC), except by way of writ petition.
9. The autonomous nature of Consumer Complaints Council (CCC).
Advertising Standards Council of India has faced the wrath of several advertisers in long drawn cases, and the decisions have often revealed the relative weaknesses of the
Advertising Standards Council of India ‘s decision making power.[iii]
In a leading case, Hindustan Unilever Ltd. V. Reckitt Benckiser (India) Ltd , decided by the Coram of Hon’ble Justice S Ravindra Bhat and Hon’ble Justice R.V. Easwer, in relation to a dispute between Reckitt Pvt Ltd and Hindustan Unilever (HUF) over disparaging the goodwill and reputation of Reckitt Pvt Ltd by unfair depiction of its products in a poor light, The court stated that it is not bound to follow any recognition of advertisements made by ASCI but has to evaluate and make its own decision.[iv]
Hon’ble Justice R.S. Endlaw (Delhi High Court) passed a judgment under Kent Ro Systems Ltd & Anr vs Amit Kotak & Ors - not in consonance with the decision of the Consumer Complaints Council (CCC) of ASCI, invalidating the decision of the Consumer Complaints Council against Kent RO Water Purifier Catchphrase. Several Courts also struck down the decision of the Consumer Complaints Council in relation to Hero Motocorp, Amazon, MTS 3G etc.[v]
Several questions are also raised as to the composition of the members of ASCI, transparency in regards to appointment of Board of Governor’s or members. The need for a National statutory & uniform in nature is felt.
Efforts for the Conception of a Statutory Body for Advertisements in India- Concluding Remarks
The biggest hidden secret existing in contemporary discourse is that the power wielded by statutory bodies is formidable. The Corridors of power conceptualize and render the act with powers crowned by the sanction of law. India, being the World’s second largest democracy with a humongous population base, needs a statutory body to clearly define the powers, functions and objectives of the body.
An Act of Parliament in regards to the same accords unparalleled authority to such a body compared to a non statutory body. A statutory body wields a stronghold over non complying industries.
Due to the prevalence of unethical advertisements such as skin lightening products, paan masala, music CDs (indirectly advertising alcohol) and Ads having explicit content, government intervention is required to regulate the mass amount of advertising. The conception of a National Statutory body will pave the way for Avant Grande standards and strict compliance, among other benefits, and shall change the face of the Advertisement industry in India, which shall go a long way.
[i] https://ascionline.org/index.php/lodge-ur-complaints.html
[ii] Common Cause (A Regd Society) v Union of India and Ors W.P. No.114/2014
[iii] http://www.mondaq.com/india/x/688910/advertising+marketing+branding/An+Insight+Into+The+Jur isdiction+Of+ASCI
[iv] https://indiankanoon.org/doc/126878299/Advertising Standards Council Of ... vs Reckitt Benckiser India Pvt Ltd on 29 August, 2017
[v] https://indiankanoon.org/doc/77342229/Metro Tyres Ltd vs The Advertising Standards ... on 17 March, 2017
Thoughts of,
Ms. Tamanna Gupta,
3rd Year, B.A.L.L.B.
RGNUL, Punjab.
(All images are used for representative purpose only)