CHAPTER-I

OVERVIEW OF ADVERTISEMENT AND NEED TO

REGULATE ADVERTISEMENTS

1.1 Introduction

Today, advertising is not limited to be a marketing tool, it is an art used to launch or to

accelerate the sale of a product. It generates the need to buy products and procure
services, which might not be required by the customer. This is the power of advertising.
Advertising is also extremely useful for buyers as it helps them make major purchasing
decisions. Furthermore, advertising is a source of increasing sales, ultimately the profits
of a company, and can make potential contributions to the economy. However,
aggressive competition and opening of the economy has flooded the market with
numerous varieties and options for any particular product. Advertisers and manufacturers
get induced to engage in advertising practices that are in contravention of the law, or are
misleading, deceptive, denigrating, etc, in nature. Therefore, a comprehensive and
standalone law is required to check and control unscrupulous advertisements with the
objective that the law protects consumer interest and promotes competition at the same
time. The study is an attempt to envisage suggestions to contribute and formulate a
comprehensive and distinct law that would regulate advertisements. The regulations
should be applied to all advertisements, if there is a particular issue in the advertisement,
irrespective of the media channel. Media, being the conduit of publishing or broadcasting
advertisement, has a responsibility to prohibit unscrupulous advertisements. There exist
regulations which are media channel specific that may be updated with the suggestions.

1.2 Conceptual Context

As stated by David Ogilvy, the father of advertising,

―What really decides consumers to buy or not to buy is the content of your
advertising, not its form‖1

1
M.P. Singh, Quote Unquote (A Handbook of Quotations) (Lotus Press, New Delhi, 2006).

1
and,

―Advertising is only evil when it advertises evil things‖2

Therefore, the content of the advertisement is of utmost significance. These days

advertising has reduced to advertising in an evil way by centering on its form and not on
content. It may be said that advertising is evil if it advertises in an evil way or form, and
as stated by David Ogilvy, advertises evil things, which are represented to consumer as
useful and desirable. David Ogilvy established the imperative factor, which really
determines the consumer decision, i.e. content. Hence, it is crucial to regulate the
advertisement so that its content doesn‘t advertise evil things. The contemporary setup
does reflect that with the content, the form of advertising also influences the customer.
The competition has shifted the consumers decision from being only based on the
content of advertisements, to the message and information of the advertisement in
totality- be its form, content, magnetism, etc. Likewise, the 30th president of the United
States, Calvin Coolidge, identified the necessity and the vital role of advertising and
stated that, ―Advertising is the life of trade.‖3

These stalwarts highlight the quintessential function of advertising and the need to
regulate it for attaining its basic purpose. The spirit of Indian law in regulating
advertisement upholds the view quoted by David Ogilvy and Calvin Coolidge. The law
protects the content and rights emanating from the advertisement. It doesn‘t consider
advertising as an evil thing, moreover, it promotes honest and ethical advertising to
encourage competition and information dissemination. Advertisements have always been
considered the spine of trade and have played a crucial role in fostering economic growth
of a developing nation like India. Therefore, advertisements should be regulated with
appropriate enforcement mechanism in place so that it is not dispirited but boosts trade
instead. Per contra, advertisements seriously influence and allure customers to buy the
products that they need and the ones that they don‘t. Advertisements formulate the desire
to buy products which are not wanted or required by the customers. Thus, the

2
Ibid.
3
Ibid.

2
authenticity of what is advertised and put before the customer is important, which can
only be checked by the law.

The study concentrates on identifying and examining the need of distinct law to regulate
advertisements in India and few eminent issues that are contemporary in trade mark law.
These legal issues relating to advertising will be discussed in light of recorded and
noteworthy judicial pronouncements. However, the study doesn‘t deal with political and
online or internet advertisements. Just to reiterate, the approach of the study has been to
analyse, the following aspects:

● if there are any legal provisions that regulate advertisements or are advertisements
kept in isolation,
● is there a need to have comprehensive and distinct law that regulates advertisements,
● does the intellectual property law apply to and protect advertisements,
● the regulation should be structured on issues based with another aspect essential for
overall check and control,
● is the chief self-regulatory body, the Advertising Standards Council of India playing
a significant role in regulating unscrupulous advertisements. Can Advertising
Standards Council of India be bestowed more power for emplacing effective
regulatory mechanism in the advertising sector,
● comparative advertising is only regulated by the judicial pronouncement,
● is a law to regulate surrogate advertising existent and sufficient; and are stringent
action required against surrogate advertising,
● do celebrities endorsing a product hold an unconditional liability to be prudent, wise,
vigilant, critical, aware about the product and its claims,
● can celebrities, image, name, persona and indica eligible to get identified as
intellectual property of the respective celebrities,
● does freedom of speech and expression override commercial speech and freedom to
do trade. Is it dealt leniently in cases of advertisements?
● lastly, lessons from other countries that can be taken and incorporated for tackling
the legal issues existing in Indian law.

3
The study deals with surrogate and comparative advertising, celebrity endorsements,
self-regulatory body- the Advertising Standards Council of India, the scope of legal
provisions existing in few Acts, understanding the constitutional spirit and ultimately
concludes with suggestions.

After the introduction to the topic and the study, it progresses into the scenario of
advertising laws in India to analyze the scheme of surrogate advertising and comparative
advertising.

Surrogate advertising is where the promotion, brand advertising and building brand
image of a product is not done directly; it is substituted with another product of the same
brand. Such surrogate advertising is generally done for forbidden/restricted products. It‘s
commonly identified in advertisements pertaining to products with liquor and/or tobacco
which are banned from being advertised. Brand name of the restricted or banned product
is advertised by other products that fall in fairly close categories. Some of the common
surrogate products are playing cards, CDs, soda and bottled water.

1.3 Statement of Research Problem

There are various statutory provisions and codes of practice that are in place to ensure
legitimate and ethical advertising practices. However, the existing legal measures are not
aptly dealing with contemporary issues such as surrogate advertisements, celebrity
endorsements and the redressal and enforcement mechanism.

Advertising industry and celebrities exploit trade mark or copyright of product or

services in the advertisement based on their uniqueness, popularity, identifiability and
attractiveness.

The law that is regulating advertisements, especially relating to intellectual property is

scattered and ramified in many aspects.

The courts have discussed and evolved the law on comparative advertisements further.
There are many decisions of the court pertaining to comparative advertisements, which
are identifying new concepts, for instance generic disparagement. The courts have laid
principles and essential guidelines that support the law relating to comparative

4
advertisements. Therefore, comparative advertising being an imperative area of
intellectual property law has been included in the study.

According to a reporting of the New York times,424 percent of Indian advertisements

feature celebrities. M.S. Dhoni endorsing the TVS Star City motorbike is an excellent
example of this. The sale of TVS Star City was up by 80 percent in Ranchi, the capital of
Jharkhand after Dhoni endorsed the motorbike.5 One endorsement can spell an increase
in sales by 4 percent instantaneously.6 This represents the significance of celebrity
endorsements in advertisements, and after the case of Nestle it became apparent that our
law was lacking proper regulation for celebrity endorsements.7

1.4 Formulation of Objectives

● To assess the lacuna in the regulation of advertisements in India.

● To study and find out whether there is a need to have a consolidated law codified for
advertisements.
● To know the position of surrogate advertisements, comparative advertisements and
celebrity endorsement under trade mark and copyright law.
● To study and provide workable suggestions which can be implemented to reduce
false and adverse advertisements, deceptive advertisements and misleading
advertisements effectively.

1.5 Research Questions

● To find the need to codify comprehensive and distinct law for advertisements?

4
Nothing Sells Like Celebrity, available at: https://www.nytimes.com/2008/06/22/business/media/
22celeb.ht ml (last visited on July 23, 2019).
5
Dhoni-endorsed products a hit in J'khand, available at: https://www.hindustantimes.com/india/dhoni-
endorsed-products-a-hit-in-j-khand/story-8HQj5fBslkm76VrOFIR7fL.html (last visited on August 23,
2019).
6
How Brands Should Use Celebrities For Endorsements, available at: https://www.forbes.com/sites/
steveolenski/2016/07/20/how-brands-should-use-celebrities-for-endorsements/#2175123e5593 (last vi
-sited on July 23, 2019).
7
See, chapter III Celebrity Endorsement- Contemporary Issues and Regulation. There are
contemplations on the need to have accountability of celebrity endorsers based on the case study of
Nestle Maggi.

5
● To analyse what action has been taken by the legislature against surrogate
advertising, comparative advertising and celebrity endorsement?
● To know what does regulation of advertisement entails, is it dependent on judicial
pronouncement and self-regulatory bodies or not?
● To find if advertisements are only a commercial activity?
● To identify that if the Advertising Standards Council of India (ASCI) is vested with
power to scrutinize advertisement of non-members and passing orders against non-
members.

1.6 Research Methodology

The research methodology followed in this study was non-empirical. It is also known as
the doctrinal approach, comprising a systematic study and analyses of published research
(journals, judgments, books and online sources). An attempt has been made to identify
the gaps in legal regulation of advertisements in India and with references from the USA
and UK legal system.

The type of legal research involved in my study includes descriptive, analytical and
exploratory research. It describes and ascertains the regulatory framework of advertising
in India. It includes both determination and ascertaining the role and scope of self-
regulatory bodies. The study analyses various Bills and judgments introduced on the key
issues described in the research. Moreover, pertinent judgments, Acts, Bills, articles, etc.
were collected and evaluated to find cogent answers to the research questions.

1.6.1 Source Material for Legal Research

The core information used for formulating the thesis consists of both primary and
secondary sources. The primary sources consist of Acts, Bills, self-regulatory code,
decisions of the courts, tribunals and the self-regulatory body, ASCI (Advertising
Standards Council of India). The secondary sources mainly include journals, books,
reports, newspaper reporting, articles, papers, etc.

6
1.6.2 Limitation of Study

Even though the research study has achieved its objective and concluded with pertinent
suggestions to have a cogent and effective regulatory framework for advertising, still it
was subjected to certain limitations and challenges.

Foremost, being the difficulty to find books on the subject matter, which
comprehensively and patently dealt with an area of study i.e. regulation of advertising in
India. The literature mainly touched upon the issue of freedom of speech and expression
and reasonable restriction or comparative advertising. For comparative advertising,
books were available, however, they discussed the issue in a limited capacity. Therefore,
the main source relied upon to study the issue of comparative advertising was judicial
pronouncements. Hence, to frame the study and study the propositions, substantial
reliance was made on judicial decision, views and precedents, legal journals and reports.
Furthermore, there are various laws that selectively relate to advertisements, implicitly or
patently making the research consider them.

Consequently, potential reliance had to be placed on articles and reports (online or

otherwise) to cull out and articulate arguments and propositions.

1.6.3 Scope of Study

The scope of the study deals with certain pertinent issues prevailing in the regulation of
advertisements, which are published or telecast in India. The issue of accountability and
exploitation of celebrity endorsement discussed in the research was based on case study.
The next issue discussed in this study is of surrogate advertising. It has been included
because this technique of advertising is adopted for products which are prohibited from
being advertised. Surrogate advertising is a social menace, but due to its unique style of
advertising (i.e. by using surrogate product or theme) it is not emphasized upon. Another
issue described in the study is comparative advertising, which has been included based
upon various judicial decisions. Subsequently, all the three issues discussed use and
exploit trade marks in advertisements.

The study excludes government advertisements, political advertisements, and online

advertisements. The rationale of the research was mainly to identify and conduct a pilot

7
study on the regulation and regulatory framework of advertising in India. Further, to
identify contemporary issues in advertising, which use trade mark. The scope of the
study has also been restricted considering the research questions and statement of the
problem.

1.6.4 Literature Review

Comparative Advertisement and Product Disparagement are Different but Are Alike:
Utkarsh Singh and Arushi Moza worked on ‗The Thin Line Between Comparative
Advertisement and Product Disparagement‘. Their study mentioned that there are no
specific provisions regulating comparative advertisement and its scope.8
G V Narasimha Rao stated advertising is of the most powerful medium to influence
everyone in its study on ‗Comparative Advertising –A Boon or A Bane to Consumer
Interest?‘. The research affords comparison in advertising involves comparing products
or services of one trader with the products or services of another who is always the
competitor.9
Neha Munjal studied the various types of unethical advertisement in India with reference
to ASCI principles in ‗A Study on Ethical Issues in Advertising and Analyzing Different
Unethical Advertisements with Results of ASCI Decisions: An Indian Perspective‘. The
competitive market has raised debatable ethical issues in advertising like surrogate
advertising, puffery, unverified claims, women stereotype, comparative advertising, use
of children in advertising.10
Amos, Holmes, and Strutton studied ‗Exploring the Relationship between Celebrity
Endorser Effects and Advertising Effectiveness‘. The research summarized the
relationship between celebrity endorser source effects and effectiveness in advertising.
Persistent use of the celebrity endorsers is likely to prove an effective advertising
strategy. The outcome of the study suggested negative celebrity information can be
extremely detrimental to an advertising campaign. The source of credibility model is

8
Utkarsh Singh and Arushi Moza, ―The Thin Line Between Comparative Advertisement and Product
Disparagement‖ 4 CMET 20 (2017). See, https://www.scconline.com/Members/NoteView2014.aspx?cita
tion=JTXT-0002916233&&&&&40& &&&&Search&&&&&fullscreen.
9
G. Rao, Comparative Advertising –A Boon Or A Bane To Consumer Interest? 54(2) Journal of the Indian
Law Institute261-271 (2012). See, http://www.jstor.org/stable/43953540.
10
Neha Munjal, ―A Study on Ethical Issues in Advertising and Analyzing Different Unethical
Advertisements with Results of ASCI Decisions: An Indian Perspective‖ Ecoforum 1584-9066 (2016).

8
composed of celebrity trustworthiness, celebrity expertise and celebrity attractiveness
appears to capture the three most influential source, effecting purchase intentions, brand
attitudes and attitudes towards the advertisement.11 The truthworthiness attach to
celebrity was inferred by Abdulmajid-Sallam and Wahid in their study ‗The trust
paradigm in communication is the listener's degree of confidence in, and level of
acceptance of, the speaker and the message‘.12

1.7 Organisation of Study

In order to provide a clear visualization and better understanding of the topic, a precise
scheme of the chapters is provided. The entire work has been divided into seven
chapters. The first chapter includes the introduction and methodology of the study. The
second and the third chapter contemplate specific legal issues from the aspects of
intellectual property in advertising. The issues discussed are surrogate advertising,
comparative advertising and celebrity endorsements. These issues were selected due to
the inconsequential treatment meted out by either the judiciary or by legislature. The
fourth and fifth chapter pertains to the regulatory functions. These chapters study the
position, the role and bottlenecks of the self-regulatory code in place for advertising
sector and identify the statutory provisions (if any) that regulate advertisements. The
second last chapter signifies the presence of freedom of speech and expression in
advertisements and the inseparable role of reasonable restriction that can curb
unscrupulous advertisements. The final chapter concludes the study with the findings of
the research questions followed by pertinent suggestions. The perspective of the
suggestions is that they may be instrumental in drafting coherent policy to regulate
advertising.

11
Amos, C., Holmes, G., Strutton, D., ―Exploring the Relationship Between Celebrity Endorser Effects
and Advertising Effectiveness: A Quantitative Synthesis of Effect Size‖ 27 (2) International Journal of
Advertising 209-234 (2008).
12
Abdulmajid-Sallam, M.A. and Wahid, N.A., ―Endorser Credibility Effects on Yemeni Male Consumer‘s
Attitudes towards Advertising, Brand Attitude and Purchase Intention: The Mediating Role of Attitude
toward Brand‖ 5 International Business Research 55-66 (2012).

9
1.7.1 Surrogate Advertising-Need for Stringent Law or Not

Surrogate advertising is prevalent in the advertisement of liquor, tobacco, cigarette and

other intoxicating products. This form of advertising has been a predicament for the
government to ban completely. There are laws that regulate surrogate advertising,
however, their menace is at large, demanding a complete ban on surrogate advertising.
Surrogate advertising cannot be completely banned as it will directly affect the business
and ultimately the government tax collection.

There are laws that regulate and prohibit tele-cast of surrogate advertising or indirect
advertisement of tobacco products on channels and cable.

The laws regulating surrogate advertising to the restricted advertisement of the banned
products are:

• The Cable Television Network (Regulation) Act, 1995, preventing advertisements of

tobacco products on channels and cable.

• The Cable Television Rules, 1994, Rule 7.

• Guidelines laid in the Advertising Standard Council of India (ASCI) Code,

• Section 5 of the Cigarettes and Other Tobacco Products (Prohibition of

Advertisement and Regulation of Trade and Commerce, Production, Supply and
Distribution) Act, 2003 (COPTA),

• The Framework Convention on Tobacco Control 2005 of the World Health

Organisation.

Indian lawmakers struggle with keeping a tab on surrogate advertising, even though the
government has asked broadcasters not to telecast advertisements of tobacco and liquor
companies. Such advertisements have a surrogate product of the same brand which is
used to promote the prohibited product.

10
1.7.2 The Issue of Comparative Advertising

The technique of comparative advertising is not new, both the advertiser and trader has
traditionally relied on comparing the qualities of their own products with that of their
competitors. By direct or indirect comparison, the advertiser or trader attempt to compare
features, qualities, usage, unique selling point or any other distinction. These days advertisers
or traders divulge in generic comparative advertising, which involves the comparison of the
class of products or services. Generic comparative advertising is unlike the usual
comparative advertising, in which specific products are compared. Comparative advertising
makes the comparison between products and brands conspicuous for the customer to make a
buying decision. It is not only benefitting to the advertiser or trader, who hunt for extracting
more and more pecuniary gains, but also to the customer who gets upfront information on
the products or brands. It has also proved to be insightful for customers to know about the
products and brands. However, the practice is unwisely used by advertisers or traders,
leading to the customer being misguided and denigrating the product of the competitor. Inter
alia, misguiding, misleading the customer and denigrating product/s of the competitor calls
for dedicated examination of comparative advertising law in India. Comparative advertising
has two facets, puffery and disparagement. Initially, comparative advertising was narrowed
to puffery, which involves the use of exaggeration to sell product and services. Gradually,
comparative advertising started disparagement the product being compared. Comparative
advertising and its two facets, puffery and disparagement are not prohibited by law unless
they defame or denigrate competitors‘ products and/or services. In comparative advertising,
the use of the trade mark has boosted nostalgia and relevance. The distinctiveness of a
product is usually used, compared or projected in comparative advertising. Therefore, the
Trade Marks Act, 1999 restricts comparative advertising by virtue of section 2913 and
permits comparative advertising by section 30(1).14 Section 29 of the Trade Marks Act,

13
The Trademarks Act, 1999, s. 29 (8) states infringement of registered trademarks- a registered
trademark is infringed by any advertising if the trademark in advertising- (a) takes unfair advantage of
and is contrary to honest practices in industrial or commercial matters, or (b) is detrimental to its
distinctive character, or (c) is against the reputation of the trade mark.
14
The Trademarks Act, 1999, s. 30 (1) provides limits on effect of registered trade mark-Nothing in s.
29 must be construed as preventing the use of a registered trade mark by any person for the purposes
of identifying goods or services as those of the proprietor provided the use- (a) is in accordance with
honest practices in industrial or commercial matters, and (b) is not such as to take unfair advantage of
or be detrimental to the distinctive character or repute of the trade mark.

11
1999 makes it evident that comparative advertising will amount to infringement of trade
mark of the product or brand compared if certain ingredients exists in the comparison.
The trade mark proprietor who makes the comparison of his product with that of
competitors, does any of the following:

 takes unfair advantage, acts dishonestly towards the commercial, or industrial

practices, or,
 the unique or distinguishing character of the competitor‘s trade mark is harmed or,
 is against the reputation of the competitor‘s trade mark which is used in comparison.

In a way, section 29 of the Trade Marks Act, 1999 prohibits comparative advertising if it
is denigrating or defaming. However, section 30(1) of the Trade Marks Act, 1999
promotes and permits use of the trade mark in comparative advertising. The rationale
behind permitting comparative advertising is mainly to promote competition and help the
customer make a buying decision. Per contra, the issue rests on determining the scope of
comparison allowed to identify disparaging comparative advertising. The courts have
formulated certain sets of principles in light of which the comparative advertising would
be assessed for infringement. Five principles15 were devised by the court to guide to see
if a party is entitled to injunction. Further, three factors must be considered to record
identify disparagement in the advertisement.

If the trade mark is not registered, the aggrieved party still has the remedy by way of
‗passing off‘. Therefore, registration of trade mark isn‘t mandatory or compulsory.
Remedies can be sought under the Trade Marks Act, 1999.

The Indian statute doesn‘t define the terms-comparative advertising, puffery and
disparagement. Due to which reliance is laid on the dictionary meaning of these terms.
Moreover, it exists as a potential obstacle for the advertising industry as it pushes the
aggrieved party in the hands of litigation and uncertain decision of the courts. Thus, the
concerned chapter studies comparative advertising and its facets to examine the need of
more clear and definite regulations.

15
Reckitt & Colman India Ltd. v. M.S. Ramachandran, 1999 PTC 741.

12
1.7.3 Celebrities Endorsers: Their Intellectual Property and Accountability

Undoubtedly, a celebrity featured in the advertisement intensifies the impact on the

customer. A celebrity is any person who is known and famous. Advertisers and
manufacturers seek celebrities to endorse their products and services due to undeniable
advantages. A celebrity directly or indirectly sways and influences the buying behavior
of the customer, which ultimately surges the sale of product and services. For this a
celebrity doesn‘t limit to using their image, but uses their name, persona, indica or
distinctive attributes. The bigger question here is that is the celebrity persona, indica or
distinctive attributes eligible for registration under the Trade Mark Act, 1999. The status
of such celebrity marks in India has been discussed in the concerned chapter. On viewing
the persona, indica or distinctive attributes of a celebrity, the customer associates the
product or services advertised with the source or the origin i.e the celebrity. Thus, the
claims or statements made in advertisements are profoundly corroborated and considered
to be true due to the celebrity. This corroboration and consideration stays in the mind of
the customer even if the claims or statements are misleading, unsubstantial, harmful,
false or made without checking its veracity. Hence, a celebrity should be made liable and
accountable to what they endorse. The live example of this aspect has been the Nestle
case, however, the issue has been lax in regulating liability and accountability of
celebrity endorsement.

The chapter also introspects on the rights available to a celebrity which protects them,
their image, name, persona, indica or distinctive attributes, if misused in advertisements.
The owner of the intellectual property created in the course of advertisement is subject to
endorsement agreements. A celebrity has the right to privacy and publicity, which cannot
be infringed by unauthorized advertisers or manufacturers. Furthermore, a celebrity may
be or may not be a performer in the advertisement. To see if a celebrity performance in
the advertisement entails issues of performers‘ right, the performance itself should be
examined foremostly. Moreover, to protect from unauthorized use in the course of
business, celebrity names, persona, indica or distinctive attributes should be considered
for registration. Since, the law relating to celebrity endorsement has been nascent, it has
been analyzed in the particular chapter.

13
1.7.4 Advertising Standards Council of India: Whether an Adequate Self-
Regulatory Body

The Advertising Standards Council of India is a chief self-regulator of the industry. It has
envisaged its own code that fundamentally deals with false, misleading, illegal, indecent,
unsafe advertisement and advertisement unfair to the competition. It has a consumer
complaint council which scrutinizes alleged advertisements and decides remedial or
corrective measures. The chapter reviews the structure, redressal mechanism, authority
and challenges of the ASCI. The authority of this self-regulator of the advertising
industry has been frequently challenged, especially by its non-members. Its operations
show that its orders and directions have become directory in nature. The courts have
pointed out its role as a monitor to regulate advertisements.16 However, the limitation to
prescribe punishment to the violators has construed its presence to that of moral policing.
Its new initiatives, collaborations and suo moto actions represent its concrete intention to
regulate all industry members. Moreover, the Advertising Standards Council of India
should not restrict to its code where there is commonality between the code and legal
provisions; the self-regulatory body should be involved and included in the framework.

The chapter reviews the structure, redressal mechanism, authority and challenges faced
by the Advertising Standards Council of India.

1.7.5 Gamut of Legislation Controlling Advertising

In continuation to above stated legislations and issues, there are few other legislations
and regulating bodies relating to advertising in India. The significance of the chapter is to
briefly identify if there are provisions set in varied Acts that actually regulate
advertisements. Additionally, to understand that if a comprehensive and distinct law is
required to regulate rather than the scattered and insignificant provisions.

The Press Council Act, 1978 has been included- it prescribes guidelines for publication
of advertisements in the print media, under Norm 36 of the Journalist Conduct 2010. The
rationale to include it is that regulating advertisement at the source level can be effective
in promoting ethical advertising. The Press Council of India a quasi-judicial body which

16
See, chapter III on Celebrity Endorsement- Contemporary Issues and Regulation for details.

14
functions like the ASCI. The Press Council of India (hereinafter referred as PCI)
examines advertisements and news items, alleged in the complaint after addressing the
editor. The norms apprehend advertisement to be beyond just information and
commentary; advertisements not only shape attitude but are a way of life.17 The norms
specify that the editors have the right to reject indecent and obscene advertisements.
Moreover, unless there is a disclaimer stating the responsibility of the advertisement, the
editor will be considered responsible. This quasi-judicial body functions like a watch dog
and has lengthy norms set as the guidelines to regulate advertisements. These norms
should be made part of the standalone law, which has been contemplated in the study.

The Cable Television Networks (Regulation) Act, 1995, aims to regulate the content
and operation of cable television networks, along with the Cable Television Network
Rules, 1994, and Programme Code. It includes the regulation of programmes
broadcasted, which includes advertisements.18 The Act provides that all advertisements
transmitted and re-transmitted should be in conformity with the advertising code,
provided in the Cable Television Network Rules,1994. Rule 7 of the Cable Television
Network Rules,1994 deals with the advertising code. Further, the rule lists the type of
advertisements, telecast of which should not be allowed. The genius of the advertising
code provided under the Cable Television Network Rules, 1994 is to allow advertisement
that is complying with the tenets of the Constitution of India and other laws. The
advertisements should preserve the image of women, not promote intoxicating products
like alcohol, cigarettes or tobacco, not exploit social evils such as dowry or incite people
to violence or criminality. Once more, the premise of the advertising code is similar to
that of Norm 36 of the Journalist Conduct 2010 and should be incorporated in the
advertising, standalone law rather than being scattered and repeated in different Acts,
Rules and guidelines.

In the era of equality, women are still being commodified in an advertisement for luring
the consumers. The study inclines towards touching on regulations that deal with women
in advertisements. The women are objectified by representing and depicting them

17
See, chapter V Regulatory Framework of Advertising in India for Advertising Norms: Journalist
Conduct 2010 clause (i).
18
According to the Cable Television Networks (Regulation) Act, 1995, s. 2 (g) (i).

15
indecently in the advertisements. The Indecent Representation of Women
(Prohibition) Act, 1986, defines the indecent representation of women and prohibits the
indecent publication, exhibition or representation of women. Section 3 of the Indecent
Representation of Women (Prohibition) Act, 1986, cogently regulates indecent
representation of women in advertisements. It makes, both an individual and a company
liable on violating section 3 of the Indecent Representation of Women (Prohibition) Act,
1986. Moreover, the Act not only penalizes indecent representation of women in
advertisements, but allows seizure of advertisement and related to evidence. The
redressal and enforcement mechanism of this Act should subsume the Advertising
Standards Council of India in the framework.

The Consumer Protection Act, 1986, which regulates and protects the consumer
interest, has been included in the study. The Act punishes unfair trade practice, which
includes misleading and false advertisements. Hence, advertisements that are misleading
and false by any means will be penalized, even if, such advertisements do not cause any
injury to the consumer. The consumer courts are not only empowered to direct corrective
advertisement, but to impose punitive damages or cost. Therefore, the Consumer
Protection Act, 1986, also regulated an area of issues that exists in advertising, such as
misleading and false advertisements. The advertisement should not be misleading due to
deception or misrepresentation or have unsubstantiated information and claims, etc.
There is a cogent need to amend and upgrade the Consumer Protection Act, 1986.
Perhaps, the legislators deemed necessary to enact a new statute for consumer protection
rather than amending the Consumer Protection Act, 1986. Moreover, the Act missed
having an enforcement commission, although it does envisage the adjudicating
commission. The reference of contemporary issues relating to celebrity endorsement,
dealt with the Consumer Protection Act, 2019 has been incorporated in the chapter
which deals with celebrity endorsement.

The Indian law also protects a person below the age of twenty years from publications
that might be harmful for them. The Young Persons (Harmful Publications) Act,
1956, does not directly regulate the advertisements that are harmful for young minds.
However, by construing advertisements as a subset of publication, it may be considered
that the Act regulates advertisements in a way. Obscenity, as stated in section 292 of the

16
Indian Penal Code, 1860, is considered harmful if it exists in any form of publication.
Similar to the test laid in identifying obscenity, the publication should also be examined
in totality to conclude if it is harmful. The Act contains punishment of imprisonment and
fines for harmful publications. Therefore, it may be regarded that the Young Persons
(Harmful Publications) Act, 1956 regulates advertisements.

Further, the chapter reflects on regulations provided to control and legalize

advertisements by Advocates, regulate pre-natal sex determination advertisements and
restrain the improper use of certain names and emblems in advertisements. The
advertisements solicited by advocates are governed by the Advocates Act, 1961.
Further, the advertisements prohibiting pre-natal sex determination in advertisements are
overseen by the Prenatal Diagnostic Techniques (Regulation and Prevention of
Misuse) Act, 1994. Furthermore, the Emblems and names (Prevention of Improper
Use) Act, 1956, restrains improper use and commercial use of emblem and names.

The brief outline of the eight legislations shows that there are provisions in different Acts
and Rules which touch upon regulation of advertisements. Many of which have similar
schemes of regulating which can be regulated by standalone law. It can be considered
that regulation of advertisement is not aloof, it does have its significance and impact in
law. Advertisements regulated for legality, control, restriction and administration by this
Acts would be better dealt and enforced by these Acts or otherwise.

1.7.6 Freedom of Speech and Expression Essential in Commercial Speech

The significance of information in effective operation of democracy and the market is

undeniable.19 Advertising is a mode of disseminating information and persuading
consumers to make a buying decision. Consumers rely on advertisements for information
to make such decisions. The Indian Constitution not only protects the freedom of speech
and expression20 but also allows the citizens to carry any occupation, trade or business.21
An advertisement involves both of these clauses of Article 19. As advertisement
comprises of information, therefore, freedom and protection of speech and expression

19
Farooq Ahmad, False and Misleading Advertisements-Legal Perspectives 38 (2) ILI (1996).
20
The Constitution of India, 1949, a. 19 (1) (a).
21
The Constitution of India, 1949, a. 19 (1) (g).

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comes into play. Per contra, advertisement is a trade or business activity which should
not be banned even if illegal as it is protected by the Constitution. However, the illegality
has to be regulated and removed which necessitates laws and protection. It has always
been contemplated if freedom of speech and expression includes commercial speech or
not. Commercial speech is speech used for commercial purposes and to promote
commercial interests. Advertisement being a commercial activity, categorizes the speech
and expression involved as commercial speech. However, there are certain
advertisements which are purely for sharing information and making the consumer
aware.

The Indian courts have viewed that the constitution protects commercial
advertisements.22 However, it is subjective and determined on a case to case basis.
Freedom of speech and expression is not absolute. This is applicable in the case of
advertisements also. The Constitution of India itself says that new laws can be made and
existing ones can operate to impose reasonable restrictions on the freedom of speech and
expression, be it in advertisements. Reasonable restrictions can be imposed through law
if the advertisement directly or indirectly defames or is immoral, indecent, against public
order or incites viewers to an offence or is not in the interest of the sovereignty and
integrity of India or to protect friendly relations with foreign States.

The issue touched upon in this study directly or indirectly is covered in the grounds of
reasonable restrictions listed in Article 19(2) of the Indian Constitution. For instance, in
order to restrict defamation in the arena of speech and expression used to compare
products, comparative advertising and disparagement are restrained. Surrogate
advertising should be controlled and prohibited as it indirectly promotes hazardous
products which hamper the public order and health of the people. However, in few
landmark cases the Apex Court of India has held that the aspect of publication,
circulation and propagation entailed in art. 19(1)(a) of the Indian Constitution will be
affected if restrain is imposed on advertisements.23 If the circulation of newspapers is
curtailed, the freedom of speech and expression of the advertiser or businessmen is also

22
Supra note 19.
23
See, Indian Express Newspaper (1985) 1 SCC 641, Sakal Paper AIR 1962 SC 305 and Bennett
Coleman (1972) 2 SCC 788.

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curtailed. But according to the constitutional provisions and spirit of the Indian
Constitution, the State can introduce reasonable restrictions through law.

The genesis of the legislations, which are directly or indirectly controlling, restraining
unscrupulous advertisements and promoting legitimate advertising practice rest in the
Indian Constitution. Due to the change in consumerism and increase competition,
advertising needs to be regulated in a more effective manner to reap its utmost benefits.

1.8 Conclusion

Since, advertisements benefits consumerism, competition and channelizes the needs and
wants of the society and economy, it is an important trade activity that can contribute to
India‘s prosperity. A framework supporting this vision should reinforce the self-
regulations and the legal provisions to ensure that there is no misrepresentation or false
statistics or false, untruthful, objectionable, inaccurate and misleading content or
misappropriation of testimonials or unhealthy brand comparisons. Moreover, advertisers
should not misuse intellectual property, disclaimers or use exaggeration and puffery that
might lead to the denigration of competitors.

Hence, a standalone and distinct law that cogently articulates the reasonable restrictions
imposed on advertisements and at the same time protects the rights and freedom of the
advertiser, businessmen and the consumer. This will not only bring about clear and
transparent laws to regulate advertisement, which is prospective in its approach, but
simultaneously reduce overlapping and effectuate enforcement. The study has adopted
doctrinal study to study the legal issues relating to advertising in surrogate and
comparative advertising and celebrity endorsements. Further, it identifies if there are any
legal provisions that regulate advertising and lastly the status and necessity to promote
and restrain aspects of commercial speech. The study is an attempt to gather and build a
ground level base for persons to understand and deliberate further into advertising laws.

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