This article on ’ONLINE ADVERTISING AND LEGAL FRAMEWORK’ was written by Kalpana an intern at Legal Upanishad.
As technology is becoming more and more important, online advertisement is also gaining importance in society. The adverts sponsor numerous websites and services and because of that online advertising is becoming a crucial economic force in the internet economy. Because of the market’s competition and customers’ sensitivity, false marketing may jeopardize Goodwill in a big way.
Advertising investments have grown dramatically, necessitating a well-developed regulatory structure to guarantee that all stakeholders are represented fairly and adequately. There is no clear plan structure in place in India to control commercials. Because of the stakes involved with advertising, this is a problematic matter. As a result, ads are controlled by sector-specific legislation, exposing stakeholders to a variety of risks. There is no unified regulation on the issue of ads; nonetheless, several rules exist to guarantee that stakeholders are well informed.
The rise of the Internet and digital media has resulted in a fast shift in advertising methods. The advertising regulations must guarantee that these developments are addressed and that consumers are not confused. The advertising business requires the government to unify the different industry-specific rules and regulations into a single universal body of law.
In this paper, we are going to analyze the present legislation governing advertisements. We will look into the statutory bodies responsible for the ad regulations. We will also discuss the restrictions on online advertisements.
WHAT IS ONLINE ADVERTISING?
The word online advertising is not defined in any of the laws in India. According to the dictionary, online advertising is described as a commercial marketing activity conducted over the Internet to raise customer knowledge of the value, existence, and/or availability of a certain service or product. Numerous standards control online advertising in a variety of ways, including the moral and ethical promotion of acceptable and illegitimate advertising strategies meant to ethically reflect facts and functions related to the product or service in question and existent in the jurisdiction. These rules and regulations are implemented to protect the rights and interests of consumer groups, as well as the legitimate economic rights granted to particular or all company activities and operations.
LAWS GOVERNING ONLINE ADVERTISEMENT
Currently, in India, there is no legislation or statutory body which specifically deals with online advertising. However, the legislations and bodies which are governing offline ads have the authority to regulate online advertisements also. Let’s discuss some of these laws.
. The Consumer Protection Act, 1986
Section 6 of the Consumer Protection Act of 1986 addresses the right to information on quality, potency, quantity, purity, and so on.
Section 2(r) of the Consumer Protection Act specifies unfair business practices, which include misleading advertising and fraud, to safeguard commerce and unfair practices.
. Indian Penal Code, 1860
The IPC, 1860 bans terrorism and crime-related advertisement. Any advertisement which includes the hiring of contract killers, inciting violence, etc. is considered illegal and cannot be advertised through any medium.
. The Cable Regulation Television Act, 1995
Section 6 of this Act state that the announcement may not be disseminated through cable and the internet until it meets the criteria of the advertisement law.
Section 7 of the Cable Television Regulation Act states that advertising regulations shall not jeopardize people’s dignity, morality, or religious beliefs.
. CIGARETTE AND TOBACCO ACT, 2003
Section 5 of this prohibits the advertisement of the tobacco and cigarettes of any brand through any media. It can’t be even advertised on the audio medium. This is prohibited because of health reasons and also it states that a specific percentage of the packaging of these substances must be covered with the warning.
. The Food Safety Standard Act, 2006
It forbids advertising connected to grading standards, quantity, quality, or composition, and specifies that the necessity or use of food that is misleading, deceptive, or breaches the law is prohibited.
. The Young Persons (Harmful Publications) Act of 1956
This act prohibits illegal and violent acts against minors under the age of 18. Any advertisements including anything related to the violence against children under the age of 18 years are banned under this law.
In the landmark case, “Tata Press v Mahanagar Telephone Nigam Ltd, 1995” the telephone number list was published by the Tata press without seeking permission from the Nigam or Union of India. The UOI declared that the Tata press has no right to publish and circulate such a list of telephone numbers. This declaration of UOI was challenged in the SC. The SC held that the “right to freedom of speech and expression” available under article 19 (1) (a) also includes the right to advertise. It also protects the rights of individuals to listen, recall and receive the advertised speech. Therefore Tata press can collect, publish and circulate that information and no one can restrict it from doing so.
ADVERTISING STANDARD COUNCIL OF INDIA (ASCI)
There are various self-regulatory agencies in charge of regulating media content in printed materials and electronic media. These organizations, which are largely concerned with printed and electronic media material, include the Indian Publishing Guild, the Indian Broadcasting Foundation (IBF), and News Broadcasting Association (NBA). The Advertising Standards Council of India (ASCI), on the other hand, is the major self-regulatory group that controls advertising in the media.
The Advertising Standards Council of India was created in 1985 and is in charge of advertising that boosts public trust. The council guarantees that the advertisement’s representations and claims are true and honest. The commercial should not offend any group of people and should uphold the norm of public decency. ASCI has developed a code of self-regulation in advertising that may be used to issues involving the development of advertisements. Although ASCI has no legislative status, this code has been recognized under several Indian legislation. The ASCI code supplements, rather than supersedes or replaces, India’s regional and national legislation.
The Code applies to ads produced by Indian enterprises as well as advertisements produced outside of India. All commercials aimed at Indian consumers must adhere to ASCI’s criteria. Compliance with the ASCI code is optional for internet advertising and is not required by law. However, for television advertising, the course’s standards must be fulfilled. A certain sort of content that can be marketed is also prohibited under some regulations. According to the ASCI code, if any individual finds the ads misleading, false, offensive, etc. can file a complaint against the ad provider.
ESSENTIALS FOR FALSE ADVERTISEMENTS
Aside from industry-specific rules, the cost per action specifically forbids the following commercial techniques used to enhance brand recognition, product use, or supply:
- A product or service is falsely advertised as meeting a certain standard, quality, quantity, style, or model.
- Items that have been rebuilt, used, reconditioned, refitted, or are as old as new.
- It indicates that a product or service has sponsorship, approval, performance, features, use, or benefits that it does not.
- Make false or misleading assertions about the need for or use of a product or service.
- Makes generic promises or assurances about the performance or efficacy of a product that are not based on sufficient testing.
- Allows for the publishing of advertisements.
Tobacco and its variants, alcohol, milk replacement, narcotics, guns, lottery, and other things are forbidden from being advertised on the internet under various regulations. However, there are no unique restrictions on advertising in online places. These limitations and prohibitions are reasonably self-contained.
Section 79 of the IT Act defines the intermediary act. This defines the intermediary as a person who doesn’t actively take part in modifying the content displayed in the advertisement. The intermediaries are provided immunity against such laws because they are only doing the passive work. Only the person who plays an active role and advertises the restricted products or doesn’t follow the guidelines will be held liable for such acts.
- Currently, no law in India regulates only online advertisement. As technology is growing the practice of online advertisement is also growing. So it is a necessity for today’s to have online advertisement-specific legislation.
- The presence of so many bodies for a single cause of advertisement is quite problematic. Either these bodies must be combined or only one leading body that ASCI should be left and others should be dissolved. The presence of different bodies on a single cause can lead to confusion for manufacturers and can create conflicts. So that’s why a single body should be there.
As internet advertising grows in popularity, plenty of legal difficulties will surely surface. A uniform principle is a mast because it eliminates the ambiguity produced by diverse laws. Furthermore, because internet advertising is global, it should not be limited by boundaries, and national rules should be developed to guarantee that stakeholders’ rights are safeguarded. The guidelines developed for all jurisdictions would safeguard the market Communications’ dependability and potential.
The worldwide framework, which may be an institution or group specializing in advertising, will ensure that there is supranational power to implement judgments. This would improve consistency and credibility in internet advertising, and the gains would benefit both consumers and marketers.
- Sairwal, S. (2021, March 18). Laws of digital advertising. Lexology. Retrieved February 7, 2022, from https://www.lexology.com/library/detail.aspx?g=3ed4bf3b-0eec-4c6b-8e93-6018f918e58c#:~:text=%5B3%5D%20All%20the%20advertisements%20directed,not%20mandatory%20under%20the%20law.&text=%5B4%5D%20Under%20the%20Indian%20Penal,document%20that%20is%20grossly%20indecent.
- Prakash, U. (2021, August 18). Advertising law: Walking a fine line between the law and online advertising. Ipleaders. Retrieved February 7, 2022, from https://blog.ipleaders.in/advertising-law-walking-fine-line-law-online-advertising/
- AZB & PARTNERS. (2019, August 15). Online advertising in India. Lexology. Retrieved February 7, 2022, from https://www.lexology.com/library/detail.aspx?g=6973d2a1-867c-4037-99fc-60b2da2b68e9