India: Advertising Law In India - Part 2

Last Updated: 29 August 2012
This article is part of a series: Click Advertising Law In India - Part 1 for the previous article.

Article by Hemant Goyal & Jitender Jain1

4.11 Length, Volume, and Frequency of Commercials

The Telecom Regulatory Authority of India has issued the Standard of Quality of Service (Duration of Advertisements in Television Channels) Regulations, 2012, which regulates the duration of broadcasting an advertisement and the length of the commercial. Main features of these regulations are as under:

  1. advertisements exceeding twelve minutes in a clock hour and any shortfall of advertisement duration in any clock hour shall not be carried over by any broadcaster in any broadcast of its programme.
  2. The time gap between end of one advertisement session and the commencement of next advertisement session shall not be less than fifteen minutes (thirty minutes in case of a movie). However, this restriction is not applicable to live broadcast of a sporting event.

4.12 Nutritional Claims

The nutritional claims by the advertiser for selling their product undergo a keen check by the Food Safety and Standards Authority of India which is the country's food regulator under the provisions of the Food Safety & Standards Act, 2006. This regulatory body restricts any kind of false nutritional claims made by the companies and restricts them from broadcasting on television.

4.13 Rights of Privacy

Electronic Media Monitoring Centre of Ministry of information & Broadcasting, Government of India made the self-regulatory guidelines applicable to the Broadcasting Service Provider to protect the privacy of an individual.

4.14 Regional Public and/or Community Standards

Under the various legislations including Cable Television Network Rules, 1994; Norms for Journalist Conduct issued by the Press Council of India Act and ASCI Code, no advertisement to hurt community or any section of society is allowed. Also, such advertisements are punishable under Indian Penal Code 1860.

4.15 Sex in Advertising

The Indian Penal Code 1860 prohibits obscene publications. Further, the Indecent Representation of Women (Prohibition) Act, 1986 prohibits indecent representations of women.

4.16 Sponsorships

Sponsorship by products which are banned from advertising is restricted to provide any kind of sponsorship. Also, and misleading representation of sponsorship is an unfair trade practice under the Consumer Protection Act, 1986.

4.17 Subliminal Advertising

There are no laws defining subliminal advertising or to restrict such practice. Although misleading advertisements are banned and restricted.

4.18 Sweepstakes Offers

No current restriction. However, any offer to deceive the consumers is restricted from advertising and a proper legal action will be taken against them.

4.19 Testimonials

Any testimonial must be true failing which appropriate actions can be taken by ASCI and under the Consumer Protection Act 1986.

4.20 Use of a Public Person's Image or Name

No advertisement should be in violation of Emblems and Names (Prevention of Improper Use) Act, 1950.

4.21 Use of Children in Advertising

No current restrictions but other applicable laws need to be followed.

4.22 Use of Foreign Language in Advertising

No current restrictions but other applicable laws need to be followed.

4.23 Use of Models as Doctors, Nurses, Lawyers, or other Professionals

There are no restrictions on the use of models as doctors, nurses, or lawyers; however, there should be no misleading or controversial advertisement.

4.24 Violence in Advertising

Cable Television Network Rules, 1994, Norms for Journalist Conduct issued by the Press Council of India Act, Advertising Code of Doordarshan and ASCI Code prohibits any violence in advertisement.

5 Regulations Related to Media Channels

5.1 Billboard Advertising

Outdoor advertisement through billboards is regulated by jurisdictional municipal corporations. The content of the advertisement should however be in accordance with ASCI Code and other applicable laws.

5.2 Digital Media Advertising (websites, online advertising, Social Media Advertising)

Online advertisement and website content including social media sites such as Facebook and Twitter must comply with a range of marketing, consumer, privacy, and contract laws. Online advertisers should comply with ASCI, the Indian Penal Code, the Information Technology Act, 2000 and other applicable laws. For this purpose, the Information Technology Act was amended in 2011.

5.3 Direct Mail Advertising or Email Advertising (Spam)

Currently, no regulation exists specific to this. However, any such advertisement has to be in compliance with the ASCI Code and other applicable laws.

5.4 Newspaper Advertising

The Press Council of India constituted under the Press Council of India Act 1978 has issued Norms for Journalist Conduct, a reference guide for the press. These norms include advertising norms similar to provisions in the ASCI Code and prohibit, inter alia, advertisements that are vulgar; advertisements promoting cigarettes, tobacco products, wine, liquor, and other intoxicants; advertisements hurting religious or communal sentiments; or any advertisement prohibited by any other law. Also, ASCI approached the Press Council of India to incorporate the ASCI Code into its regulations.

5.5 Periodical Advertising (regularly published print media: magazines, journals, newspapers)

The term "newspaper" under the Press Council of India Act means any printed periodical work containing public news or comments on public news and includes such other class of printed periodical work as may, from time to time, be notified in this behalf by the Central Government in the Official Gazette. Any periodical which is a newspaper as defined above has to comply with Norms for Journalist Conduct issued by Press Council of India.

5.6 Radio & Doordarshan Advertising

The Code for Commercial Advertising on Doordarshan and All India Radio4: All advertisement on Doordarshan and All India Radio ("AIR") should conform to the code issued by Director General of each Doordarshan and AIR respectively. These codes have also mandated compliance to the ASCI Code and in general prohibit any advertisement containing the following:

  • Criticism of friendly countries
  • Attack on religions or communities
  • Obscenity
  • Defamation
  • Incitement to violence or anything against maintenance of law and order
  • Contempt of court
  • Aspersions against the integrity of the president and judiciary
  • Anything compromising the integrity of the nation
  • Criticism by name of any person

5.7 Telemarketing and SMS Marketing

Any person or legal entity engaging in the activity of telemarketing or bulk Short Message Servicing(SMS) is required to register itself with Telecom Regulatory Authority of India (TRAI) and must comply with the guidelines laid down by TRAI in this respect.

5.8 TV Advertising

The advertising code issued under the Cable Television Network Rules, 1994 require advertising carried on the cable service to conform to the laws of the country and not to offend morality, decency, or religious sensibilities of the subscribers. The rules make the ASCI Code compulsory for television and state that no advertisement which violates the ASCI Code shall be carried on the cable service. Under the rules, no advertisement shall be permitted though cable services which:

  • Derides any race, caste, color, creed, or nationality
  • Is against any provision of the Constitution of India
  • Tends to incite people to crime, cause disorder or violence or breach of law or glorifies violence or obscenity in any way
  • Presents criminality as desirable
  • Exploits the national emblem, or any part of the Constitution or the person or personality of a national leader or a State dignitary
  • In its depiction of women, violates the constitutional guarantees to all citizens. In particular, no advertisement shall be permitted which projects a derogatory image of women
  • Exploits social evils like dowry, child marriage
  • Promotes directly or indirectly production, sale or consumption of cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants. However a product that uses a brand name or logo which is also used for cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants, may be advertised subject to prescribed conditions
  • Promotes infant milk substitutes, feeding bottles, or infant food5
  • Be wholly or mainly of a religious or political nature or be directed towards any religious or political end
  • Contain references which hurt religious sentiments
  • Endanger the safety of children or creates in them any interest in unhealthy practices or shows them begging or in an undignified or indecent manner.
  • Promote goods or services that suffer from any defect or deficiency as mentioned in Consumer Protection Act, 1986
  • Contain references which are likely to lead the public to infer that the product advertised or any of its ingredients has some special or miraculous or super-natural property or quality which is difficult to prove
  • The picture and the audible matter of the advertisement shall not be excessively "loud".
  • Contain indecent, vulgar, suggestive, repulsive or offensive themes
  • All advertisement should be clearly distinguishable from the programme and should not in any manner interfere with the programme viz, use of lower part of screen to carry captions, static or moving alongside the programme.
  • No programme shall carry advertisements exceeding twelve minutes per hour, which may include up to ten minutes per hour of commercial advertisements, and up to two minutes per hour of a channel's self-promotional programmes.

5.9 News Broadcasters Association Regulations: News Broadcasters Association("NBA") represents the private television news & current affairs broadcasters in India. NBA presently has 20 leading news and current affairs broadcasters (comprising 45 news and current affairs channels) as its members. According to News Broadcasting Standards Regulations (NBA Regulations) issued by NBA any broadcast (which includes advertisement) should be in compliance with NBA's code of conduct. NBA's code has made procedure for compliant against broadcaster who in breach inter alia of the following:

  1. Depiction of violence or intimidation against women and children;
  2. Sex and nudity;
  3. Endangering national security; and
  4. Refraining from advocating or encouraging superstition and occultism.

6 Regulatory Agencies

a Indian Broadcasting Foundation and Broadcasting Content Complaints Council ("BCCC")

The Secretary Broadcasting Content Complaints Council
C/o Indian Broadcasting Foundation,
B-304, Ansal Plaza, New Delhi 110047, India
Phone Nos. +91 11 43794488
Fax No. +91 11 43794455
Email: bccc@ibfindia.com
Website: www.ibfindia.com

Scope of agency responsibilities: Independent council set up by the Indian Broadcasting Foundation ("IBF"), India's premier organization of television broadcasters. The complaints regarding content carried on TV channels are being addressed by Ministry of Information and Broadcasting, Government of India as per the extant provisions under the Cable Television Networks (Regulation) Act, 1995 and related rules/guidelines. At the industry level, BCCC examines complaints about television programs including advertisement received from the viewers or any other sources, including NGOs, RWAs, Ministry of Information and Broadcasting, against its members. BCCC ensures that the programs are in conformity with the content guidelines. On receiving a consumer complaint, the agency validates the information against the official records. BCCC usually passes the final orders within three weeks of the receipt of the complaint. Any directive issued by the BCCC to the IBF is binding and must be implemented with immediate effect. In case of non-adherence of the directions of BCCC by the TV channel, it may inter alia initiate actions to expel the concerned member and to recommend the Ministry of Information and Broadcasting, Government of India for appropriate action against the channel as per the law.

In case of any complaints received by the BCCC for a channel which is not a member of IBF, then such complaint shall be forwarded to the Ministry of Information and Broadcasting, Government of India for appropriate action.

b ASCI and ASCI's Consumer Complaints Council (ASCI's CCC)

The Secretary General,
The Advertising Standards Council of India,
219, Bombay Market, 78 Tardeo Road, Mumbai 400 034, India
Tel: +91 22 23513982,
Fax: +91 22 23516863,
E-mail: asci@vsnl.com
Website: www.ascionline.org

Scope of agency responsibilities: Serves for the redressal of consumer complaints and grievances. The ASCI's CCC comprises:

  • Twelve non-advertising professionals representing civil society, recognised opinion leaders in disciplines such as medical, legal, industrial design, engineering, chemical technology, human resources and consumer interest groups; and
  • Nine advertising practitioners from member firms of ASCI.

The ASCI's CCC decides upon the complaints within a period of four to six weeks after giving the other party an opportunity of being heard. If the complaint is upheld, then the advertiser and its agency are given two weeks to comply with the ASCI's CCC decision. Noncompliant advertisements are published in ASCI's Media quarterly release on an all-India basis. In the case of noncompliant television advertisements, the advertiser is in violation of the Cable TV Networks (Regulation) Act 1995 and will be reported to the Ministry of Information & Broadcasting, Government of India. In the case of noncompliant advertisements in the press, ASCI will inform the Press Council of India about breach of the ASCI Code.

c Electronic Media Monitoring Centre (EMMC)

The Director EMMC,
14 B, Ring Road, IP Estate, New Delhi ‐ 110002, India
Tele/Fax: +91 11 23378050
Email: emmc.india@gmail.com
Web URL: http://emmc.gov.in

Scope of agency responsibilities: The EMMC was established by the Ministry of Information and Broadcasting, Government of India, with the aim to have effective monitoring of the content of various FM and TV channels beaming over Indian territory for any violation of the Programme Code, the Advertisement Code, various provisions of the Cable Television Networks Regulation Act, or any other law relevant to the content of television channel. As per the self-regulation mechanism of the EMMC, it is responsibility of each broadcasting service provider to ensure that each advertisement complies with the ASCI Code.

d Telecom Regulatory Authority of India (TRAI)

Mahanagar Doorsanchar Bhawan
Jawaharlal Nehru Marg (Old Minto Road), New Delhi 110002
Phone No.: 011-23236308, 23233466
Fax No.: 011-23213294
Email: ap@trai.gov.in
Web: www.trai.gov.in
Web: http://nccptrai.gov.in/nccpregistry/Welcome.jsp

Scope of agency responsibilities: The Telecom Regulatory Authority of India (TRAI) was established in 1997 through an Act of Parliament, viz., the Telecom Regulatory Authority of India Act, 1997. Telecom Regulatory Authority of India's mission is to ensure that the interests of consumers are protected and at the same time to nurture conditions for growth of telecommunications, broadcasting and cable services in a manner and at a pace which will enable India to play a leading role in the emerging global information society.

TRAI has notified "The Telecom Commercial Communication Customer Preference Regulations, 2010" to curb growing menace and effectively regulate unsolicited commercial calls and messages ("UCC"). The Telecom Commercial Communications Customer Preference Portal is a data base containing a variety of information prescribed in "The Telecom Commercial Communications Customer Preference Regulations, 2010". Customers who do not want to receive commercial communications can register in either Fully Blocked Category (stoppage of all commercial Calls/SMS) or Partially Blocked Category (stoppage of all commercial Calls/SMS except SMS) by sending prescribed message to 1909 with National Customer Preference Register.

On successful registration, customer will receive an SMS confirming exercised options and a Unique Registration Number within 24 hrs. The registration will be effective within 7 days of placing the request with the service provider. If customer receives UCC even after 7 days of registration, he can register a complaint with his service provider within 3 days of receipt of such UCC by dialing or sending SMS to 1909. Customers will have to provide the telephone number or header of the message from where the call or message has been received, short description of such call or message along with the date and time.

Customers not registered with NCPR can also identify the commercial calls because they will all come from numbers starting with '140'. This is a series specially earmarked for telemarketers.

e Press Council of India

The Secretary
Press Council of India
Soochna Bhavan, 8-C.G.O. Complex,
Lodhi Road, New Delhi-110003, India
Phone: +91 11 24366746
Fax: +91 11 2436640
Email: pci@alpha.nic.in
Web URL:http://presscouncil.nic.in

Scope of agency responsibilities: The Press Council of India ("PCI") functions under the Press Council Act 1978. It is a statutory, quasi-judicial body which acts as a watchdog of the press. It adjudicates the complaints against and by the press for violation of ethics and for violation of the freedom of the press respectively. PCI is headed by a Chairman, who has by convention, been a retired judge of the Supreme Court of India. PCI consists of 28 other members of whom 20 represent the press and are nominated by the press organisations/news agencies recognised and notified by PCI as all India bodies of categories such as editors, working journalists and owners and managers of newspaper, 5 members are nominated from the two houses of Parliament and 3 represent cultural, literary and legal fields as nominees of the Sahitya Academy, University Grants Commission and the Bar Council of India.

A complaint against a newspaper should first be taken up with the editor or other representative of the publication concerned. If the complaint is not resolved to satisfaction of complainant, it may be referred to PCI within two months of the publication of impugned news item in case of dailies and weeklies and four months in all other cases, along with the original/photostat copy of the impugned clipping (English translation if the matter is in vernacular) along with a copy of your letter to the editor & editor's reply.

On receipt of a complaint made to it or otherwise, if PCI is prima facie satisfied that the matter discloses sufficient ground for inquiry, it issues show cause notice to the respondents and then considers the matter through its Inquiry Committee on the basis of written and oral evidence tendered before it. If on inquiry, PCI has reason to believe that the respondent newspaper has violated journalistic norms, PCI keeping in view the gravity of the misconduct committed by the newspaper, warns, admonishes or censures the newspaper or disapproves the conduct of the editor or the journalist as the case may be. It may also direct the respondent newspaper to publish the contradiction of the complainant or a gist of the PCI's decision in its forthcoming issue.

f News Broadcasters Association and News Broadcasting Standards Authority

News Broadcasting Standards Authority
C/o News Broadcasters Association
Reg. Off.: Juris House Ground Floor,
22, Inder Enclave, Paschim Vihar, New Delhi 110 087, India
Email: authority@nbanewdelhi.com
Web URL: http://www.nbanewdelhi.com

Scope of agency responsibilities: The News Broadcasting Standards Authority of NBA perform its functions and exercise the powers vested in it under NBA Regulations in relation to, and upon, the members and associate members of NBA or in relation to such other complaints or broadcasters and channels as may be referred to the Authority by the Ministry of Information & Broadcasting or other Ministry or other governmental body. Upon receiving complaint from any aggrieved person, NBA will issue notice to the concerned broadcaster not later than 14 (fourteen) days from the date of receipt of a complaint to show cause why action should not be taken against such broadcaster. The said Authority may, after inquiry, warn, admonish, censure, express disapproval against and/or impose a fine (of upto INR 100,000) upon the broadcaster and or recommend to the concerned authority for suspension/revocation of license of such broadcaster.

g Director General of All India Radio & Doordarshan

Director General
All India Radio, Parliament Street, New Delhi, India
E-MAIL: adgnews2@air.org.in, adgnews2.nsd@nic.in
Telephone No. +91 11 23421209

Director General
Doordarshan Bhawan, Copernicus Marg, New Delhi- 110001, India
Email: webadmin@dd.nic.in

Scope of agency responsibilities: To regulate the functioning of All India Radio and Doordarshan. Complaints or reports on contraventions of the code received by All India Radio/Doordarshan may in the first instant be referred by Director General to Advertiser's Association concerned with request for suitable action. If complaints under the Code cannot be satisfactorily resolved at Association-(s)'s level, they shall be reported to Director General who will then consider suitable action. For any Complaints under the Code received by All India Radio/Doordarshan concerning a party outside the purview of various member Association(s), the Director General will draw attention of such party to the complaint and where necessary, take suitable action on his own.

h National Consumer Dispute Redressal Commission

Upbhokta Nyay Bhawan
'F' Block, GPO Complex, INA, New Delhi-110023
Fax No. +91 11 24658509
PBX No. : 011-24608801, 24608802, 24608803, 24608804
Web: www.ncdrc.nic.in

Scope of agency responsibilities: To provide inexpensive, speedy and summary redressal of all types of consumer disputes through quasi-judicial bodies in each District and State and at the National level, called the District Forums, the State Consumer Disputes Redressal Commissions and the National Consumer Disputes Redressal Commission respectively under the provisions of the Consumer Protection Act, 1986. The remedy under the Consumer Protection Act is an alternative in addition to that already available to the aggrieved persons/consumers by way of civil suit.

i Food Safety and Standards Authority of India (FSSAI)

Food Safety and Standards Authority of India
FDA Bhawan, Kotla Road, New Delhi-110002, India
Email: admn@fssai.gov.in
EPABX: +91 11 23236975
Telefax: +91 11 23220994
Web: www.fssai.gov.in

Scope of agency responsibilities: FSSAI has been created for laying down science based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import to ensure availability of safe and wholesome food for human consumption.

j Central Drugs Standard Control Organization (CDSCO)

Directorate General of Health Services
Ministry of Health and Family Welfare
Government of India
FDA Bhavan, ITO, Kotla Road
New Delhi-110002
Phone No.: 011-23236965/23236975
Fax: 011-23236973
Email:dci@nb.nic.in
Web:www.cdsco.nic.in

Scope of agency responsibilities: CDSCO regulates the approval of new drugs, clinical trials in the country, laying down the standards for drugs & medical devices, control over the quality of imported drugs, testing of drugs, coordination of the activities of State drug control organisations and providing expert advice with a view of bring about the uniformity in the enforcement of the Drugs and Cosmetics Act in India.

7 Advertising Pre-Clearance Agencies

In India presently there is no pre-clearance agency for advertisements although the advertisers have to take permission from the local municipal corporation if they want to publicize their products through billboards or through posters.

8 Trends

Up to the present, a number of factors have impeded protection of consumers as well as other stakeholders of the advertising industry. Notable among these factors are:

  • The absence of any uniform advertising regulation or regulating agency
  • Ineffective enforcement
  • Complaint redressal systems that are difficult for most consumers to access
  • Lack of education amongst consumers
  • Overlapping jurisdiction of authorities on issues relating to advertisement

Presently there are more than 150 TV channels and more than 82,000 registered newspapers in India. To verify whether their content, including advertisements, adheres to the codes of conduct under various laws is a challenging task. The number of advertisements which are patently false and misleading, promoting dubious products and making unsubstantiated claims is significant. In reality, most of these advertisements escape the scrutiny of regulatory bodies.

With globalization and economic liberalization, the Indian market has shown a tremendous growth in the early 1990s and according to Goldman Sachs, it will be the third-largest economy of the world by 2035. In response to this tremendous economic growth and industrialization, the Indian government is continuously promulgating advertising regulations outlining the ways in which products and services can be advertised to the general public and other stakeholders while protecting the consumers' interests. However, the absence of uniform legislation and single regulator makes it difficult to effectively implementing any advertising related law. Most of self-regulating codes issued by various industry associations are contractually binding only on their members and have no force of law. Therefore, to protect the interests of consumers and their belief in advertisement, it is necessary to have a uniform legislation with a single regulator who can provide expedient relief and easy access for consumers and other stakeholders.

Footnotes

1. Authors are partners of Global Jurix LLP, Advocates & Solicitors, India (www.globaljurix.com ) providing legal services in the fields of the corporate & commercial laws, corporate litigation & arbitration and intellectual property rights.

2. Any transaction or arrangement under which a person collects monies by way of contributions or subscriptions or by sale of units, certificates or other instruments or in any other manner or as membership fees or admission fees or service charges to or in respect of any savings, mutual benefit, thrift, or any other scheme or arrangement by whatever name called, and utilises the monies so collected inter alia for specified number of subscribers as determined by lot, draw or in any other manner, prizes or gifts in cash or in kind.

3. Under the Indian Government's Foreign Direct Investment Policy,foreign investment in "Lottery Business including government /private lottery, online lotteries, gambling and betting, including casinos, etc." is not permissible.

4. http://en.wikipedia.org/wiki/Prasar_Bharati

5. Any food which is represented as compliment to mother's milk to meet the growing nutrition needs of the infant after age of four months.

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This article is part of a series: Click Advertising Law In India - Part 1 for the previous article.
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These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions