DECLARATION

I, ANDREA SUSAN L , hereby declare that the non-doctrinal research titled “A STUDY ON THE
EFFECTS OF MISLEADING ADVERTISEMENTS IN INDIA” has been carried out by me under the
eminent supervision and guidance of Prof. Dr. S. ELUMALAI, HEAD OF DEPARTMENT, HUMAN
RIGHTS, The Tamil Nadu Dr. Ambedkar Law University, Chennai and this work has not been submitted
elsewhere for any other degree, or diploma or fellowship or any other title to any candidate of any university
or institution.

DATE:

PLACE: CHENNAI

ANDREA SUSAN L

HDE2211

1
Prof. Dr S. Elumalai
Head of Department-Human Rights and Duties Education,
School of Excellence in Law,
The Tamil Nadu Dr Ambedkar Law University,
Chennai.

CERTIFICATE FROM THE SUPERVISOR

This is to certify that the non-doctrinal research work entitled “A STUDY ON THE EFFECTS OF
MISLEADING ADVERTISEMENTS IN INDIA” which was submitted for the Degree of Masters of Laws
by, MS. ANDREA SUSAN L, Department of Human Rights and Duties Education, bearing Register Number
HDE2204, under my guidance and supervision, has not formed the basis for the award of any Degree,
Diploma, or other Titles in this University or any other University or Institution of Higher Learning. It is also
certified that the non-doctrinal research work represents the original work on the part of the candidate.

DATE :

PLACE: CHENNAI

PROF. DR. S. ELUMALAI

2
TABLE OF CONTENTS
1.1 INTRODUCTION ............................................................................................................................. 4
1.2 REVIEW OF LITERATURE ............................................................................................................. 5
1.3 STATEMENT OF PROBLEM ........................................................................................................... 7
1.4 OBJECTIVES OF THE STUDY ........................................................................................................ 8
1.5 HYPOTHESES .................................................................................................................................. 8
1.6 RESEARCH METHODOLOGY........................................................................................................ 9
1.7 LIMITATION OF THE STUDY ........................................................................................................ 9
1.8 SCHEME OF STUDY CHAPTER I – INTRODUCTION .................................................................. 9
CHAPTER II – ADVERTISEMENTS: A CONCEPTUAL PERSPECTIVE, ITS ISSUES AND
CHALLENGES ............................................................................................................................................ 9
CHAPTER III -ADVERTISING IN INDIA: THE CONSTITUTIONAL AND LEGISLATIVE LANDSCAPE
....................................................................................................................................................................10
CHAPTER IV - DATA INTERPRETATION AND ANALYSIS ..................................................................10
CHAPTER V – CONCLUSION ...................................................................................................................10
2.2 ORIGIN AND DEVELOPMENT OF ADVERTISING .....................................................................12
2.3 FEATURES OF ADVERTISING......................................................................................................15
2.4 OBJECTIVES OF ADVERTISING ..................................................................................................16
2.5 ESSENTIALS/GOALS OF GOOD ADVERTISING.........................................................................17
2.6 MEANS OF ADVERTISING ...........................................................................................................18
2.7 ADVERTISING: CHALLENGES AND ISSUES..............................................................................19
EXPLOITATION OF RELIGIOUS SENTIMENTS......................................................................................20
OBSCENITY AND SEXUAL OVERTONE.................................................................................................21
ENCOURAGING SELF MEDICATION ......................................................................................................22
ENDORSEMENT BY CHILDREN ..............................................................................................................22
SURROGATE ADVERTISING ...................................................................................................................23
PUFFERY....................................................................................................................................................23
SUBLIMINAL ADVERTISEMENTS ..........................................................................................................24
FALSE AND MISLEADING ADVERTISEMENTS.....................................................................................24
LIBELOUS ADVERTISEMENTS ...............................................................................................................24
USE OF NATIONAL EMBLEMS AND NAMES ........................................................................................25
FINDINGS OF THE STUDY .......................................................................................................................42

3
 CHAPTER- I

INTRODUCTION

“Advertising is essentially a thing to induce consumption to make people buy thing they do
not want”1.

-Pt. Jawaharlal Nehru.

1.1 INTRODUCTION

A
dvertising is a form of communication that is used to convey the target group of a
company on its existing and future products. Advertising is used to encourage the
public to use the Products and services by ensuring that the products/services are
relevant. They would give the client a social, economic, or psychological advantage over those
who do not use these products/services. Communication can either be traditional, media or
contemporary media. Traditional/mass media include newspapers, television, advertising in
cinemas, magazines, radio jingles and contemporary/new media includes delivery of messages
through blogging and advertising for web series (on platforms like YouTube), emails and more
recently the use of platforms like WhatsApp, Business etc.1

Advertising is used to project a specific image of the company/product into the minds
of customers.2 Companies spend a large chunk of their money on advertising (online and offline)
when creating their annual budget. The customer often bears the brunt of the company exquisite
advertising budgets, as the costs are passed on directly to the customer. In a country of a billion
plus people, it is very difficult to reach different sections of society without proper advertising.
However, advertising becomes superfluous if the product is over the top and the brand hopes
that the product will sell based on lavish advertising or based on the celebrity star power that

1
Shubhank Khare, “Protection of Consumers with Reference To Misleading Advertisement In India: ACritical
Analysis” VOL. 4 ISSUE 2 IJLDAI 352-353.
2
Advertisement Laws of India–it’s time for a uniform legislation, available at:
http://legalonline.blogspot.in/2011/04/advertisement-laws-of-india-its-time.html, (Visited on June 29,2022).

4
advertises the product. This study provides an overview of the concept of „misleading
advertising‟ from a legal perspective and the related laws and their effects on Indian consumers.
Existing and possible solutions are also discussed in order to overcome it. 3

Misleading advertisement is advertising that is actually incorrect or deceptive in the

transmission of product information. Misleading advertisement can also be used to determine
whether advertising through product components or through product slogans such as „Boost is
the secret of our energy‟ is misleading. So, this is something that is misleading advertisement
other than labeling and has a very ambiguous tone because it lacks the facts. The problem with
such advertising is that the consequences can only be felt after the purchase of the product.
Advertisement can be misleading if it contains false factual statements, hides or omits important
facts, contains a promise or implies to do something without the intention of doing it, or gives
the wrong impression, even if all of this can be stated literally be true. They also affect
consumer economic behavior and can damage an advertiser’s product from a competitor.

Misleading ads have a negative impact on society and directly or indirectly disrupt any
member of their ecosystem. This leads consumers to imagine a fantasy when reality is completely
different. Here the negative effects have to be discussed in detail. Misleading ads can be divided
into three main approaches fraudulent, false and misleading. Fraudulent means that the advertiser
distorts the facts and projects the product as something that it is not. Falsehood can mean that the
advertiser lies based on parameters such as price, quantity and availability. Misleading means
media deception focuses on the belief of a consumer. The misleading nature obliges advertisers
to heed the `false beliefs of consumers about exposure to advertising. Misleading is about the
distortion of facts.

1.2 REVIEW OF LITERATURE

Robert Trager, Joseph Russomanno, Susan Dente Ross, Amy Reynolds, The Law of
Journalism and Mass Communication, SAGE Publications,4th edn., 2013.

This book presents very comprehensive coverage and analysis of this essential topic
related to future journalists and media professionals. The text offers an abundance of photos and

5
feature boxes, as well as a marginal glossary of legal terms and concepts.

Don R. Pember and Clay Calvert, Mass Media Law, McGraw-Hill International edition,
Edition 2007/2008.

The book discusses the relevant mass media legal decisions, in relation to their relevance
to modern American law. This book also examines the issues that are shaping the United States
legal system, from the Internet to the political advertising laws.

Sukanta K. Nanda, Media Law, 1st Ed., Published by Central Law Publications, Allahabad,
2014.

The book provides an unparalleled coverage of Media Law and is a comprehensive

analysis of various legal provisions relating to media and the press. It covers various important
topics like constitutional provisions and the limitations imposed by it, freedom of press and right
to information, the parliamentary privileges, the Press Council and its powers and functions, the
issues involving obscenity, decency, morality and the acts of defamation, commercial
advertisements, the broadcasting laws and the laws relating to copyrights. In the connection of
this, researcher has completed chapter number four which is “Constitutional Framework of
Commercial Advertisement in India”.

Madhavi Goradia Divan, Facets of Media Law, 2nd Edition, pg. 638, Eastern Book
Company, 2013.

The present book gives emphasis on the examination of the law relating to public media
in India. It covers the field, analyzing relevant statutes and cases. The spectrum of subjects
covered ranges from issues of constitutional freedoms to vexed questions of censorship, contempt
of court and parliamentary privilege, defamation, privacy, copyright, advertising, the right to
information, broadcasting and taxation. A separate chapter examines the constitutionality of the
advertisement law. This book is perhaps unique both in its scope and its depth.

Manoj Kumar Padhy, Consumer Protection and Advertisement Laws, Satyam Law
International; 1ST edition, ISBN 13: 9789382823346, 357 pages (2016).

In this context the present book on “Consumer Protection and Advertisement Laws”

6
assumes great significance. It contains the discussion on all the major issues involved in the law
relating to commercial advertising. The book covers decisions of courts and also the relief which
may be obtained against unethical, false and misleading advertisements. The book engaged the
researcher by providing details of the subject in lucid and easy manner to understand.

Articles:

Parth Gokhale and Shriyani Datta’s,4 article is a significant Research Work

relating to advertising in which the authors have attempted to scrutinize the role of existing
rules and regulations, at the National as well as International level. They draw the readers’
attention to significant case laws on the subject. The literature has taken into account the
interest of various stakeholders in arriving at a regulatory framework for advertising.

Acharya, Rajat and Mukherjee, Debjani’s, 5 article reveals the impact of

advertisements on the market that how the advertising industry is capturing every segment
of the market, and what are the reactions of the market operators towards the growing
advertisement regulations. The growing global market is hugely dependent upon
advertisements through various means which requires creative skills and knowledge about
advertising management and advertising budgeting. This article stresses on both aspects.

Stewart E. Sterk’s,6 article deals in detail with the origin and historical
development of advertising and the reasons for its growth in the past decades. The literature
clarifies the position of comparative advertising in common law and also its origin and
statutory development. The article also specifies about the good and bad advertisements as
have been declared by the ASCI.

1.3 STATEMENT OF PROBLEM

Adequate information regarding the utility, quality, guarantee of product, and price of a

4
Parth Gokhale and Shriyani Datta, “Comparative Advertising in India: Evolving a Regulatory Framework” 4(I)
NUJS Review 133-149 (2011) (Visited on June 2, 2022)
5
Rajat Acharya & Debjani Mukherjee, “Advertisements and Markets” 38 (50) Economic and Political
Weekly (2003) (Visited on June 4, 2022)
6
E. Sterk Stewart, “The Law of Comparative Advertising: How much worse is “Better”than “Great” 67 Trade
Mark Report, 386-406 (1977) (Visited on June 24, 2022)

7
product is one of the important basic characters for which the certain product is produced. The
content of advertisement aired on television, radio and print media is being regulated by private
bodies like the advertising standards council of India. Advertising Standards council of India was
established in 1985. ASCI do not have statutory power. It acts only as a moral pressure group. It
is publishers and agencies in mass media hands over the matter to statutory authority. Its decisions
are not followed by the advertiser. There is no law that declares misleading advertisement as
illegal. There is no uniform law or statutes to regulate advertisement. Advertisement related
ethical issues like obscenity, harmful publication and incident representation of women,
advertisement and children, health & safety, health &food are also problematic issues. These
issues are violated consumer rights like right to information, right to choose and right to safety.

1.4 OBJECTIVES OF THE STUDY

a) To understand the ethics in Advertising.

b) To understand the impacts of misleading and deceptive advertisements on the common

people

c) To analyze how far the present legal scenario has helped in the regulation of the
advertisements in the absence of uniform legislation in relation to advertisements in
India

d) To undertake an analysis of the role of advertisements as a constructive force in the

modern business world.

e) To study of judicial contribution to regulate the advertisement.

f) To suggest a uniform statutory framework relating to advertisements in India and its

impact on the minds of people.

1.5 HYPOTHESES

The deceptive and misleading advertisements have a negative/depressing effect on the

society and the legislative measures to regulate the advertisements are inadequate in India.

8
1.6 RESEARCH METHODOLOGY

Analytical research is carried out to know the existing laws, their implementation,
their limitations, and recommendations given by various authorities, present circumstances
and finding out solutions to existing and upcoming problems. The study incorporates the
Non-doctrinal method of research. The research includes collecting data from primary as
well as secondary sources. The primary sources include constitutional provisions, statutes
passed by the legislature, decisions of various courts and tribunals, orders of the executive,
rules and regulations of various regulatory bodies. The secondary sources include books,
journals, magazines, research papers, articles in newspapers, views of people concerned,
and websites. The tools for the collection of primary data include structured questionnaires
that will be circulated to the lawyers, law students and public.

1.7 LIMITATION OF THE STUDY

The research has its own limitation. The size of the sample selected in small scale and
mostly concentrate on age group between 20 – 30 years. Most of the respondents are
graduate and lawyers.

1.8 SCHEME OF STUDY

CHAPTER I – INTRODUCTION

This chapter covers introduction, statement of the problem, objective of the study,
hypothesis, scope of study, research methodology and scheme of the study.

CHAPTER II – ADVERTISEMENTS: A CONCEPTUAL PERSPECTIVE, ITS

ISSUES AND CHALLENGES

This chapter covers meaning and type of advertisement along with origin and
development . And also discuss the features, goals, means, issues and challenges in
advertising.

9
CHAPTER III -ADVERTISING IN INDIA: THE CONSTITUTIONAL
AND LEGISLATIVE LANDSCAPE

This chapter covers legislative related advertisement include constitutional

provisions, judgements and other acts.

CHAPTER IV - DATA INTERPRETATION AND ANALYSIS

This chapter covers questionnaire survey and its finding of my research.

CHAPTER V – CONCLUSION

The last chapter cover overall conclusion of all the chapter on the basis of the study
undertaken.

10
 CHAPTER II

ADVERTISEMENTS: A CONCEPTUAL PERSPECTIVE, ITS

ISSUES AND CHALLENGES

2.1 MEANING AND DEFINITION

Advertisements can be defined as “a means of communication with the consumers of a

meticulous product or service. It is a piece of information that is sent by an advertiser, on payment,
to inform the people who receive them. Advertisements have always been around us for a
considerably long period of time, though we were probably may not conscious of it. 7 The word
“advertisement” is derived from the Latin word ‘Advertere’ which is made up of two words-
‘Ad
+Vertere’ where, ‘Ad’ means ‘to or toward’, and ‘Vertere’ means ‘to turn’ which implies that
‘Advertere’ jointly means to turn one’s attention to or towards something.” The word ‘Advertise’
is an English word and linked to the old French word ‘Advertir’, which means “to take notice of
something.” In its general connotation, “Advertising covers all kinds of non- personal presentation
of ideas, goods, services, events, etc., conveyed to people (who are potential customers being
targeted) at large. It includes the promotion of ideas, goods, services, and/or events executed by
an authorized advertising agency to fulfil the expectations of an identified sponsoring entity."

In the words of Richard Buskirk, “Advertising is a paid form of non-personal presentation

of ideas, goods or services by an identified sponsor.”8 According to William J. Stanton,
“Advertising consists of all the activities involved in presenting to a group, a non- personal, oral
or visual, openly sponsored message regarding disseminated through one or more media and is
paid for by an identified sponsor.”9 As per Wheeler, “Advertising is any form of paid non-personal
presentation of ideas, goods or services for the purpose of inducing people to buy.”10

7
http://economictimes.indiatimes.com/definition/advertising (Visited on March 27, 2022).
8
See, “Definition of Advertising by Different Authors” available at : https://brainly.in/question/1782344 (Visited on
March 27, 2022).
9
S. Rajdeep, “Publicity: Definitions, Characteristics, Importance and Objectives” available at :
http://www.yourarticlelibrary.com/advertising/publicity-definitions-characteristics- importance-and-
objectives/48693 (Visited on March 27, 2022).
11
2.2 ORIGIN AND DEVELOPMENT OF ADVERTISING

Advertisements gained momentum in India, in strict sense, in 18 th century with the

evolution of ‘classified advertising’. Advertisements first-ever appeared in print form in 1780 in
the ‘Bengal Gazette’- India’s pioneer news bulletin. Later development took place with the
commencement of newspaper studios in India. Bunch of British retailers and medicine
manufacturers became the major clients of these studios. Advertising progress was gradual till the
20th century. But with India emerging as a noteworthy market for products, advertisements for
products of many multinational companies like Lux were designed for the Indian audience in the
1940’s. The major milestones in the history of Indian advertising are as follows:

Period from 1940-1950- During this decade, Advertising was not a profession in
the public eye. No one regarded this profession as important or glamorous, which may
seem unbelievable today. In fact, not many people had heard of advertising as a profession
in India.11

Period from 1950-1960- In the 1960’s, the advertising business expanded a little
more as compared to the last decade. During this phase of the development, press was by
far the most important medium to reach the masses. About 90% of the advertising budget
was allocated to print advertising alone. There was no TV.12

Period from 1960-1970- During this decade, the advertisers, in order to make
advertising purely Indian, began making use of the purely Indian ideas, Indian situations,
Indian designs and color combinations. But the clients, agencies and media confronted
various problems which included illiteracy of the masses and poor quality of the print
media in India.

Period from 1970-1980 – The birth of Television in India in 1978 radically

https://www.gktoday.in/gk/marketing-aptitude-advertising/ (Visited on March 22, 2017).

11
A. G. Krishnamurthy, Learnings of an Advertising Practitioner 17 (McGraw Hill Education,
Noida, 1st edn., 2010).
12
Arun Chaudhuri, Indian Advertising Laughter & Tears 189 (Niyogi Offset Pvt. Ltd., New Delhi, 1stedn., 2014).

12
transformed the way the advertising industry presented itself. Television became an
efficient medium to display advertisements easily understood by the viewers whether old
or young, maybe literate or illiterate, may be urban or rural. But these means were beyond
the reach of many. Moreover, the telecast was limited to a few hours. For advertising,
Family Planning became an important and visible part of campaigns in this period.

Period from 1980-1990- In 1980’s Television found its place in almost every home.
Color TV became popular in 1982. The medium was under the control of the government
and the show-time was restricted to 5-6 hours a day. In the middle of 1980’s, TV
commercials were made for a shorter duration. From 1983, Door darshan enabled
telecasting of commercial programs across the entire national network. Videos became
very popular and video parlors provided cassettes of the pirated films. The market
competition between the brands had increased to an extreme which led to the use of
messages like- ‘I am the best, I am the prettiest, I am the cheapest and best’ through the
ads.

Period from 1990-2000 – This decade witnessed the development of India into an
economic power. It also witnessed the transformation of the Indian Advertising industry
which was never experienced before in the 20thcentury.44 The change wrapround in the
terms of ownership of agencies, the appointment of agencies, splitting up of media and
creative functions of advertising. Media agencies got enriched through foreign
associations. The events like Cricket World cup, IPL, Olympic Games, etc. have gained
importance due to the brand endorsements in the TV.

New Age Media – In the present times, there has been tremendous growth of
interactive and more intrusive media. The internet and mobile phones are the most used
among new media. These are intrusive as these are targeted at the individuals. From the
mid 1990’s, companies have increasingly posted their corporate profiles on the internet.
The look and the feel of these websites are too close to the print media. Companies and
ad agencies are conscious that the websites need to be updated regularly to remain as
an
13
interactive medium and people who log in and ask questions must be replied promptly. The
recent digital media attracts consumer’s attention quickly and has a long-lived impression
on their minds. It has led to the emergence of specialized agencies that have eventually
stood up as multinational companies in the advertising Industry.

The main trends in Indian modern advertising can be highlighted as follows:

1. Growing international brands have made it necessary for advertisers to think of

global strategies and adopt global technologies.

2. Advertising agencies have become more professional. They have adopted and mastered the
latest technologies to provide a variety of services such as specialized design solutions,
public relations, direct marketing, and advertising research.

3. Size of the agencies has grown with several international mergers and acquisitions and with
inter-connectivity it becomes much easier, thanks to the internet and other available
technologies

4. The agency business has become more competitive as the number of agencies fighting for
the same business has increased.

5. Market research techniques have become more sophisticated especially m the area of media
research. Technology advancements in computers and other support systems like
telecommunication have made this possible

6. All through the nineties and the 21st century, Ad Agencies innovated and discovered new
media to reach out to the consumers.

7. Creativity has become the favorite word of advertising agencies and they began charging
exorbitant fees for their creative and production efforts. These efforts were more or less
dependent on the latest hardware and software on their computer and other technological
marvels, like the camera, the state of art printing facilities, etc.

8. In India like the rest of the world advertising business has grown by leaps and bounds, thanks
to liberalization policies and the consumer boom.

14
9. During the 1980’s, movie theatres were the most important medium in India followed by the
press, outdoor media, commercial radio, and finally television. But this has changed with the
introduction of color and sponsorship programs on television and satellite transmission. At
present television and internet are the most powerful mediums. 13

10. Today in the era of outdoor advertising - digitally printed billboards and 3dvideos are used.
But it is posing a threat as these means become a cause of accidents due to their attractive
appearances.

11. Political advertising in India has immerged as a powerful communication force since 1984.

12. 1990’s was a period of scientific development / technological development, this period also
saw the application of scientific methods to the problems of advertising A C. Nielson, Dr.
Gallup and Daniel Starch were the pioneer researchers, they tried to find out what kind of
advertising was most effective in strategy, media and copy. Data was collected in a more
systematic manner than before and the facts were observed, recorded and classified.

13. Two new research tools- motivation research, which emphasized man’s subconscious motives
and operational research which emphasized mathematical approaches to advertising, were
used by advertising and marketing specialists. Although advertising had long been
considered a tool of marketing, new emphasis was placed on co-coordinating advertising
with other tools of the marketing program

14. Advertising is poised to ride high on internet. The Internet market is projected to see a lot of
advertising in the next few years - almost twice as much as today and a major chunk of this
growth is going to be from the Asia Pacific region.

2.3 FEATURES OF ADVERTISING

Advertising is not only fundamental in selling a product/service, but it is equally

significant to economic, socio- cultural, and political facets of our lives. Marketing in today’s
time seems

13
See, “Advertising Industry in India - An Overview” available at:
http://shodhganga.inflibnet.ac.in/bitstream/10603/46610/8/08_chapter%201.pdf (Visited on March 30,
2022).
15
impossible without an adequate amount of advertising. Different authors, institutions, and
organizations have assigned different meanings to the term ‘advertising’ so as to fit in a
particular situation and serve the purpose of many.14 It has evolved as one such medium which
alone can convey everything about a company’s offers and schemes. Advertising is dominant in
marketing-mix which may override other elements and usually the whole of the promotional
strategy is replaced with an advertising plan.15 Advertising is a wizard which attempts to achieve
the sale targets with the move of a magic stick. Following are the essential features of
contemporary as well as modern advertising:

a) Provides information

b) Paid communication

c) Non-personal presentation

d) Publicity

e) Persuasion

f) Target-oriented

g) Art, science and profession

h) The element of a marketing mix

i) Creativity

2.4 OBJECTIVES OF ADVERTISING

Advertising aims to achieve certain multifarious objectives that may be related to

commerce or society.

a) Inform the buyers

14
http://kalyan-city.blogspot.in/2010/07/5-ms-of-advertising-advertising.html (Visited on June 29, 2017)
15
Tamidela Ravindra Reddy & Nittala Rajya Lakshmi, Indian Consumers' Attitude TowardsSMS Advertising 66
(LAP Lambert Academic Publishing, Germany, 2nd edn., 2013).

16
 b) Persuade or convince buyers

c) Remind buyers

d) Face competition

e) Achieve sales targets

f) Build and improve brand image:

g) Educating people

h) Assistance to Sales personnel and Middlemen

2.5 ESSENTIALS/GOALS OF GOOD ADVERTISING

To achieve better performance in the competitive market advertising serves as the means
of communication which informs persuades and reminds the target customers to stimulate
sales, earned goodwill, generate confidence, and project the image of the product and the
producers. Below mentioned are a few essentials or goals of good advertising:-

a) Honesty

b) Responsibility

c) Decency

d) Fairness

e) Advertising with a conscience

f) Comparisons

g) Safety and health

h) Environment Protection

i) Avoidance of harm

17
 j) Memorable

k) Effective Targeting

l) Entertaining

m) Attention-Grabbing

2.6 MEANS OF ADVERTISING

Advertising has, over the years, developed into an enormous and multifaceted
form of communication, with factually thousands of diverse ways for a business to pass
on a message to the consumers. Today's advertiser has ample of choices at his or her
disposal. The popular and most easily accessible modes of advertisements include:

a) Online (Digital)

b) Cell Phone/Mobile

c) Print

d) E-mail messages

e) Newspapers

f) Magazines

g) Posters and Bulletin Boards

h) Television Advertisements or Commercials

i) Film Advertising

j) Outdoor

k) Radio announcements

l) Event Sponsorship

18
 m) Word-of-Mouth

n) Window Display

o) Fairs and Exhibitions

p) Pay per Click (Search Engines)

q) Celebrity Endorsements

To sum up, it can be said that advertisements are good because of their inherent nature of
being informative and educative. It is, at the same time, interesting and imaginative. It not only
serves commercial purposes but also social. However, it is not spotless. It is going astray of its
basic nature and focusing more on profits, thereby creating an unhealthy social and business
environment. Some consider it is in dispute with ethics, morality, and values. Yet, it is and it will
continue to grow at a fast pace molding the instincts of the human beings in every way possible. It
helps them to arrive at conscious conclusions. Every ad is meant to brainwash the customers. Ads
not only aim at something bad. They are good as well. They play a decisive role in the progress of
the nation and help its people move forward.

2.7 ADVERTISING: CHALLENGES AND ISSUES

Advertising is becoming a plaguing problem for the country. Consumerisms
acting as a major driver for the advertisers and corporates as they can sell what they
want and consumers have to buy what they sell. They directly or indirectly turn-on-
users into users. They play with the social values and emotions of the people.
Advertising, in its negative sense, creates the market by hitting the hidden needs orby
arousing a marketer driven need in the consumers. In such a scenario, asking for ethics
in advertising is nothing but telling a cold murderer hoe to murder properly and also
respect his victim at the same time.16

Advertising Standard Council of India has laid down strict and stringent laws

16
Majed Almutairi, The Role of Ethics in Advertising and the Effects of Social Media 33 (GrinPublishing, Munich,
Germany, 2014).

19
and regulations within which the advertisement industry has to operate. But even with
such laws in place, wide violation of ethical standards is carried out. The audience
of advertisements includes sensitive viewers, women, young people, etc. and thus
there is a need to be extra careful to act ethically at all times. Contravention with
ethical norms can have a psychological effect and advertising potentially harmful
products can result in sending illegal and irresponsible messages to the consumers.

There are several types of advertisements that lead to unethical advertising

which are discussed below:

EXPLOITATION OF RELIGIOUS SENTIMENTS

Advertisement and religion are usually in harmony with each other. In recent years
everything includes religion and religion is increasingly becoming a part of commerce in
the consumerist Indian society. So, sometimes modern advertisements override religion
and thereby exploit religious sentiments of the consumers. Some of the advertisements
are guilty of abusing the cultural ethos and values of Indian society. Some of the
advertisements not only impose serious challenges to the ageless Indian culture and ethos
but adopt all possible means to exploit the religious sentiments of the consumers. In a
print advertisement of a television company Goddess Durga is portrayed carrying
different models of television in her ten hands instead of weapons. Such an advertisement
was inserted during the puja festival when Goddess Durga is worshipped. There was a
caption in the advertisement saying “An offer so irresistible, no one can keep their hands
off our TVs (not even Goddess Durga)”. This case was a clear exploitation of religious
sentiments to the Hindu population. Moreover, some years back an MNC had introduced
a range of shoes in the Middle East with calligraphy of Allah stamped on the shoes.

This brought uproar in the Islamic world. This advertisement was withdrawn with a public
apology as it was also a clear exploitation of religious sentiments to the Islamic

20
population.17 These types of advertisements are nothing but unethical.

OBSCENITY AND SEXUAL OVERTONE

There is an increase in obscenity and vulgarity in the content of advertisement.

Previously, an obscene and vulgar advertisement portrayed female anatomy. Now, both
male and female anatomy, sexuality and nudity are used in the obscene and vulgar
advertisements. These types of advertisements have crossed the boundaries of morality
and decency and they make use of erotica and obscenity in order to attract the attention
of the public. These advertisements have downgraded the moral standards of the
society.18

One of the classic examples of obscene advertisement is the print advertisement

of Tuff Shoes which was published in a Mumbai tabloid on 23rd July 1995. In this
advertisement models Madhu Sapre and Milind Soman posing in nude with a python
wrapped around them just about covering their vitals. The controversy with respect to
this advertisement dragged for a long time. Again, the advertisement of VIP underwear
is also vulgar and obscene. In this advertisement a number of females come out from the
toilet with pseudo- coy expressions. The camera cuts into the toilet where a handsome
male model lies prostrate with lipstick marks across his body. The content of most of
these types of advertisements does not have any direct relationship with the product they
are advertising. These types of advertisements are mainly shown by the advertisers for
certain products like designer jeans, underwear and bras, feminine hygiene aids etc. these
are western concepts imposed on Indian advertisements and prove that visuals need not
necessarily represent the social norms of the society.53 In P.P. v. Markondeyulu19 the
Madras High Court said that the publisher of the newspaper will be liable for publishing

17
Vir Bala Aggarwal (ed.),Media and Society: Challenges andOpportunities142-143, (ConceptPublishing
Company, New Delhi, 1st Edition, 2002).
18
Id at page no 145
19
P.P. vs. Markondeyulu AIR 1918 Mad 1195

21
obscene advertisement at the instance of the publisher.20

ENCOURAGING SELF MEDICATION

Advertisements often allure consumers to try a brand of medicines. Between the

consumer and the drug there is a chit of paper called prescription of the doctor.
Advertisement often prompts consumers to ignore the prescription. Medicines whether of
herbal origin or chemical origin if taken in wrong doses may give rise to side effects and
complications. The advertisements of the drugs often promise faster, long-lasting relief
which lire consumers to self-medicate. So, these types of advertisements are considered
as unethical. It is ironic that advertisements of cigarettes and pan masala carry statutory
warnings but the numerous ayurvedic, herbal and allopathic drugs are advertised without
a word or warning.21

ENDORSEMENT BY CHILDREN

Advertisements by children have a great impact on the consumer children. As a

result, the consumer children persuade their parents to buy the same. Classic examples
of persuasive advertisements are “Two Minute Maggie Noodles” and “I Love You
Rasna”. The children cannot differentiate between good and bad. They are also made to
advertise those products which are not meant for them. Children tend to believe
anything which is portrayed convincingly. Therefore, advertisements featuring children
are received positively by the younger generations. As a fact they are vulnerable victims
of the advertisements. Moreover, there are certain products which are primarily meant
for children contain certain harmful products. E.g., chocolates contain nickel, soft drinks
contain brominated vegetable oil, instant soup and noodles contain monosodium
glutamate etc. children are not aware of these harmful products.22 A classic example of

20
Basu, Durga Das, Law of the Press, 4th Edition, p-159.
Raut, Kishore C., “Ethical Dimensions in Indian Advertising”, Media and Society: Challenges and
21

Opportunities, VirBalaAggarwal (ed.), 1st Edition, p-143-144.

22
Id at page no 144

22
such an advertisement is a TV advertisement on Door darshan used to show a little girl
pretends to have a cough as she wanted to suck lozenges with a peppermint taste. But
cough drops which contain sub clinical doses of menthol or ephedrine can be harmful.
Children become victims in another sense also. A boy jumped out of the window in U.P.
and died while intimidating a stunt shown in an advertisement. Moreover, a boy trying
to act like the popular “Shakti Maan” in the popular TV show got grievously hurt. Since
they are not matured and lack the ability to differentiate between the truth and the lie, it
is really unethical to portray children to endorse products, services and ideas.23 Many
countries in the West have banned using children endorsing advertisement on the grounds
of morality. But India is yet to make such a legislature.

SURROGATE ADVERTISING

When the advertisements of certain products are banned in a country, advertisers

promote such products in an alternate manner, which is termed as „surrogate
advertisement‟.24 The Indian Government has banned advertisements of liquor and
tobacco, due to their harmful effects on health. As an alternate, these liquor and tobacco
manufacturers started promoting their brand by introducing various other products in the
market with the same brand name. E.g., Fuel Vodka is advertised as soda, Alcohol brands
like Royal Challenger, Bacardi, and Bagpiper are advertised as music CDs and cassettes.25

PUFFERY

Advertisements which praise the product to be sold with exaggerations, vaguely

and generally stating no specific facts. For example, “Eveready” batteries claim nothing
outlasts an Eveready battery, “VIP Frenchie” would not attract girls for you,
detergent

23
Sultana, Waheeda, “Regulatory Challenges and Ethical Issues in Public Relations and Advertising”, Media
Law and Ethics: Reading in Communication Regulations, Kiran Prasad (ed.), 1st Edition, Volume-2, p-394.
24
Surrogate means: substitute for oneself, available at: www.merrian-webster.com (Visited on June 4, 2022 ).
25
Waheeda Sultana, Regulatory Challenges and Ethical Issues in Public Relations and Advertising 396,Media
Law and Ethics: Reading in Communication Regulations, Kiran Prasad (ed.), 1st Edition, Volume-2,
23
powder “Wheel” &“Vim” bars show lemons on their package but contains just lemon
fragrance, “Lux” claims to contain milk and honey but it is up to the consumer to decide
whether it really contains what it has claimed? These types of exaggerations are
unethical.

SUBLIMINAL ADVERTISEMENTS

Inserting sublime messages in advertisements are misleading and therefore

unethical. “Sublime messages” means messages which attempt to manipulate a person’s
thinking without the person realizing any such manipulation is occurring. The effects of
sublime advertisements are real and financially significant. Consumer spend large amount
of money on tapes embedded with sublime messages that are supposed to teach a person
foreign language or help them to lose weight or quit smoking.

FALSE AND MISLEADING ADVERTISEMENTS

Nowadays media is rife with advertisements which blatantly compare features of

brands with those of their competitors. e.g., the Telegraphy advertisement which it
blatantly compares with the Times of India. Citing opinion of the experts these
advertisements claim their advertisements to be qualitatively and quantitatively better
than those of their rivals. These types of false and misleading advertisements are
unethical.

LIBELOUS ADVERTISEMENTS

Advertisements constituting defamation of third party is also unethical. In Peck v.

Tribune Co.26, the publisher was held liable for publishing defamatory advertisements. In
Tolley v. Fry27 the court said that use of a person’s photograph for advertisement may
constitute libel because of the caricature done in the photograph. This type of
advertisement is unethical. In Cf. Corelli v. Wall28 the court said that advertisements with

26
( 1909)214 US 185.
27
(1931) AC 333.
24
photograph is not defamatory even if it causes annoyance to the person. It is ethical.29

USE OF NATIONAL EMBLEMS AND NAMES

In India use of certain names and emblems for commercial purposes in

advertisements are prohibited and are considered unethical. The names and emblems
which are present in the Schedule of The Emblems and Names (Prevention of Improper
Use) Act, 1950 prohibited. In Cf. Sable v. Union of India 30 the court said names like
Rashtra Pati Bhavan, Raj Bhavan, Mahatma Gandhi, Pandit Jawaharlal Nehru, and
Chhatrapati Shivaji Maharaj etc. cannot be used in advertisements.

While advertising plays a vital role in modern competitive world affecting almost
every segment of the society, there are many dark shades in it. Many advertisements are
fraudulent, misleading or deceptive. Some of the advertisements create illusion far from
the reality which renders people less able to adjust to real life. Advertisements may be
exploitative in as much as they play on human weakness, hope, anxiety; insecurity and
aspiration. It has been observed that in order to attract the attention of the public for their
products or services manufacturers, producers, distributors and service providers very
often indulge in, what one may call „unethical advertising‟. We read and see a number of
advertisements which contain indecent portrayal of woman intended to appeal to the
vulgar taste of citizens. Such advertisements create undesirable attitudes of sexism and
may have the effect of depraving and corrupting the society especially the young ones.
In order to draw attention, women are being shown in scanty clothes in the
advertisements of those products or services which are not even remotely connected
with them. To illustrate, in the advertisement for a motorcycle which each part of the
vehicles equated with some pan of woman’s to be ridden by the conquering male.

False or misleading advertising should also be controlled because such advertising

29
Durga Das Basu, Law of the Press160, (Lexis-Nexis Wadhawa, Nagpur, 5th edn, 2010).
30
AIR 1975 SC 1172.

25
can result in misallocation or resources either through useless product expenditures or by
directing trade to high priced premium products that differ from cheaper substitutes only
in the quality and volume of advertising. Infect, deceptive advertising can eventually
undermine the whole competitive system by reducing the extent to which consumers will
rely on product claims and description. The result of deceptive advertisement for
Consumer is disappointment or worse a real economic or physical injury. In brief the
consumers need to be protected from false or misleading advertisements.

26
 CHAPTER III

ADVERTISING IN INDIA: THE CONSTITUTIONAL AND

LEGISLATIVE LANDSCAPE

The Indian Constitution does not contain any specific provision in relation to
advertisements or any rules to be followed by the press or media. It is under the fundamental
‘Freedom of Speech and Expression’ under article 19(1)(a) 31 that this manner of expression is
regulated in its widest sense possible. Freedom of speech and expression is one of the most
important Fundamental Rights available to a citizen of a liberal, democratic country32 since it
opens up the means of free discussion of issues belonging to the political, social, economic realms
as well as letting artistic, cultural ideas bloom and develop by not placing any fetters on
expression, literary, artistic or otherwise. It has been observed in Maneka Gandhi v. Union of
India33 that “…if democracy means the government of the people by the people, it is obvious that
every citizen must be entitled to participate in the democratic process and in order to enable him
to intelligently exercise his right of making a choice, free and general discussion of public matters
is absolutely essential.”

The freedom of speech and expression is a fundamental freedom, one without which a
liberal society cannot exist. The freedom of speech and expression enshrined under Art 19(1)(a)
provides the right to express one’s views through any medium and thus includes the propagation
of one’s own opinions thereby placing the freedom of communication on a sound constitutional
foundation.34 But this freedom is subject to restrictions too which are contained in Art19(2) but
any limitation on the exercise of this right under Art 19(1)(a) not falling under the defined ambit
of Art 19(2) will not be constitutionally valid.

The Hon’ble Supreme Court of India has further, through various decisions, provided that

31
INDIA CONST. at art. 19(1)(a)
32
http://www.academia.edu/938632/Freedom_Of_Commercial_Advertisements_In_India. (Visited on June 23,
2018).
33
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
34
M.P. Jain, Indian Constitutional Law 987 (Kamal Law House, Calcutta, 5th edn., 2003).

27
freedom of the press is not explicitly recognized as a Fundamental Right by the Constitution but its
status as one such right.35 In Sakal Papers v. Union of India36 the court stated that “freedom
of the press is a species of which freedom of expression is a genus.” Thus, the press enjoys
the freedom to circulate the material on any subject which arouses the ideas, opinions in the mind
of the readers/viewers. But the provision was silent on the point of commercial speech.

Commercial speech is generally considered to be communication that has the sale of a

product or service as their ultimate goal. The constitutional freedom of speech and expression
was ambiguous until the decision of the Supreme Court in the case of Tata Press Ltd. v.
Mahanagar Telephone Nigam Limite37, wherein, the court held that “advertisements are
commercial speech” thereby broadening the scope of the right to freedom of speech and
expression. This judgement brought a tectonic shift in the way the advertisements and the
freedom of speech were perceived by the constitutional jurisprudence in India in the post-
independence era. The court was of the view that “Advertising which is no more than a
commercial transaction is nonetheless dissemination of information regarding the product
advertised. Public at large is benefitted by the information made available through the
advertisement. In a democratic economy, free flow of commercial information is indispensable.
There cannot be honest and economical marketing by the public at large without being educated
by the information disseminated through advertisements. The economic system in a democracy
would be handicapped without there being freedom of ‘commercial speech’.” The court also
declared that commercial speech is subject to certain reasonable restrictions. Here, the court took
a different view from what it stated in its historic judgement in the case of Hamdard Dawakhana
v. Union of India38 which provided qualified immunity to commercial speech. To advertise is a
fundamental right under Article 19(1)(a), advertising in an obnoxious, irresponsible, and
misleading manner is reasonably restrained under Article 19(2). The restrictions here mean and
include that the restrictions as enshrined under article 19(2)39 of the Indian constitution are
applicable to false and manipulative advertising as well. In the same case the court also reiterated
that “it is expected that by way of advertisement or promotion of its services, the subscriber should
not be misled.” Thus, it is clear that advertisements are included

35 Id
36
Sakal Papers v. Union of India AIR 1962 SC 305.
37
Press Ltd. v. Mahanagar Telephone Nigam Limited (1995) 5 SCC 139.
38
Hamdard Dawakhana v. Union of India AIR 1960 SC 554.
28
in the ambit of freedom of speech and expression. However, the government, not is authorized to
regulate commercial advertising. The restrictions cannot be plainly imposed on a speech just
because the constitution provides such restrictions. In order to be a valid restriction:-

 It must be issued only under the authority of law and not by way of an administrative
or executive order

 It must be reasonable

 It must relate to the purposes mentioned in Art 19(2).

Generally, all the advertisement is considered to be ‘commercial speech’. But it is not true.
The advertisements which possess the object of promotion and gain of profits from such promotion
fall in the category of commercial speech. As commercial speech has the power of influencing
consumer behavior, it is subjected to more stringent regulations than ordinary speech.

Advertising law in our country is spread through a number of legislations, judicial

decisions, orders of quasi-judicial bodies like Monopolies and Restrictive Trade Practices
Commission and the Consumer Forum and Codes made by the Government and non-government
agencies. The existence of a wide array of legislation on advertising reveals a segmented rather
than an integrated or holistic approach towards the regulation of advertising. Most of these
legislations prohibit obscene or indecent advertising and aim to protect the young minds from the
harmful effects of unfair and unethical commercial advertising. To mention few of them: the Indian
Penal Code, 1860, the Indecent Representation of Women (Prohibition) Act, 1986 and the Young
Persons (Harmful Publication) Act, 1956 etc.

Some legislation regulates advertisements of prohibited drugs and magic remedies,

cigarettes and other tobacco products and liquor etc. Interestingly, provisions of these legislations
are applicable to commercial as well as non- commercial advertisements and impose criminal
liability on the violators. These legislations are: the Drugs and Magic Remedies (Objectionable
Advertisements) Act, 1954, the Cigarettes and Other Tobacco Products (Prohibition of
Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act,
2003 and the Cable Television Networks (Regulation) Act, 1995, the Drugs and Cosmetics Act,

29
1940, and the Food Safety and Standards Act, 2006 etc.

The advertisements promoting prize competitions and prize chits and money circulation
schemes are prohibited under the Prize Competition Act, 1955and the Prize Chits and Money
Circulation Schemes (Banning) Act, 1978respectively The Emblems and Names (Prevention of
Improper Use) Act, 1950 prohibits the use of emblems and names specified in the schedule under
this Act for the purpose of trade, business etc. The Transplantation of Human Organs Act, 1994
prohibits advertisements relating to commercial dealings in human organs. The Pre-Natal
Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 prohibits the
advertisements of pre-natal diagnostic techniques for detection or determination of sex. Some
legislation relates to advertisements involving intellectual property rights such as the Trade
Marks Act, 1999 and the Copyright Act, 1957 etc. Although the „brothel advertising‟ is not
common in India, a new trend has emerged in the form of advertisement column named „Health
and Physical Fitness‟ and „Friendship Club‟ published in newspapers especially designed for the
advertisement of homosexual brothels. Provisions of Indian Penal Code and the Immoral Traffic
(Prevention) Act, 1956 are relevant legislation in this regard. While the former punishes
homosexuality the latter punishes the act of seducing or soliciting for the purpose of prostitution.

As the society advanced, newer technologies also came to dominate and with this,
application and use of these technologies took place in almost all the spheres. In such a situation
it is certain that media has to play a greater role which it actually does now a days. The print
and electronic media spare some of their valuable times and space for advertising the product.
Now, it has also become a fashion to go for advertising all aspects involving the people. Starting
from entertainment, products, achievements and sporting events have become a regular feature
of the both print and electronic media. The entry of corporate houses and even celebrities in
sponsoring some programmers and events which are highlighted in the media circles have been
able to arose interest and enthusiasm in public minds. Thus, the advertisement and media are
playing a major role in the present day. Turning to internet or online advertising, in coming three
years India could have the second largest population of internet users, according to a report by
the Internet and Mobile Association of India.40 The Report claims that the number of online users

40
Available at: http://www.ndtv.com/india-news/over-500-million-internet-users-in-india-by-2020- report.,(Visited on June
20, 2022)

30
will rise to more than half a billion by 2018. Internet is increasingly become a part of media mix
for advertisers, as they realize its high potential in reach and penetration. According to a recent
Report by the Association, digital advertising and classifieds are predicted to grow at 25% by
41
2018. To regulate online advertising, we have only the Information Technology Act, 2000,
which prohibits only the publishing of information which is obscene in electronic form and
leaves other aspects uncovered and unregulated.

The other legislation controlling advertisements are the Representation of the Peoples
Act, 1951, which prohibits the act of displaying to the public any election matter during the
period of forty-eight hours ending with the hour fixed for conclusion of the poll, the Companies
Act, 1956 which carries provisions regarding the advertisements relating to the statement
showing the financial position of the company and the Advocate Act, 1961 which prohibits
lawyers from advertising their services or soliciting clients.

Before the notification of the Competition Act, 2002, commercial advertising in India was
regulated by the MRTP Act, 1969. Sections 36(A) to 36(E) of the Act regulated the certain
categories of Unfair Trade Practices such as false and misleading advertising, bargain, sale, „bait
and switch‟ selling, offering of gifts or prizes with the intention of not providing them and
promotional contests and non-compliance of prescribed standards etc. In order to protect the
interests of the consumers, the MRTP Commission has provided compensation, passed „cease
and desist‟ order and issued injunctions in a large number of cases and in the process has
developed and enriched the jurisprudence of unfair trade practice including false and misleading
advertisements in our country.42

The Consumer Protection Act, 1986, is another landmark legislation which provides
protection to consumers against false and misleading advertisements, bargain, sale, „bait and
switch‟ selling, offering of gifts or prizes with the intention of not providing them and promotional

41
Alpesh Shah and Nimisha Jain, et.al.,India@Digital.Bharat 12(The Boston Consulting Group and internet
and Mobile Association of India, Mumbai, 2015).

42
Manoj Kumar Padhy, Consumer Protection and Advertisement Laws 5-8 (Satyam Law International, New Delhi,
edn. 1st, 2016).

31
contests and non-compliance of prescribed standards etc. After the notification of the Competition
Act, 2002, it has remained the only legislation on the statute book to deal with cases of false and
misleading advertisements. But the Consumer Protection Act 2019 brought the dramatic change
by repealing the old Consumer Protection Act 1986.

After 33 years of enactment of the Consumer Protection Act, 1986 it is time to revisit its
objectives and organizational structure and enlist its shortcomings in the present era. The
Consumer Protection Act, 2019 was passed by the Parliament and received the assent of the
43
President on 9 August, 2019.The Central Government has, on 15 July 2020 , notified several
provisions of the 2019 Act which have come into force from 20 July 2020. 44It aims at protection
of consumers and fast-track alternatives so that justice reaches to the aggrieved consumers
immediately. The new Act repeals and replaces the older CPA, 1986 and provides mechanisms for
making the consumer complaint system more robust. It envisages to remove anomalies and
problems faced by the consumers. Innovative methods such as mediation, establishment of Central
Consumer Protection Authority, class action suits etc. would be part of the Consumer Protection
Act, 2019.45The new legislative enactment has also included express definition of Misleading
Advertisement, widened the term consumer as well as Unfair Trade Practices. The Consumer
Protection Act, 2019 has provided many rights and option to the consumers. It also imposed certain
restrictions on service providers and celebrities promoting the goods and services. Since the rules
of the New Consumer Protection Act, 2019 are yet to be framed and implemented it is time to look
at what the new Act would deliver and draw a comparison with CPA, 1986.

In addition to enactments mentioned above, advertisements are also controlled by self-

regulation mechanisms. The self-regulation instruments in India are: Norms of Journalistic
Conduct Regarding Advertising; Codes of the Advertising Standard Council of India; Code for
Commercial Advertising on Door darshan; All India Radio Code for Commercial Advertising;
Federation of Indian Chambers of Commerce and Industry: Norms of Ethics and Code of
Fair

43
http://egazette.nic.in/WriteReadData/2020/220546.pdf(Visited on June 5, 2022).
44
https://www.mondaq.com/india/dodd-frank-consumer-protection-act/972500/the-consumer-protection- act-2019-
key-highlights-of-the-notified-provisions-and-their
impact#:~:text=The%202019%20Act%20did%20not,force%20from%2020%20July%202020. (Visited on on
June 22,2022)
45
Sheetal Kapoor, “Consumer Protection Act, 2019: A New Milestone in Empowering Consumers” 63YOJNA 53
32
Business Practices. These codes are enforced through the commitment and cooperation of
advertisers, advertising agenda and the media.

Considering the ever-increasing importance of commercial advertising as the lifeline of

trade and business and as an effective means of information and communication that the
consumer needs to make „informed buying decisions‟ in this era of competition and open market,
the role of law is to encourage and promote ethical, fair and genuine advertising and to protect
the interests of the consumers and the society at large from the adverse impact of modern
commercial advertising. In view of the need to regulate the advertising sector, regimes all over
the world from the most liberal democracy to the authoritarian one have put in place some
regulatory mechanisms to control the menace of present-day advertisements. The advertising law
and ethics however, vary from jurisdiction to jurisdiction depending upon the social, political
and cultural ethos of each country. Further, they are neither equally comprehensive nor
adequate in all the jurisdictions.

In view of the above it is necessary to take account of law and ethics on different aspects of
commercial advertising as they prevail in India and wherever appropriate to compare them from
the advertising laws and the ethical codes of some of the developed countries. Such a study may
not only increase our understanding of the law and ethics on advertising but will also be helpful
in identifying the gaps, ambiguities and loopholes in the existing law and suggesting measures
for strengthening the existing regulatory mechanism on advertising. The present work is a
humble attempt in this direction. Its aim is to present a coherent picture of the law and ethics of
commercial advertising in India and to discuss and examine their adequacy in meeting the
challenges posed by the modern commercial advertising. It may be noted that while the effective
regulating mechanism is a sine qua non for controlling obscene, vulgar, unethical, lascivious and
false and misleading commercial advertisements, the existing legal framework is far from
satisfactory and therefore, needs to be further strengthened. It also aims to consider and examine
the causes for the poor implementation of the advertising law and suggest the remedial measures.

Today, it is impracticable to be a successful promoter or run a thriving advertising

agency, without understanding the legislative structure surrounding the advertising industry.
The advertising industry must strive harder to protect their advertisements and its content, as

33
well as avoid legal trouble. For this, an insight into the applicable legal provisions is a must.
Due to multiple laws applicable upon advertisements, it is advisable that the Ad agencies
hire the services of well-versed legal professionals for complying with the necessary
legalities and due diligence before putting the ads on air. Prior diligence is always considered
better than subsequent litigations in the court. If the advertising agencies turn a blind eye
towards the mandatory legal regime, the entire exercise of advertising would be rendered
redundant and the effort, time, and energy along with huge amounts of funds would be
wasted. This chapter discusses and deals with the entire spectrum of statutory laws and
regulations concerned with advertising in India. As seen, the innumerable laws lead to
confusion in the mind of a common man. The scattered laws become difficult to grapple with.

34
 CHAPTER IV

DATA INTERPRETATION AND ANALYSIS

The questionnaire contains eighteen question and collected from seventy responses. The
questionnaire of the direct consumers is divided into three components which include the following
distinct points:

 General profile of the respondents

 General information about advertisements

 Questions relating to issues and impact of advertisements

AGE-WISE DISTRIBUTION
In the consumer category, 60 % out of 300 respondents belonged to the age group of 18 –
30 years followed by among 18-25 years, 25% among the age group of 30 - 40 years, and 15%were
above 40 years. This implies that the major consumer market belongs to the age group of 18-35
years. The reason can be that the people below the age of 18 years either do not have any buying
preferences or do not have enough market knowledge. Another fact is that people above the age
group of 45 years were reluctant to respond.

Figure 1: GENDER- WISE DISTRIBUTION

35
Figure 2 : DESIGNATION-WISE

Figure 3: EDUCATIONAL QUALIFICATION DIVISION OF RESPONDENTS

36
Figure 4: Do you buy products under the influence of an advertisement?

Figure 5 : For how long does the input of an advertisement impact your buying
decisions?

Figure 6 : Do the advertisers respect the Rights of the consumers, i.e. Right to

37
Know, right to be informed, right to be protected and right to information?

Figure 7: As per you, which means of advertisements is more effective to reach the
maximum consumers?

38
Figure 8 : As a consumer what you should know ?

Figure 9 : How far do you consider that regulating the advertisements is necessary?

39
Figure 10 : Are you aware of the existing legal structure applied to advertisements in India?

Figure 11 : The laws prevailing in India relating to advertisements are able to keep a check on
the legal or ethical violations made by the advertisers and ad agencies?

40
Figure 12 : Do you know about Advertising Standard Council of India (ASCI) or the National
Consumer helpline of the Ministry of Consumer Affairs?

Figure 13 : Do you know about Advertising Standard Council of India (ASCI) or the National
Consumer helpline of the Ministry of Consumer Affairs?

41
Figure 14: Have you ever filed a complaint for yourself or on the behalf of others against
misleading advertisements with any regulatory body or with consumer court?

FINDINGS OF THE STUDY

i. The advertising industry is the ruler of every business house in modern-day and age and it is
not possible to survive in the markets without an adequate number of advertisements by the
brands.

ii. we lack effective enforcement of advertising laws. For effective implementation of the
advertising laws/rules/ regulations/codes, it is essential that these are adequately supplemented
with institutional machinery. As far as advertisements are concerned, the institutional
framework implies quality assurance mechanisms through well-equipped laboratories,
investigation agencies with adequate powers to examine a deceptive advertisement or claim,
pre-screening, and monitoring system of ads, and a specialized adjudicatory body dealing with
deceptive advertisements or claims.

iii. The increasing impact of the internet, mobile phones, laptops, and digital media has
transformed the advertising industry. But the laws relating to advertisements do not

42
 comprehend such recent developments in totality. The advertisers hold an edge over such
means and try to take advantage of every option available to reach the consumers.

iv. Judiciary has also played a crucial role in protecting innocent consumers against the evils of
misleading/false/unethical advertisements. There is plenty of literature available in this regard
in the form of judgements of different courts which have stressed the need for ethical
advertising to the viewers and also the need for putting the right laws in the right place.

43
 CHAPTER V

CONCLUSION

I
t is high time to realize and make everyone, operating in the advertising, aware of the
social, mental, physical, and psychological implications of false advertising. The health of
consumers must never be compromised at any stage. Indian professional organizations,
including the advertising industry need to design a road map for a ‘better planet for all’ wherein
the state, communities, professional organizations, and consumers participate in a concentrated
manner to reduce the health hazards. The research began with the hypothesis that deceptive and
misleading advertisements have a negative impact on society which is proved true. Various ill-
effects of bad advertising have been highlighted in chapter II – issues and challenges. The
second hypothesis was that the legislative measures to regulate the advertisements are
inadequate in India. This has also been confirmed as the advertisers as well regulators are on a
wild goose chase when it comes to applying a particular law and providing specific relief to the
victims. The presence of multiple laws had led to disorder and a state of lawlessness which
demands the creation of uniform codified guidelines/law on the subject of advertising in India.
In the end, I would sum up that in today’s rapidly changing world, unique challenges threaten
the veracity of advertisements, and the interests of consumers need to be continuously
safeguarded. It is imperative that government agencies and consumers collectively rise to the
occasion and tackle such issues simultaneously, inclusively, and sustainably. The consensus
must be developed between consumers and advertisers on some sound ethical principles
involving universalism, dignity, security, justice, and human rights. Through this approach, the
consumer and his rights can be preserved, maintained, and enhanced. An attempt is made through
this research to study the different means of advertisements and their impact on the socio-economic
values of human life. The applicable legal provisions are studied in detail so as to analyze their
effectiveness and implementation in the current period.

44