SabKuch Legal
  Legal Masla Koi Bhi Ho Hal Milega Online

Articles

POWERS OF ADVERTISING STANDARDS COUNCIL OF INDIA (ASCI)

Powers of Advertising Standards Council of India (ASCI)

1. What is ASCI?

 The Advertising Standards Council of India (“ASCI”) is a voluntary self-regulatory authority constituted to monitor the content of advertisements keeping in mind the interest of the consumers/viewers. The Council was set up in 1985 as a not for profit company under section 25 of the Indian Companies Act, 1956. Sponsors of the Council include advertisers, media, advertising agencies and others connected with advertising.

2. Code for Self Regulation in Advertising

 As a benchmark for advertising standards, ASCI has adopted an Advertising Code for Self Regulation (“Advertisement Code”). The purpose of the Code is to ensure that all advertisements are truthful and honest, non-offensive to public, against harmful products/unsafe situations and fair in competition.

3. What is Consumer Complaints Council?

All complaints made to ASCI by the general public as well as companies are evaluated and decided by an independent Consumer Complaints Council (“CCC”).

The CCC consists of a maximum of twenty one members out of which 12 are from civil society and nine are advertising practitioners. These members are appointed by the Board of Governors of ASCI. The CCC decides upon the complaints within a period of 4 to 6 weeks.

4. Are the courts of India bound to go in accordance with the stand taken by ASCI?

Courts in India give significant credence to the decisions of ASCI. Though ASCI not being a statutory body, cannot bind the courts or the party against whom a decision is taken by its decision, nevertheless, as a matter of precedence, courts take into consideration decision taken by ASCI while deliberating on the issue.

5. Will the media houses stop airing the alleged advertisements merely on a CCC order of ASCI?

Yes, media houses are obliged to remove an advertisement held to be violative of the Advertisement Code by the CCC order. Media houses are covered under the Cable Television Networks (Regulation) Act, 1995 (“Act”) as well as the Cable Television Networks Rules, 1994 (“Rules”). The Rules require media to comply with the Advertisement Code as adopted by ASCI.

6. Is there any body that can decide against the order of CCC?

Consumer Complaints Council (“CCC”) as appointed by ASCI does not have an appellant authority to hear appeals. The Council however has an internal system of review in place for orders passed by it.

Alternatively, aggrieved parties are free to take the legal recourse by filing writ petitions under Article 226 of the Constitution to the respective high courts.

7. How can an advertiser challenge the CCC order and what is the stand of the court in this regard?

There is no mechanism under the structure of ASCI for appeal/challenge against orders passed by CCC, except for the internal review procedure. However, as mentioned above, a party can take the legal recourse by filing writ petitions under Article 226 of the Constitution to the respective high courts.

8. Does ASCI have any right under the law to stop an advertiser from airing an advertisement?

ASCI does not have the statutory right under law to stop an advertiser from airing an advertisement. However, any such recommendation made by ASCI is binding against the party on whom it is made.

The Government of India through a notification[1] has amended the Cable Television Networks Rules, 1994, requiring all advertisements carried in the cable service to comply with the Advertisement Code as adopted by ASCI. [2]

This amendment provides a statutory force to the Advertisement Code of ASCI. Amongst the complaints upheld by CCC during the past years, nearly 80% of its advertisers have confirmed in writing to ASCI that they have either withdrawn or modified the ad appropriately.[3]

9. List of recent court decisions made against the CCC orders of ASCI

There are a number of cases in the recent past, where courts have either stayed the orders passed by CCC or decided against them. Some of them have been discussed below –

-Hindustan Unilever Ltd. V. Reckitt Benckiser (India) Ltd.[4]

 

The Calcutta high court in this case observed that “The court is not bound to follow any recognition of advertisement made by ASCI but should make its own evaluation and decision.”

-KENT Water Purifier  

Justice Rajiv Sahai Endlaw of the Delhi High Court on July 25, 2011 stayed an order of CCC which held that the company, Kent RO's catch-line - 'Dunia Ka Sabse Shudh Paani' - was "misleading by exaggeration".

-Hero Motocorp[5]  

-The advertisement aired by Hero Motocorp featuring its Maestro and Pleasure scooters was directed to be taken off air by a CCC’s order. The Delhi High Court however, has stayed the order of CCC and restrained ASCI from acting on the order.

-Amazon[6] 

Justice Vibhu Bakhru of the Delhi High Court issued a notice to ASCI and put stay on CCC’s order directing the e-commerce site Amazon to modify or withdraw its advertisement, claiming it is the “largest online retail store”.

-MTS[7]

 

In an advertisement aired for MTS by the name of 'MTS 3G Plus born for the Internet', a new born baby was depicted accessing various electronic gadgets like mobiles and tablets while the mother was shown sitting in labour position.

Justice Manmohan stayed ASCI's March 24, 2014 decision holding the advertisement's contents as "gross and indecent" and "offensive especially to women" and asked SSTL to not broadcast it after April 7, 2014.

10. Is there a time period by when a CCC order can be challenged?

 There is no specific time period prescribed as limitation period for filing a writ petition. However as a common practice, we need to show an urgency to seek interim relief from the court. it is therefore recommended that any appeal/petition should be made asap.

[1] Dated August 2nd, 2006 in The Gazette of India: Extraordinary {Part II –sec. 3(i)}

[2] The amendment made in Cable Television Networks Rules, 1994 through a Notification dated August 2nd, 2006 states: "(9) No advertisement which violates the Code for Self-Regulation in Advertising, as adopted by the Advertising Standards Council of India (ASCI), Mumbai for public exhibition in India, from time to time, shall be carried in the cable service".

[3] The Advertising Standards Council of India (ASCI), See http://www.ascionline.org/index.php/faqs.html

[4] AIR 2013 Cal 90

[5] Read more at http://www.motorbeam.com/2014/12/bikes/hero-motocorp/hero-scooter-football-tvc-banned-by-court-video/#MCwDWXF4KPDSpTru.99

[6] Read more at http://www.bgr.in/news/amazons-ad-claiming-to-be-the-largest-online-retail-store-will-stay-on-till-january-5-delhi-high-court-to-centre/

[7] Read more at http://www.motorbeam.com/2014/12/bikes/hero-motocorp/hero-scooter-football-tvc-banned-by-court-video/#MCwDWXF4KPDSpTru.99

© Sabkuch Legal Pvt. Ltd. All Rights Reserved.