An advertisement is defined as a paid-for communication, addressed to the public or a section of it, the purpose of which is to influence the opinions or behavior of those to whom it is addressed. Advertisements can now be seen on electronic media whereas previously one could only see them in the print media, meaning thereby, it now has a wider canvas and has even more greater influence on the society including illiterates through television channels. This influence has become a great cause of concern for the people at large and statutory bodies nowadays, even big corporate with high reputation have indulged themselves into promoting misleading advertisement which usually have greater impact on the large section of society.
False Ad: ―Any advertising or promotion that misrepresents the nature, characteristics, qualities or geographic origin of goods, services or commercial activities constitutes a false-ad.
Regulator of Advertisements: Advertising Standards Council of India (―ASCI) keeps eye on advertisements, established in 1985, is committed to the cause of Self-Regulation of Advertising and thereby protecting the interests of consumers. ASCI's Code for Self-Regulation in Advertising is now part of ad code under Cable TV Act's Rules thus violation of ASCI's Code is now violation of Government rules. ―ASCI, through National Advertising Monitoring Service (NAMS), has now started tracking print and TV advertisements against which complaints are upheld. Nevertheless the council has asked the Government to grant it statutory powers so that misleading advertisements can come under Government scanner. The Ministry of Consumer Affairs, Food and Public Distribution are currently examining the possibility of putting in place a legal regime to control the incidence of misleading advertisements.
Compensation: There are two kinds of advertisements, first is Ethos (emotional) and second is Pathos (practical). Electronic advertisements specially are made with an objective to fascinate the viewers and in doing so the companies sometimes end up in causing impairment to its consumer's right. Thus, whenever there is an infringement of consumer right to a consumer due to such false advertisements he or she entitled to be compensated but the very obvious question that arises is, how do you compensate the consumer who has been deceived and how would you prevent such impairment? In India, we do not have strict provisions or laws that can restrain such ad from being aired and absolutely no legal regime that can support the claims of a person whose choice has been impaired or deceived. In such situations, all we can suggest is that the advertiser and/ or the media should be held liable depending on the level of impairment. However, a number of laws, regulations and codes regulate advertisements and protect the interests of consumers, but only two laws – the Consumer Protection Act, 1986 and the Competition Act, 2002 provide for compensation to the consumers affected by false and misleading advertisements. In fact under both the laws, false and misleading advertisements are defined as ―unfair trade practices.
Facts and Case Laws: A total number of 777 complaints were received by the ASCI in the year 2011. What strikes most is that majority of the misleading/deceiving ads are issued not by small or low turnover companies, but big corporations; e.g. Dabur India Ltd's Dabur Chyawanprash print ad claimed that ―Dabur Chyawanprash provides three (3) times more immunity, ―Helps improve the ability to fight illness by three (3) times‖, ―ONLY Dabur Chyawanprash provides immunity. The advertisers were not able to substantiate the claim with necessary support and data. The advertisement contravened Chapter I.4 of the Code and the complaint against the ad was UPHELD. Piramal Healthcare's advertisement on getting complete energy in eight days or money back and by Airtel Digital TV on Free Regional Pack for life are instances of such misleading ads. The existing Laws such as Drug and Magic Remedies (Objectionable Advertisements) Act and the Cable Television Network Regulation Act have failed to prevent misleading ads.
The Hon'ble Supreme Court in the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 prohibits the advertisement of any diagnosis, cure, mitigation, treatment or prevention of certain diseases / disorders / conditions listed under the Schedule to this Act. There is a celebrated case law, Hamadard Davakhana case, which falls under the ambit of this law's blatant violation. The facts of the case involved a drug that was advertised to have the quality to magically cure certain types of disease, which in fact was not so. The court held that Ad was a misleading and the defendant was held liable. In the case of M.R. Ramesh vs. M/S Prakash Moped House and Others, (RP No 831 of 2001) the National Consumer Disputes Redressal Commission (NCDRC) warned against advertisements that use of fine print to hide crucial information pertaining to products and held that, ―advertisements should not mislead and should give a clear picture of the quality of the goods sold. In United States of America, law forbids the use of very complicated English language in advertisements. A law is passed in January, 2012 in the U.S., which will no longer allow airlines and discount websites to advertise discounts without including all taxes, fees and additional charges in their campaigns.
Conclusion: Notwithstanding, we have laws that prohibit misleading ads but at the same time and also as explained above, it can be precisely said that our laws are lacking the force to control, restraining and to take strict actions against such misleading advertisements or making the media liable for such misleading acts. Advertisement Laws in India are quite ineffective to deal with the present day situation. We do not have any strict laws to control advertisements on Internet, which is a need of hour. Thus, in my opinion a separate statutory body should be constituted by the Government of India to develop strict laws, corrective measures and action plans as per present day needs.
Comments
Post a Comment