RIGHT TO ADVERTISEMENT

A PROJECT REPORT ON

RIGHT TO ADVERTISE

SUBMITTED TO:

MR. INDRA NATH DEY

(FACULTY, MEDIA LAW)

SUBMITTED BY

AMAN TIGGA

SEMESTER-X

ROLL NO.16

DATE OF SUBMISSION- 06/04/2017

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR (C.G.)

MEDIA LAW PAGE 1

 RIGHT TO ADVERTISEMENT

TABLE OF CONTENT

1. ACKNOWLEDGEMNTS…………………………………………........3
2. LIST OF CASES…………………………………………………....…...4
3. INTRODUCTION………………………………………………….....…5
4. OBJECTIVE OF PROJECT……………………………………….......6
5. RESEARCH METHODOLOGY…………………………………....…6
6. CHAPTER – 1-RIGHT TO ADVERTISEMENT AS A PART OF FREEDOM
OF SPEECH AND EXPRESSION.................................................................7

7. CHAPTER – 2-LAWS GOVERNING ADVERTISEMENT IN INDIA…...11

8. CHAPTER–3-REGULATORY AUTHORITIES...................................... 20
9. CONCLUSION………………………………………..……….…....…23
10. BIBLIOGRAPHY……………………………………..…….…....…...24

MEDIA LAW PAGE 2

 RIGHT TO ADVERTISEMENT

ACKNOWLEDGEMENTS

The successful completion of any task would be, but incomplete, without the mention of
people who made it possible and whose constant guidance and encouragement crowned
my effort with success.

I would like to thank my course teacher Mr.IndraNathDeyforproviding me the topic of

my interest.

Secondly, I would like to thank our Vice Chancellor for providing the best possible
facilities of I.T and library in the university.

I would also like to extend my warm and sincere thanks to all my colleagues, who
contributed in numerable ways in the accomplishment of this project.

MEDIA LAW PAGE 3

 RIGHT TO ADVERTISEMENT

LIST OF CASES

 John W. Rast v. Van Deman& Lewis Company 240 U.S. 342, 36 S.Ct. 370, 60 L.Ed.
679
 Reckitt & Coleman of India Ltd v Kiwi TTK Ltd 63 (1996) DLT 29
 Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd (1995) 5 SCC 139
 HamdardDawakhana v. Union of India AIR 1960 SC 554
 Reliance Petrochemicals Ltd v. Indian Express 1989 AIR 190, 1988 SCR Supl. (3)
212

MEDIA LAW PAGE 4

 RIGHT TO ADVERTISEMENT

INTRODUCTION

The essence of free speech is the ability to think and speak freely and to obtain information
from others through publications and public discourse without fear of retribution, restriction,
or repression by the government. Advertising is a form of communication for marketing and
used to encourage or persuade an audience (viewers, readers or listeners; sometimes a
specific group) to continue or take some new action. Most commonly, the desired result is to
drive consumer behaviour with respect to a commercial offering, although political and
ideological advertising is also common.

In John W. Rast v. Van Deman& Lewis Company1, Mr. Justice Mckenna, dealing with
advertisements said:-

"Advertising is merely identification and description, apprising of quality and place. It has no
other object than to draw attention to the article to be sold and the acquisition of the article to
be sold constitutes the only inducement to its purchase." above advertisement takes the same
attributes as the object it seeks to promote or bring to the notice of the public to be used by it.
Examples can be multiplied which would show that advertisement dealing with trade and
business has relation with the item "business or trade" and not with "freedom of speech".

The principles, as stated in the case of Reckitt & Coleman of India Ltd v Kiwi TTK Ltd2, are
as follows:

a) An advertisement can declare that the advertised goods are the best in the world, even
though this declaration is untrue;
b) An advertisement can state that the advertised goods are better than those of
competitors, even if this statement is untrue;
c) An advertisement can compare the advertised goods with those of competitors;
d) An advertisement cannot, while stating that the advertised goods are better than those
of a competitor, state that the competitor’s products are bad, as this would be
defamation;
e) In a case of defamation, damages can be claimed. The court can also grant
aninjunction against repetition of the defamatory action.

1
240 U.S. 342, 36 S.Ct. 370, 60 L.Ed. 679
2
63 (1996) DLT 29

MEDIA LAW PAGE 5

 RIGHT TO ADVERTISEMENT

Today, new era of advertising has evolved, which is both cost-effective as well as efficient at
global level. Online advertising is the fastest growing medium of advertising that has proven
its effectiveness and stability in the advertising world.In a developing economy like India,
advertising has a profound impact on how people understand life, the world and themselves,
especially with regard to their values, choices and behaviour. Advertising is considered to be
the cornerstone of our socio-economic system and may be viewed as the lifeline of free
media, paying costs and making media widely accessible. Advertising agencies perform deep
research before they create and feature the advertisement for the targeted audience. Few
platforms dominated the advertising market and offered an opportunity for the advertisers to
pass on the message to people, and market their products.

OBJECTIVE

 To Study Right To Advertise

 To Elucidate on Law Regulating Advertisement In India.
 To Study Different Authorities Regulating Advertisement.

RESEARCH METHODOLOGY

This is a descriptive & analytical research paper. My research paper is largely based on the
critical review of secondary and electronic sources of information. References used as guided
by the faculty of media law were of great use in completing this project.

MEDIA LAW PAGE 6

 RIGHT TO ADVERTISEMENT

CHAPTER – 1 - RIGHT TO ADVERTISEMENT AS A PART OF FREEDOM OF

SPEECH AND EXPRESSION

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 ofcommercial
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" and when examined from another angle, the public at large has a right
to receive the "Commercial speech". Article (19) (1) (a) not only guarantees freedom of
speech and expression, it also protects the rights of an individual to listen, read and receive
the said speech. So far as the economic needs of a citizen are concerned, their fulfilment has
to be guided by the information disseminated through the advertisements. An advertisement
giving information regarding a lifesaving drug may be of much more importance to general
public than to the advertiser who may be having purely a trade consideration.

An advertisement is no doubt a form of speech but its true character is reflected by the object
for the promotion of which it is employed. It assumes the attributes and elements of the
activity under Article 19(1) which it seeks to aid by bringing it to the notice of the public.
When it takes the form of a commercial advertisement which has an element of trade or
commerce it no longer falls within the concept of freedom of speech for the object is not
propagation of ideas ' social, political or economic or furtherance of literature or human
thought; but as in the present case the commendation of the efficacy, value and importance in
treatment of particular diseases by certain drugs and medicines. In such a case, advertisement
is a part of business.A product or a service may be advertised through a variety of methods
such as hand bills, circulars, direct mail, billboards, signboards, sky signs, roof signs,
loudspeakers, mechanical or electric devices, newspapers and magazines, radio, television,
the internet and so on3.

In Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd.4,theSupreme Court held that a
commercial advertisement or commercial speech was also a part of the freedom of speech
and expression, which would be restricted only within the limitation of Article 19(2). The
Telephone Nigam permitted the contractors to publish telephone directories in “Yellow
3
MadhaviGoradia Divan, Facets of Media Law 5 (Eastern Book Company, Lucknow, 2010).
4
(1995) 5 SCC 139

MEDIA LAW PAGE 7

 RIGHT TO ADVERTISEMENT

pages” used to be added to the directory published by the Nigam in white pages. The Bombay
High Court allowed the appeal of the Nigam, which sought a declaration that it alone had
exclusive right to publish telephone directory and the Tata Press has no right to publish the
list of the telephone subscribers without its permission as it would be violation of Indian
Telegraph Act.

The Tata Press went in appeal to Supreme Court. Admitting the appeal, the court said: The
Advertisement as “Commercial Speech” has two facts. Advertising which is no more than a
commercial transaction, is nonetheless dissemination of information regarding the product-
advertised. Public at large are benefited by the information made available through the
advertisements. In a democratic economy, free flow of commercial information is
indispensable. There cannot be honest and economical marketing by 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 public at large has a right to receive the commercial speech. Article 19(1)(a) of
the constitution not only guaranteed freedom of speech and expression, italso protects the
rights of an individual to listen, read and receive the said speech. The Supreme Court
emphatically held that the right under Article 19(1)(a) could not be denied by creating a
monopoly in favour of the Government. It could only be restricted on grounds mentioned in
Article 19(2) of the constitution.

Till this judgement5, advertisements were excluded from the realm of free speech. In an
earlier ruling, HamdardDawakhana v. Union of India6,the Supreme Court held that
advertisements being acommercial gain, could not avail of the rights under Article 19(1)(a).

The case concerned a challenge to the provisions of the Drugs and Magic Remedies
(Objectionable Advertisements) Act, 1954 which was intended at preventing self-medication.
The court held that although an advertisement was a form of speech, it ceased to fall within
the concept of free speech when it took the form of a commercial advertisement seeking to
promote trade or commerce. The court observed: “Freedom of speech goes to the heart of the
natural right of an organised freedom loving society to „impart and acquire information about
the common interest‟. If any limitation is placed which resultsin the society being deprived of
such right then no doubt it would fall within the guaranteed freedom under Article 19(1)(a).

5
Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd., (1995) 5 SCC 139
6
AIR 1960 SC 554.

MEDIA LAW PAGE 8

 RIGHT TO ADVERTISEMENT

But if all it does is that it deprives a trader from commending his waves, it would not fall
within that term”7.

It is curious reasoning to deprive commercial advertising from protection under Article

19(1)(a). Traders and businessman who advertise for commercial gain, are no different from
newspapers and other media that are run as Commercial, profit making enterprises. This is
why the media enjoy no special status or immunity and are subject to the general laws of the
land, including those relating to taxation. The reasoning that those advertising for commercial
gain were disentitled to enjoy the right of free speech under Article 19(1)(a) appears flawed.

In Reliance Petrochemicals Ltd v. Indian Express8 it has been observed by the bench
deciding the case that “We must remember that people at large have a right to know in order
to be able to take part in a participatory development in the industrial life and democracy.
Right to know is a basic right which citizens of a free country aspire in the broader horizon of
the right to live in this age on our land under Art. 21 of the Constitution.”

Since, advertising is a form of communication for marketing and is used to encourage or

persuade audience. It is nonetheless dissemination of information regarding the product
advertised and the 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.

It is necessary to maintain and preserve freedom of speech and expression in a democracy, so

also it is necessary to place some restrictions on this freedom for the maintenance of social
order, because no freedom can be absolute or completely unrestricted. Accordingly, under
Article 19(2) of the Constitution of India, the State may make a law imposing “reasonable
restrictions” on the exercise of the right to freedom of speech and expression “in the interest
of” the public on the following grounds:

a) Security of State
b) Friendly relations with foreign states
c) Public Order
d) Decency or morality
e) Contempt of Court

7
Supra n. 4, p. 3
8
1989 AIR 190, 1988 SCR Supl. (3) 212

MEDIA LAW PAGE 9

 RIGHT TO ADVERTISEMENT

f) Defamation
g) Incitement to an offence Sovereignty and integrity of India.

However, advertisers often view these rules and regulations as violating their right to freedom
of speech. Some ads, in particular, were considered derogatory and banned by the
government, such as:

 A deodorant advertisement that showed a man accompanied by scantily clad women

was banned by the government after several complaints were received from viewers
about the advertisement being offensive to family viewers.
 A soft drink advertisement that showed a child bringing the drink for the Indian
cricket players was banned after complaints from child labor activists.
 Advertisements of two underwear ads were banned due to vulgarity and indecency.
Objectionable content in ad is usually a reason for taking it off channels.

MEDIA LAW PAGE 10

 RIGHT TO ADVERTISEMENT

CHAPTER -2 -LAWS GOVERNING ADVERTISEMENT IN INDIA

As mentioned earlier the Government of India has not set up a regulatory body in India to
regulate advertisements. But as in due course depending on the nature of the grievances, the
power to regulate advertisements may be exercised by a vast variety of authorities, including
the courts, Central and State Governments, tribunals or the police authorities. In addition to
that numerous legislations also deal with advertisement provisions in part not in toto
unfortunately. The rules, regulations and legislations include the following:-

1. Consumer Protection Act, 1986

Consumer Protection Act, 1986 provides better protection of the interests of
consumers and to make provision for the establishment of consumer councils and
other authorities for the settlement of consum-ers' disputes and for matters connected
to it, including protection against unfair trade practices9.
2. Information Technology Act, 2000
India is one of the very few countries in the world besides Singapore to have
legislated Cyber laws10. The IT Act specifically empowers that anyone who publishes
in the electronic form, any material which is lascivious or which tends to degrade
persons who are likely to read, see or hear the matter contained or embodied in it,
shall be punishable with imprisonment and fine11. Even there is a provision in the IT
Act, which applies to any offence by which any person shall be punished irrespective
of his/her nationality if the act constituting the offence involves a computer, computer
system or computer network located in India12.
3. Indian Penal Code, 1860
As per the provisions of Indian Penal Code, 1860 certain advertisements are
considered as criminal offences. It is dealt under different provisions of the Code13.
The Young Persons (Harmful Publications) Act, 1956 prevents the dissemination of
certain publications harmful to young persons. To be more précised harmful

9
As the Monopolistic and Restrictive Trade Practices Act, 1984 is repealed after the coming into force of
Competition Act, 2002 the unfair trade practices provisions of the MRTP Act will be enforced under the
Consumer Protection Act.
10
Guide to Cyber Laws (Information Technology Act, 2000, E-commerce, Data Protection & the Internet, Rodney
D. Ryder, 2ndEdn. Reprint 2005, p.399.
11
Section 67of the IT Act, 2000
12
Section 75 of the IT Act, 2000
13
Section 292 (1) of Indian Penal Code, 1860; Section 292(2)(d) of Indian Penal Code, 1860; Section 292 (2)(e) of
the Indian Penal Code, 1860; Indian Penal Code, 1860, Section 292- Exceptions, Section 292 A of Indian Penal
Code, 1860; Section 292 A (e), (d) of Indian Penal Code, 1860; Section 293 of IPC, 1860; Section 294 A of IPC,
1860, Section 153 A of IPC, 1860, Section 153 B of IPC, 1860

MEDIA LAW PAGE 11

 RIGHT TO ADVERTISEMENT

publication indicates such publications which would tend to corrupt a young person
whether by inciting or encouraging him to commit offences. The Act also proclaims
that whoever advertises or makes known by any means that any harmful publication
can be procured from or through any person, then he shall be punished with
imprisonment or with fine, or with both14.

4. The Young Persons (Harmful Publications) Act, 1956

The Young Persons (Harmful Publications) Act, 1956 prohibits advertisements
relating to any harmful publication i.e., any publication that tends to corrupt a young
person (person under the age of 18 years) by inciting or encouraging him or her to
commit offenses or acts of violence or cruelty or in any other manner whatsoever.
According to the ASCI Code, advertisements addressed to minors shall not contain
anything, whether in illustration or otherwise, which might result in their physical,
mental, or moral harm or which exploits their vulnerability. For example,
advertisements may not:
 Encourage minors to enter strange places or to converse with strangers in an
effort to collect coupons, wrappers, labels or the like
 Feature dangerous or hazardous acts which are likely to encourage minors to
emulate such acts in a manner which could cause harm or injury
 Show minors using or playing with matches or any inflammable or explosive
substance; or playing with or using sharp knives, guns, or mechanical or
electrical appliances, the careless use of which could lead to their suffering
cuts, burns, shocks, or other injury
 Feature minors in promoting tobacco or alcohol-based products
 Feature personalities from the field of sports, music, or cinema for products
which, by law, either require a health warning in their advertising or cannot be
purchased by minors.

5. Indecent Representation of Women (Prohibition) Act, 1986

14
Section 3 of the Harmful Publications Act, 1956

MEDIA LAW PAGE 12

 RIGHT TO ADVERTISEMENT

Indecent Representation of Women (Prohibition) Act, 1986 prohibits indecent

representation of women through advertisement15 or in publications, writings,
paintings, figures or in any other manner and for matters connected therewith or
incidental thereto. The Cigarettes and other Tobacco Products (Prohibition of
Advertisement and Regulation of Trade and Commerce, Production, Supply and
Distribution) Act, 2003 and the Cigarettes (Regulation of Production, Supply and
Distribution) Act, 1975, states that no person shall advertise for the distribution, sale
or supply of cigarettes, and also shall not take part in the publication of such
advertisement, unless the specified warning is included in such advertisement16. The
Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (DMRA)
controls the advertisement17of such drugs which is said to provide magical remedies
and to deal with other matters relating to it.
6. The Cigarettes and other Tobacco Products (Prohibition of Advertisement and
Regulation of Trade and Commerce, Production, Supply and Distribution) Act,
2003
The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and
Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003
or COTPA, 2003 is an Act of Parliament of India enacted in 2003 to prohibit
advertisement of, and to provide for the regulation of trade and commerce in, and
production, supply and distribution of cigarettes and other tobacco products in India.
This Act was enacted by the Parliament to give effect to the Resolution passed by the
39th World Health Assembly, urging the member states to implement measures to
provide non-smokers protection from involuntary exposure to tobacco smoke
The Act prohibits smoking of tobacco in public places, except in special smoking
zones in hotels, restaurants and airports and open spaces18. Places where smoking is
restricted include auditoriums, movie theatres, hospitals, public transport (aircraft,
buses, trains, metros, monorails, taxis,) and their related facilities (airports, bus
stands/stations, railway stations), restaurants, hotels, bars, pubs, amusement centres,

15
Section 2(a) of the Indecent Representation of Women (Prohibition) Act, 1986 defines advertisement-
"Advertisement" includes any notice, circular, label, wrapper or other document and also includes any visible
representation made by means of any light, sound, smoke or gas
16
Section 5 (1), the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of
Trade and Commerce, Production, Supply and Distribution) Act, 2003 (CTPA)
17
Section 2(a) of the Drugs and Magical Remedies (Objectionable Advertisements Act), 1954 defines "
advertisement " includes any notice, circular, label, wrapper, or other document, and any announcement made
orally or by any means of producing or transmitting light, sound or smoke;
18
Section 4 of Cigarettes and Other Tobacco Products Act, 2003

MEDIA LAW PAGE 13

 RIGHT TO ADVERTISEMENT

offices (government and private), libraries, courts, post offices, markets, shopping
malls, canteens, refreshment rooms, banquet halls, discothèques, coffee houses,
educational institutions and parks.Smoking is allowed on roads, inside one's home or
vehicle19. The meaning of open space has been extended to mean such spaces which
is visited by public, and includes open auditorium, stadium, bus stand20.
Tobacco products cannot be sold to person below the age of 18 years, and in places
within 100 metres radius from the outer boundary of an institution of education,
which includes school colleges and institutions of higher learning established or
recognized by an appropriate authority21.
Tobacco products must be sold, supplied or distributed in a package which shall
contain an appropriate pictorial warning, its nicotine and tar contents22. Cigarette
packets are required to carry pictorial warnings of a skull or scorpion or certain
prescribed pictorial warnings along with the text SMOKING KILLS and TOBACCO
CAUSES MOUTH CANCER in both Hindi and English.
7. The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1955
The act defines "magic remedy" as any talisman, mantra, amulet or any other object,
which is claimed to have miraculous powers to cure, diagnose, prevent or mitigate a
disease in humans or animal. It also includes such devices that are claimed to have
power to influence structure or function of an organ in humans or animals.
The law prohibits advertising of drugs and remedies for
 inducing miscarriage or preventing conception in women
 improving or maintaining the capacity for sexual pleasure
 correction of menstrual disorders
 curing, diagnosing or preventing any disease or condition mentioned in an
included schedule.

8. The Drugs and Cosmetics Act, 1940

19
Agencies. "Smoking ban to be enforced from Oct 2: Ramadoss". Express India. Retrieved 2017-03-25
20
Rule 2(c) of Prohibition of Smoking in Public Places Rules, 2008
21
Section 6 of Cigarettes and Other Tobacco Products Act, 2003 and Rule 2(c) of Prohibition on sale of Cigarettes
and other Tobacco Products around Educational Institutions Rules, 2004
22
Section 7 of Cigarettes and Other Tobacco Products Act, 2003

MEDIA LAW PAGE 14

 RIGHT TO ADVERTISEMENT

As per the Drugs and Cosmetics Act, 1940 (DCA), no person shall himself or by any
other person on his behalf offer for sale23any drug or cosmetic which is not of a
standard quality, or is misbranded, adulterated or spurious. The Act gives similar
restrictions to advertisements for traditional drugs such as Ayurvedic, Siddha and
Unani. The Emblems and Names (Prevention of Improper Use) Act, 1950 is enacted
to prevent the improper use of certain emblems24 and names, for professional and
commercial purposes25.
9. The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act,
1994
The main purpose of enacting the act is to ban the use of sex selection techniques after
conception and prevent the misuse of prenatal diagnostic technique for sex selective
abortion. The Act provides for the prohibition of sex selection, before or after
conception.
 It regulates the use of pre-natal diagnostic techniques, like ultrasound and
amniocentesis by allowing them their use only to detect :
i. genetic abnormalities
ii. metabolic disorders
iii. chromosomal abnormalities
iv. certain congenital malformations
v. haemoglobinopathies
vi. sex linked disorders.
 No laboratory or centre or clinic will conduct any test including
ultrasonography for the purpose of determining the sex of the foetus.
 No person, including the one who is conducting the procedure as per the law,
will communicate the sex of the foetus to the pregnant woman or her relatives
by words, signs or any other method.
 Any person who puts an advertisement for pre-natal and pre-conception sex
determination facilities in the form of a notice, circular, label, wrapper or any
document, or advertises through interior or other media in electronic or print
form or engages in any visible representation made by means of hoarding,

23
Section 18 of the Drugs and Cosmetics Act, 1940
24
Section 2(a) of the Emblems and Names (Prevention of Improper Use) Act, 1950 defines emblem as any
emblem, seal, flag, insignia, coat-of-arms or pictorial representation specified in the Schedule.
25
Schedule of the Emblems and Names (Prevention of Improper Use) Act, 1950 enumerates the list of emblems
and names which are prohibited from improper use in professional and commercial purposes.

MEDIA LAW PAGE 15

 RIGHT TO ADVERTISEMENT

wall painting, signal, light, sound, smoke or gas, can be imprisoned for up to
three years and fined Rs. 10,000.
Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994
(PNDT), was amended in 2003 to The Pre-Conception and Pre-Natal Diagnostic
Techniques (Prohibition Of Sex Selection) Act (PCPNDT Act) to improve the
regulation of the technology used in sex selection.Implications of the amendment are
 Amendment of the act mainly covered bringing the technique of pre
conception sex selection within the ambit of the act
 Bringing ultrasound within its ambit
 Empowering the central supervisory board, constitution of state level
supervisory board
 Provision for more stringent punishments
 Empowering appropriate authorities with the power of civil court for search,
seizure and sealing the machines and equipments of the violators
 Regulating the sale of the ultrasound machines only to registered bodies
10. The Transplantation of Human Organs Act, 1994
The Transplantation of Human Organs Act, 1994 provides for the regulation of
removal, storage and transplantation of human organs for therapeutic purposes and for
the prevention of commercial dealings in human organs and for matters relating to
it26and provisions are there for the punishment for commercial dealings in human
organs27. While detailing the provisions of the Representation of the People
(Amendment) Act, 1951 (RPA)28, it is observed that during the period of forty-eight
hours before the conclusion of the poll for any elections in that polling area, a person
shall not display to the public any election matter by means of cinematograph,
television or other similar apparatus29. The statute even provides penalty for anyone
including the advertisers who contravene the above provision with imprisonment or
fine or with both.

26
Preamble of The Transplantation of Human Organs Act, 1994
27
Chapter VI, Section 19 of The Transplantation of Human Organs Act, 1994
28
Section 126 of The Representation of the People (Amendment) Act, 1951 (RPA)
29
Section 126 A is inserted in THE REPRESENTATION OF THE PEOPLE (SECOND AMENDMENT)BILL,
2008 which provides a person shall not conduct any exit poll and publish or publicise by means of the print or
electronic media or disseminate in any other manner, whatsoever, the result of any exit poll during such period, as
may be notified by the Election Commission in this regard. For the purpose of this section, ‘‘electronic media’’
includes internet, radio and television including Internet Protocol Television, satellite, terrestrial or cable
channels, mobile and such other media either owned by the Government or private person or by both;

MEDIA LAW PAGE 16

 RIGHT TO ADVERTISEMENT

11. The Representation of the People (Amendment) Act, 1996

The Representation of the People (Amendment) Act, 1996 has the following
provisions relating to advertisements:
 Prohibit advertisements for a period of forty-eight hours ending with the hours
fixed for conclusion of polling for any elections in a given polling area.
 Use of displaying posters, signboards etc. for political advertisement in any
public place strictly in accordance with the relevant provisions of the local
laws.
 Equitable opportunity to all political parties and candidates to have access to
public advertisement space for election related advertisements during the
election period.
 Use of private premises for political advertisement only with the voluntary
permission of the occupant.
 Prohibition of any and all advertisements at the cost of the public exchequer
regarding achievements of the political party/ruling government.
The statute provides for a penalty of imprisonment and/or fine for anyone, including
advertisers, who contravenes these provisions
12. The Lotteries (Regulation) Act, 1998
Now when we analyse the Lotteries (Regulation) Act, 1998, it is seen that a State
Government has the discretionary powers to organize, conduct or promote a lottery,
including advertising thereof subject to some conditions30 specified in the Statute. It is
also provided that the State Government may prohibit within itself the sale of tickets
of a lottery organized, conducted or promoted by every other state31; if any
contravention on the above the Central Government may, by order published in the

30
Section 4 of the Lotteries (Regulation) Act, 1998, the conditions includes the following:-
a) Prizes shall not be offered on any pre-announced number or on the basis of a single digit;
b) The State Government shall print the lottery tickets bearing the imprint and logo of the State in such
manner that the authenticity of the lottery ticket is ensured;
c) The State Government shall sell the tickets either itself or through distributors or selling agents;
d) The proceeds of the sale of lottery tickets shall be credited into the public account of the State.
e) The State Government itself shall conduct the draws of all the lotteries;
f) The prize money unclaimed within such time as may be prescribed by the State Government or not
otherwise distributed, shall become the property of that Government;
g) The place of draw shall be located within the State concerned;
h) No lottery shall have more than one draw in a week;
i) The draws of all kinds of lotteries shall be conducted between such periods of the day as may be
prescribed by the State Government.
j) The number of bumper draws of a lottery shall not be more than six in a calendar year;
k) Such other conditions as may be prescribed by the Central Government.
31
Section 5 of the Lotteries (Regulation) Act, 1998

MEDIA LAW PAGE 17

 RIGHT TO ADVERTISEMENT

Official Gazette, prohibit a lottery organized, conducted or promoted thereof32. The

penalty33 clause of the Act is such that if any person acts as an agent or promoter or
trader in any lottery organized, conducted or promoted in contravention of the
provisions of the Act or sells, distributes or purchases the ticket of such lottery, he
shall be punishable with imprisonment or with fine or with both.
In online advertising scenario, the law related to gambling is applicable to online
gambling. The online lottery is the most popular form of internet gambling in India.
Most companies who markets/distributes/conducts the state government-sponsored
lotteries through the internet are restricted from selling their services in the states that
banned lotteries. So it is advised that the companies (as a safeguard) seek an
undertaking from their consumers relating to their residence under which the
advertisers who publishes the same should also make a note of it.
13. The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of
Production, Supply and Distribution) Act, 1992
The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of
Production, Supply and Distribution) Act, 199234 as Amended in 2003 regulates the
production, supply and distribution of infant milk substitutes, feeding bottles and
infant foods with a view for protecting and promoting breastfeeding and for the
matters relating to it including advertisement35 of the same36. The Competition Act,
2002 provides prohibition of certain agreements in respect of production, supply,
distribution, storage, acquisition or control of goods or provision of services, which
causes or is likely to cause an appreciable adverse effect on competition within
India37.
14. The Contract Act, 1872

32
Section 6 of the Lotteries (Regulation) Act, 1998
33
Section 7(3) of the Lotteries (Regulation) Act, 1998
34
The Act is named as The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production,
Supply and Distribution) Act, 1992 as Amended in 2003 (IMS Act) visit
http://www.bpni.org/docments/IMSact.pdf
35
Section 2(a) of The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply
and Distribution) Act, 1992 as Amended in 2003 (IMS Act): “advertisement” includes any notice, circular, label,
wrapper or any other document or visible representation or announcement made by means of any light, sound,
smoke or gas or by means of electronic transmission or by audio or visual transmission;
36
Preamble of The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply
and Distribution) Act, 1992
37
Chapter II of the Competition Act, 2002

MEDIA LAW PAGE 18

 RIGHT TO ADVERTISEMENT

As per the Contract Act, 1872, the advertisements for gambling, lottery and prize
games have held to be wagering contracts and thus void and unenforceable38, are
prohibited in India. While reading the provisions of the Act along with the ASCI
guidelines it is understood that even the incorporation of a visual representation of
such gaming room or table could be construed as indirect advertisement39.
15. The Civil Defense Act, 1968
The Civil Defence Act, 1968 gives power to the Central Government to make rules
for securing civil defence40 for prohibiting the printing and publication of any book or
other document containing matters prejudicial to civil defence41. Rules could also be
made for demanding security from any press used for the purpose of
printing/publishing of any book or other document containing matters prejudicial to
civil defence42.

38
Section 24 to 30 of the Indian Contract Act, 1872
39
Chapter III, Clause 6(d) and (e) of the ASCI Code
40
Chapter II of the Civil Defence Act, 1968
41
Chapter II, Section 3(1)(w) of the Civil Defence Act, 1968
42
ibid

MEDIA LAW PAGE 19

 RIGHT TO ADVERTISEMENT

CHAPTER – 3 – REGULATORY AUTHORITIES

1. ASCI and ASCI's Consumer Complaints Council (ASCI's CCC): 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.
2. Indian Broadcasting Foundation and Broadcasting Content Complaints Council
("BCCC"): 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

MEDIA LAW PAGE 20

 RIGHT TO ADVERTISEMENT

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.
3. Telecom Regulatory Authority of India (TRAI): 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, 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.

MEDIA LAW PAGE 21

 RIGHT TO ADVERTISEMENT

4. Press Council of India: 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.

MEDIA LAW PAGE 22

 RIGHT TO ADVERTISEMENT

CONCLUSION

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.

MEDIA LAW PAGE 23

 RIGHT TO ADVERTISEMENT

BIBLIOGRPHY

A. BOOKS REFERRED

 MadhaviGoradia Divan, Facets of Media Law 5 (Eastern Book Company,

Lucknow, 2010).

B. ACTS REFFERED

i. Consumer Protection Act, 1986

ii. Information Technology Act, 2000
iii. Indian Penal Code, 1860
iv. The Young Persons (Harmful Publications) Act, 1956
v. Indecent Representation of Women (Prohibition) Act, 1986
vi. The Cigarettes and other Tobacco Products (Prohibition of Advertisement and
Regulation of Trade and Commerce, Production, Supply and Distribution) Act,
2003
vii. The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1955
viii. The Drugs and Cosmetics Act, 1940
ix. The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act,
1994
x. The Transplantation of Human Organs Act, 1994
xi. The Representation of the People (Amendment) Act, 1996
xii. The Lotteries (Regulation) Act, 1998
xiii. The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of
Production, Supply and Distribution) Act, 1992
xiv. The Contract Act, 1872
xv. The Civil Defense Act, 1968

C. WEBLIOGRAPHY

 http://www.bpni.org/docments/IMS.
 "Smoking ban to be enforced from Oct 2: Ramadoss". Express India. Retrieved
2017-03-25.

MEDIA LAW PAGE 24