UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB UNIVERSITY, CHANDIGARH

PROJECT REPORT
(SUBJECT: RTI AND MEDIA LAWS)

TOPIC: BROADCASTING MEDIA WITH

SPECIAL REFERENCE TO THE CABLE TV
REGULATORY ACT, 1995

Submitted to: Submitted by:

Ms. Kajori Bhatnagar Jaspinder Singh (84/14)

Assistant Professor, UILS, PU B.A.LL.B. (7thsem.)-B

UILS, PU, CHD.

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Contents
MEANING OF BROADCASTING ...............................................................................3
HISTORICAL DEVELOPMENT OF BROADCASTING MEDIA IN INDIA .......................................3
RIGHT TO BROADCAST .......................................................................................5
Broadcasting Council ......................................................................................6
Code of Conduct ...........................................................................................6
CABLE TV REGULATION ACT, 1995 ......................................................................... 7
OBJECT OF THE ACT.......................................................................................7
Regulation of Cable Television Network ...............................................................8
Registration of Cable Operators......................................................................... 8
Content Regulation ........................................................................................9
The Programme Code (contained in Rule 6 of Cable Television Network Rules 1994) ..........9
The Advertisement Code (contained in Rule 7 of Cable Television Network Rules 1994) ..... 10
Inter-Ministerial Committee............................................................................ 11
Electronic Media Monitoring Centre...................................................................11
State-level and District-level Monitoring Committees .............................................11
Offences and Penalties ..................................................................................12
2003- Amendment to the Cable Television Networks (Regulation) Act, 1995 (Amendment Act)
13
RELATED JUDICIAL PRONOUNCEMENTS................................................................15
ADVERTISING ................................................................................................15
Advertising Standards Council of India  ..............................................................16
Laws impacting advertisements .......................................................................17
Limits on duration of advertisements ................................................................17
Few Complaints filed with ASCI ........................................................................17
The other legislations affecting the area of advertising ...........................................17
SELF-REGULATORY BODIES FOR REGULATION OF PROGRAMMES - INDIAN BROADCASTING
FOUNDATION .................................................................................................19
PROGRAMMES ON NEWS AND CURRENT AFFAIRS TELEVISION CHANNELS ......................... 20
News Broadcasters Association ...........................................................................20
News Broadcasting Standards Regulations ..............................................................20

INTRODUCTION

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In this age of media explosion, one cannot simply remain confined to the boundaries of the
traditional media. The media world has expanded its dimensions by encompassing within its
orbit, the widening vistas of cyber media etc. As a consequence, the laws governing them are
also numerous. It is not within the scope of this Article to deal with the whole subject of media
laws, but this project report makes a person aware of the various important legislations regarding
broadcasting media (i.e Cable TV Network Regulations Act, 1995 and Prasar Bharti Act, 1990),
making him aware of his rights and facilitating him to exercise them within the framework of
law existing in India.

MEANING OF BROADCASTING
"Braodcasting" means the transmission of audio and video signals using electromagnetic waves,
such as radio waves. Transmission can take place through satellites or terrestrial microwave
transmitters and be further distributed through wired network.1

HISTORICAL DEVELOPMENT OF BROADCASTING MEDIA IN INDIA

There was Telegraph Act of 1876, which was revised in 1885. This Act continued to operate till
date. The broadcast media was under complete monopoly of the Government of India. It was in
1926 that regular broadcasting service in India took shape for the first time in the form of
agreement between the Government and a private Company called the Indian Broadcasting
Company Ltd. Before that date, there were number of Radio Associations which had been
permitted to broadcast on very low power in various parts of the country and were granted a
proportion of license fee. Under this agreement Bombay and Calcutta Stations were constructed.
After a short life of 3 years, this broadcasting company failed in India. In response to the popular
demand the government decided to acquire the assets of Company and run two stations at
Calcutta and Bombay. Its management was placed under the department of Industries and
Labour. Broadcasting was made a Ferderal Subject, with the policy controlled by Centre.

1 Prasar Bharti (Broadcasting Cooperation of India) Act 1990 defines broadcasting thus: "Broadcasting means the
dissemination of any form of communication like signs, signals, writing, pictures, images and sounds of all kinds by
transmission of electro-magnetic waves through space or through cables intended to be received by the general
public either directly or indirectly through the medium of relay stations and all its grammatical variations and
cognate expressions shall be construed accordingly."

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From June 1936 onwards ALL INDIA RADIO was adopted as principal name which was
conversion of Indian State Broadcasting Service. The radio station of Mysore, set up in 1936 was
named AKASHVANI. Gradually it became synonym for ALL INDIA RADIO. Thus A.I.R. took
second position.

On September 15, 1959 an experimental Television Service of All India Radio was inaugurated
in Delhi by then President of India, Dr. Rajendra Prasad. This pilot project had the purpose of
‘experimentation, training and evolution’. TV Service entered Space Age on 1st August 1975
when US owned satellite 6 was made available to India by NASA for Satellite Instructional
Television Experiment (SITE) Programme. The Nation gradually became self-reliant after its 1st
Indian National Satellite (INSAT-1A) launched from Cap Kennedy on April 10, 1982.

The expansion of TV was under the roof of A.I.R., which led to the emergence of Doordarshan.
Earlier, private organizations were involved only in commercial advertising and sponsorships of
programmes. However, in Secretary, Ministry of I&B v. CAB2, the Supreme Court clearly
differed from the aforementioned monopolistic approach and emphasized that, every citizen has
a right to telecast and broadcast to the viewers/listeners any important event through electronic
media, television or radio and also provided that the Government had no monopoly over such
electronic media as such monopolistic power of the Government was not mentioned anywhere in
the Constitution or in any other law prevailing in the country. This judgment, thus, brought about
a great change in the position prevailing in the broadcast media, and such sector became open to
the citizens.

The Broadcasting Code, adopted by the Fourth Asian Broadcasting Conference in 1962 listing
certain cardinal principles to be followed by the electronic media, is of prime importance so far
as laws governing broadcast medium are concerned. Although, the Broadcast Code was chiefly
set up to govern the All India Radio, the following cardinal principles have ideally been practiced
by all Broadcasting and Television Organization; viz:-

Ø To ensure the objective presentation of news and fair and unbiased comment

Ø To promote the advancement of education and culture


2 1995 AIR 1236.

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Ø To raise and maintain high standards of decency and decorum in all programmes

Ø To provide programmes for the young which, by variety and content, will inculcate the
principles of good citizenship

Ø To promote communal harmony, religious tolerance and international understanding

Ø To treat controversial public issues in an impartial and dispassionate manner

Ø To respect human rights and dignity

RIGHT TO BROADCAST
The notion of 'free speech and expression' under Article 19(1)(a) of the Constitution has evolved
continuously, expanding and adopting to keep pace with the exponential advaces in technology
which have revolutionalised the means by which information is imparted and recieved. The right
of freedom of speech and expression extends to all available means of communication and
expression.

This is recognised in LIC v. Manunhai D. Shah3, where the subject matter of the challenge was
Doordarshan's refusal to telecast a documentary film on the Bhopal Gas disaster titled Beyond
Genocide. Doordarshan refused to telecast the film on various grounds: the film was outdated; it
had lost its relevance; it lacked moderation and restraint; it was not fair and balanced; political
parties were raising various issues concerning the tragedy; claims for compensation by the
victims were sub judice; the film was likely to crreate commotion in an already changed
atmosphere; and the film critcised the action of the State Government. Upholding the right to
broadcast, the Supreme Court held that Doordarshan, a State controlled agency that depended on
public funds, was not entitled to refuse to telecastof the film since it was not able to make out
valid grounds under Article 19(2).

In the Hero Cup case4, the Supreme Court held that broadcasting is a means of communication
and a medium of speech and expression within the framework of Article 19(1)(a). This case
involved the rights of a cricket association to grant telecast rights to an agency of its choice. It

3 (1992) 3 SCC 637

4 (1995) 2 SCC 161: AIR 1995 SC 1236

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was held that the right to entertan and be entertainedthrough the broadcasting are an integral part
of the freedom under Artcile 19(1)(a). Circulation and dissemination of information is an
importnat part of the freedom, and TV, which reaches out to the widest available audinece, is an
essential means of communication.

DOORDARSHAN: Prasar Bharati (Broadcasting Corporation of India) Act, 1990

The Prasar Bharati, a Government of India undertaking has been established under the Prasar
Bharati (Broadcasting Corporation of India) Act, 1990 ("PB Act"). The Prasar Bharati operates a
number of channels under the umbrella of 'Doordarshan'. The PB Act prescribes that it shall be
the primary duty of Prasar Bharati to conduct public broadcasting services to inform, educate and
entertain the public and to ensure a balanced development of broadcasting on TV.

Broadcasting Council

The PB Act also provides for establishment of Broadcasting Council, to receive and adjudicate
complaints regarding a programme for contravention of any of the objectives for which the
Prasar Bharati has been established. The Broadcasting Council is also to advise the Prasar
Bharati in the discharge of its functions. However, the Broadcasting Council has not been
constituted till date.

Code of Conduct

Doordarshan has its own code of conduct relating to broadcasting, social objectives and
advertisements for production, transmission and telecast of programmes on Doordarshan.

The All India Radio and Doordarshan Broadcasting Code is applicable on the programmes
transmitted on Doordarshan and prohibits criticism of friendly countries; attack on religions or
communities; obscenity; defamation; incitement to violence; anything against maintenance of
law and order; anything amounting to contempt of court; and anything affecting the integrity of
the nation etc.

Further, general rules for commercial advertising on Doordarshan have been set-forth in its own
code of conduct for advertising, which provides that no advertisement shall be accepted in case it
violates the All India Radio and Doordarshan Broadcasting Code.

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CABLE TV REGULATION ACT, 1995

BACKGROUND

Before the introduction of cable television in India, broadcasting was solely under the control of
the State. The Government of India was caught unprepared with the emergence of cable
networks and broadcasting through satellites in the early 1990s. The Government was not able to
put a check on transmission and broadcast of television through foreign satellites.

The necessity of procuring licence for operating cable networks was first mentioned by the
Rajasthan High Court in the case of Shiv Cable TV System v. State of Rajasthan5. In this case, the
district magistrate ordered a ban on cable networks as they were being operated without licence.
Subsequently the order of the district magistrate was challenged in the Rajasthan High Court on
the ground that the order was in violation of fundamental right to freedom trade and profession.
The high court held that there was no violation of the right to freedom of trade because cable
networks fall within the definition of “wireless telegraph apparatus” under the Indian Wireless
Telegraphy Act and therefore it necessary to have licence to operate such network. This
highlighted the need for having a framework for the regulation of cable networks in India which
led to the enactment of the Cable Television Networks (Regulation) Act, 1995.

OBJECT OF THE ACT

The object of the Act was to regulate the ‘haphazard mushrooming of cable television networks’.
Due to the lack of licensing mechanism for cable operators; this resulted in large number of cable
operators, broadcasting programmes without any regulation. The Act aimed at regulating content
and operation of cable networks. This was due to the availability of signals from foreign
television networks via satellite communication. The access to foreign television networks was
considered to be a “cultural invasion” as these channels portrayed western culture. It also wanted
to lay down the "responsibilities and obligations in respect of the quality of service both
technically as well content wise, use of materials protected under the copyright law, exhibition of
uncertified films, and protection of subscribers from anti-national broadcasts from sources
inimical to national interests". Cable Television Networks (Regulation) Act, 1995 basically

5 AIR 1993 Raj. 1997

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regulates the operation of Cable Television in the territory of India and regulates the subscription
rates and the total number of total subscribers receiving programmes transmitted in the basic tier.

There were three amendments made to the Act. The Act is divided into five chapters. The first
chapter discusses the scope and extent of the Act and meaning of the terms used in the Act. The
second chapter deals with "Regulation of Cable Television Network". The third chapter relates to
"Seizure and Confiscation of certain Equipments". The fourth chapter focuses on "Offences and
Penalties". The fifth chapter covers other miscellaneous provisions.

Regulation of Cable Television Network

The regulation of cable television network under the Act is ensured through a two step process.
In order to keep track of cable operators, it has mandate a compulsory registration for cable
operators. It also lays down provisions to regulate content to be broadcasted by the cable
operator.

Registration of Cable Operators

In order to regulate cable television networks, it was made mandatory for cable television
network operators to be registered.6 Procedure for registration is laid down in section 5 of the
Act. Any person who is operating or desires to operate a cable network may apply for
registration to the registering authority.

An application for registration of cable operator has to be made under Form 1 along with the
payment of fees of Rs.50 to the head post master within whose territorial jurisdiction the office
of cable operator is situated. The registration certificate which is issued by the registering
authority after inspection is valid for 12 months and can be renewed.

The registering authority may also refuse the registration of a cable operator. The reason for such
refusal has to be recorded in writing and communicated to the applicant.

6Section 4 of the Act: "No person shall operate a cable television network unless he is registered a cable operator
under this Act..."

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Section 4A was inserted into the Act by the TRAI (Amendment) Act, 2002. Section 4A deals
with the "transmission of programmes through addressable system". [Refer to section on “2003-
Amendment to the Cable Television Networks (Regulation) Act, 1995 (Amendment Act)"].

Content Regulation
The Central Government, in public interest can put an obligation on every cable operator to
transmit or retransmit a programme7 of any pay channel through addressable system. In public
interest the central government may also ‘specify one or more free-to-air channels to be included
in the package of channels’ (basic service tier). The Central Government may also, in public
interest specify the maximum amount which can be charged by the operator to the subscriber for
receiving the programmes transmitted in the basic service tier provided by such cable operators.
The cable operators have to publicize to subscribers the subscription rates of each pay channel at
regular intervals.

Sections 5 and 6 of the Act deal with advertisement code and programme code. All cable services
should be in conformity with the codes. Thus, the Cable Act mandates that all programmes
telecasted on TV channels and transmitted or retransmitted through the cable TV network, must
adhere to the Programme Code and Advertising Code (collectively "Codes"). These Codes have
been prescribed under the Cable Television Networks Rules, 1994 ("Cable Rules") and provide
for a list of parameters to regulate programmes and advertisements on Television.

The Programme Code (contained in Rule 6 of Cable Television Network Rules 1994)
No programme should be carried in the cable service which offends against good taste or
decency; contains criticism of friendly countries, contains attack on religious or communities or
visuals or words contemptuous of religious groups which promote communal attitudes, contains
anything obscene, defamatory, deliberate, false and suggestive innuended and half truths, is
likely to encourage or incite violence or contains anything against maintanence of law and order
or with promote anti-national attitutes, contains anything amounting to contempt of Court,

7 Section 2(g): “programme means any television broadcast and includes –


i exhibition of films, features, dramas, advertisements and serials through video cassette recorders or video cassette
player;

ii any audio or visual or audio-visual live performance or presentation and the expression “programming service”
shall be construed accordingly.

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contains dispersions againt integrity of the President and judiciary or the Nation, criticises,
maligns or slanders any individual in person or certain groups, segments of social, political and
moral life of the country, encourages superstition or blind belef, denigrates women in a way as to
have an efect of being indecent or is likely to deprave, corrupt or injure the public morality or
morals, denigrates children, contains visuals or words which reflect a slandering, ironical and
snobbish attitude in the portrayal of certain ethnic, linguistic and regional groups, which
contravenes the provisions of the Cinematograph Act 1953, should not suitable for unrestricted
public exhibition.8

Interalia-

• No adult film or a film bearing an 'A' certificate can be shown on cable TV at any time.

• 'U/A' films can be shown only late at night.9

The Advertisement Code (contained in Rule 7 of Cable Television Network Rules 1994)
'Advertisement' is a public notice or announcement of a thing.10 Advertising carried in the cable
service should be so designed as to conform to the laws of the country and should not offend
morality, decency and religious susceptibilities of the subscribers.

Interalia-

• There is a prohibition of advertisement with a religious or political object. 11 The Code

provides that the goods and services advertised shall not suffer any defect or deficiency
under the Consumer Protection Act, 1986.12

8 Sama, Dr. Uma, 'Law of Electronic Media', Deep and Deep Publications, New Delhi, 2007, p. 179.

9 Rule 6(1)(o), Cable Television Network Rules 1994.

10 Wharton's 'Law Lexicon', Reprint Ed. 1976, at 34.

11 Rule 7(3), Cable Television Network Rules 1994.

12 Rule 7(4), Cable Television Network Rules 1994.

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• It prohibits advertisement which promote 'directly or indirectly' the producation, sale or

consumption of cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants,
infant milk substitutes, feeding bottles or infant foods.13

• It also provides a cap on time to be spent on showing advertisements, a stipulation of 12

minutes of advertising for one hour of programming.14

• Women must not be portrayed in a manner that encourages them to play a subordinate,
secondary role in the family and society.15

The content on non-news and current affairs channels is governed by a statute and committees
formed by the Ministry of Information and Broadcasting ("MIB"). Further, certain self-
regulations have also been framed by industry bodies.

Inter-Ministerial Committee

The MIB has constituted an Inter-Ministerial Committee ("IMC") to look into the violations of
the Codes. The IMC may initiate action either suo moto or whenever a violation is brought to the
notice of the MIB.

Electronic Media Monitoring Centre

The MIB established the Electronic Media Monitoring Centre ("EMMC") for effective
monitoring of content of various TV channels for violation of the provisions of the Codes, Cable
Act, Cable Rules or any other laws of India. The EMMC monitors channels and reports
violations to a committee of the MIB for scrutiny, which then examines the purported violations
and forwards its findings to the IMC for further action.

State-level and District-level Monitoring Committees

State-level Monitoring Committees ("State Committees") and District-level Monitoring

Committees ("District Committees") have been constituted by the MIB to enforce the Cable Act.

13 Rule 7(2), Cable Television Network Rules 1994.

14 Rule 7(11) , Cable Television Network Rules 1994.

15 Rule 7(2)(vi), Cable Television Network Rules 1994.

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The MIB has clarified that in case of a complaint concerning content carried locally, the District
Committee itself may decide whether the same constitutes a violation or not. Whereas, in case
the complaint pertains to national or regional satellite channels, the District Committee may
forward its recommendations to the IMC, through the State Committee.

Under section 7, cable operators have to maintain a register as to the content transmitted or
retransmitted. All cable operators shall compulsorily re-transmit Doordarshan channels.

Section 9 of the Act mandates ‘use of standard equipment in cable television network’. It is the
duty of the cable operator to make sure that the cable television networks do not interfere with
authorized telecommunication systems.

Offences and Penalties

Section 11 gives power to the authorized government authority to seize any cable operator’s
equipment, if such officer has reason to believe that the cable operator is using the equipment
without proper registration.

Sections 16, 17 and 18 of the Act deal with offences under the Act. They lay down punishments
for any act which is in contravention with the provisions of the Act.

Sectio
Ingredients of the Offence Penalty/ Fine
n
For the first offence: Imprisonment for a term which
may extend to 2 years or with fine which may extend
Anyone who is held to be in
to Rs. 1000 or with both.
16 violation of the provisions of
For every subsequent offence: Imprisonment for a term
this Act
which may extend to 5 years and with fine which may
extend to Rs. 5000.

Section 17 deals with when an offence under this Act is committed by a company; in this case
the person in charge will be liable.

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The Act also gives power to the authorized officer16 to prohibit the transmission of certain
programmes in public interest under section 19 of the Act.

Under section 20 of the Act, the Central Government in public interest may prohibit the
operation cable television network. The Central Government may make such an order in the
interest of the (i) sovereignty and integrity of India; or (ii) security of India; or (iii) friendly
relations of India with any foreign state; or (iv) public order, decency or morality.

2003- Amendment to the Cable Television Networks (Regulation) Act, 1995 (Amendment
Act)
Numerous complaints were received by the Government stating that there has been unreasonable
price hike in cable television by the cable operators. Moreover, the cable operator were not
paying appropriate revenue by concealing there income and under-reporting their income. The
cable operators defended themselves by stating that the broadcasting industry is unregulated and
they are forced to increase the price for proving cable television services as the broadcasting
companies can increase the charges as per their wish. In order to address these problems, the
government appointed a specialized task force.

Special task force in its study noted that the consumers do not have the choice to select the
premium channels they wanted to watch rather it is provided to them in a bundle irrespective of
the fact they want to subscribe to such channel or not. In order to give choice to the consumer it
recommended the introduction of conditional access systems (CAS). This would require the
consumers to set up set-top boxes which will allow the consumers to view all the free to air
channel and he can choose to watch any of the premier channels for a charge.

This recommendation of the task force was introduced through the 2003 amendment to the Act.
The main objective of the Amendment Act was to address to the frequent and arbitrary increase

16 Section 2(a): authorized officer means within his local limit of jurisdiction

i a District Magistrate, or

ii a Sub Divisional Magistrate, or

iii a Commissioner of Police, and includes any other officer notified in the Official Gazette, by the Central
Government or the State Government, to an authorized officer for such local limits of jurisdiction as may be
determined by the Government.

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in cable charges. This was introduced section 4A which allowed operators to transmit pay
channels through an addressable system17 apart from basic package of free-to-air channels.

There was a lot controversy with respect to implementation of the CAS. In order to explain the
controversy, it is important to understand the structure of the cable market. The cable market is
divided into three categories. Broadcasters, who are at the top of the pyramid, the Multi-System
Operators are in the middle and the local cable operators are at the bottom of the pyramid.

The 2003 Amendment introduced to CAS was welcomed by the broadcasters and the MSOs. But
the consumer and the local cable service providers were unhappy with this decision because the
consumers feared that they have to pay special rates for pay channels whereas the local operators
were outraged because they believed that CAS would affect their revenue. Due to the adverse
reaction from the consumers and the local cable operator, the government delayed the
implementation of CAS indefinitely. This finally culminated in a case 18 before the Delhi High
Court.

The Delhi High Court decided that implementation of CAS cannot be delayed. Subsequently to
this, the government announced in 2004 that Telecom Regulatory Authority of India (TRAI) will
be handling the problems regarding CAS and make recommendations on the same. TRAI
recommended that CAS should be denotified and it can be re-introduced later when there is
adequate regulation to properly implement it.

The government on the recommendation of TRAI withdrew the implementation of CAS.

However, this decision was faced with a new challenge19 and this time the single judge bench of
the Delhi High Court held that the Government does not have any ground to suspend the CAS
and it has disregarded the previous decision of the Delhi High Court in Jay Polychem case.

17Section 4-A, Explanation (a), Cable Television Networks (Regulation) Act, 1995; Addressable system is defined
as, "an electronic device or more than one electronic devices put in an integrated system through which signals of a
cable television network can be sent in encrypted or unencrypted form, which can be decoded by the device or
devices at the premises of the subscriber within the limits of authorisation made, on the choice and request of such
subscriber, by the cable operator to the subscriber."
18 Jay Polychem v. Union of India, (2004) IV AD 249 (Del).
19 Hathaway Cable Datacom v. Union of India, 128 (2006) DLT 180.

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Finally, the government re-introduced CAS but after issuing rules as to its working and
implementation.

RELATED JUDICIAL PRONOUNCEMENTS

In 2009, the Ministry of Information and Broadcasting issued a show-cause notice to Star Plus
for allegedly violating the Programme Code for the show Sach ka Saamna, based on the
American reality show The Moment of Truth, on the ground that it was offensice to good taste
and decency. However, the petitions failed as a Division Bench of the Delhi High Court held that
the judicary is not the vehicle to deal with individual morality but it is the job of Parliament to do
so. In such cases, people must be permitted to exercise individual choices and if such a show was
to be banned, it could be done by Government alone.20

In Viacom 18 Media Private Limited v. Ministry of Information and Broadcasting 21 (Big Boss
Case), a TV channel challenged an order issued by the Ministry of Information and Broadcasting
alleging that the show Big Boss was violative of the Programme Code. The order directed the
channel to shift the timings of the show from prime time to post 11 p.m. Pursuent to the orders of
the High Court, the Ministry issued a notice to the channel lsiting 8 episodes which were
regarded as offensive. The court eventually allowed the show to be aired between 9 p.m. to 11
p.m., but disallowed the 8 objectionable episodes from being screened on any channel.

Thus, the programme code and advertising code given in the Rules are very comprehensice and
fulfilled the Constitutional obligation which reflects our ethics based cultural heritage.

Interestingly, under the Cable Act, there is no power to take action against TV channels or
broadcasters but only cable operators.

ADVERTISING
Advertising communication is a mix of arts and facts subservient to ethical principles. In order to
be consumer-oriented, advertisement will have to be truthful and ethical. It should not mislead

20 Divan, Madhavi Goradia, 'Facets of Media Law', Eastern Book Company, Lucknow, Ed. 2 (2015), pp. 507,508

21 Unreported

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the consumer. If it so happens, the credibility is lost.


In order to enforce an ethical regulating code, the Advertising Standards Council of India was set
up. Inspired by a similar code of the Advertising Standards Authority (ASA) UK, ASCI follows
the following basic guidelines in order to achieve the acceptance of fair advertising practices in
the interest of the consumer: -

• To ensure the truthfulness and honesty of representations and claims made by

advertisements and to safe guard against misleading advertising;

• To ensure that advertisement are not offensive to generally accepted standards of public
decency;

• To safeguard against indiscriminate use of advertising for promotion of products which

are regarded as hazardous to society or to individuals to a degree or of a type which is
unacceptable to society at large; and

• To ensure that advertisements observe fairness in competition so that the consumers need
to be informed on choices in the market places and canons of generally accepted
competitive behaviour in business are both served.

• The advertisement content is not governed by any specific statute and is self-regulated by
the code of conduct framed by an industry body as well as other applicable central and
state legislations.

Advertising Standards Council of India

In the absence of a statutory framework, advertisements are regulated by a self-regulatory
organization, Advertising Standards Council of India ("ASCI") which has prescribed a code for
self-regulation ("ASCI Code"). The ASCI functions to ensure the truthfulness of representations
and claims by advertisements and ensures that advertisements are not offensive to generally
accepted standards of public decency. It is necessary for the advertisers to ensure that
advertisements conform to the ASCI Code.

The ASCI also safeguards against indiscriminate use of advertising for promotion of products,
hazardous to society or individuals or those which are unacceptable to the society at large.

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Laws impacting advertisements

Besides the ASCI Code, Cable Act and Cable Rules, certain provisions regulate the form or
content of an advertisement. Legislations such as Drugs and Cosmetics Act, 1940; Drugs and
Magic Remedies (Objectionable Advertisements) Act, 1954; Emblems and Names Act, 1950;
Patents Act, 1970; Trademarks Act, 1999 and Copyright Act, 1957 etc. contain provisions having
an impact on advertisements relating to the subject matter of these legislations. The ASCI Code
and machinery is intended to complement legal controls and not to usurp such other provisions
of law.

Limits on duration of advertisements

The Telecom Regulatory Authority of India ("TRAI") has issued the Standards of Quality of
Service (Duration of Advertisements in Television Channels) Regulations, 2012, which caps the
time for advertisements. An ad-cap has been placed on broadcasters limiting advertisements to
12 minute per hour. However, these regulations have been challenged and the matter is
presently sub juidice.

Few Complaints filed with ASCI

# HLL’s Clinic All Clear Dandruff shampoo claimed that it had ZPTO, the special ingredient in
Clinic All Clear that stops dandruff. This claim was found to be untrue since ZPTO is a micro
biocide, when in reality, dandruff is known to be caused by several other factors, besides,
microbes. HLL’s multi-crore research wing ‘clearly overlooked’ this aspect. The advertisement
has been withdrawn.

# Novartis India claimed that their disposable contact lenses ensure there is no protein build-up.
This claim was found to be totally false. The truth is that build up is a natural biological
phenomenon with all contact lenses. The ad was discontinued.

The other legislations affecting the area of advertising

Drug and Magic Remedies (Objectionable Advertisement) Act, 1954

This Act has been enacted to control the advertisements of drugs in certain cases and to prohibit
the advertisement for certain purposes of remedies alleged to possess magic qualities and to

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provide for matters connected therewith.


In Hamdard Dawakhana v. Union of India22 the Supreme Court was faced with the question as to
whether the Drug and Magic Remedies Act, which put restrictions on the advertisements of
drugs in certain cases and prohibited advertisements of drugs having magic qualities for curing
diseases, was valid as it curbed the freedom of speech and expression of a person by imposing
restrictions on advertisements. The Supreme Court held that, an advertisement is no doubt a form
of speech and expression but every advertisement is not a matter dealing with the expression of
ideas and hence advertisement of a commercial nature cannot fall within the concept of Article
19(1)(a).

However, in Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd23, a three judge bench of the
Supreme Court differed from the view expressed in the Dawakhana case and held that
‘commercial advertisement’ was definitely a part of Article 19(1)(a) as it aimed at the
dissemination of information regarding the product. The Court, however, made it clear that the
government could regulate commercial advertisements, which are deceptive, unfair, misleading
and untruthful.

Monopolies and Restrictive Trade Practices Act, 1969:

Section 36 A of the Act deals with 5 major Unfair Trade Practices: -

• Any misleading, false, and wrong representation either in writing (i.e. in advertisements,
warranty, guarantee etc.) or oral (at the time of sale) actual or intended, even if actual
injury or loss is not caused to the consumer/buyer constitutes as unfair trade practices;

• Sales, where there is element of deception;

• All business promotion schemes announcing ‘free gifts’, ‘contests’, etc. where any
element of deception is involved;

• Violation of laws existing for protection of consumers;

• Manipulating sales with a view to raising prices.

22 1959 SCR 12.

23 1995 AIR 2438, 1995 SCC (5) 139.

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Parle’s mango drink ‘Maaza’ gave the advertisement of Maaza mango and the MRTP issued a
notice against Parle Exports Pvt. Ltd. The advertisement implied that the soft drink was prepared
from fresh mango while actually preservatives were added to it. The company had to suspend
production pending enquiry.

SELF-REGULATORY BODIES FOR REGULATION OF PROGRAMMES - INDIAN

BROADCASTING FOUNDATION
Indian Broadcasting Foundation ("IBF") adopted the Self-Regulation Guidelines for General
Entertainment and Non-News and Current Affairs TV channels ("Self-Regulation Guidelines")
and the Content Code and Certification Rules 2011 ("Content Code") for the broadcasting sector.
The guidelines are applicable to all non-news broadcast programmes on TV, regardless of the
media of transmission, which could be cable, terrestrial, satellite, Direct to Home (DTH),
Internet Protocol Television (IPTV), Mobile or Headend in the Sky (HITS) operators. The
guidelines, however do not cover films or any other production, which requires a certificate
under the Cinematograph Act, 1952.

The Self-Regulation Guidelines and Content Code set out principles, guidelines and ethical
practices to guide the service providers to conform to the Programme Code. The Self-Regulation
Guidelines provide that care and sensitivity should be observed to avoid offending the audience
and reasonable steps are to protect minors.

The Self-Regulation Guidelines provide for setting up a 'Standards and Practices Department' at
the individual TV channel level to deal with the complaints received for content aired on its
channels. Further, the Broadcasting Content Complaints Council ("BCCC") has been established
at the industry level. A complaint may be filed against any programme broadcast on any TV
channel within 14 days from the first broadcast. The BCCC may also initiate suo
moto proceedings against any programme broadcast on a non-news and current affairs TV
channel.

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PROGRAMMES ON NEWS AND CURRENT AFFAIRS TELEVISION CHANNELS

The content on news and current affairs channels is not governed by any specific statute and is
rather self-regulated by code of conduct and regulations framed by an industry body.

News Broadcasters Association

The News Broadcasters Association ("NBA") is a self-regulatory association representing the
'news and current affairs' broadcasters. The NBA has formulated the Code of Ethics and
Broadcasting Standards ("NBA Code"). The NBA Code provides for the principles to be adhered
to by the news channels. It emphasizes that the news channels operate as trustees of public and
must recognize the special responsibility in their operations. Further, the NBA Code lays down
that the broadcasters shall ensure that they do not select news for the purpose of either promoting
or hampering either side of any controversial public issue.

News Broadcasting Standards Regulations

The NBA also laid down the News Broadcasting Standards Regulations ("NBSR"), under which
it constituted the News Broadcasting Standards Authority ("NBSA") as the disputes adjudication
body and to enforce the NBA Code. The NBSA functions to ensure the compliance of the NBA
Code by broadcasters, television journalists and news agencies. The NBSA is required to
improve the standards of broadcast and the independence of broadcasters. However, the
jurisdiction of the NBSA is restricted only to members of NBA.

Direct-to-Home Broadcasting

Direct-to-Home (DTH) Broadcasting Service, refers to distribution of multi-channel TV

programmes in Ku Band by using a satellite system and by providing TV signals directly to the
subscribers’ premises without passing through an intermediary such as a cable operator. The
Union Government has decided to permit Direct-to-Home TV service in Ku band in India.24

CONCLUSION

Considering the above it can be understood that the framework for the regulation of content on
TV comprises of (i) statutory enactments; (ii) self-regulatory mechanism; and (iii) code of

24 Theprohibition on the reception and distribution of television signal in Ku band has been withdrawn by the
Government vide notification No. GSR 18 (E) dated 9th January 2001 of the Department of Telecommunications.

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conducts framed by various industry bodies for regulating certain aspects. The self-regulatory
mechanism has been prescribed by various industry bodies and associations and besides
prescribing code of conduct, the mechanism also provides for establishing complaint redressal
mechanism at different levels. Also the Cable TV Network Regulation Act, 1995 and Prasar
Bharti Act, 1990 are two important regulator statutes of India.

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BILBLIOGRAPHY

Divan, Madhvi, ‘Facets of Media Law’, Eastern Book Company, Lucknow, Ed. 1st, 2006.

Sama, Dr. Uma, 'Law of Electronic Media', Deep and Deep Publications, New Delhi, 2007.

WEBLIOGRAPHY

www.Cis-india.org, Last visited on 13th October, 2017.

www.legalseviceindia.com, Last visited on 14th October, 2017.

BAREACTS

Cable TV Networks Regulation Act, 1995.

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