30
UNIT - III
CONCEPT OF ADVERTISEMENT
An advertisement is a public announcement with the avowed purpose to
persuade the public to buy a product, a service or an idea. According to the Drugs and
Magical Remedies (Objectionable Advertisements) Act, 1954, “an advertisement
includes any notice, circular label, wrapper, or other document and any announcement
made orally or by means of producting or transmitting light, sound or smoke”.
To reach the masses, advertising has to buy space or time in one or more media
of mass communication such as radio, television, newspapers, and magazines.
Advertising aims at building relation ship between customers and brands In other words,
advertising offers people ideas and services and persuades them about their benefits,
utility and desirability.
A working definition could be:
Advertising is the paid mass communication of building brands through
persuasive communication and positioning them in the consumer’s perception with a
constant eye on the market environment and consumer expectations.
Guidelines for Advertising on AIR and Doordarshan
a. Advertisement on cigarettes, bidis or tobacco products, pan masala, alcoholic drinks
and other intoxicants, gold and silver jewellcry, precious stones are not allowed for
broadcast.
b. The spots on aerated water (soft drinks) should contain statutory declaration
flavoured and does not contain BVO.
c. Medicinal products should be accompanied by 5 copies of the script (in Hindi or
English), 5 copies of the list of ingredients (with percentage) and a sample to get the
approval of the Drugs Controller before broadcast.
d. Medicinal spots are always accepted as fixed spots.
e. Ads should not contain any exaggerated, superlative or misleading claim.
All those engaged in advertising are strongly recommended to familiarize
themselves with the legislation affecting advertising in this country, particularly the
following Acts and the Rules framed under them as amended from time to time:
1. Drugs and Cosmetics Act, 1940
2. Drugs Control Act, 1950
3. Drugs and Magic Remedies (Objectionable advertisements) Act, 1954
4. Copyright Act, 1957
31
5. Trade and Merchandise Marks Act, 1958
6. Provision of Food Adulteration Act, 1954
7. Pharmacy Act, 1948.
8. Prize Competition Act, 1955.
9. Emblems and Names (Prevention of Improper Use)Act, 1950.
10. Consumer Protection Act, 1990
11. Indecent Representation of Women (Prohibition) Act, 1986.
12. Code of Ethics for advertising in India issued by the Advertising Standard Council
of India.
13. Code of Standards in relation to the advertising of medicines and treatments.
14. Standards of Practice for Advertising Agencies
15. Code for Commercial Broadcasting, copy of which may be had from the Central/
States Unit.
f. Advertising shall be so designed as to conform to the Laws of the Country and
should not offend against morality, decency, and religious susceptibilities of the
people.
g. No advertisement shall be permitted which:
i) Derides any race, caste, colour, creed and nationality.
ii) Is against any of the directive principles, or any other provision of the Constitution
of India;
iii) Tends to incite people to crime, cause disorder or violence, or breach of law or
glorifies violence or obscenity in any way.
iv) Presents criminality as desirable;
v) Adversely affects friendly relation with Foreign States.
vi) Exploits the national emblem or any part of the Constitution or the person or
personality of a national leader or state dignitary.
Code for Commercial Advertising on Doordarshan
This Code was presented to Parliament in mid 1987. It incorporates the Indecent
Representation of Women Act and the Consumer Act, both of which were passed by
parliament in 1986. It suggests 33 Do’s and Don’ts for advertisers. Here are some of
them.
Advertisements should conform to laws and should not offend against morality,
decency and the religious susceptibilities of people.
The success of advertising depends on public confidence and no practice should be
permitted which tends to impair this.
The Director General shall be the sole judge of the Code.
The following advertisement should not be permitted:
1. Ads which deride any race, caste, colour, creed and nationality, or are gainst the
Directive Principles or the Constitution.
32
2. Ads which tend to incite people to crime or cause order or adversely affect friendly
relations with foreign states.
3. Ads which exploit national emblem, any part of the constitution or the person/
personality or national leaders or state dignitaries.
4. No advertisement shall be presented as news.
5. Ads which have any relation to religion, political or industrial dispute.
6. Ads which promote chit funds, money lenders, jewelry, fortune tellers, foreign
good, and private saving schemes.
7. Guaranteed goods will have to be made available to Director General of
Doordarshan for inspection, if necessary.
8. No disparaging or derogatory remarks of other products or comparison with them
should be made.
9. Ads which portray women as passive or submissive.
10. Ads which are likely to startle viewers such as gunfire, sirens, bombardments,
screams
, and raucous laughter.
Advertisement Ethics in India
Advertisement contents are regulated by self-regulatory bodies. In India it is
regulated by the ASCI Advertising code. The ASCI was formulated to achieve the
acceptance of fair advertising practice in the best interests of the ultimate consumers. The
ASCI has a motto Regulate yourself or some body else will. The ASCI is a representative
body of people from the world of advertising.
Some of the main points of the ASCI’S code include the following.
a) Advertising should be so designed as to conform not only to the low but also to the
moral aesthetic and religious sentiments of the country in which it is published.
b) Advertisement likely to bring contempt or disrepute to the professional should not
be permitted.
c) Advertising should be truthful, avoid distorting facts and misleading the public by
means of implications and omissions.
d) Advertising should not be permitted to contain exaggerated claims that inevitably
disappoint the public.
e) Direct comparison with competing brands or firms and disparaging references are in
no circumstances permitted.
f) Indecent, vulgar, suggestive, repulsive, or offensive themes or treatments should be
avoided.
g) No advertisement should offer to refund money paid.
h) Advertisements must not carry claim of drugs to prevent or cure any diseases or
ailments.
The Code, according to ASCI, is not in competition with law. Its rules, and the
machinery through which they are enforced, are designed to complement legal controls,
not to usurp or replace them. Although the decisions of the council in dealing with cases
33
do not have a legal bearing, experience has shown that the concerned advertising
agencies have followed the councils advise by and large.
Advertising and children: The ASCI’s code of advertising practice has the
following guidelines on the use of children in advertising:
Advertisement addressed to children shall not contain anything whether in
illustration or otherwise, which might result in their physical, mental, or moral harm, or
which exploits their vulnerability. No advertisement, therefore,
(a) Shall encourage children to enter strange places, or to converse with strangers in an
effort to collect coupons, wrappers, labels or the like.
(b) Should depict children learning dangerously outside windows and over bridges or
climbing dangerous cliffs and the like.
(c) Should show children climbing or reaching dangerously to reach products for any
other purpose, or show children 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 or
(d) Feature minors for tobacco or alcohol based products.
Though the conditions laid down by the ASCI may not generally be violated per se
by the advertisers, the same acts (which, according to the ASCI, are harmful and
dangerous for children), enacted by elders are at times aped and emulated by children, if
past experience is any indication. Many studies suggest- that children below a certain age
can not differentiate between dreams and reality. They copy and imbibe things they see in
their lives. According to one of the reports of Federal Trade Commission (FTC) in the
USA many young children including an apparent majority of those under the age of
eight-are so naive that they cannot perceive the selling purposes of television advertising
or otherwise comprehend or evaluate it and tend... to view a commercial simply as a form
of information programming. The FTC took up the issue with certain companies and the
advertisements which were deemed to have a harmful impact on children were
withdrawn. Moreover research has shown that when as young as three years old children
recognize the difference between programmes and ads as they are aware of the intention
of ads they will reject ads that do not fit in with their own or friend’s experience.
However cross cultural media, like internet can reach advertisement all over the
world. This poses a potential problem for regulation, as regulations are country specific.
Advertisement Act, 1954
The printer and publisher of a newspaper or other journal or the editor of any
other medium of mass communication may come under legal control where the matter
which is advertised, is illegal and the act of publishing it makes the publisher liable under
the relevant statute besides the advertiser himself.
34
In this context the connotation of the term advertisement should be noted. The
definition of advertisement as given in Section 2(a) of the Drugs and Magic Remedies
(Objectionable Advertisements) Act, 1954 is given hereunder:
“Advertisement includes any notice circular label wrapper or other document and
any announcement made”.
An advertisement then is any document which announces or proclaims to the
public the production availability or the like of something. This definition is given for the
purpose of that Act only, it may be taken to be a working definition for the purpose of
this work, leaving aside the verbal and visual announcements.
Since an advertisement is also a publication like an editorial or news story , the
publisher and printer of a newspaper may be held liable from advertisement which is
illegal e.g. because it is obscene or defamatory or relates to an article injurions to public
health, even though such advertisement was sent by a third party and the press was not in
any way responsible for its authorship.
It must be remembered, however that the offence of the advertiser and the offence
of printing or publishing an illegal advertisement are distinct offences, with separate
ingredients.
The Drugs & Magic Remedies (Objectionable Advertisement) Act, 1954.
The Drugs and Magic Remedies (Objectionable advertisements) Act, 1954 seeks
to penalise advertisements of drug and magic remedies which cause the ignorant and
unwary to resort to quacks who indulge in such advertisements for treatments which
cause great harm.
The prohibited advertisements in brief are -
(i) Advertisement of any drug or magic remedy for (a) procurement of miscarriage or
prevention of conception in woman or (b) maintenance or improvement of sexual
capacity in human being or (c) Correction of menstrual disorder (d) Venereal disease.
ii) Any false advertisement relating to a drug which includes not only medicine, but
also any substance of article intended for diagnosis, cure or mitigation of any disease,
Magic remedy includes charm or the like for foregoing purposes.
Indecent Representation of Women (Prohibition) Act, 1986
According to the Act: “Indecent representation of women” means the depiction in the
manner of the figure of a woman, her form or body or any part there of in such a way as
to have the effect of being indecent or derogatory to or denigrating woman or is likely to
deprave corrupt or injure the public morality or morals.”
35
The Act mentions “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”.
Label means any written, marked, stamped, printed or graphic matter, affixed to
or appearing upon any package.
Lord Sands in M’Gown v. Langmvir, observed the words ‘indecent’ and
“obscene” are synonymous with a difference in meaning. An act of male bather entering
the water made in the presence of ladies may be indecent but not necessarily obscene.
According to the Act no person shall publish or cause to be published, or arrange
or take part in the publication or exhibition of any advertisement which contains indecent
representation of women is any form.
No person shall produce or cause to be produced, sell, let to hire, distributei
circulate or send by post any book, pamphlet, paper slide, film writing, drawing, painting
photo graph representation or figure which contains in decent representation of women in
any form says the Act.
Power to enter and search: Any gazetted officer authorised by the State
Government, may enter search, seize any advertisement or other materials mentioned
above examine record, registered document or any other material object found as
evidence of the commission of an offence punishable under the Act.
The provisions of the Code of Criminal Procedure 1973 (2 of 1974) shall so far as
may apply to any search or seizure under this Act as they apply to any search or seizure
made under the authority of warrant issued under section 94 of the said code.
Penalty: Any person who contravenes the provisions of section 3 or section 4
shall be punishable on first conviction, with imprisonment of either description for a term
which may extend to two years and with fine which may extend to two thousand rupees
and in the extent of a second or subsequent conviction, with imprisonment for a term of
not less than six months but which may extend to five years and also with a fine not less
than ten thousand rupees but which may extend to one lakh rupees.
THE INDECENT REPRESENTATION OF WOMEN
(PROHIBITION) ACT, 1986
An Act to prohibit indecent representation of women through advertisement or in
publications, writings, paintings, figures or in any other manner and for matters
connected therewith or incidents thereto.
Be it enacted by Parliament in the Thirty-seventh year of the Republic of India as
follows:
36
Short title, extent and 1. (1) This Act may be called the Indecent Representation
commencement of Women (Prohibition) Act, 1986.
(2) It extends to the whole of India, except the State of Jammu and Kashmir.
(3) It shall come into force on such date as the Central Government may, by
notification in the Official Gazette, appoint.
Definitions: 2. In this Act, unless the context otherwise requires,-
(a) “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;
(b) “Distribution” includes distribution by way of samples whether free or otherwise;
(c) “Indecent representation of women” means the depiction in any manner of the
figure of a woman, her form or body or any part thereof in such a way as to have
the effect of being indecent, or derogatory to, or denigrating, women, or is likely to
deprave, corrupt or injure the public morality or morals;
(d) “Label” means any written, marked, stamped, printed or graphic matter, affixed to,
or appearing upon, any package;.
(e) “Package” includes a box, carton, tin or other container;
(f) “Prescribed” means prescribed by rules made under this act.
NOTES
The beauty contest may not be illegal or obscene so long as the expected
standards of modesty; dignity and preservation of womanhood and her rights in society
are maintained.
A beauty contest becomes objectionable performance, if it is grossly indecent,
scurrilous or obscene or intended for black mailing women. It would offend Articles 14,
21 and 51A of the Constitution of India and the international covenants accepted by the
UNO in addition to violation of human rights.
Lord Stands in M’Gowan v. Langmvir observed ‘the words indecent and obscene
are synonymous, with a difference in meaning’. act of a male bather entering the water
nude in the presence of ladies may be indecent but not necessarily obsence.
Prohibition of advertisements containing 3. No person shall publish, or cause to be
indecent representation of women. published or arrange or take part in the
publication or send by post any book, pamphlet,
paper, slide, film writing, drawing, painting,
photograph, representation or figure which contains
indecent representation of women in any form:
37
Prohibition of publication or sending by 4. No person shall produce or cause to be
post of books, pamphlets, etc containing produced, sell, let to hire, distribute, circulate or
indecent representation of women. send by post any book, pamphlet, paper, slide, film,
writing, drawing’ painting, photograph,
representation or figure which contains indecent
representation of women in any form:
Provided that nothing in this section shall apply to-
(a) Any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph,
representation or figure-
(i) The publication of which is proved to be justified as being for the public good on
the ground that such book, pamphlet, paper, slide, film, writing, drawing, painting,
photograph, representation or figure is in the interest of science, literature, art, or learning
or other objects of general concern; or
(ii) Which is kept or used bona fide for religious purposes
(b) any representation sculptured, engraved, painted or other wise represented on or in-
(i) any ancient monument within the meaning of the Ancient Monument and
Archaeological Sites and Remains Act. 1958 (24 of 1958); or
(ii) Any temple, or on any car used for the conveyance of idols, or kept or used for
any religious purpose;
(c) any film in respect of which the provisions of Part II of the Cinematograph Act,
1952 (37 of 1952) will be applicable.
5.(1) Subject to such rules as may be prescribed, any Gazetted Officer authorised by the
State Government may, within the local limits of the area for which he is so authorised-
a) enter and search at all reasonable times, with such assistance, if any, as he considers
necessary, any place in which he has reason to believe that an offence under this Act
has been or is being committed;
b) Seize any advertisement or any book, pamphlet, paper, slide film, writing, drawing
painting, photograph, representation or figure which he has reason to believe
contravenes any of the provisions of this Act.
c) examine any record, registered document or any other material object found in any
place mentioned in clause (a) and seize the same if he has reason to believe that it
may furnish evidence of the commission of an offence punishable under this Act:
Provided that no entry under this sub-section shall be made into a private dwelling
house without a warrant:
38
Provided further that the power of seizure under this sub-section may be exercised
in respect of any document, article or thing which contains any such advertisement;
including the contents, if any, of such document, article or thing if the advertisement
cannot be separated by reason of its being embossed or otherwise from such document,
article or thing without affecting the integrity, utility or saleable value thereof.
(2) The provision of the Code of Criminal Procedure, 1973 (2 of 1974) shall, so far as
may be, apply to any search or seizure under this Act, as they apply to any search or
seizure made under the authority of a warrant issued under Section 94 of the said
Code.
(3) Where any person seizes anything under clause (b) or clause (c) of sub-section (i),
he shall, as soon as may be, inform the nearest Magistrate and take his orders as to
the custody thereof.
6. Any person who contravenes the provisions of Section 3 or section 4 shall be
punishable on first conviction, with imprisonment of either description for a term which
may extend to two years, and with fine which may extend to two thousand rupees, and in
the event of a second or subsequent conviction with imprisonment for a term of not less
than six months but which may extend to five years and also with a fine not less than ten
thousand rupees but which may extend to one lakh rupees.
39
UNIT - III
Probable Questions
1. Define advertisement with special reference to the definition as given the Drugs
and Magical Remedies (Objectionable Advertisement) Act, 1954.
2. What are the guidelines for advertising on AIR and Doordarshan?
3. What are the Advertisement Ethics in India?
4. What are the main provisions of the Drugs and Magic Remedies (Objectionable
Advertisement) Act, 1954
5. Define Indecent.
6. What are the main provisions of the Indecent Representation of Women
(Prohibition) Act, 1986?
7. What are the powers of the Gazetted officer to enter and search the premises of
any office of any offending newspaper?
8. Under which criminal law, a Gazetted officer may search the premises of the
offender and seize the offending materials?
9. What are the provisions of penalty under the Act?
10. What can be the minimum and maximum quantum of penalty under the
provisions of Indecent Representation of Women Act, 1986?
