Recently Hon`ble Supreme Court Of India vide its order dated 6/05/2024 passed in WPC No 645/2022 –IMA & Anr .Vs UO I& Ors stated that prior to broadcasting/publishing any advertisement it is mandatory for every advertiser/advertising agency to submit a self-declaration certificate affirming that the advertisement doesn’t make any misleading claims and complies with all relevant regulatory guidelines including those stipulated in Rule 7 of the Cable Television Networks Rules,1994. How does this change the advertisement sector in India ? Lets Take a look from an experienced advertisement agency with over 25 years of experience –Ad India
At Adindia with over 25 year of experience in crafting compelling marketing strategies across print ,television and lately digital platforms, we`ve witnessed the evolution of advertising regulations .This latest judgment marks a significant shift in our industry`s landscape
Advertising: Customers Rights – A Brief History
Consumer rights have historically been overlooked in India, which is why it took 41 years after independence to enact the Consumer Protection Act. The consumer protection act came only in 1986. After which it have gone through various amendments to accommodate changing trends and making it more consumer friendly.
As advertising has evolved from traditional print and television to encompass digital marketing and social media promotion, the need for updated consumer protections has become increasingly apparent.
But what was lacking was there was no clear cut rule to combat ads that were misleading and had bogus claims, though there were some methods to counter .This was always an issue and there was no monitoring at any point .
There was no responsibility of any sort any kind for the advertiser, it solely resided on the manufacturer and more often than not they were able to technically by-pass any potential issues .
The main problem areas were the ads related with health and beauty. Since public’s emotions and insecurities were easily exploited there have always been call for some sort of monitoring of such products which made such claims. Examples include the oils which help baldness, fairness cream ,etc. And even though many of these products were ineffective they still sold like hot cakes. This trend has only intensified with the rise of digital marketing and social media influencers, where the line between authentic content and paid promotion can often blur.
All these happened because of the clever marketing strategies and technical details the manufacturers use where they could bypass any actions or regulations that were in place to protect the public .Another problem with the ads were that only after the ad is published ,the person/entity responsible for the advertisement can be determined
Advertising: Customers Rights – A Brief History
Consumer rights have historically been overlooked in India, which is why it took 41 years after independence to enact the Consumer Protection Act. The consumer protection act came only in 1986. After which it have gone through various amendments to accommodate changing trends and making it more consumer friendly.
As advertising has evolved from traditional print and television to encompass digital marketing and social media promotion, the need for updated consumer protections has become increasingly apparent.
But what was lacking was there was no clear cut rule to combat ads that were misleading and had bogus claims, though there were some methods to counter .This was always an issue and there was no monitoring at any point .
There was no responsibility of any sort any kind for the advertiser, it solely resided on the manufacturer and more often than not they were able to technically by-pass any potential issues .
The main problem areas were the ads related with health and beauty. Since public’s emotions and insecurities were easily exploited there have always been call for some sort of monitoring of such products which made such claims. Examples include the oils which help baldness, fairness cream ,etc. And even though many of these products were ineffective they still sold like hot cakes. This trend has only intensified with the rise of digital marketing and social media influencers, where the line between authentic content and paid promotion can often blur.
All these happened because of the clever marketing strategies and technical details the manufacturers use where they could bypass any actions or regulations that were in place to protect the public .Another problem with the ads were that only after the ad is published ,the person/entity responsible for the advertisement can be determined
What the latest judgment mean for the customer?
In the perspective of customer the judgment is great. The advertiser has the sole responsibility for the ads being published. This means that the advertiser will only publish the ad only if they can validate and confirm that the content in the advertisement has no misleading claims.
The latest judgment also means that there is a mandate for increased transparency. Even when there is a * indicating conditions apply the advertiser has to make sure that its visible. It also means that ads published can be trusted or at the very least will have a truth to some extent.
This applies to all forms of advertising, from traditional print and television commercials to modern digital marketing campaigns and social media promotions.
What does it mean for the advertiser?
While the judgment is all bells and whistles for the public, it’s an added burden for the agency . A new person need to employed for large agencies which have lot of works ,since each and every work need to be self declared and a copy of signed copy of the same need to be uploaded. Even if at the time of the publishing the advertising agency is able to verify the authenticity of the ad, if at a later time they fail to entertain the offers or claims in the ad, the advertiser will be held liable for any damages even though the advertiser is not at fault in any way.
Ambiguous Areas in the Judgment:
The Judgment itself is ambiguous, and since the term advertisement isn’t included what comes under the judgment is still unclear. This ambiguity affects various forms of brand promotion, including:
a) Packages and Labels of products
b) Releasing the advertisement to small group of people for testing
c) Social media posts that doesn’t contain any kind of claim, but just a brand name
d ) Teasers of series, movies etc
Another major concern relates to User Generated Content (UGC) on social media, where the general public creates promotional content. Most of the new business heavily relies on user generated content for advertisement in social media through contests polls etc and this judgment don’t have any mentions of any kind for such activities. Influencer marketing which has become an integral part of marketing with the advancement of social media and wide spread available of mobile devices is hard almost impossible for platforms to ascertain which of those an advertisement is.
Increased Burden
A recent study by TAM Media Research and AdEx reported that there are nearly 3.4 billion digital ads, 1.3 million print ads and 860 million TV ads published between January and December of 2023. While the new mandate made it so that each and every of these ads needs self declaration. The current setup is not equipped to take up the load of increased requests. This impacts all aspects of our marketing strategies, from print advertisements and television commercials to digital marketing campaigns and social media content. If some ads need to be published immediately the increased loads will make it impossible to send the request.
Challenges with Video Advertisements:
Then yet another hassle is the video ads. Prior to adding the video ads the script need to be uploaded which is ok here comes the problem the URL of the video need to be given , which won’t be possible to obtain before uploading.
More often than not advertisements come at the last minute especially during festivals, there is an increased requests sent to the domain and the server will crash which will prevent from publishing the ads .
The main problem with this judgment is maintaining the client confidentiality. Under the guise of transparency the client names need to be made public and which will open a whole other can of worms
What`s the way forward?
While the courts judgment is commendable and aligns with the objective of increased transparency, accountability and preserves customers right it worth noting that there are already provisions for such things in already existing framework already contains provisions that put the responsibility on advertisers.
These rules are a mean of safeguarding the customers’ right against exploitation by advertisers and their content meet ethical and legal standards
As an industry, we need to adapt our marketing strategies to ensure compliance while maintaining effective brand promotion across all platforms. Also if the self declaration is deemed necessary, a clear demarcation should be there as to which all kind of ads need self declaration instead of requiring it for all. Also an annual declaration by advertiser is also an approachable way to tackle it. Probably the most expensive but most effective one will be putting up a regional offices and site for each state.
Conclusion
In conclusion, while the Supreme Court`s mandate for advertisers reflects a positive step towards transparency and accountability the challenge lies in its implementation
Ultimately the effectiveness of the judgment lies in its ability to strike a balance between regulatory rigor and practicality As it is an ever-growing industry, it's inevitable that new regulations and mandates will be needed, continued dialogue between regulatory authorities and other stake holders will be essential in shaping a framework that fosters responsible advertising practices while promoting innovativeness and competitiveness
As an advertising agency committed to ethical practices, we at Ad India will continue to navigate these changes, ensuring our clients' marketing strategies remain effective and compliant across all advertising channels - be it print, television, or the ever-evolving digital landscape.
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