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Abstract

Advertisements have been the core source of spreading awareness. They create a kind of belief or a kind of trust which build in the minds of the people and makes it easy for businesses. It is a well-accepted fact that the role of advertising, in the twenty-first century, has grown enormously, further it would not be wrong to say that, not only in earlier times people use to rely on advertisement for the purpose of information but even to this day it is considered as one of the most prevailing medium and has its own influence in the modern times. In India, there is no uniform legislation relating to the advertising industry. The present paper briefly discusses the historical background and development of the concept of advertisement. The paper focuses on the different laws governing advertisements with an emphasis on what is prohibited in advertisements.
International Journal of All Research Education and Scientific Methods (IJARESM), ISSN: 2455-6211
Volume 9, Issue 4, April -2021, Impact Factor: 7.429, Available online at: www.ijaresm.com
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Laws Governing Advertisement in India: An Overview
Dr. R. M. Kamble
Assistant Professor, Karnatak University’s Sir Siddappa Kambali Law College, College Road, Dharwad
Karnataka (India)-580001
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ABSTRACT
Advertisements have been the core source of spreading awareness. They create a kind of belief or a kind of trust which
build in the minds of the people and makes it easy for businesses. It is a well accepted fact that, the role of advertising, in
the twenty first century, has grown enormously, further it would not be wrong to say that, not only in earlier times
people use to rely on advertisement for the purpose of information but even to this day it is considered as one of the most
prevailing medium and has its own influence in the modern times. In India there is no uniform legislation relating to
the advertising industry. The present paper briefly discusses the historical background and development of the concept
of advertisement. The paper focuses on the different laws governing advertisements with an emphasis on what is
prohibited in advertisements.
Key Words: Advertisement, Consumer, Society, Misleading, Information, etc.
Advertising is a form of paid public announcement intended to promote the sale of a commodity or service and to advance
an idea or to bring about some effect desired by the advertiser. It is essentially a form of communication through such
diverse media as handbills, newspapers, magazines, billboards, letters, radio and television broadcast and motion pictures.
The term is broad enough to include a wide range of types from a small two line entry in a newspaper or magazine to a
spread of several pages, or from a small sign in a shop window to a huge billboard with changing designs in colored lights.
India is considered as one of the largest countries on the earth in many terms and specifically population. At present it’s the
most powerful mode of spreading awareness not only in India but to whole world. Generally, it is used for some kind of
communication or a kind of information to the prospective consumers; normally when we speak of advertisement then it
speaks of some kinds of advertising the firms, the qualities of the product, availability of the place and all. It is always
under wrong conception that advertisement means it’s for buyers only but in reality it is for both buyers and sellers; further
it can be said that this will very much important to sellers when it is compared with buyer. In the present situation if we
think in terms of sellers it is very difficult sale their materials or products without proper advertisement as it has gained
much importance because of technology and tough competition in the market world.
To a manufacturer, advertising is usually part of the firm’s marketing program, along with personal selling, pack -aging,
display, pricing and product design. To the retailer, it is also a part of his so called marketing mix, along with display,
store promotions etc, to the various media of communication it is both a major source of revenue and a means of providing
information on products and services to their audiences. To the consumer it is a major source of information regarding
products and services.
With regard to the purpose of advertising, one is product oriented and the other institutional. The former emphasizes the
type of product or brand to be sold; the latter concerns the firm that makes or sells the product. Advertisements may also be
distinguished on the basis of whether they are designed for direct or indirect action. Those aiming at direct action and
immediate action by the reader or viewer. The indirect action advertisement is more concerned with building a favourable
mental picture of the brand that will pay off later in sales. The manufacturer is more likely to use image-building
advertisements, while the retailer is more concerned with gaining immediate action. The manufacturer thus builds
acceptance for the brand and the retailer capitalizes on that acceptance at the local level and translates it into action.
A distinction may also be made between primary and selective purposes. When a dairy or group of dairies attempts to
convince people they should drink milk rather than other beverages, it is engaging in primary advertising. When one dairy
tries to build demand for its particular brand as compared with competitors, it is using selective advertising.
International Journal of All Research Education and Scientific Methods (IJARESM), ISSN: 2455-6211
Volume 9, Issue 4, April -2021, Impact Factor: 7.429, Available online at: www.ijaresm.com
IJARESM Publication, India >>>> www.ijaresm.com
Page 836
The term ‘advertising’ is derived from the Latin word ‘advertere’, meaning ‘to turn towards’ or ‘to pay attention’ or ‘to turn
the minds of towards’. The basic function of every piece of advertising is to turns the attention of the readers or the listeners
or the viewers or the onlookers towards a product or a service or an idea. Therefore, it can be said that anything that turns
the attention to an article or a service or an idea might be well called as advertising.
Historical Background:
The earliest form of advertising was by public-criers in ancient times calling attention to the sale of such items as slaves,
cattle and imports. An ancient written advertisement, perhaps 3000 years old, was discovered by an archeologist delving in
the ruins of Thebes. It offered a ‘whole gold coin’ as reward for the return of a runaway man-slave named Shem. It is a fact
that, in ancient times in Egypt sales messages used to be written on papyrus wall posters. Political campaign ads were on
the walls of Pompeii. Rudimentary commercial advertising existed in Greece, Rome, Arabia, Asia, Africa and South
America.
During Middle Ages most of the people were unable to read but the spoken word was the principal means of
communication and there was little of the activity that we now call advertising. The invention of movable type by Johann
Gutenberg made it possible to produce many copies of books and periodicals cheaply and quickly and ushered in the
modern era of advertising. As reading spread in the 17th century, advertising was printed on handbills and circulated.
In 1712 all advertising was dealt a blow when the British government imposed a tax of one halfpenny on every newspaper
or magazine sold and an additional tax of one shilling on every advertisement. This move was aimed at silencing press
criticism not raising money. In spite of this tax, however, advertising progressed during the 18th century. In 1758 Samuel
Johnson wrote in The Idler:
Advertisements are now so numerous that they are very negligently perused, and it has therefore become necessary to gain
attention by magnificence of promise and by eloquence sometime.
Benjamin Franklin is regarded by many as the father of advertising in the United States. He put advertising before the
editorial in the first issue of the Pennsylvania Gazette in 1729. The Boston News-Letter contained advertisement for sale or
rent of houses, farms, shops, vessels and other items in its first issue published in April 1704.
The 19th century was a period of expansion in advertising as well as in business; the Industrial Revolution expanded the
output of factories and advertising helped market this output. The growth of the penny press and of magazines, combined
with an increase in educational levels, created an increase in ‘reading audiences. By 1870 the use of magazines for general
advertising was established. During the first two decades of the 20th century, advertising was re-examined. Certain
excesses in its claims had developed and caused widespread resentment. Regulation came both from within the industry and
from the government.
In 1914 the Audit Bureau of Circulation (A.B.C) was organized. After World War I came the era of salesmanship.
Advertisement was accepted as an essential tool in selling the booming outputs of the nation’s factories. A major new
advertising medium, viz the radio, was added during the 1920’s. Further, film became an important advertising medium in
Great Britain. Apart from special showings of films or documentaries, motion-picture advertising was usually in the form
of short films lasting only for 15 seconds, one minute or two minutes. Further, it would not be wrong to say that, in the 20th
century, advertising became a profession with agencies as the focal point of creative planning. As it is a known fact that,
women use to purchase most of the household items, this led some of the agencies to consider and understand the minds of
consumers; and this led to the women sector to choose the business as a career. The first American advertisement to use a
sexual sales appeal, created by J. Walter Thompson Co. for Woodbury Soap, depicted a couple with the message the skin
you love to touch. Advertisements which began with the radio in the 1920s spread in television in the 1940s. In 1980 and
90s with the advent of cable and satellite TV respectively, new advertisements or opportunities on it expanded different
channels. Finally in the 21st century it has spread through mass media like radio, news paper, magazines, etc.
Statutory provisions governing
In India, there is no uniform legislation for regulating the advertisement; the advertising market is generally regulated by or
controlled by a non statutory body i.e., ASCI (Advertising Standards Council of India). Apart from this code there are some
laws which specifically govern specific media and all. The laws can be generally or informally categorized under three
heads firstly the laws which specifically govern media, secondly, laws which protect both society and the consumer and
lastly laws which are specifically related to industry. The laws which speak of advertisement are listed below
International Journal of All Research Education and Scientific Methods (IJARESM), ISSN: 2455-6211
Volume 9, Issue 4, April -2021, Impact Factor: 7.429, Available online at: www.ijaresm.com
IJARESM Publication, India >>>> www.ijaresm.com
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Laws governing Media:
1. Code of Conduct of the News Broadcasters Association
2. Norms for Journalist Conduct issued by the Press Council of India
3. The Press Council Act 1978
4. Cable Television Network Rules, 1994
5. Electronic Media Monitoring Centre (EMMC)
6. Code for Commercial Advertising on Doordarshan and All India Radio
Laws for both Society and the Consumer:
1. Emblems and Names (Prevention of Improper Use) Act, 1950
2. Young Persons (Harmful Publications) Act, 1956
3. Standards of Weight & Measures Act, 1976
4. Indecent Representation of Women (Prohibition) Act, 1986
5. Consumer Protection Act 1986
6. Companies Act, 2013
7. Consumer Protection Act 2019
8. Laws related to intellectual property rights
Specific Laws relating to Industry
1. The Drugs and Cosmetic Act, 1940
2. The Drugs and Magical Remedies (Objectionable Advertisements) Act, 1954
3. Public Gambling Act, 1867, the Lotteries (Regulation) Act, 1998 and the Prize Competitions Act, 1955
4. Advocates Act, 1961
5. The Prize Chits and Money Circulation Schemes (Banning) Act, 1978
6. Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act,
1992
7. Securities and Exchange Board of India Act, 1992
8. The Transplantation of Human Organs Act, 1994
9. The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994
10. Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002
11. Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce,
Production, Supply and Distribution) Act, 2003
12. The Food Safety & Standards Act, 2006
Some of the major legislations pertaining to advertisements in India are:
The Consumer Protection Act 2019, replacing nearly a four decade old Consumer Protection Act 1986, has brought some
relief to consumers; it tries to deal with some new challenges what the digital world has imposed on customers. As per
Section 2 (1) of the Act "advertisement" means any audio or visual publicity, representation, endorsement or
pronouncement made by means of light, sound, smoke, gas, print, electronic media, internet or website and includes any
notice, circular, label, wrapper, invoice or such other documents;
Further, the new law widens the scope of the consumer by including any person who buys goods, digitally or offline, via
teleshopping, direct selling or multi-level marketing. The previous Act did not cover e-commerce (Section 2(7) of the 2019
Act).
The new act also encourages filing complaints against misleading ads and as per Section 21 of the Act, if the Central
Authority is of the opinion that, there is a misleading advertisement then it has the power to issue directions and penalties
against false or misleading advertisements.
Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce,
Production, Supply and Distribution) Act, 2003:
Section 5 of the Act prohibits any advertisement of cigarettes or tobacco products in any of the medium which may directly
or indirectly promote or suggest; further, Section 22 of the Act also provides for punishment for advertisement of Cigarettes
and tobacco products. Whoever contravenes the provision i.e., Section 5, shall be punished with imprisonment up to 2 years
or fine extendable up to Rs.1,000/- or both (applicable for first conviction); further in case of successive convictions
imprisonment up to 5 years and fine extendable up to Rs. 5,000/-; the act also speaks about forfeiture of advertisement and
advertisement material as per Section 23.
International Journal of All Research Education and Scientific Methods (IJARESM), ISSN: 2455-6211
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IJARESM Publication, India >>>> www.ijaresm.com
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Cable Television Networks (Regulations) Act, 1995 (“CTN Act”): As per the Section 2 (g) of the Act the Programme
means any television broadcast and includes the term advertisement.
The Transplantation of Human Organs Act, 1994:
In this Act, as per Section 2 (a) “advertisement” includes any form of advertising whether to the public generally or to any
section of the public or, individually to selected persons. Further, it provides some of the regulations for the removal or
transplantation of human organs, and also prohibits any advertising inviting individuals to provide, donation to supply, any
human organ for payment.
The Drugs and Magical Remedies (Objectionable Advertisements) Act, 1954 prohibits advertisement of magical remedies
of diseases and disorders.
The Bar Council of India Rules (specifically before amendment of Rule 36 of BCI Rules) formulated under the Advocates
Act 1961 has set a ban on advertisement for publicity and also provided for control on fake advertisement of practicing
lawyers to a public at large to attract the clients. In 2008, by Resolution bearing no- 50/2008, the Bar Council of India
amended the Rule 36 of the BCI Rules before Hon’ble Justice B N Agarwal, Supreme Court of India. It was held in Writ
Petition i.e.,WP (c ) 532 of 2000, which questioned the term prohibition which was imposed by the Rule 36. Later, after
an amendment, advocates now provide details of their practice on websites. It would not be wrong to say that since 2008 till
now there has been an exemplar shift in advertisement; and relaxation to Rule 36 is now allowing advertisements.
Other relevant legislations governing products in India that may not to be advertised; alcoholic beverages, under the Cable
Television Network (Regulation) Amendment Bill, Services for prenatal determination of sex, under the Pre-Natal
Diagnostic Techniques (Regulation and Prevention of Misuse) Act 1994; prize chits and money circulation schemes, under
the Prize Chits and Money Circulation Schemes (Banning) Act 1978; physicians, under the Indian Medical Council
(Professional Conduct, Etiquette and Ethics) Regulations; infant milk substitutes or feeding bottles under The Infant Milk
Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992; standard,
quality, and also no representation concerning the need for, or the usefulness of any food under Food Safety & Standards
Act, 2006 and etc. among others. It is significant to note that this list isn’t comprehensive and there are several other local,
state, and central laws that touch upon the subject of advertising.
Commercial Advertisements are not included in Article 19(1)(a) of the Constitution:
Advertisement is a notice given in a manner designed to attract public attention; information communicated by
announcement in a journal, newspaper etc. to the public, or to an individual concerned. The meaning of the word
advertisement is not however confined to notices printed in newspapers.
In Hamdard Dawakhana v. Union of India (AIR 1950 SC 554), it has been observed that, an advertisement is a form of
speech but its true character is reflected by the object for the promotion of which it is employed; and falls under the basics
of activities under the Art. 19 (1) (a) as it is to the notice to the public at large. Further court held that, the moment it takes
form of a commercial advertisement it no longer falls within concept of freedom of speech.
In A. Suresh v. State of Tamil Nadu, (AIR 1997 SC 1889) it has been held that where an activity involves questions of
freedom of speech as well as questions of freedom to carry on a business, profession or vocation, it is legitimate for the
State to regulate the business aspect in terms of Article 19(1) (g).
This does not mean that the courts have not recognized the role of the Press as serving the public interest. In Sushil
Chowdhary v. State of Tripura (AIR 1998 Gau. 28), the action of the State Govt. was challenged when the State Govt.
Tripura, departing from its established policy, started allowing 24 percent of its advertisements to only one news paper and
allowing only 6 percent to another newspaper. The court has held that, the action of the State policy violated two articles of
the Constitution. Article 14 and Article 19(1) (a); the High Court pointed out that freedom of speech and press, are not so
much for the benefit of the press, as for the benefit of the general community. A Governments duty to ensure circulation of
newspaper arises, because the community has a right to be supplied with information and government owes a duty to
educate the people within the limits of its recourses.
CONCLUSION
It is evident that, in the modern society, advertising has a major role in bringing about some kind of consciousness among
the people. Again it is a fact that, by this one can get complete information regarding the services that people or the
International Journal of All Research Education and Scientific Methods (IJARESM), ISSN: 2455-6211
Volume 9, Issue 4, April -2021, Impact Factor: 7.429, Available online at: www.ijaresm.com
IJARESM Publication, India >>>> www.ijaresm.com
Page 839
governments are going to provide. It would not be wrong to say that, the various laws on advertisement have created some
kind of fear in the minds of those who generally opt wrong methods of advertising; it is also true that there is an absence of
a single statute or body or some kind of regulation to regulate or have control on misleading advertisements. It should be in
the minds of the advertisers that, they should not advertise only for the sake of making some profit but also follow some
ethics. At last it can be said that, the advertisers should follow some ethical values e.g. what they advertise should be
correct and true; it should not be illegal; should not misguide the society at large especially young section of the
community.
REFERENCES
[1]. Encyclopedia of the Social Sciences.
[2]. Introduction to Advertisement, see http://archive.mu.ac.in/myweb_test/sybcom-avtg-eng.pdf
[3]. https://thedesigntrip.com/2020/07/30/history-advertisement-india
[4]. http://archive.mu.ac.in/myweb_test/sybcom-avtg-eng.pdf
[5]. Advertising, See http://osou.ac.in/eresources/DJMC-06-BLOCK-02.pdf
[6]. Hemant Goyal and Jitender Jain, Advertising Law In India Part-1, Seehttps://www.mondaq.com/india/advertising-
marketing-branding/192384/advertising-law-in-india--part-1
[7]. Consumer Protection Act 2019
[8]. https://www.lexology.com/library/detail.aspx?g=4d55f554-44bb-4391-9e18-7c74cb849443
[9]. Hemant Goyal and Jitender Jain, Advertising Law In India Part-2, https://www.mondaq.com/india/advertising-
marketing-branding/192384/advertising-law-in-india--part-2
[10]. Dr. S.R. Myneni, Media Law, Asia Law House, 2018.
ResearchGate has not been able to resolve any citations for this publication.
Advertising Law In India Part-2
  • Hemant Goyal
  • Jitender Jain
Hemant Goyal and Jitender Jain, Advertising Law In India Part-2, https://www.mondaq.com/india/advertisingmarketing-branding/192384/advertising-law-in-india--part-2
  • S R Dr
  • Media Myneni
  • Law
Dr. S.R. Myneni, Media Law, Asia Law House, 2018.