New ASCI code prohibits stereotypes and prejudice

By Ashima Obhan and Anubhav Chakravorty, Obhan & Associates

The Advertising Standards Council of India (ASCI) is a non-profit company that serves as a voluntary council to further the cause of self-regulation in the advertising industry. It is sponsored by advertisers, the media, advertising agencies, and other professional or ancillary services connected with advertising practices. The role of the ASCI in regulating the advertising industry has earned the approbation of several government bodies ranging from the Food Safety and Standards Authority of India to the Ministry of Information and Broadcasting.

New ASCI code prohibits stereotypes and prejudice, Obhan & Associates
Ashima Obhan
Senior Partner
Obhan & Associates

However, the decisions of several high courts, including that of the Delhi High Court in Procter and Gamble Home Products v Hindustan Unilever Ltd, and that of the Bombay High Court in Century Plyboards v Advertising Standards Council of India, have defined the limits of the role of the ASCI holding that the ASCI cannot assume the powers of a civil court, grant injunctions, adjudicate upon disputes, or award damages. The court in Century Plyboards observed that the memorandum and articles of association of ASCI provided that its code was not in competition with law. Its rules and the way they are enforced were designed to complement legal controls, not usurp or replace them. On the other hand, the Delhi High Court in Metro Tyres Limited v Advertising Standards Council of India, held that the ASCI had the power to entertain complaints relating to the infringement of copyrights.

Nevertheless, the ASCI continues to be a body of great influence for stakeholders in the advertising industry and consumers alike. For a number of years, the ASCI has played a significant role in monitoring the extent to which commercial interests shape public perception, ensuring that consumers are not lured into buying anti-coronavirus mattresses or immunity-boosting biryani.

The ASCI Code for Self-Regulation of Advertising Content in India (code) was formulated with the goal to regulate the content of advertisements to ensure they do not offend generally accepted standards of public decency and are factual, intelligible, fair and responsible. The code has been appended to the tenth edition of the Press Council of India’s Norms of Journalistic Conduct, 2010 and is recognised by a number of other interested government bodies.

New ASCI code prohibits stereotypes and prejudice, Obhan & Associates
Anubhav Chakravorty
Obhan & Associates

On 25 May 2022, the ASCI updated the code to ensure greater inclusion in advertisements. Although the code already required advertisements to be free of any denigration based on race, caste, creed, gender, or nationality, newer grounds of discrimination, such as gender identity, sexual orientation, body shape, age, and physical and mental conditions have been added by section 3.1(b). Any such discrimination will now be considered a violation of the code. The CEO of ASCI underlined that she hoped, with the introduction of this amendment, portrayals that have no place in a progressive society will cease and advertising will become more sensitised and inclusive to all sections of the population.

This well-intentioned step by the ASCI is backed by data it collected to gauge consumer sentiment. A January 2022 ASCI report, “What India Takes Offence To – A Study of Complaints Received at the Advertising Standards Council of India’’ studied advertisements that offended the sensibilities of citizens and analysed their underlying messages. Undesirable categories included those that were seen to reinforce socially undesirable portrayals for commercial gains, those that hurt religious sentiments and those that were considered inappropriate for children but that were aired during prime or family viewing time.

However, the diversity of thought that the internet has engendered in the past decade has meant that the generally accepted standards of public decency are now less homogenous than before. The perception of such standards is an ever-evolving, organic process – one to which the update to the code will likely contribute. With close attention being paid to diversity and inclusion by consumers across the globe, the amendment to the code may also be seen as a step towards bridging commercial interests with the sentiments of consumers.

As a giant of the advertising industry, David Ogilvy, said, “I don’t know the rules of grammar … If you’re trying to persuade people to do something, or buy something, it seems to me you should use their language.”

Ashima Obhan is a senior partner and Anubhav Chakravorty is an associate at Obhan & Associates.

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