No clear penalty and punishment for an advertisement violative of ‘Advertising Code’: Delhi High Court

There are no clear regulations as to the extent of penalty and punishment that can be imposed in case an advertisement is found to be objectionable and violative of the `Advertising Code’. This was observed by the Delhi High Court in the matter of TV TODAY NETWORK LIMITED vs. UNION OF INDIA [W.P.(C) 1971/2021 & CM APPLs. 5764/2021 & 5765/2021]. The judgement was pronounced by Justice Prathibha M. Singh.

The respondent alleged that the petitioner ran an advertisement of “All Seasons” Club Soda which was a surrogate advertisement for “All Seasons” Whisky, sold in a similar bottle and layout. The telecast of the advertisement took place during the LIVE coverage of the Independence Day event. The footage which was shown to the Court shows that in the said live telecast, an ‘L’ shaped advertisement was broadcast on the `Aaj Tak’ TV channel, which, according to the Petitioner, relates to the “All Seasons” Club soda product.

The I&B Ministry found the same advertisement objectionable in terms of the provisions of the Cable Television Networks (Regulation) Act, 1995 and issued a show cause notice. After hearing the Petitioner, the I&B Ministry came to the conclusion that the colour and layout of the bottle being the same as the whisky bottle of the advertiser, the advertisement is nothing but surrogate advertising and directed the Petitioner to run an apology scroll in bold legible font at the bottom of the screen for two days continuously.

However, the court observed,The fact that the Whisky bottle and the Club Soda bottle used, have the same look and feel/trade dress, this Court is of the opinion that the entire order cannot be interdicted and stayed. The identity between the two product containers and the fact that the Petitioner uses an alternate bottle for its Club Soda, do raise questions relating to `Surrogate advertising’. However, considering that the measure imposed also cannot be disproportionate and keeping in mind that the apology so directed ought not to interfere unreasonably with the normal telecast of the channel, the frequency of the apology and the duration deserves to be curtailed/reduced.

The petitioner was further directed to run a 10 second apology every hour between 8:00 a.m. to 8:00 p.m. on two days i.e., 16th February, 2021 and 17th February, 2021.

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