Should hawk-eyed ASCI get legal teeth?

Misleading ads, campaigns claiming medical marvels or educational institutions promising guaranteeing top scores – nothing goes unnoticed by the Advertising Standard Council of India (ASCI).

The regulator has been issuing notices to brands and companies regularly for ensuring that the consumer is not served inappropriate or false communication. The most recent instance has been of edutech company Upgrad using Sundar Pichai’s name and a face closely resembling the Google CEO.

Read our earlier report. 

ASCI intervened and the brand took down the ad.

ASCI CEO and Secretary General Manisha Kapoor took to social media, decrying the advertiser's "clever shortcuts".

ASCI has been issuing self-regulatory guidelines and cracking down regularly but does it hold much authority without legal power?

Govt Speak

We took this question directly to Rohit Kumar Singh, Secretary, Department of Consumer Affairs.

“It's a self-regulatory body and can't be given any legal teeth because it is for those who are entitled to enforce something legally. As a body funded by the industry, they are doing a great job but that said, they are still a self-regulatory body. Self-regulation means voluntary compliance by the industry, which the industry does most of the times but if they don’t, they can come to government forums,” Singh clarified.

Sharing more on the complications involved, Singh said, “You can’t give legal teeth to a self-regulator. How will you enforce it? Anyone will go to the courts and ask who are these people and why are they ordering us around? So, it can’t be given.”

However, acknowledging the importance of ASCI’s role, Singh said: “We are empowering ASCI and we listen to them very carefully and whatever they recommend. The ministry then does its due diligence and action is taken. ASCI is a great source of information. We are very happy with their research on dark patterns but that said in the end it is a self-regulatory body. For getting legal teeth, a body has to be empowered under a legal framework.”

Asked if ASCI could have its own legal committee or get a legal board member, Singh said the regulator is most welcome to initiate the conversation. “That’s up to them, if they want a legal person, they are most welcome to have it but even then, enforcement cannot be done by anybody outside the legal/government framework. That is as per the law. However good they might be, they can’t punish.”

Earlier this month, ASCI along with the Department of Consumer Affairs (DoCA) came out with guidelines on 'Dark Patterns', which included 10 guidelines for advertisers with regards to avoiding unethical practices.

On how ASCI deals with the issue of authority, Kapoor said: "Since ads can only be picked up for potential violations after they are published, it is but natural that some consumers would have been exposed to it. Brand reputation and brand trust are powerful aspects that get adversely impacted due to advertising that may be misleading or harmful. In the long term, advertisers who consistently breach consumer trust lose credibility."

Kapoor further said, “ASCI regularly shares the list of wilful and repeat offenders with the government so that they can investigate and enforce legal penalties in line with the law."

Industry Speak

Asked how ASCI could have more hold over the content that goes out in the form of ads, Samit Sinha, Managing Partner, Alchemist Brand Consulting, said, "Google, YouTube, FB and Instagram have to formally come on board with ASCI and agree to adhere to the guidelines. This will give ASCI more teeth."

The body should impose a blanket ban on offenders, he added. "Perhaps the threat of an embargo on defaulting advertisers and agencies or a blanket ban for a fixed period could work."

As for Nisha Sampath, Brand Consultant and Founder of Bright Angles Consulting, ASCI should involve CXOs. “Self-regulation is effective only if the community is engaged and voluntarily abides by regulations. For this, ASCI needs to involve the CXOs of agencies to come onto a common platform and agree on some basic principles of action. ASCI can also engage more actively with the community which is vital in a social media era. This can be through forming action groups that involve advertisers and advertising agencies, creating polls, and most importantly, publishing content that highlights ethical practices.”

“There should also be an attempt to interact with the younger generation of advertisers and content creators who will be building the future of the advertising and marketing industry,” Sampath noted.

Sharing a different view, Sandeep Goyal, Managing Director, Rediffusion, said, "ASCI has never really wanted to exert itself. It has been a body that calls for self-regulation.”