Surrogate Advertising: Delhi High Court Questions Centre About Unified Policy on Penalty of Programme Code or Advertising Code

Surrogate Advertising: Delhi High Court Questions Centre About Unified Policy on Penalty of Programme Code or Advertising Code

The Delhi High Court (HC) Justice Prathiba M. Singh in the case titled TV Today Network Limited (Petitioner) v. Union of India (Respondent), questioned the Union as to whether there is any unified policy on penalty of Programme Code, Advertising Code, under Cable TV Rules.

The HC observed that there was the absence of a structural framework stating the imposition of penalties on the violation of the Cable Television Network Rules. It directed the petitioner, "To run a 10 second apology every hour between 8 am to 8 pm on two days."

The Court passed an order after observing that while the Cable Television Network Rules provide for the two codes, however, the penalty for violating the same was not present.

It gave directions to the Central Government to file an affidavit specially stating that whether or not there is any structural policy framed and followed by it for imposing penalties when there is sheer violation of the "Programme Code" or "Advertising Code" under the Cable Television Network Rules, 1994 (Rules).

The factual background of the case is that a petition was instituted by TV Today against an order passed by the I&B Ministry (Information & Broadcasting), Government of India before the HC.

As per the said order, the petitioner had been directed to run "an apology scroll in the bold legible font at the bottom of the screen for two days continuously" for running an advertisement of "All Seasons" Club Soda which was a surrogate advertisement for "All Seasons" Whisky.

The said advertisement was telecast on the Aaj Tak TV channel during the LIVE coverage of the Independence Day event. Finding the advertisement objectionable with respect to provisions of the Cable Television Networks Act, 1995 (Act), a show cause was issued to the petitioner.

The I&B Ministry heard the submissions of the petitioner and it concluded that the color and layout of the bottle being the same as the whisky bottle of the advertiser, the advertisement was nothing but surrogate advertising, and hence, the direction to issue an apology was imposed.

The HC proceeded further to deal with interim relief in the petition. It noted that that the Whisky bottle and the Club Soda bottle have apparently the same look and feel/trade dress, which raises questions with respect to "surrogate advertising".

The Court reduced the frequency of the apology that was supposed to flash on the screen. It added further "In the counter affidavit, the I& B Ministry shall specifically state if there is any uniform policy followed by it in imposing penalties for violation of the "Programme Code" or "Advertising Code".

The matter is posted in July 2021 for further hearing.