Recently, deodorant brand, Layer’r Shot, ran into a controversy over its ads which were widely criticized on social media for outraging a woman’s modesty and promoting rape culture. Following the public outcry, the Ministry of Information and Broadcasting (MIB) promptly issued directions to social media platforms (including Twitter and YouTube) to take down all instances of the offending advertisements. The MIB, in its email to the social media companies, stated that the ads violated inter alia the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hereinafter ‘IT Rules, 2021’) as well as the Code of self-regulation in advertising on TV laid down by the Advertising Standards Council of India (ASCI). A first information report (FIR) has been filed against Layer’r Shot under section 67 of the Information Technology (IT) Act, 2000 on the basis of a complaint by the Delhi Commission for Women that the ads promoted a “rapist mindset”.
This article analyses the current laws and regulations which govern the content of advertisements in India insofar as it relates to women.
Legitimate Restrictions on Irresponsible Advertising
The legal debate which generally arises with respect to any creative content (including TV advertisements) centers on the right to freedom of speech v. the duty to not hurt religious/other sentiments of the public. For instance, Surf Excel’s 2019 ad around the time of Holi which portrayed Hindu-Muslim harmony was viewed as hurting the religious sentiments of the Hindu community. Similarly, an ad by Tanishq which revolved around a Hindu woman marrying a Muslim man courted controversy for allegedly promoting ‘love jihad’. While the interpretation of the ads in the above scenarios is debatable, the Layer’r Shot ad stands out not only for being offensive but also for normalizing rape in the Indian society.
Policies/Regulations Relating to TV Advertising in India
Under section 6 of the Cable Television Networks (Regulation) Act, 1995 (hereinafter ‘Cable TV Act, 1995’), a cable TV advertisement must conform to the advertisement code as prescribed in the Cable Television Networks Rules, 1994 (hereinafter ‘1994 Rules’). Rule 7 (2) contains the advertising code which prohibits inter alia advertisements which offend morality and decency of ‘subscribers’ (consumers of television), and imposes an obligation on cable operators to ensure that the portrayal of women is within the norms of “good taste and decency”. Further, sub-clause 8 of Rule 7 states that advertisements shall not contain “indecent, vulgar, suggestive, repulsive or offensive themes or treatment”.
Further, under the 1994 Rules, advertisements must additionally adhere to ASCI’s Code for self regulation in advertising (hereinafter ‘ASCI Code’). The ASCI Code, developed in consultation with the relevant stakeholders in the advertising industry, is appended in the Cable Television Networks Rules, 1994, Programme and Advertising Codes prescribed under the 1994 Rules. The ASCI Code applies to those involved in the ‘commissioning, creation, placement or publishing of advertisements’.
At the outset, the ASCI Code contains a declaration of fundamental principles; one such principle is, ‘to ensure that advertisements are not offensive to generally accepted standards of public decency’. Chapter II, the shortest of the 4 chapters in the Code, reiterates this fundamental principle, and prohibits advertisements which are ‘indecent’ or ‘vulgar, especially in the depiction of women’. Importantly, Chapter III which relates to ‘Harmful Products/Situations’, prohibits inter alia the indiscriminate use of advertisements in situations of a type which is ‘unacceptable to the society at large’. Chapter 3.1 is a stricture against any advertisement which ‘directly or indirectly encourages people’ to emulate criminality or “conveys the modus operandi of any crime”. In the instant case, it could be argued that the advertisements (which were suggestive of a situation wherein a group of men were contemplating taking advantage of a woman) could encourage people to emulate those situations, and in fact conveyed the modus operandi of a crime.
Last year, the Ministry of Electronics and Information Technology (MeitY) issued the IT Rules, 2021 which make certain provisions of the Cable TV Act, 1995 (specifically, the Programming Code under section 5) applicable to certain intermediaries (namely, ‘publishers of news and current affairs content’ and ‘publishers of online curated content’).
In the instant case involving advertisements by Layer’r Shot, the MIB had instructed YouTube to remove the advertisements on grounds that they violated Rule 3(1)(b)(ii) of the IT Rules, 2021; the said rule prohibits intermediaries from publishing any content which is “insulting or harassing on the basis of gender”. On receiving a court or government order regarding such content, an intermediary is required to promptly take-down and disable access to such content. The MIB also stated that the video advertisements were “detrimental to the portrayal of women in the interest of decency or morality”.
Separately, ASCI also condemned the Layer’r Shot ads. Shortly afterwards, on 8th June, ASCI released its Guidelines on Harmful Gender Stereotypes (hereinafter ‘ASCI 2022 Guidelines’) which follows ASCI’s October 2021 study, ‘GenderNext’, conducted with Futurebrands. The ASCI 2022 Guidelines are intended to specifically interpret Chapter III of the ASCI Code. The ASCI 2022 Guidelines state that advertisements shall not include ‘gender stereotypes that are likely to cause harm or serious or widespread offence’. Advertisements which indulge in the ‘sexual objectification of characters of any gender’ are violative of the ASCI 2022 Guidelines. Further, the guidelines also seek to prohibit advertisements which depict or encourage gender-based crimes such as those normalizing eve-teasing, emotional or physical harassment or any similar offences. The relevant guideline also states, ‘no gender should be encouraged to exert domination or authority over the other(s) by means of overt or implied threats, actual force or through the use of demeaning language or tone. Advertisements cannot provoke or trivialize violence (physical or emotional), unlawful or anti-social behavior based on gender’. However, advertisements which depict gender-based offences with a view to challenging such behavior are permissible.
Section 67 of the IT Act, under which an FIR has been filed against Layer’r Shot, makes the publishing or transmitting of obscene material in electronic form a punishable offence. Obscene material under section 67 is understood as material which is ‘lascivious or appeals to the prurient interest’ or is likely to ‘deprave and corrupt persons’. In the instant case, the Layer’r Shot ads were obscene in that those viewing it may have been emboldened to emulate the situation presented in the ads (one where a group of men were intimidating a woman), as the ads tended to normalize these kinds of situations in the society.
Need for Greater Gender Sensitivity in TV Advertising
It is important to note that unlike films, advertisements do not require prior approval before being aired on TV, a point that appears to be misrepresented by the clarification which Layer’r Shot issued in the aftermath of the controversy.
The above analysis of existing rules and guidelines on TV advertising reveals that there exists an adequate legal framework for regulating TV advertisements in India, which is why the ads were promptly taken down without any opposition. Advertisements in general are often a social commentary inasmuch as they reflect the realities present in a society. Furthermore, advertisements are not only influenced by society but also help to influence the society. What we need perhaps is greater gender sensitivity among advertisers and brands, to be more intentional of the potential impact (both direct and indirect) which their advertisements have on society.
This article was first published on Feminism in India here and has been republished with permission.
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