Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of K. Vinod Chandran, J. heard a batch of writ petitions dealing with permission to publish advertisements in print media seeking donation of kidneys from altruistic donors from the public. This Court, on previous occasions has permitted such publications, holding that the Transplantation of Human Organs and Tissues Act of 1994 does not prohibit such publications as long as no financial arrangement is made between the parties.

While the petitioners contended that the Act only prohibited publications inviting donors for consideration, the State contended that there existed no safeguards to prohibit commercial dealings once the publication had been made. It was also brought to the notice of the Court that the media refuses to publish due to fear of prosecution. The Court opined that it could not direct publication if the media was refusing due to fear of prosecution or due to ethical reasons and that it will not be proper for the Court to exercise the discretionary extraordinary jurisdiction.

The Court held that the Act was “a perfect example of social engineering and it is not for this Court to interfere with such a law on misplaced sympathies.” Therefore, the prayer to allow such publications was not allowed by the Court. The Guiding Principles for Organ Donation were also discussed by the Court and the Bench also came up with an alternate measure wherein, the petitioners seeking kidney transplants could register themselves with the Kerala Network for Organ Sharing. [Moideen E.M. v. State of Kerala, 2017 SCC OnLine Ker 21219, decided on 24-11-2017]

Case BriefsHigh Courts

Delhi High Court: Procter & Gamble Home Products Pvt. Ltd. (P&G) – manufacturer of Head & Shoulders Anti-dandruff Shampoo priced Rs. 3 per sachet and Hindustan Unilever Ltd. (HUL)-manufacturer of Clinic Plus shampoo priced Re 1 per sachet filed suits against each for comparative advertising of their products. The advertisement impugned in each of the suit indisputably compares the two products and though does not name the product of the other but, besides showing the sachet of the advertiser‘s own product, shows sachet of the other‘s product. All the three suits were dealt with together by the  Court.

Before approaching the Court, HUL had approached Advertising Standards Council of India (ASCI) which rejected the said complaint. The High Court Judge considered the rival contentions and highlighted that ASCI was established in 1985 as a company under Section 25 of the  Companies Act, 1956 and with advertisers, media, advertising agencies and other professional/ancillary services, industries connected with advertising as its sponsors and with the purpose of self-regulating the advertisements and to ensure that the advertisements conform to the Code of self-regulation. The Code for self regulation in Advertising (the Code) of ASCI has been drawn up by people in the profession and industries in or connected with advertising.

Justice Rajiv Sahay Endlaw ruled that none of the advertisements impugned was disparaging observing that all the advertisements fell in the genre of ‘Comparative Advertising’ which permits comparing own product with that of competitor‘s and calling own superior / better than competitor’s. The Court further observed that the Advertising Code of ASCI incorporated therein permits comparative advertising in the interest of “vigorous competition and public enlightenment.” However, the Court elucidated further on this saying that fetters which are placed therein are that there should be no likelihood of the consumer being misled as a result of the comparison and the advertisement does not unfairly denigrate, attack or discredit other products directly or by implication.

The Judge applied the dual test of balancing the fundamental right of advertiser under Article 19(1)(a), with the Constitutional right of the competitor under Article 21 to reputation of his goods and also applied the test of proportionality observing that the advertisement/s in neither of the three suits could be found as defamatory or having the impact of changing the opinion of the ordinary man/consumer to the prejudice of the plaintiff in the suit.

The Court brought in notice that the disparagement claimed was with respect to shampoo sold in sachets and each sachet was for one wash and said that even if a consumer changes opinion on watching the advertisement about the shampoo and switches to another one, he/she may immediately shift to the earlier one if doesn’t find the results satisfactory and hence, concluded that this way, the market forces would prevail in long run. The Court finally observed that today, the consumers are vigilant enough o find their best interest and are armed with the laws for their protection from false claims in advertising, is requiring the producers/manufacturers also to be cautious in making the same and therefore, in the face of such consumer law developments, reliefs for disparaging advertising have to be restricted to gross cases, the court concluded and dismissed the suits. [Procter & Gamble Home Products Private Limited V. Hindustan Unilever Ltd., 2017 SCC OnLine Del 7072, decided on 17.02.2017]

Legislation UpdatesNotifications

The Ministry of Information & Broadcasting framed guidelines and criteria for Empanelment of suitable agencies and Rate fixation for advertisements on websites aimed to devise principles and instruments to streamline the release of Government advertisements on websites. The policy emphasizes that only websites which are owned and operated by companies that are incorporated in India will be considered for empanelment by Directorate of Advertising & Visual Publicity (DAVP). However, websites owned by foreign companies/origin can still be empanelled if such companies have branch offices which are registered and operating in India for at least one year.

The policy stipulates eligibility criteria for websites to get empanelled with DAVP which includes Unique Users (UU) per month data, which shall be cross-checked and verified by internationally accepted and credible third party tool that monitors website traffic in India. The policy requires that the websites shall run the Government ads through a Third Party Ad Server (3-PAS) engaged by DAVP for providing all relevant reports linked with online billing and will be used for verification of bills for payment. The Unique User Data of each empanelled websites will be reviewed in first week of April every year. The guidelines categorises the Unique User per month data of the websites into three categories which is mentioned below.

Category Unique Users per month
A 5 million and above
B 2 million to 5 million
C 0.25 million to 2 million

-Press Information Bureau