It is the industry watchdog for fair advertising. Yet, ASCI has become a favourite punching bag of defaulters of the advertising standards policy. Best Media Info caught up with ASCI Chairman Srinivasan K Swamy to discuss the council’s powers and responsibilities, and clarify a few issues around its functioning
Akansha Mihir Mota | Mumbai | January 30, 2017
Around May 2015, when Biolif Body Buildo had moved court against an order of the Advertising Standards Council of India (ASCI), the Bombay High Court called ASCI’s ex parte order (as reported by business daily Mint) as “yet another instance of high-handed, unlawful and unilateral conduct of ASCI, a self-appointed watchdog of public advertisements and similar materials in print and media.”
This action of challenging ASCI’s decisions and upholding of complaints didn’t end here; those were probably the initial days for the rebel.
Havells, the electrical equipment maker, also went to court in October 2015. In July 2016, Patanjali took the advertising watchdog to court. This was followed by Reckitt Benckiser which took ASCI to court for its Dettol ad in September. Does this mean that stakeholders have started treating the watchdog as their favourite punching bag? It is also pertinent to note that the government’s 2006 notification stated that at least the television commercials have to abide by ASCI rules.
ASCI elected industry veteran Srinivasan K Swamy as its Chairman in September 2016. Before this, Swamy was the President of Advertising Agencies Association of India (AAAI). He is also on the Board of Audit Bureau of Circulation.
BestMediaInfo.com caught up with Swamy to clear the air about the functioning of ASCI and most importantly, to know in depth its powers and responsibilities. Excerpts:
You have headed many industry bodies, including International Advertising Association (IAA) and Goafest. How is heading ASCI, a self-regulatory body, different from the others you have led?
All jobs are different. All priorities are different. For example, if you are talking about AAAI, it is an industry body working in the interest of the industry. If you look at All India Management Association (AIMA), it is a management body and therefore we talked about how we can further the cause of management movement in the country. Madras Chambers is an organisation lobbying for the industry’s benefits. If you look at IAA, it is an international body and looks into the interest of advertising in general. It takes care of the three legs of advertising – advertisers, advertising agencies and media. That body actually brought in ASCI to India. One of the primary movers in self-regulation in India was IAA.
If you look at ASCI, it has got a very peculiar task in terms of what we need to do. It is a 31-year-old self-regulation body. It has people from advertising agencies, media, advertisers and allied services. All of them together are interested in self-regulation. We bring out policies that actually make a difference. There is an independent CCC (Consumers Complaints Council) that looks at how the complaints are handled and it is also the voice of the consumer, where the bulk of the members are from the civil society. No two jobs are similar, their dynamics are different, motivation and groups are different. I think we need to balance all this.
According to a news report in 2015, Justice GS Patel of the Bombay High Court in his verdict on a plea filed by Teleshop Teleshopping, noted that ASCI wasn’t a statutory body or government regulator, and it did not have powers to restrict any commercial advertisements of the petitioner. Don't you see the verdict as a question mark on the entire efforts put in by industry?
We have never said that we are a judicial body or even a quasi-judicial body. Justice Patel’s observation is a view that we also express. There is no major finding there. We are a recommendatory body and self-regulating body. We are saying that if we don’t regulate ourselves then there will be somebody regulating us. Teleshopping people make such exaggerated claims. Sometimes their claims are so bizarre. If we feel something is harmful to the consumer and the court thinks that we should not have judiciary over them, is entirely their verdict. We have respect for the law of the land. We are only saying ‘please don’t run such stupid ads’. If the court is saying that we don’t have an authority to say it, we will only report such ads to the government missionary and tell them that such ads are being run and are not appropriate. It is for the government to take action against a misleading ad.
The ASCI code is embedded under Rule 7 of the Cable TV Act. If you violate an ASCI code, you are violating the Cable TV Act. Therefore, the Government of India can take action against the offending person. In this case, we only had to report to the I&B ministry that such a thing has happened and it violates the ASCI code. If you want to take action, you are welcome to take action. We have nothing to do with that. We are just the finder of truth.
ASCI’s Consumer Complaints Council (CCC) is a body that includes journalists, activists, doctors, lawyers and consumer activists. These people sitting on CCC have strong views on how the world should be. These people are the voice of the consumer. If some court thinks that we should not say it, the court cannot deny us the right to process a complaint against an ad as it is ASCI’s fundamental right to call a spade a spade. If you don’t want to agree with it, it is your problem and it doesn’t mean I can’t call spade a spade. CCC’s job is just to call a spade a spade. Also, MIB has taken a lot of steps to support ASCI when we have reported about something.
ASCI can only take action when it receives complaints. But generally, complaints happen mostly after a week or two. By then offending campaigns have made their point. In that case, how effective is the ban or any action for that matter?
That’s not true. CCC can also take suo moto action. It is not that somebody has to make a complaint. We can take a complaint on board ourselves. If I see something offending, I can lodge a complaint. I can shoot an ad and send it on WhatsApp to ASCI. We also have the National Advertising Monitoring Services (NAMS). ASCI is actually engaged as an organisation to study all the ads in specific categories which are advertised the most and most affect the consumers. Those ads are monitored suo moto. We pick up ads which we believe are misleading and offensive. We review them quickly. Whatever we believe is misleading and offensive, we put it before CCC to decide.
To answer the second part of the question, when you make a TV commercial, you make a commercial at a substantial cost. So, whatever the costs are, just because they have run for a week or two or whatever, they have not amortised the cost; they still have to recoup the investment. Even it has to go to the court, do you think immediate justice is available? Somebody has made an ad, it comes under public domain, somebody has complained, then you adjudicate over it. It takes time to correct the decision. Even if you go to court, it takes time.
When it comes to advertising, you want instant justice. There is a course we need to follow. An ad goes through a lot of tests before it sees the light of the day. But if you are suddenly saying that it is you who is getting offended, you want immediate action, slap the guy. After all, we are living in a democratic society. We need to give people an opportunity to defend themselves before we can take any action.
Most advertisers believe in what they do to the best of their knowledge and do not offend anybody. That is the general view of the advertiser. Everybody believes what they are doing is right. They don’t deliberately do something wrong. It is a question of your view versus somebody else’s view. Therefore, CCC only tells either to modify or withdraw, we don’t ask them to stop it. We are not here to stop any business.
How feasible is it to impose stricter punishment or financial penalties for repeated offenders who think they can get away by just removing or replacing their inappropriate or misleading ads?
We are not a quasi-judicial body. We are only a recommendatory body. Therefore, we can’t punish anybody. If there are any repeated offenders, the government takes action against them. We have nothing to do with repeated offenders. We can only go and tell the government. Our job ends there. We want people to respect self-regulation. Most of the advertisers believe in self-regulation.
Where do you find India in comparison with the powers of regulatory bodies set up by such industry bodies worldwide?
India is a member of the international self-regulatory organisation network EASA (European Advertising Standards Alliance). All the European countries are members of that. Some non-European countries are also members of that association. India is one of them. At international level, our flag has been flying really high because we have consistently won awards for various initiatives we have taken. In 2011 ASCI was awarded the EASA Best Practice Bronze Award for its work in the field of education for introducing the Guidelines for Advertising of Educational Institutions. In 2012, ASCI won the Best Practice Silver Award for introducing the National Advertising Monitoring Service (NAMS), which helped in monitoring a wider number of misleading advertisements. Furthermore, in 2013, the EASA Global Best Practice Gold Award was presented to ASCI for reducing the time taken to address complaints. Some of the things we have done in India, internationally nobody has done. For example, we have launched our mobile app. Within one year, we have also launched our WhatsApp number. To our knowledge and information, nobody else has done it internationally.
Given the increasing number of offensive ads that the ASCI bans each month, do you think that talk of brand conscience is proving meaningless?
ASCI’s decision is disruptive to business. There are people who make products and services at enormous business risk. One day you tell them that whatever you are doing to sell your product is misleading and offending and it disrupts their business. There will be people who bear those investments may not agree with ASCI. That’s an unfortunate truth. I think that is why some people take ASCI to court because it disrupts the business. At the end of the day, as a citizen of a democratic country, he has a right to disagree with you. As long as we are in this democracy, we have to live with this dichotomy. This is not a case only of advertising. Even TRAI goes to court, the government goes to court.
In such circumstances, do you think there is a need to rework the ASCI norms or framework for advertisers?
ASCI code is fairly steady, uncomplicated. It has basic, simple guidelines. There are broad codes operational for the last 31 years. We issue guidelines for specific product categories. I don’t think we need to be very prescriptive. The creativity can’t be curbed. We want people to be creative. Also, respect the fact that we don’t want them to be going against the interest of consumers, exaggerating and misleading. All the ads must be within the laws of the country.
With the changing dynamics of advertising where people hit social media in seconds to air their opinion about an ad, what is ASCI doing to stay relevant?
Even dogs and cats have opinions on ads! This is one easy thing that people can comment on. Let them comment on it. Any advertising, including digital, that comes to notice, we adjudicate over them. Why should I worry about consumer views? If there is a problem with the ad, then it needs to be put in front of CCC. The Board of ASCI doesn’t have a view. The CCC’s view is ASCI’s view.
Is there any background check done for complainants? What we hear from the industry is that most of the complaints are either pitched by creative agencies or the brands against their competitors.
Intra-industry complaint is very common and there is nothing wrong with that. CCC is looking at the complaint. If you say that my brand is superior to yours, who gets most affected? The bulk of the complaints is NAMS, consumer complaints and a few intra-industry complaints. Intra-industry complaints are happening but the ratio is less, around 10% in comparison to the others.
Members in ASCI are from the agencies. So, if action is to be taken against any campaign, does the agency loyalty hamper the decision-making?
If they are a part of CCC, they can’t be in the same room when something of their interest is being discussed. They have to recuse themselves. We have a strict policy in this case. The person will have to declare that he is related to the subject and has to move out of the proceedings.
How is ASCI funded?
We are funded through membership. We have members, including the advertisers, advertising agencies and media. We are funded through yearly subscriptions fee that we receive from them. We have over 350 members.
In the industry of around one lakh people, isn’t a membership of 350 low?
It is low and that is why we are working with the industry associations. We want to make sure that more and more advertisers become our members. However, at the end of the day, whether an advertiser is a member or not, that really doesn’t matter in terms of complaint handling. Of course, it helps our budget. We are also getting support from the government.