Tuesday, 30 September 2014

Ethics in advertising

Introduction At present in India, there is no central statutory agency or uniform legislation regulating the advertising industry. The Indian advertising market as a whole is regulated and controlled by a non-statutory body, the Advertising Standards Council of  India (ASCI).  ASCI is a voluntary self-regulatory council established in 1985 to promote responsible advertising and to enhance public confidence in advertisements. ASCI consists of a Board of Governors and a Consumer Complaints Council. The Board of Governors comprises four members from each of the four sections connected with the advertising industry:
  • Advertisers
  • Advertising Agencies
  • Media (owners of press, television, radio etc.)
  • Related sectors (e.g. outdoor agencies, PR, market researchers, ad producers, business schools)
The council's objectives are or  Role of the Advertising Standards Council of India (ASCI) 
  • To ensure the truthfulness and honesty of representations and claims made by advertisements
  • To ensure that advertisements are not offensive to generally accepted standards of public decency
  • To safeguard against use of advertising for the promotion of products regarded as hazardous to society or to individuals.
  • To ensure that advertisements observe fairness in competition of generally accepted competitive behavior in business

 Products and Services Banned From Advertising 
The advertisement must not make any direct or indirect reference to the prohibited or restricted products. 
The advertisement must not create any nuances or phrases promoting prohibited productsThe advertisement must not use particular colours and layout or presentations associated with prohibited or restricted products. 
The advertisement must not use situations typical for promotion of prohibited or restricted products when advertising the other products

Tobacco Infant Milk Food, Human Organs Magical Remedies Infant formula, Prize Chits and Money Circulation Schemes,  Advertising Alcohol (Beer, Wine, and Spirits) Physicians Regulations Related to Product and Service, Professionals such as Chartered Accountants, Company Secretaries & Cost Accountants Firearms, Weapons, and Ammunition, Religion Advertising to Children (advertising during and immediately before and after children's programming) . Physicians are not allowed to advertise their services in any form or manner of advertising through any mode, as soliciting of patients directly or indirectly.
the Press Council of India prohibit any advertisement directly or indirectly promoting the production, sale, or consumption of cigarettes, tobacco products, wine, liquor, or other intoxicants. However, some states allow advertising through billboards, signboards etc. 

The Indian Penal Code 1860 prohibits obscene publications. Further, the Indecent Representation of Women (Prohibition) Act, 1986 prohibits indecent representations of women.  
As per the Food Safety & Standards Act, 2006, no advertisement relating to the standard, quality, quantity or grade-composition.

The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992 prohibits the advertising of infant milk substitutes or feeding bottles.

The Public Gambling Act, 1867 prohibits gambling activities in India. The Information Technology Act, 2000 was also amended to ban Internet gambling and online betting websites. 
The Lotteries (Regulation) Act, 1998  Under section 294-A of the Indian Penal Code, advertisements of a lottery unless it is in accordance with the Lotteries (Regulation) Act shall be punishable.
The Prize Competitions Act, 1955 controls and regulates prize competitions in certain parts of India and prohibits the advertisement of unauthorized prize competitions.

Under the Indecent Representation of Women (Prohibition) Act 1986 Advertisements related to sexuality are allowed with the provision that there should not be any indecent representation of women . 
Under the Cable Television Networks Rules 1994, advertisement based on religion or to hurt religious sentiments are not allowed. Also, such advertisement may be punishable under Indian Penal Code 1860

The Young Persons (Harmful Publications) Act, 1956 prohibits advertisements relating to any harmful publication i.e., any publication that tends to corrupt a young person (person under the age of 18 years) by inciting or encouraging him or her to commit offenses or acts of violence or cruelty or in any other manner whatsoever.

According to the ASCI Code, advertisements addressed to minors shall not contain anything, whether in illustration or otherwise, which might result in their physical, mental, or moral harm or which exploits their vulnerability. 
  • For example, advertisements may not: 
    • Encourage minors to enter strange places or to converse with strangers in an effort to collect coupons, wrappers, labels or the like
    • Feature dangerous or hazardous acts which are likely to encourage minors to emulate such acts in a manner which could cause harm or injury
    • Show minors using or playing with matches or any inflammable or explosive substance; or playing with or using sharp knives, guns, or mechanical or electrical appliances, the careless use of which could lead to their suffering cuts, burns, shocks, or other injury
    • Feature minors in promoting tobacco or alcohol-based product..
    • Endanger the safety of children or creates in them any interest in unhealthy practices or shows them begging or in an undignified or indecent manner.
    •                               
The ASCI Code provides that advertisements  Norms for Journalist Conduct issued by the Press Council of India Act and ASCI Code.
  • Article 19(1)(a) of the Constitution of India protects the right to freedom of speech and expression, which is also extended to advertisements. However, like any other right, this freedom is also subject to reasonable restrictions imposed by Article 19(2) of the Constitution of India.
  • Derides any race, caste, color, creed, or nationality
  • Tends to incite people to crime or to promote disorder and violence or intolerance
  • Presents criminality as desirable or directly or indirectly encourages people, particularly minors, to emulate it or conveys the modus operandi of any crime
  • Adversely affects friendly relations with a foreign state
  • Criticism of friendly countries
  • Attack on religions or communities
  • Obscenity
  • Defamation
  • Incitement to violence or anything against maintenance of law and order
  • Contempt of court
  • Aspersions against the integrity of the president and judiciary
  • Anything compromising the integrity of the nation
  • Criticism by name of any person
  • Derides any race, caste, color, creed, or nationality
  • Is against any provision of the Constitution of India
  • Tends to incite people to crime, cause disorder or violence or breach of law or glorifies iolence or obscenity in any way
  • Exploits the national emblem, or any part of the Constitution or the person or personality of a national leader or a State dignitary
  • In its depiction of women, violates the constitutional guarantees to all citizens. In particular, no advertisement shall be permitted which projects a derogatory image of women
  • Exploits social evils like dowry, child marriage
  • Promotes directly or indirectly production, sale or consumption of cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants. However a product that uses a brand name or logo which is also used for cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants, may be advertised subject to prescribed conditions
  • Promotes infant milk substitutes, feeding bottles, or infant food
  • Be wholly or mainly of a religious or political nature or be directed towards any religious or political end
  • Contain references which hurt religious sentiments
  • Promote goods or services that suffer from any defect or deficiency as mentioned in Consumer Protection Act, 1986
  • Contain references which are likely to lead the public to infer that the product advertised or any of its ingredients has some special or miraculous or super-natural property or quality which is difficult to prove.
  • The picture and the audible matter of the advertisement shall not be excessively "loud".
  • Contain indecent, vulgar, suggestive, repulsive or offensive themes
  • All advertisement should be clearly distinguishable from the programme and should not in any manner interfere with the programme viz, use of lower part of screen to carry captions, static or moving alongside the programme.
  • No programme shall carry advertisements exceeding twelve minutes per hour, which may include up to ten minutes per hour of commercial advertisements, and up to two minutes per hour of a channel's self-promotional programmes.
  • Refraining from advocating or encouraging superstition 
  • advertisements exceeding twelve minutes in a clock hour in any broadcast of its programme.
  • The time gap between end of one advertisement session and the commencement of next advertisement session shall not be less than fifteen minutes (thirty minutes in case of a movie). However, this restriction is not applicable to live broadcast of a sporting event.



Furthermore, the ASCI Code states that no advertisement shall be permitted which:

Radio & Doordarshan Advertising
The Code for Commercial Advertising on Doordarshan and All India Radio4: All advertisement on Doordarshan andAll India Radio ("AIR") should conform to the code issued by Director General of each Doordarshan and AIR respectively. These codes have also mandated compliance to the ASCI Code and in general prohibit any advertisement containing the following:

TV Advertising
The advertising code issued under the Cable Television Network Rules, 1994 require advertising carried on the cable service to conform to the laws of the country and not to offend morality, decency, or religious sensibilities of the subscribers. The rules make the ASCI Code compulsory for television and state that no advertisement which violates the ASCI Code shall be carried on the cable service. Under the rules, no advertisement shall be permitted though cable services which:
News Broadcasters Association Regulations: News Broadcasters Association("NBA") represents the private television news & current affairs broadcasters in India. NBA presently has 20 leading news and current affairs broadcasters (comprising 45 news and current affairs channels) as its members. According to News Broadcasting Standards Regulations (NBA Regulations) issued by NBA any broadcast (which includes advertisement) should be in compliance with NBA's code of conduct. NBA's code has made procedure for compliant against broadcaster who in breach inter alia of the following:
 Length, Volume, and Frequency of Commercials
The Telecom Regulatory Authority of India has issued the Standard of Quality of Service (Duration of Advertisements in Television Channels) Regulations, 2012, which regulates the duration of broadcasting an advertisement and the length of the commercial. Main features of these regulations are as under:

a Indian Broadcasting Foundation and Broadcasting Content Complaints Council ("BCCC")
ASCI and ASCI's Consumer Complaints Council (ASCI's CCC)
Electronic Media Monitoring Centre (EMMC
Telecom Regulatory Authority of India (TRAI)
News Broadcasters Association and News Broadcasting Standards Authority
Food Safety and Standards Authority of India (FSSAI)

Monday, 29 September 2014

THE CINEMATOGRAPH ACT, 1952

  • (1) This Act may be called the Cinematograph Act, 1952

    (2) It extend to the whole of India 

    Section 3. Board of Film Certification

    • (1) For the purpose of sanctioning films for public exhibition, the Central Government may, by notification in the Official Gazette, constitute Board of Film Certification which shall consist of a Chairman and not less than twelve and not more than twenty five other members appointed by the Central Government.(
    • 2) The Chairman of the Board shall receive such salary and allowances as may be determined by the Central Government, and the other members shall receive such allowances or fees for attending the meetings of the Board as may be prescribed.
    • (3) The other terms and conditions of service of the members of the Board shall be such as may be prescribed.

    • 4.Examination of films


    • 1) Any person desiring to exhibit any film shall in the prescribed manner make an application to the Board for a certificate  in the prescribed manner,-
    • (i) sanction the film for unrestricted public exhibition .
    • (ii) sanction the film for public exhibition restricted to adults; 
    • or(iia) sanction the film for public exhibition restricted to members of any profession or any class of persons, having regard to the nature, content and theme of the film; or]
    • (iii) direct the applicant to carry out such excisions or modifications in the film as it thinks necessary before sanctioning the film for public exhibition under any of the foregoing clauses; or
    • (iv) refuse to sanction the film for public exhibition.

    5. Advisory panels

    • (1) For the purpose of enabling the Board to efficiently discharge its functions under this Act, the Central Government may establish at such regional centers as it thinks fit, advisory panels each of which shall consist of such number of persons, being persons qualified in the opinion of the Central Government 
    • .(2) At each regional centre there shall be as many regional officers in the examination of films.
    • 3) The Board may consult with  advisory panel  for a certificate has been made.
    • (4) It shall be the duty of every such advisory panel  to examine the film and to make such recommendations to the Board as it thinks fit.(
    • 5) The members of the advisory panel shall not be entitled to any salary but shall receive such fees or allowances as may be prescribed.

    5A. Certification of films

    • (1) If, after examining a film or having it examined in the prescribed manner, the Board considers that-(a) the film is suitable for unrestricted public exhibition,  it shall grant to the person applying for a certificate in respect of the film a "U" certificate or, as the case may be, a "UA" certificate; or(b) the film is not suitable for unrestricted public exhibition, but is suitable for public exhibition restricted to adults  it shall grant to the person applying for a certificate in respect of the film an "A" certificate or, as the case may be, is suitable for public exhibition restricted to members of any profession or any class of persons,or, as the case may be, an "S" certificate; and cause the film to be so marked in the prescribed manner:(2) A certificate granted or an order refusing to grant a certificate in respect of any film shall be published in the Gazette of India.(3) Subject to the other provisions contained in this Act, a certificate granted by the Board under this section shall be valid throughout India for a period of ten years.

    5B. Principles for guidance in certifying films

    • (1) A film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of the sovereignty and integrity of India] the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence.

    • 6. Revisional powers of the Central Government(


    • 1) the Central Government  call for the record of any proceeding in relation to any film which is pending before, or has been decided by, the Board, or, the Tribunal  after such inquiry, into the matter as it considers necessary, make such order in relation thereto PROVIDED affecting any person applying for a certificate or to whom a certificate has been granted, as the case may be, except after giving him an opportunity for representing his views in the matter:
    • (2) the Central Government may, by notification in the Official Gazette, direct that-(a) a film which has been granted a certificate shall be deemed to be an uncertified film in the whole or any part of India; or(b) a film which has been granted a "U" certificate [or a "UA" certificate or an "S" certificate] shall be deemed to be a film in respect of which an "A" certificate has been granted; or

    • .7A. Power of seizure

    • (1) Where film is  which no certificate has been granted under this Act is exhibited, or a film certified as suitable for public exhibition restricted to adults is exhibited to any person who is not an adult or a film is exhibited in contravention of any of the other provisions contained in this Act or of any order made by the Central Government, , the Tribuna or the Board in the exercise of any of the powers conferred on it, any police officer may,  enter any place in which he has reason to believe that the film has been or is being or is likely to be exhibited, search it and seize the film.


    • 13. Power of Central Government or local authority to suspend exhibition of films in certain cases

    • (1) The Lieutenant-Governor or, the Chief Commissioner,, and the district magistrate may if he is of opinion that any films which is being publicly exhibited is likely to cause a breach of the peace, by order, suspend the exhibition of the film and during such suspension the film shall be deemed to be an uncertified film in the State, part or district,

    Can the court decide against the title of the films like Munna Bhai MBBS or Vasool raja MBBS?



  • (3) This Act shall come into force on such date as the Central Government may, by notification in the Official Gazette, Section 2: DefinitionIn this Act, unless the context otherwise requires,-(a) "adult" means a person who has completed his eighteenth year;(b) "Board" means the Board of Film Certification constituted by the Central Government under section 3;]("certificate" means the certificate granted by the Board under section 5A;](c) "cinematograph" includes any apparatus for the representation of moving pictures or series of pictures;(d) "District Magistrate", in relation to a presidency-town, means the Commissioner of Police;(dd) "film" means a cinematograph film;](e) "place" includes a house, building, tent and any description of transport, whether by sea, land or air;(f) "prescribed" means prescribed by rules made under this Act;(g) "regional officer" means a regional officer appointed by the Central Government under section 5 and includes an additional regional officer and an assistant regional officer;(h) " Tribunal " means the Appellate Tribunal constituted under section 5D.

  • The Petition:“The very term "Vasool Raja, M.B.B.S." gives an impression to the general public that the Medical Practitioners are only interested in collecting money from their patients and not bothered about the Medical Ethics. If the title "Vasool Raja, M.B.B.S." is translated in English, it will read as "King of Collection". The words "Vasool Raja" in Tamil are not a name, but it only means "a man, who heeds collection of money by hook or crook, and, who is greedy of money and whose intention is only to earn money by unlawful means".
    “ The film is offensive and hurting the entire community of Medical Practitioners, who have obtained M.B.B.S. Degree. It is also likely to cause an unbearable harm to the students, who are undergoing MBBS Course. The title is damaging in nature and it degrades the degree awarded by Dr. MGR Medical University”.
    Defense
    “ Respondent has replied that it is a Tamil version of a Hindi film "Munna Bhai M.B.B.S.", and it cannot be termed as improper”.
    Court order: “ The writ petition is devoid of merits and the same is the result of unnecessary apprehensions of a few of Medical Practitioners”.
    “ The main theme of the picture is that a local Dadha, by name, Vasool raja, wants to become an M.B.B.S. Graduate. The life of an elderly student in the campus of a Medical College is the main line of the story; it is only a remake of a Hindi film title "Munna Bhai M.B.B.S.". The Code of Conduct for Medical Practitioners cannot be considered in this case”.
    “ Film is a fiction and it cannot be related to real life situations. Entertainment sector has always enjoyed a privilege, even when a fair and reasonable criticism is a story line”.
    “ 'Munna Bhai' would only refer to a local dadha in Hindi. This title would not suggest that Medical Practitioners are greedy persons”.“ The title does not suggest that the entire profession of Medical Practitioners as collection agents”.
    “ The words "Vasool Raja, M.B.B.S." is in singular”.  It may at the most mean an individual. The petitioner has no objection to add the suffix 'Vasool Raja' to an individual like "Kamalhasan, M.B.B.S." Therefore, it is not possible to hold that the title of the film is per se defamatory.


Sunday, 28 September 2014

Cyber Crimes in India

Crime,  in any form adversely   affects the society.   Cyber crime is just a combination of crime and computer.   Cyber law is a term which is related to all the legal issues involving computer and Internet.     Cyber crime is a generic term that refers to all criminal activities done using the medium of computers, the Internet, cyber space and the worldwide web.  There isn’t really a fixed definition for cyber crime.  The Indian Law has not given any definition to the term ‘cyber crime’. In fact, the Indian Penal Code does not use the term ‘cyber crime’ at any point even after its amendment by the Information Technology (amendment) Act 2008, the Indian Cyber law. 
But “Cyber Security” is defined under Section (2) (b) means protecting information, equipment, devices computer, computer resource, communication device and information stored therein from unauthorized access, use, disclosure, disruption, modification or destruction.

Cyber law is a term used to describe the legal issues related to use of communications technology, particularly “cyberspace”, i.e. the Internet. It is less of a distinct field of law in the way that property or contract are, as it is an intersection of many legal fields, including intellectual property, privacy, freedom of expression, and jurisdiction. In essence, cyber law 
is an attempt to apply laws designed for the physical world, to human activity on the Internet. In India, The IT Act, 2000 as amended by The IT (Amendment) Act, 2008 is known as the Cyber law. It has a separate chapter XI entitled “Offences” in which various cyber crimes have been declared as penal offences punishable with imprisonment and fine.
In India, what can basically be termed as cyber law are the IT act 2000;  and its amended version in the form of the IT (Amendment) act, 2008.
IT act 2000
IT Amendment Act, 2008 [ITAA-2008].  
1.The word 'communication devices' inserted having , taking into its coverage cell phones, personal digital assistance or such other devices used to transmit any text, video etc like what was later being marketed as iPad or other similar devices on Wi-fi and cellular models. 
66A Sending offensive messages thro communication service, causing annoyance etc Dishonestly receiving stolen computer resource or communication device, through an electronic communication or sending an email to mislead or deceive the recipient about the origin of such messages (commonly known as IP or email spoofing) are all covered here. Punishment for these acts is imprisonment upto three years one lakh rupees as fine or both. 
66C Electronic signature or other identity theft like using others’ password or electronic signature etc. Punishment is three years imprisonment or fine of one lakh rupees or both. 
66D Cheating by personation using computer resource or a communication device shall be punished with imprisonment of either description for a term which extend to three years and shall also be liable to fine which may extend to one lakh rupee. 
66E Privacy violation – Publishing or transmitting private area of any person without his or her consent etc. Punishment is three years imprisonment or two lakh rupees fine or both. 
66F Cyber terrorism – Intent to threaten the unity, integrity, security or sovereignty of the nation and denying access to any person authorized to access the computer resource or attempting to penetrate or access a computer resource without authorization.
Section 67 deals with publishing or transmitting obscene material in electronic form. The earlier  Section in ITA was later widened as per ITAA 2008 in which child pornography and retention of records by intermediaries were all included. 
Section 67-A deals with publishing or transmitting of material containing sexually explicit act in electronic form.  
Section 67B dealt  Child Pornography . Depicting children engaged in sexually explicit act, creating text or digital images or advertising or promoting such material depicting children in obscene or indecent manner etc or facilitating abusing children online or inducing children to online relationship with one or more children etc come under this Section. ‘Children’ means persons who have not completed 18 years of age, for the purpose of this Section.  
Section 67C fixes the responsibility to intermediaries that they shall preserve and retain such information as may be specified for such duration and in such manner as the Central Government may prescribe .
Section 69: It empowers the Government or agencies as stipulated in the Section, to intercept, monitor or decrypt any information generated, transmitted, received or stored in any computer resource, subject to compliance of procedure as laid down here.
 Section 69A inserted in the ITAA, vests with the Central Government or any of its officers with the powers to issue directions for blocking for public access of any information through any computer resource, under the same circumstances as mentioned above. 
Section 69B discusses the power to authorise to monitor and collect traffic data or information through any computer resource. 
1.What is a cyber crime?
2.What is Cyber Law?
3.What is Hacking?
4. What is Email Spoofing?
5. What is Identity Theft?
The Information Technology Act, 2000, was thus passed on 9 June and was made effective from 17  October 2000.   It  was enacted by Parliament of India to protect the field of e-commerce, e-governance, e-banking as well as penalties and punishments in the field of cyber crimes.   The Information Technology Act, 2000 basically deals with the legal recognition of electronic documents and that of digital signatures. 
The Act essentially deals with the following issues: 
Legal Recognition of Electronic Documents 
Legal Recognition of Digital Signatures 
Offenses and Contraventions 
Justice Dispensation Systems for cyber crimes. 
The scope and applicability of ITA-2000 was increased by its amendment in 2008. 

2.Though ITA- 2000 defined 'digital signature'.  The term 'Electronic signature' was introduced and defined in the ITAA -2008 as a legally valid mode of executing signatures. T

3. The new amendment has replaced Section 43 with Section 66. The Word "hacking" used in Section 66 of earlier Act has been removed and named as "data theft" in this section and has further been widened in the form of Sections 66A to 66F.

 4. The section covers the offences such as the sending of offensive messages through communication service,  stealing electronic signature or identity such as using another persons' password or electronic signature, cheating by personation through computer resource or a communication device, publicly publishing the information about any person's location without prior permission or consent , cyber terrorism, the acts of access to a commuter resource without authorization, such acts which can lead to any injury to any person or result in damage or destruction of any property, while trying to contaminate the computer through any virus like Trojan etc

Section 43 deals with penalties and compensation for damage to computer, computer system etc. This Section addresses the civil offence of theft of data. If any person without permission of the owner or any other person who is in charge of a computer, accesses or downloads, copies or extracts any data or introduces any computer contaminant like virus or damages or disrupts any computer or denies access to a computer to an authorised user or tampers etc…he shall be liable to pay damages to the person so affected. 

Thus the new Section 43-A dealing with compensation for failure to protect data was introduced in the ITAA -2008

Section 65:  Concealing, destroying, altering any computer source code when the same is required to be kept or maintained by law and  Fabrication of an electronic record or committing forgery by way of interpolations in CD produced as evidence in a court  is an offence punishable with three years imprisonment or two lakh rupees or with both.


Section 66Computer related offences are dealt with under this Section. Data theft stated in Section 43 is referred to in this Section. Whereas it was a plain and simple civil offence with the remedy of compensation and damages only, in that Section, here it is the same act but with a criminal intention thus making it a criminal offence. The act of data theft or the offence stated in Section 43 if done dishonestly or fraudulently becomes a punishable offence under this Section and attracts imprisonment upto three years or a fine of five lakh rupees or both. Earlier hacking was defined in Sec 66 and it was an offence. 


 Hacking is the unauthorized access to a computer system, programs, data and network resources.  If crime is proved under IT Act, accused shall be punished for imprisonment, which may extend to three years or with fine, which may extend to five lakh rupees or both. 

According to wikipedia, e-mail spoofing is e-mail activity in which the sender addresses and other parts of the e-mail header are altered to appear as though the e-mail originated from 
a different source. E-mail spoofing is sending an e-mail to another person in such a way that it appears that the e-mail was sent by someone else. Spoofing is the act of electronically disguising one computer as another for gaining as the password system. 

Information Technology (Amendment) Act, 2008, crime of identity theft under Section 66-C, whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique identification feature of any other person known as identity theft.

6. What is spreading of Virus or Worms?
 Under Information Technology (Amendment) Act, 2008, Section 43(c) & 43(e) read 
with Section 66 is applicable and under Section 268 of Indian Penal Code, 1860 
also applicable. Spreading of Virus offence is cognizable, bailable, compoundable 
with permission of the court before which the prosecution of such offence is pending 
and triable by any magistrate.