Surrogate advertising violates the Advertising Code if visual similarities mislead consumers; penalties must follow clear regulations to ensure fairness.

JUDGMENT

Prathiba M. Singh, J. (Oral)--This hearing has been done through hybrid mode.

2. The challenge in this case rests on the distinction between club soda and whisky. For persons who consume the same, the distinction is quite clear! However, in the case of advertisements which are alleged to be surrogate, the lines are blurred.

3. This petition has been filed on behalf of the Petitioner - T.V. Today Network Ltd. challenging the impugned order bearing no. N-41011/27/2020-BC.III dated 9th February, 2021 by which the Respondent - Union of India, Ministry of Information & Broadcasting has directed the Petitioner to run an apology scroll in bold legible font at the bottom of the screen for two days continuously, with effect from 0001 hours on 16th February, 2021 to 0001 hours on 18th February, 2021. The operative portion of the order reads as under:

"..

WHEREAS the Competent Authority, having considered all the facts and circumstances of the case, including the recording, the written submission of Aaj Tak TV channel, the recommendations of the IMC, the provisions of the Cable Television Networks (Regulation) Act, 1995 and the Rules framed thereunder, has come to a conclusion that there was a clear violation of Rule 7(2)(viii)(A) of the Advertising Code.

NOW, THEREFORE, having regard to the totality of the circumstances, as explained above, the Competent Authority in the Ministry of Information & Broadcasting, hereby directs Aaj Tak TV channel to run an Apology Scroll in bold legible form at the bottom of the screen for two days continuously with effect from 0001 hours on 16.02.2021 till 0001 hours on 18.02.2021.

Strict compliance with the above direction will be ensured by Aaj Tak IV channel..."

4. As per the impugned order passed by the Respondent, the Petitioner ran an advertisement of "All Seasons" Club Soda which was a surrogate advertisement for "All Seasons" Whisky, sold in a similar bottle and layout. The telecast of the advertisement took place during the LIVE coverage of the Independence Day event. The footage which was shown to the Court shows that in the said live telecast, an `L' shaped advertisement was broadcast on the `Aaj Tak' TV channel, which, according to the Petitioner, relates to the "All Seasons" Club soda product. The Ministry of Information and Broadcasting (hereinafter, `I&B Ministry'), however, found the same objectionable in terms of the provisions of the Cable Television Networks (Regulation) Act, 1995 and issued a show cause notice on 7th September, 2020. Reply to the said notice was also filed by the Petitioner. After hearing the Petitioner, the I&B Ministry came to the conclusion that the colour and layout of the bottle being the same as the whisky bottle of the advertiser, the advertisement is nothing but surrogate advertising and hence, the direction to issue an apology was imposed.

5. This petition was listed before this Hon'ble Court on 15th February, 2021. After hearing the submissions made by the parties, considering the video advertisement footage, as also the notice replied in the impugned order, the Court had passed an order in the following terms:

"8. The Cable Television Network Rules, 1994, stipulate under Rules 6 and 7 the `Programme Code' and `Advertising Code'. However, the consequences of violation thereof, are not clearly provided for. The matter thus requires consideration.

9. At this stage, the Court is only looking at what the interim relief, if any, ought to be granted considering that the apology has to be shown by the Petitioner from tonight from 0001 hours. Admittedly, there are no clear regulations as to the extent of penalty and punishment that can be imposed in ca