INTRODUCTION
Even with a robust structure by the Consumer Protection Act 2019, several significant issues exist in the realization of the said act. The case of Multi-State Advertisers v. CCPA (2023)1 evidently clarifies the jurisdictional complication that exists in regulating advertisements crossing state boundaries, mainly when the media involved is digital. It is a challenge to further establish jurisdiction along with uniform enforcement across various states.
CHALLENGES IN IMPLEMENTATION
The introduction of digital transformation into advertising has brought about unparalleled challenges, as presented by the case in Cyber Consumer Forum v. Social Media Platforms (2023). Such a challenge exposed by it is the monitoring and control of emerging, fast-changing shapes in digital advertising. Specifically, such a case comprises programmatic advertising and AI-driven content in which the traditional system fails to keep abreast of such changes.
Another such grievous issue is cross-border advertisement. In International Consumer Protection Alliance v. Global E-commerce Platforms (2023),2 National Commission was faced with the issues of advertisements being originated and targeted from other foreign jurisdictions for Indian consumers. The issue of enforcing Indian law against foreign entities remains yet another challenge in this global digital world.
Resource and infrastructure constraints are the challenges to effective implementation. Consumer commissions' lack of effective manpower and technical resources resulted in delayed justice as brought to the fore. The conditions are worst at the district level, as most of the consumer cases emanate from there.
Language and cultural diversity in India add further implementation challenges. In Regional Consumer Protection Council v. Pan-India Advertisers, 2023,3 the Commission faced the challenge of advertisements misleading in a regional context but technically compliant in another. This case brought attention to the culturally sensitive regulation of the advertisement.
INTERNATIONAL BEST PRACTICES
The misleading advertisements have been regulated differently for each jurisdiction, but they all are worthy of being mentioned in the context of the Indian framework. The European Union has devised probably the most comprehensive framework across the globe, which is Unfair Commercial Practices Directive (UCPD). The case of Volkswagen Emissions (2020) within the EU has successfully demonstrated the collaborative approach taken by the member states by addressing misleading environmental claims in such a way that both severe penalties and compulsory corrective advertisement were met.4
Another good example of an approach from the United States is the one of the FTC. The Commission settled a $5 billion penalty for misleading privacy practices in advertising in FTC v. Facebook (2023). Here, it was setting a new benchmark for regulatory enforcement. "Green Guides" of the FTC have also become a global reference point for environmental advertising claims as we see with the case "Recycling Claims" by Procter & Gamble in 2022.5
The UK's Advertising Standards Authority implemented regulating influencer marketing. In ASA v. Instagram Influencers (2023), the authority established detailed guidelines of social media advertising disclosures, hence modified by many other countries across the globe. Steps taken by the UK's Competition and Markets Authority against Amazon for misleading practices over price should be seen as a learning point for regulation in the e-commerce space.6
Australian Consumer Law's approach to substantiation notices, requiring advertisers to provide evidence supporting their claims within 21 days, is a very effective model. The Australian Competition and Consumer Commission v. Samsung (2023) case on misleading water-resistance claims in smartphone advertisements proves that this approach is effective.
ROLE OF SELF-REGULATORY BODIES
The Advertising Standards Council of India, ASCI is also an essential supplement to the statutory regulation. One case has only shown that self-regulation is effective, but interference by the Council would make even unsubstantiated ayurvedic ads' claims change. In 2022, ASCI established a framework of co-regulatory partnership with the Ministry of Consumer Affairs through a Memorandum of Understanding.
It has been particularly influential in guidelines on influencer advertising where the Council was able to enforce disclosure requirements for paid partnerships and further increase transparency in the influencer marketing area. The surveillance by the Council has much improved through the AI-based tracking system "NINA" or National Interest Natural Intelligence Advertising.
Broadcasting Content Complaints Council: Alongside ASCI, the Broadcasting Content Complaints Council completes the self-regulation spectrum of television advertisements. Intervention by the BCCC in Television Channels Association v. Teleshopping Networks (2023)7 had led to broad guidelines for teleshopping advertisements, specifically regarding misleading health and wellness claims.
CONCLUSION & SUGGESTIONS
An analysis of deceptive advertisements and legal remedies under the Consumer Protection Act 2019, for an observer, would point out a marked evolution of consumer protection law in India. The Act is possibly the most significant legislative response to the challenge thrown by modern advertising practices, especially in the digital age. The establishment of CCPA and stern penalties by it would provide a robust mechanism against deceptive advertising and a firm handle on consumer protection.
From Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (2023),8 to Digital Rights Forum v. Ad-Tech Companies (2023),9 a string of judgments brings forth a scenario in which the judiciary was far from sitting on its hands and, instead, was interpreting and enforcing provisions under the Act. Such landmark decisions were not only pertinent to immediate issues but also set precedents for future actions, especially in emerging areas like social media advertising, influencer marketing, and digital dark patterns.
However, much remains to be done. Advancements in advertising technology are taking place at a speed that disregards simple jurisdictional boundaries in digital space, and access to enforcement resources is still an issue of grave concern. Two decisions, Multi-State Advertisers v. CCPA (2023) and International Consumer Protection Alliance v. Global E-commerce Platforms (2023),10 depict the persistence of challenges encountered in dealing with cross-border issues related to advertising and uniform enforcement within jurisdictions.
The self-regulatory bodies, majorly the ASCI, have been playing a very important role in supplementing the statutory regulation. Initiatives such as the AI-based tracking system "NINA" and the Guidelines for Influencer Advertising provide the utmost examples for the co-regulatory approaches to address the challenges thrown up by advertising.
The Consumer Protection Act 2019 has laid a strong foundation for dealing with misleading advertisements, but its success will depend upon dynamic interpretation, effective enforcement, and continuous adaptation and evolution to meet the new challenges. In other words, the future of consumer protection in advertising indeed relates to an equilibrium towards finding the right balance for fostering innovation in advertisements and firm protection to consumers.
But here the campaign will not stop; it will require a multi-stakeholder approach from government agencies, industry bodies, consumer organizations, and technology experts to build a fair and transparent advertising ecosystem. As India becomes one of the largest consumer markets in the world, effectiveness of these legal remedies will define future advertising practice and consumer protection.
The journey from the Consumer Protection Act 1986 to the 2019 Act is a significant step forward in consumer protection. It, however, is an evolution and not a destination. This legislation framework will be all the more successful if it is measured not only by its ability to provide remedies but also by its capacity to prevent misleading advertisements and to create a culture of responsible advertisement in the ever-changing market environment of India.
FootnotesREFERENCES
1 Multi-State Advertisers v. CCPA, (2023) 6 SCC 432.
2 International Consumer Protection Alliance v. Global E-commerce Platforms, (2023) 7 SCC 234.
3 Regional Consumer Protection Council v. Pan-India Advertisers, (2023) 9 SCC 567.
4 Council Directive 2005/29/EC, Unfair Commercial Practices Directive, 2005 O.J. (L 149) 22 (EU).
5 Federal Trade Commission Act, 15 U.S.C. ยงยง 41-58 (2023). Australian Consumer Law, Competition and Consumer Act 2010 (Cth) sch 2 (Austl.).
6 Consumer Protection from Unfair Trading Regulations 2008, SI 2008/1277 (UK).
7 Television Channels Association v. Teleshopping Networks, 2023 SCC OnLine BCCC 45.
8 Supra note 04.
9 Digital Rights Forum v. Ad-Tech Companies, 2023 SCC OnLine NCDRC 267.
10 Multi-State Advertisers v. CCPA, (2023) 6 SCC 432; International Consumer Protection Alliance v. Global E-commerce Platforms, (2023) 7 SCC 234.
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