By Lucy Rana and Rupin Chopra
In a recent interesting development, the Advertising Standards Council of India (hereinafter referred to as ASCI) has placed its strong objections on brands using images of India’s Olympics’ medallists to promote their own products or services. The ASCI’s General Secretary, Manisha Kapoor while remarking such ads as “misleading” has stated that usage of images of Olympics’ winners without the explicit permission of these celebrities, is a potential violation of the guidelines of the ASCI, as consumers may believe that these medallists use the said products or services, and may mislead consumers into buying them.
ASCI CODE- Code of Self-Regulation of Advertising Content in India
The ASCI has released guidelines in the form of a code on the digital use of social media for paid promotions and sponsorships, as it can lead the consumers to believe that the said celebrity or influencer in question, genuinely uses the products or service. This code is called the Code of Self-Regulation of Advertising Content in India.
Under Chapter One of the Code which speaks about Truthful and Honest Representation, under subclause 1.3 it is said that Advertisements shall not, without permission from the person, firm or institution under reference, contain any reference to such person, firm or institution which confers an unjustified advantage on the product advertised or tends to bring the person, firm or institution into ridicule or disrepute. If and when required to do so by ASCI, the advertiser and the advertising agency shall produce explicit permission from the person, firm or institution to which reference is made in the advertisement. ASCI has raised objections from the consumer protection aspect, as well as the lack of permission sought from the medallists, which amounts to piggybacking on their success.
India has won seven medals in the Tokyo Olympics 2021 with athletes winning medals in weightlifting, javelin throw etc. The names and images of these athletes are being used by few giant Indian corporates for advertising and marketing their products and services in media. The use of the name and imagery of the gold medallist Neeraj Chopra however appears to be the most prevalent one.
Moment Marketing and PV Sindhu
Several Indian dailies have been reporting about PV Sindhu’s battle for personality or image rights. Reportedly, the ace Badminton player and Olympic Bronze medallist has through her sponsorship agency sent legal notices to several brands and companies including some giants for making unauthorized use of her image for marketing of their products. This whole saga has given rise to the intriguing aspect of “moment marketing”.
Use of Neeraj Chopra’s Name for marketing
A very recent and pertinent example of such advertising can be the recent surge in offers/ discounts/ goodies being offered by various companies for people whose name is ‘Neeraj’, i.e. the first name of the Olympic Gold-Medallist Neeraj Chopra. For instance, a petrol pump in the Bharuch district of Gujarat, offered free fuel to people sharing his first name. Further, readers may recall that the airline IndiGo recently announced that it will offer unlimited free air travel to Neeraj Chopra (such advertising and media coverage can lead consumers to believe that Neeraj Chopra is a user/endorser of the said airlines). In this regard, Hindustan Times, in the aftermath of the gold medal win, had reported that many businesses including restaurants in Delhi had offered free food to all persons named Neeraj! While such news coverage can be thought of as well-meaning by many, from a legal perspective such acts can be construed as an offset of misleading or ambush marketing – as they are basically using the name of Neeraj Chopra and his achievements to promote their own business, and gain publicity. Indeed, such examples can be thought of as consummate moment marketing! Although, one might argue that the above advertising is indirect.
What is moment marketing?
Moment marketing refers precisely to the ‘right time’ or the ‘moment’ of posting certain content, that could have a large potential impact on the performance of an ad. For instance, Amul is known for its topical content on current affairs in the form of comic strip illustrations. However, there is a fine line between a congratulatory post and using the performance of the Olympic winners to their own gain. PV Sindhu for instance, has taken objection in the use of her victory in the Olympics in posts on social media by large brands, to further their own tagline and brand motto. Her image has also been used in these promoted posts, which is beyond the realm of a mere congratulation as it may lead the public to believe that PV Sindhu is endorsed by the said brand. This is against Rule 40, Bye-law paragraph 3 of the Olympic Charter as well. The said Rule states that , “Except as permitted by the IOC Executive Board, no competitor, coach, trainer or official who participates in the Olympic Games may allow his person, name, picture or sports performances to be used for advertising purposes during the Olympic Games.”
“When ads refer to or showcase celebrities without their explicit permission, such ads are in potential violation of the ASCI code,” said ASCI secretary general Manisha Kapoor, calling out brands in using the names of the athletes.
The concept of moment marketing and protection of image and personality rights of a celebrity have gained momentum in India only in the past few years. Media, including both print and electronic, were flooded with images of Olympic Winners after their historic triumphs during the Olympics. However, the law to protect the image rights of a celebrity has yet not developed adequately in India. Though, ASCI guidelines prohibit the unauthorized use of such images by brands, the same have persuasive value only and are not binding.
In comparison, the law in foreign jurisdictions like France and Germany appear to be more developed. For instance, under Article 9 of the French Civil Code, the use of an individual’s image is actionable. Similarly, in Germany, the right to privacy and personality rights of a celebrity are protected.
In view of this recent spurt and image rights disputes, it is hoped that more stringent laws will be formulated to protect the image and personality rights of a celebrity. Considering that the next Olympics is only 3 years away, we can hope that by then India would have seen more development in jurisprudence regarding the subject matter by then!