January 28, 2016

Analysis of liability of celebrities for product endorsements

By Ayushi Singhal, 3rd Year Student at National University of Juridical Sciences

Do celebrities owe us a duty for the claims they make in advertisements?

The favorite midnight snack of many, NestlĂ©’s Maggi has been banned by the Food Safety and Standards Authority of India (FSSAI) because of problems associated with the quality and labeling of the product. The notices issued to various celebrities who had been endorsing Maggi noodles and the orders for lodging FIR against them have reignited an extremely important legal debate concerning the liability of celebrities for the product endorsements they make. This article discusses the duty of celebrities for their endorsements, relevant laws in India and the precedents in some other countries. 

Making a case for celebrity endorsement

There are many questions which crop up when we seek to make celebrities liable for their claims in advertisements. Such questions include; whether people actually believe in the claims made by the celebrities, and whether  the products are bought because of endorsements or are they bought first and endorsements only reassure the consumer. There is no straitjacket formula to these questions. Although, it certainly depends on factors like, “the context, the product or service endorsed, the expertise of the celebrity in that area, the mass appeal of the celebrity and the reliance of individual consumer”. 

This brings us to a more nuanced argument. Does the fact that celebrities have a right to publicity which they harness economically while advertising, impose a duty on them to not use this right in a manner detrimental to the general public? Or since the celebrities have a right to publicity, the audience has a reciprocal right of reliance? After all, unlike the movies, the fact that the plot and characters are fictional is never reflected or shown in an advertisement. In fact the representations made by the likes of Ms. Padukone are a “cause in fact” of the pecuniary loss to the consumers to the extent of the difference between an effective gym equipment for losing one’s weight and the Kellogg’s Special K. Similar arguments can be made for every misleading advertisement. 

Some make a superficial distinction between the celebrities giving personal testimonies versus the celebrity playing a role in the advertisement, for instance Ms. Dixit is playing the role of a mother in the Maggi advertisement. It is argued that a celebrity should be liable only when (s)he is making a personal testimony and not when (s)he is playing a role of another. However, it is extremely difficult to accept this difference. Audience generally does not think this way when relying upon the claims. Further, as stated above, unlike films, the fictional and impersonalised role is not emphasised in advertisements, thus making no space for this argument. 

Another argument put forth by the people disagreeing with making celebrities liable is based on the fact that celebrities do not have an option through which they can identify the truthfulness of the statement which they are made to say in the testimonial by the ad-gurus. However a simple counter to this is requiring celebrities to test, try and experiment the product to find out. While this may sound a little far-fetched in the case of Maggi noodles, checking the amount of lead is the duty of the FSSAI and not Ms. Dixit’s and every single pack can surely not be checked by the celebrities, yet celebrities can certainly be made liable for making sweeping claims like a person drinking Drink X can grow twice as taller as (s)he would grow drinking Drink Y (the ad for the health drink Complan).

What are our neighbors and partners in trade doing about it?

In USA, the Federal Trade Commission Guidelines prohibit deceptive and misleading endorsements by celebrities and make celebrities liable for the same. The endorsers are required to reflect their “honest opinions, findings, beliefs, or experience” in the advertisements. In fact, the advertisers can continue to use the endorsements only as long as the advertiser has a good reason to believe that the endorser continues to remain a bona fide user of the endorsed product.  

In Europe, the celebrities follow a self-imposed code whereby they refrain from endorsing products harmful to the health of the general public like alcohol, medicines etc.

Korea on the other hand has an Advertising Self-regulation Institution which issues guidelines with respect to endorsements and reviews the endorsed advertisements making false advertisements a rarity.

Among our neighbors, China makes the endorsers jointly liable with the service provider for the harm caused by the product.

Pakistan also has laws forbidding false and misleading advertisements, however it is uncertain whether these laws will also include liability of celebrities for their endorsements.

The Malaysian Code of Advertising Practice requires that the endorsements or testimonials contained in advertisements should be based on genuine experience of the endorser over a period of time. Malaysia also has special guidelines for “[p]ersons, characters or group who have achieved particular celebrity status with children”. These celebrities are forbidden from promoting food or drinks in a manner that may undermine the need for a healthy diet however the endorsers are not liable for the same since sanctions are in the form of “withholding of advertising space from advertisers and the withdrawal of trading privileges from advertisers/ advertising agencies”.

Singapore has similar laws  relating to false advertisements and is also cogitating to put into place specialised guidelines pertaining to children.

In Japan on the other hand celebrities participating in false endorsements are made to apologise publicly. This harms the reputation of the endorser decreasing the employment opportunities of these people, forcing celebrities to refrain from making claims with regard to the quality or effectiveness of a product.

What is the law in India?

Section 24 of the Food Safety and Standards Act, 2006 puts restrictions on misleading advertisements. It states, that “no person” shall be allowed to engage in misleading representation concerning the “standard, quality, quantity or grade-composition” and “need for, or the usefulness” of a food product. (S)he should not make any statement which “gives to the public any guarantee of the efficacy [of the product] that is not based on an adequate or scientific justification thereof.” Section 53 of the Act describes the penalty for such false advertisements which can extend to ten lakh rupees. This penalty applies to “any person” and hence should ideally include the celebrities; however there is no case law to support this proposition. 

The Central Consumer Protection Council (CCPC) has also decided to issue specific guidelines to this effect after the Madhya Pradesh High Court directed to set up an advertisement monitoring panel as per the Vibha Bhargava Commission (gave recommendations on monitoring of ads). These guidelines if enforced will allow consumers to claim compensation from celebrities for misleading claims made regarding a product, recklessly or with knowledge that the claim is false. 

January 8, 2016

Marital Rape within Child Marriage: A Discriminatory Provision

By Bhumika Maheshwari, 3rd Year Student at National University of Juridical Sciences

Introduction

Indian Penal Code, 1860 (‘IPC”) under Section 375 provides an exception that ‘Sexual intercourse by a husband with his wife, who is not being under the age of 15 years, is not a rape’. On the other hand, Criminal Law (Amendment) Act, 2013 changed the minimum age of consent for sexual intercourse to 18 years against the earlier provision of 16 years. Consequently, there arises an anomaly as to the difference in position of a married Girl and an unmarried girl under the same law. An act of sexual intercourse with a married girl by her husband is not a rape if she ages above 15, contrary to the position of an unmarried girl, where, any kind of sexual intercourse, with or without consent, will amount to rape against her if she is below 18 years of age. Hence, it is quite clear that IPC distinguishes between the positions of the minor girl based on their marital status.

Marital Rape Exception: Contradictory to Other Statutes

Larger State Policy, since, the year 2000 has recognized child as ‘any person under the age of 18 years’, however, the above exception under IPC distinguishes the age of a child from all other statutory provisions. Statutes like Prevention of Child Marriage Act 2006 (‘PCM’), Protection of Children from Sexual Offences Act 2012 (‘POCSO’), etc. all recognizes the child as ‘any person below the age of 18 years’.

PCM Act as its objective prohibits the solemnization of child marriages. In other words, it prohibits solemnization of those marriages where the girl ages below 18 years and boy below 21 years. Hence, a female below 18 years of age cannot marry a male of any age and vice-versa. The Act provides for the penalties against the persons who solemnize, promote or allow the child marriages. However, the Act doesn’t lay any authority over the sexual relations emerging out of such prohibited child marriages. But the Act, indirectly, by recognizing and legitimizing the children borne out of such marriages permits the sexual intercourse within the child marriage.

Further, POCSO, which was recently enacted, was enacted with the objective of protecting children from offences like sexual assault, pornography, sexual harassment, etc. and to provide them with the children-friendly trial system. This Act doesn’t recognize the autonomy of children in any form of sexual matters. Children can be convicted for any of the above crime under the Act. It also provides under Section 2(1)(d) that a child can be any person who is below 18 years of age. Therefore, any form of sexual intimacies or interactions with or among the children below the age of 18 years is punishable under the Act. 

Marital Rape Exception: A Draconian Provision

Marital rape indicates towards those unwanted sexual intercourses against a wife by her husband, where she is unable to give consent either because of force or threat of force or by physical violence exercised by the husband. In other words, it is a brutal perversion against the modesty of the wife by the husband without her consent, where she is mentally and physically or sexually harassed. 

Traditionally, wife’s role within a marriage was considered as docile, meek and of a home-maker. Maintaining sexual relations in a marriage were regarded as obligatory and a societal taboo. Discussing about it in the open was also very rare; hence, the awareness regarding it remains dismal. Economic dependence upon the husband is still a very crucial factor hindering the right of wife being heard and respected. Further, the societal pressure of being a ‘good wife’, to quietly serve, to not complain against anything in the public, makes the position of wife miserable and counseling inaccessible.

However, despite all this, the significance of volition of a woman in making its own decision can’t be over-stressed. Hence, it is quite ironical, that a woman can preserve her dignity, her right to life and personal liberty under the Constitution but it can’t protect her body from being sexually harassed within a marriage. So far, only Section 498-A under IPC (deals with cruelty) can be resorted to by a married woman for protecting herself from ‘vicious conduct of the husband’. But, still, the definition of the term ‘vicious’ is not clearly scripted so as to decide the standard of measure for court’s interpretation as to what amount to ‘vicious’ within a married relationship. Will the excessive desire of sex by husband vicious? Is consent for sex a sine qua non? Or is a marriage a permit for committing rape? These questions are not answered, as both the legislature and the judiciary are silent on the same. 

Marital Rape Exception within Child Marriage: A Wrong Law 

1. Marital Rape Exception is violative of POCSO

As stated above, the IPC provides for a marital rape exception, however, on the contrary, POCSO doesn’t embed any such exception. It provides that every act of sexual intercourse committed against a person who is under 18 years of age is a crime, irrespective of the age or gender of either the victim or the accused. Further, a sexual assault will amount to a more aggravated form of sexual assault if the penetrative sexual intercourse is committed by ‘a person who is the relative of the child either through blood or marriage or adoption or guardianship or through a domestic relationship with the parent of the child or who lives in the same household with the child’. 

Hence, it is clear, under POCSO, that a spouse (who is related to the girl child with marriage) is liable to be convicted for an aggravated crime of a penetrative sexual assault committed by him against his wife, who being below the age of 18 years. This is in no way affected with the legal status of the marriage, i.e. whether it is entered into voluntarily or not, hence, any sexual contact with the wife under 18 years of age is punishable under POCSO. 

This provision in POCSO is in contravention to the exception provided under Section 375 of IPC. Hence, there arises a very pertinent question as to whether POCSO will override the IPC or not? Answer to this is provided in the POCSO itself. Section 42-A of POCSO, which was inserted by the Criminal Law (Amendment) Act, 2013, states that:

Act not in derogation of any other law: - The provisions of this Act (POCSO) shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of its inconsistency.  

Section 42-A of POCSO, hence, clearly implies that in case any controversy arises as to the application of POCSO and any other statute, the former will come into play and over-rides the application of all other laws. Hence, the exception under IPC to marital rape till the age of 18 will not apply, for being contradictory to POCSO. Therefore, in all cases where the bride or the groom is under 18 years of age, they can be convicted with the charge of aggravated crime of penetrative sexual assault under POCSO.

2. Marital Rape Exception is violative of Article 14, 15 and 21 of Constitution

The marital rape exception as provided in the Section 375 of IPC is violative of the fundamental rights provided under the Articles 14, 15 and 21 of the Constitution. The reason behind such violation is the discriminatory nature of the provision itself, which distinguishes between the position of a girl aging between 15 to 18 years and girl aging above 18 years on the basis of their marital status, which has no reasonable nexus to the purpose it sought to achieve. 

Delhi High Court, also, in a case on its own motion Lajja Devi v. State  held that ‘it is distressing that the IPC “acquiesces sexual intercourse” by a man with his wife above the age of 15 and below the age of 16 years [Criminal Law (Amendment) Act was brought in the year 2013, while, the above case was decided in the year 2012, therefore, during the trial of the Case ‘age of consent’ was 16 years] within a child marriage.

Further, with the change in the societal structure, the age of consent for entering into sexual relationship has also changed. In the year 1860, it was 10 years, in 1940 it was changed to 16 years and recently by the Criminal Law (Amendment) Act, 2013 it was further increased to 18 years. However, the age provided under the exception in the Section 375 of IPC has not been changed; it is still the same, i.e. 15 years. This cannot be justified only on the ground that the concerned person is a married girl. Hence, the above provision is arbitrary in nature and thus, violative of Constitution. 

Additionally, Parliament has also failed to take note of various studies and surveys that shows developing pregnancy owing to sexual intercourse with a girl of age less than 18 years is detrimental to health not only of the girl herself but to the child as well. Hence, the Parliament by permitting or legitimizing the sexual intercourse, within a marriage, with a girl aging between 15-18 years has made the life of the girl and the child (if develops of such intercourse) prone to a considerable risk.

Further, Parliament by upholding the rights of the parents to take decisions about the life of their daughters, below 18 years of age, has violated the rights of the daughter to choose and take her own decisions, to live the life in the best possible manner, i.e. without being forced to enter into any kind of sexual relations only because they have been married of by their parents.

January 1, 2016

Uphaar Cinema Fire Tragedy Case: A Landmark in Criminal Case Compensations?

By Srivats Shankar, 2nd Year Student at National University of Juridical Sciences.

The Uphaar Cinema Fire Tragedy, which took place on June 1997, is regarded as one of the worst fire tragedies that had taken place in post-independent India. However, the fire was merely a consequence of the negligence committed by a number of individuals involved in the case, which as a result amounted to the deaths of over 59 individuals. According to the Delhi High Court, the case involved a number of violations of the Cinematograph Act 1952, that as a result led to the event of June 1997.

During the investigation it was found that a number of serious violations had been made in relation to safety standards, not only by the Uphaar cinema owners but a number of cinemas, dating as far back as 1983. That year was particularly relevant due to a fire that had broken out in a competitor cinema hall, Gopal Towers. This led to a scrutiny of safety standards by the Deputy Commissioner of Police (Licensing). It was found that there were at least 10 serious security violations. These violations were primarily, associated with the Cinematograph Act 1952 and its rules and regulations; it was observed that the licensing conditions and Delhi Cinematograph Rules had been violated, under which the required infrastructure for fire safety had not been implemented.

Among these violations were the lack of sufficient exits and the blockage of space in the basement for evacuation. Additionally, no emergency alerting method for intimating patrons was present. This led to a scrutiny of the standards adopted by a number of cinemas, including Uphaar. These cinemas had to reapply for receiving a license only after they conformed to the minimum security and safety standards. However, the High Court concluded that there was some foul play involved as it was revealed that the cinema did not conform to the minimum safety standards, while it continued to function without meeting the minimum safety standards. It was revealed that they had received some form of 'temporary' licensing that allowed them to continue functioning.

This negligence had its effect on June 13, 1997, when a generator that had earlier in the day malfunctioned had a leakage. This in turn led to an oil spill into the parking lot and escaping into the nearby vicinity, since no drainage system had been established as mandated by guidelines. Eventually the oil was ignited, which according to the court evidence was due to the poor quality of maintenance work carried out on the generator. A total of 59 individuals lost their lives, along with over 100 others sustaining injuries. Most of these deaths were caused by asphyxiation induced by the inhalation of deadly vapours, such as carbon monoxide and carbon dioxide.

Despite the undisputed loss faced by the family members, this case has made two contributions towards compensation given or provided to victims of a case and the quantum of punishment versus the payment of damages. Each of these issues has been increasingly politicized following the Supreme Court order to pay compensation and the quantum of punishment.

The Delhi High Court initially agreed to compensate the families of the deceased an amount of 10 lakhs each, however when this came before the Supreme Court the amount was reduced to 7.5 lakhs. Additionally, the compensation for the victims who suffered from some form of injury fell from 2 lakhs to 1 lakh each. Despite this the compensation provided is regarded as the highest ever given by a court in this country. Apart from that, the two primary accused Ansal brothers were collectively charged a fine of 60 crores, which failing to pay would lead to the serving of an additional two years of imprisonment. Prior to this, the Supreme Court has never handed down such a level of punishment.

It is argued by many groups (including the Association of the Victims of Uphaar Tragedy [AVUT]) that the compensation is insufficient. But it is new ground that the Supreme Court is exploring by offering such large compensation. This has never been seen in the Indian legal system. However, looking back it seems to be the natural course of events that such a large quantum of compensation would be paid to those affected in such a situation.

Referring to the case Prabhu Prasad Sah v. State of Bihar, Justice P N Bhagwati made a very important observation, which was that if someone lacks the ability to pay, then that person must be given the option to either, pay back the necessary amount in relation to compensation or serve the remaining amount in the form of a punishment. Therefore in addition to the amount of compensation that must be determined, the payment capabilities of that individual, should also be considered.

Over time this concept has clearly developed to offer a large quantum of compensation. The Supreme Court has applied the concept of ‘deep pocket theory’ in a certain sense to such situations to serve as a long-term deterrent to groups that do not follow regulations as mandated. However, there have been some questions about allowing the accused in this particular case to finish their sentence if they paid the compensatory amount. It is argued by the AVUT that this is against the idea of justice and the accused in this case must be punished for their actions, which resulted in the tragic events.

The argument put forth by AVUT is restricted to the retributive aspect of criminal law. The judgment given by the Supreme Court in contrast is based on principles of fairness and equality in light of restorative justice. The Supreme Court recognized that, two of the main accused had reached a very advanced stage of life by serving a long period in prison, before the final hearing. Taking all these factors into consideration the Supreme Court gave a relatively sound decision.

On the whole, while it can be argued that the compensation theoretically needs to be higher, the Supreme Court has pushed the boundary and allowed for a wider ambit in relation to compensation for the first time ever and it will be able to build upon such situations if they ever arise in the future.