Advertising Part Of Commercial Speech; Exaggerations, Puffery & Hyperbole Can't Be Completely Curtailed: Delhi High Court

The Delhi High Court has observed that advertising is a part of commercial speech recognized under Article 19(1)(a) of the Constitution of India and any restraint on such a right can be placed only with some authority of law.

Justice Prathiba M Singh said that exaggerations, puffery, and hyperbole are part of advertising that cannot be completely curtailed, except in accordance with law.

“In the field of advertising some `play in the joints' is always recognised and permitted,” the court said.

Justice Singh made the observations while staying an order passed by the Advertising Standards Council of India (ASCI) on December 29, 2023, recommending Kent RO Systems to modify its advertisement claiming “Kent deta hai sabse shudh paani.”

The ASCI had observed that the claim is not substantiated with verifiable comparative data, is misleading by exaggeration and is likely to lead to widespread disappointment in the minds of consumers.

Kent then filed the suit challenging the ASCI's order which was passed on a complaint made by M/s TTK Prestige Limited alleging that the advertisement did not comply with the advertising code.

While staying the order, the court noted that an additional issue would arise in the matter as to whether ASCI's jurisdiction has been exercised in a case involving competitive advertising.

“In the present case, the complaint is not by a consumer but by a competitor i.e., TTK Prestige. No consumer has complained that he/she is misled due to the exaggeration that the Plaintiff gives the most pure water. Such exaggerations, puffery, hyperbole is part of advertising which cannot be completely curtailed, except in accordance with law,” the court said.

It added that the advertisement in question has been broadcasted since the year 2007 and thus, it cannot permit the impugned order to have an effect on Kent Ro, thereby curtailing its advertising right.

“Accordingly, prima facie, the Court finds in favour of the Plaintiff that while the issues which have been raised deserve to be considered, interim protection deserves to be granted in favour of the Plaintiff staying the order passed by the ASCI dated 29th December, 2023,” the court said.

The matter will now be heard on May 17.

Counsel for Plaintiff: Mr. Darpan Wadhwa, Sr. Adv along with Ms. Ruchira Gupta, Ms. Harshita Sharma, Ms. Neelakshi Bhadauria, Ms. Divita Vyas, Amer Vaid Advs

Counsel for Defendants: Ms. Avni Singh, Adv. for D-1; Mr. Vineet Dhanda CGSC, for R 2 and 3

Title: MS KENT RO SYSTEMS LTD v. THE ADVERTISING STANDARDS COUNCIL OF INDIA THROUGH ITS GENERAL SECRETARY & ORS.

Citation: 2024 LiveLaw (Del) 86

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