Hoaxes, fake news, clickbait - The legal implications and ethical considerations

While shockvertising undeniably grabs attention, the question remains: is shockvertising a necessary evil for important issues, or does it risk exploiting tragedy and eroding trust in both brands and causes?

In the case of Poonam Pandey’s fake death, allegedly to raise awareness about cervical cancer, it is crucial to distinguish between shock advertising and the spread of fake news, points out Gaurav Arora, Co-Founder, Social Panga. The incident, he says, highlights concern not just about advertising credibility, but also about the legitimacy of digital platforms. “It underscores the challenge of discerning truth in the digital age. While shock advertising can draw attention to important issues, it must be approached carefully to maintain credibility for both brands and causes,” he adds.

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When shock tactics backfire: Lessons from Poonam Pandey hoax case for ad industry

Shock advertising is like a double-edged sword; while it undoubtedly grabs attention and sparks conversation, it’s essential for brands to tread carefully, ensuring their messages resonate authentically with their audience and uphold the integrity of the causes they support, opines Heta Desai Baandal, Managing Director, Sociomark. If executed thoughtfully and within permissible limits, shock advertising can be a powerful tool for drawing attention to important issues, but it requires a nuanced approach to strike the right balance.

“We know now, what happened when Poonam Pandey did the same, or rather we are still getting to know. What would happen if Shah Rukh Khan did the same? What would happen if Rashmika Mandanna did the same? What would happen if Mohanlal or Nayantara did the same? What would happen if Apple or Tata did the same? Hope everyone concerned gets the point,” says Laeeq Ali, Co-founder-Director, Origami Creative.

Shockvertising is a controversial advertising approach that aims to break through the clutter by using shocking, provocative, or unconventional elements in campaigns, observes Ovez Khan, CEO, Trivium Media Group. “It often seeks to evoke a strong emotional response from viewers, encouraging them to engage with the brand or product being advertised. However, it is crucial for a public figure like Poonam Pandey to maintain a responsible and ethical approach when implementing shockvertising strategies. It is imperative that we tread carefully and prioritize the sensitivities of our audience. Poonam was justifying the campaign, stating that it was meant to create awareness around cervical cancer. By combining shock with a meaningful narrative, Poonam was trying to mold a campaign that could resonate deeply with her followers and leave a lasting impact. However, it was equally important to conduct a thorough research on the audience’s perception of shockvertising before engaging in an act of this kind. Understanding their sentiment, expectations, and potential triggers will help us craft campaigns that engage and resonate with them, while still staying within the boundaries of responsible advertising,” says Khan.

Legal framework

Attention-grabbing shockvertising walks a precarious line. Pushing boundaries to attract eyeballs, it often raises ethical questions: does it exploit viewers, disrespecting the line between creative freedom and harmful manipulation? While existing laws aim to safeguard against misleading or unfair advertising, the ethical nuances of shock tactics remain a murky area.

Let us analyse the Consumer Protection Act (COPRA) and Advertising Standards Council of India (ASCI) guidelines, uncovering both their strengths and limitations in curbing unethical shock tactics.

In the legal landscape for advertising, there are a few things that are a direct and definite ‘NO’, such as anything that is misleading, anything that is ‘offensive to generally accepted standards of public decency’, promotion of anything that is hazardous, and anything that is unfair in competition (by wrongful comparison, unjustified use of names, disparagement, etc.), explains Abhishek Malhotra, Managing Partner, TMT Law Practice. These are principles that are applied to “advertising”.

“Shockvertising, on the other hand, carefully treads the boundaries of what is acceptable and not acceptable, by applying the practices that may seem as something to be rejected. It flies under the radar mainly because what may be unethical may not be illegal. Therefore, to understand if the legal framework adequately addresses the ethical dimensions of advertising strategies, we need to first understand the existing legal framework,” he says.

According to Abhishek Malhotra, the advertising legal framework is derived primarily from the Consumer Protection Act, 2019 (COPRA) and the guidelines laid down by the Advertising Standards Council of India (ASCI). COPRA deals with a myriad of issues such as product liability, unfair trade practices, consumer protection, celebrity endorsement, misleading advertising, etc., and ASCI lays down a ‘self-regulatory code’ which are a set of guidelines to be followed by all who commission, create, place, or publish any advertisement or assist in the creation or publishing of any advertisement. All advertisers, advertising agencies, and media are expected not to commission, create, place, or publish any advertisement which is in contravention of the ASCI code.

“While the ASCI does not, in itself, have any statutory backing or enforcement powers, it has several points of overlap with the COPRA, and derives validation from its recognition in other statues – such as the Cable TV Networks (Regulation) Act, 1995, and the Cable Television Networks Rules, 1994. The element of “misleading advertising” in COPRA forms the crux of Chapter I of ASCI’s code which deals with advertisements being truthful and honest in their representations and claims. This aspect of “misleading advertising” (as under ASCI’s code) then appears to become enforceable by way of its overlap in the COPRA and by way of incorporation of the Central Consumer Protection Authority (CCPA) under COPRA which has the authority to penalise defaulting advertisers,” explains Abhishek Malhotra.

Malhotra further explains that the ASCI code and COPRA place emphasis on ensuring that advertisements by celebrities and manufacturers are not misleading, false, or unsubstantiated to protect consumer interests, particularly for products or services with potential for significant harm. COPRA allows for fines and suspension of endorsers for false or misleading ads, unless endorsers have diligently verified the claims.

“Shockvertisement,” he says, “exploits a loophole by initially shocking viewers to attract attention, then clarifying the true intent to fit within advertising standards.” According to him, ASCI offers the “Endorser Due Diligence Service” to help endorsers follow the ASCI code and COPRA rules, with a panel of experts assessing ad claims for compliance. Responsible advertising ensures ads are not misleading, comply with regulations, and promote products genuinely. Balancing creative freedom with ethical responsibilities is challenging, as what's considered unethical may not always be illegal. Advertisers must promote lawful content, even if using shock tactics, to avoid negative labels and uphold ethical standards.

He emphasises that if any shockvertisement is found to be harmful or misleading, legal repercussions can occur, as affected consumers may seek remedies. According to him, Poonam Pandey’s fake death hoax sparked a debate about how her stunt, allegedly promoting cervical cancer awareness, overshadowed the actual discussion about the disease.

While shockvertising may not be entirely illegal, it often leads to negative or unfavourable outcomes for the subject matter, as the focus shifts from the intended promotion to the shock factor, Abhishek Malhotra says.

In the words of David Ogilvy, the Father of Advertising, “What you say in advertising is more important than how you say it”. This should be the mantra embraced by advertisers and agencies, as, in shockvertisement, the focus shifts on to the shocking element, rather than the subject matter being advertised. “Shock advertising is certainly not a necessary tool for drawing attention to important issues, and it does, in fact, risk undermining the credibility of both brands and the causes they support. Unless done in a proper and legal manner, it has the potential of ridiculing the subject matter of the advertisement,” Malhotra concludes.