"Consumer guarantees" apply every time you buy goods and services1. There are certain guarantees that come impliedly with the purchase of goods and services, such as a guarantee of acceptable quality, fitness for a particular purpose, delivery of service within a reasonable time, etc. However, to doze the heat of fierce competition in the market and lure the target patrons, businesses are deploying tactics of "expressed guarantee" in their advertisements (i.e., promise to perform certain services) as a marketing gimmick to build and grow customer base. While there is completely no embargo or wrong in leading with example, certain "Dos" and "Don'ts" must be followed to maintain fairness and transparency with the consumers as well as the competitors.
In this respect, the Advertising Standards Council of India (ASCI)2 has laid down certain guidelines for self-regulation of advertising, ensuring the protection of the interests of consumers. ASCI seeks to ensure that advertisements conform to its Code for Self-Regulation, which requires advertisements to be legal, decent, honest, truthful, and not hazardous or harmful, while observing fairness in competition. Though legally unenforceable, the role and relevance of the ASCI Code, as a self-contained code, has been reiterated by several courts on different occasions.
Last year, during the wedding season a series of advertisements were run by Shaadi.Com (a matrimonial website owned by People Interactive (I) Pvt. Ltd.) including the one featuring a claim "With Tamil Shaadi.com guarantee - 30 Day Money Back Guarantee" (a visual of ad extracted below). This piece of advertisement raised the eyebrow of its competitor Matrimony.com Ltd. leading to a legal battle before Madras High Court. Matrimony.com Ltd. took a strong exception of the content and intent of the said Ad and filed a suit seeking an injunction against Shaadi.Com from advertising its services in a way that is contrary to the Code for Self-regulation of Advertising Content in India, Cable Television Networks Rules, 1994 (in short 'Rules') and Cable Television Networks (Regulation) Act, 1995.
The storyline of the advertisement is as below (in Tamil).
a. Two characters (prominent movie actors) appearing to be a couple pose questions to a family of three (of which one of the characters appear to be a Bride) such as
Is the marriage hall fixed?
Have you invited everyone?
Is the groom's comb ready?
b. The said family of three in unison respond to the said questions with "But there is no groom!"
c. To which the couple retort 'Let the marriage preparations begin! With Tamilshaadi.com guarantee' with visuals containing prominently displayed on the screen.
The subtitle shown during this frame of the advertisement film reads 'Because this is Shaadi.com's
Guarantee!'
While the single bench restrained Shaadi.Com from advertising its services using the misleading slogan '30-day money back guarantee' in textual or visual form, the most important questions answered, arguments advanced, and the reasonings noted by the single bench are as below:
a. Disclaimer: To reach the decision of injunction, the court referred to the doctrine of "Caveat Lector"3 and "Caveat Auditor"4. The court noted that the ASCI guideline prescribes a disclaimer in the advertisement which must fulfill the requirement stated under Clause 11. (2). (a) to (e) of Code for Self-Regulation of Advertising Content. In this respect, counsel for Shaadi.com contended that the Impugned Ad does carry a "disclaimer" in the advertisement which states that "the guarantee of refund is "applicable only" if the customer / consumer has sent at least ten interests to other members and the said premium member does not receive even a single accept within the first thirty days of becoming a premium member". Only in that case, Shaadi.Com would refund the entire membership fee on demand.
b. Court's observance: A false assertion made by Shaadi.com that utilizing their service comes with a guarantee. A guarantee that the user will be refunded the money in the event they "fail to secure a bride / bridegroom within a period of thirty days". Rather, in reality, Shaadi.com's promises run contrary to its guarantee. The real promise says "If you have sent at least ten interests to members and you don't have a single accept within the first thirty days of becoming a premium member, we will refund your entire fee, no questions asked", which is tucked in fine print.
c. Seeming Compliance: To project a picture of compliance with the ASCI recommendation, Shaadi.Com started putting a text message in its Audio-Visual TV Commercials wherein the condition of ten interests etc., were placed. However, the audio in the advertisement itself did not set out if any terms and conditions apply. Also the text message in the TV commercial was practically not possible for a normal viewer with an average prudence to read the two lengthy lines within a few seconds. Hence, such inclusions were only futile attempts to project as if Shaadi.Com was transparent. However, the actual TV Commercial was contrary to the caption - highly misleading and deceptive. The court noted that the seeming compliance was in reality no compliance at all as the viewer's attention was anyway not drawn to the disclaimer and the content / story board of the commercial had not been changed at all.
Enforceability of ASCI code/decision: On the question of enforceability of the ASCI decision, the court agreed with ratio of Sameer Jain and another vs. Union of India and others (W.P.(C) No.9823 of 2017): "that ASCI is a recommendatory body and its recommendations are not binding" and clarified that ASCI is not a statutory recommendatory authority, and its decision is merely a recommendation, and it is not binding on the respondent. As such, it is true that the decision of the Advertising Standards Council of India is not binding upon the respondent for lack of statutory sanction. But the respondent cannot mislead the public by making a false advertisement/offer, whereby the public will be put to cheating.
Appeal Before Division Bench
Aggrieved by the order, the appellant (Shaadi.com) preferred an appeal. The Division Bench while dismissing the appeal recorded the following reasonings/suggestions.
- That some clarity could be provided to inform the viewer as to the circumstances when the moneyback guarantee would stand triggered. The simple reason is that the subtitle on the screen that reads '30 day money back guarantee' does not resonate with the intent of the disclaimer. The messaging does create the impression that if a bride/bridegroom was not found within 30 days of registration, there would be a refund of the fee paid, simpliciter.
- An unconditional guarantee of an assured match within 30 days, can, at best only be hyperbole, and cannot realistically be extended.
- The court suggested including the phrase 'Send 10 connects. Get a match or get your money back' within the text "30 day money back guarantee" and asked that the statement must remain on the screen for the entire duration of the dialogue in that frame.
A decision like this upholds the sanctity of the ASCI code, uplifts the consumer's confidence, and put an implied check on the businesses to contemplate before floating any advertisements. Advertising is an important and legitimate means for the seller to awaken interest in his products. The success of advertising depends on public confidence. Hence, no practice should be permitted which tends to shake and impair this confidence. The decision reinforces the minimum standard of fairness and honesty that sets a fair and level playing field for competitors and upholds the essence of consumers' confidence expected from the advertisers.
Footnotes
1. https://www.accc.gov.au/system/files/Consumer%20guarantees%20%20a%20guide%20for%20consumers%20-%20July%202021.pdf
2. https://www.ascionline.in/the-asci-code/#
3. Meaning 'let the reader beware'
4.Meaning "let the listener beware"
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