While brands have been using "moment marketing" as a strategy for a long time, it came under scanner recently.
After ace shuttler PV Sindhu won a bronze at the Tokyo Olympics, many brands congratulated her using her name and pictures but without her consent. And this resulted in Sindhu sending notices to 15 companies.
Chandrima Mitra, Partner, DSK Legal pointed out that in such cases celebrities can take necessary legal action for protection of their rights under article 21 of the constitution because personality rights are interpreted as an extension of right to privacy and inherent only to an individual.
Mitra also shared other instances when celebrities sued brands.
"There have been cases in the past where celebrities have sued for protection of their personality rights like in the case of Titan Industries versus Ramkumar jewellers involving the unauthorized usage of Mr and Mrs. Bachchan’s (Amitabh Bachchan and Jaya Bachchan's) images by the defendant or Rajnikanth’s case against the release of a film “Main Hoon Rajnikanth.”
Along with legal actions, what can help put a stop to use of moment marketing in the wrong way is ad regulator Advertising Standards Council of India's (ASCI) actions against such tactics.
"ASCI through its suo moto mechanism, tracks and processes complaints against potentially misleading advertisements. If there is a violation, where a celebrity’s images have been used without their permission, ASCI has pulled them up and asked the brand to take corrective action. We have taken up a case in the recent past," said ASCI, Secretary General, Manisha Kapoor.
She added that 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."
"While brands and agencies focus on their campaign creativity, they also need to be cognizant of the laws and regulations to ensure that the campaign doesn’t backfire," Kapoor said further.
For instance, due diligence should be done and required permission should be procured for use of celebrity images, said Kapoor.
"Also, we urge more consumers to reach out and tell us of such potential violations. One can report advertisements through any of our complaint mechanisms," she added.
To raise complaints consumers can use WhatsApp number 7710012345; and can also write to ASCI at email@example.com.
If we look at PV Sindhu's case where moment marketing was used in the wrong way, most of the campaigns were on social media where the athlete's name and images were used to promote their brands.
This is why Kapoor said that ASCI monitors over 3,000 websites and digital platforms on a daily basis.
"Hence, potential violations across these platforms may be taken up for further processing. This would include all advertising, including moment marketing ads which violate ASCI codes," she said.
While ASCI is increasing its scope and is now even regulating influencer marketing led campaigns, legal experts point out that the ad regulator cannot take strong action against those flouting rules.
"ASCI is only a self regulatory body whose guidelines are to be adhered to by its members. It doesn't have the standing as a statute therefore cant have equal enforceability," said Mitra.
While ASCI is a self regulatory body, it has been able to take actions against both brands and celebrities.
Recently, when Virat Kohli posted on social media about Lovely Professional University (LPU) on July 27 saying that 10 percent of Indian Olympians are from Lovely Professional University (LPU). And this post was devoid of any disclosure label like #ad, promo, sponsored that is required for any branded content.
ASCI had written to both Kohli and the brand and the result of this was Kohli adding the disclosure to his post.
In fact, recently ASCI also announced digital revamp of its services and said that it will be focusing more on digital advertising and influencer marketing.
In addition, with new technology coming on board, ASCI expects time taken to address complaints will be reduced especially those related to influencer marketing and digital advertising.