Joanne Kong provides a brief introduction on the basic advertising principles in Malaysia

Advertising plays an imperative role for brands to promote their products and services to the public. There are however risks to advertisers letting their creative juices run wild. Some may remember the playful jab Pepsi tried to take at Coca Cola in its banned American ad which featured a young boy buying two Coke cans from a vending machine only for the purpose of stepping on them to reach for the Pepsi button which was higher up. What may have seemed like harmless and friendly fire could have led to a potential trademark infringement and disparagement lawsuit.

Closer to home, Malaysians may recall the backlash that healthcare and beauty brand Watsons received for its Raya (Eid) advertisement which featured a black-faced woman who was only regarded as beautiful after she “washed off” her face. Needless to say, the ad slammed by the public for being racist, sexist, insensitive and tasteless.

The following are some basic advertising principles that advertisers should keep in mind to ensure compliance with the law.

Advertising Framework in Malaysia

The advertising industry in Malaysia is largely self-regulated in accordance with various laws, regulations, codes and guidelines. The Advertising Standards Authority plays an integral part of the local advertising framework as it administers the Malaysian Code of Advertising Practice which regulates printed and paid-for-space ads. Out-of-home (OOH) ads such as billboards fall under the jurisdiction of the respective state/local authorities while national TV and radio have their own advertising and censorship codes. Electronic ads including those communicated through the internet and on privately-owned TV and radio are regulated by the Content Code administered by the Malaysian Communications and Multimedia Content Forum.

General Advertising Principles

• Ads shall be legal, decent, honest and truthful, and should not contain anything that is false or misleading, for example, hidden fees, inaccurate claims or comparisons, or claims with contradictory disclaimers in the fine print.
• All claims whether direct or implied must be capable of objective substantiation and advertisers must hold documentary evidence to prove such claims when called upon.
• Disclaimers are useful to clarify ad claims but do not provide an automatic defence to false or misleading claims.
• Superlatives, obvious untruths or exaggerations are generally allowed provided that they do not create any false or misleading impression. This is however completely prohibited in certain industries such as the medical industry.
• Comparative advertising is generally allowed provided that: (a) points of comparison can be factually substantiated; (b) the basis of comparison is the same; (c) claims are not false or misleading; (d) such comparison does not confer artificial advantage to suggest a better bargain when it is not the case; and (e) it does not trespass upon the IP rights of any third party.
• Unavailable products should not be advertised if the advertiser does not believe he can meet any demand created by the advertising. Bait advertising is thus not allowed.
• Testimonials or endorsements must be genuine and related to the personal experience of the person giving it over a reasonable period of time.
• Third party content and intellectual property as well as the personal data of an individual must not be used without prior consent, licence or other authorisation.
• Women must never be portrayed as a sex object.
• The use of children is not encouraged unless the advertised product is relevant and they should never be depicted in an unsafe manner.

Prohibitions which are uniquely Malaysian

Malaysia is a conservative nation and with Islam being the official religion of the country, advertisers must be careful not to include elements which are regarded as “haram” or forbidden under Islamic laws. While it would be impossible to provide an exhaustive list, the following are some elements which should be avoided

• Cigarette, tobacco and its accessories
• Occult and fortune tellers
• Clothing with inappropriate words or symbols
• Sexually explicit, indecent or immoral content such as kissing and immodest clothing
• Pornography
• LGBT and cross-dressing elements
• Gambling
• Marriage agencies and friendship clubs
• Pig, pork products and its derivatives
• Alcoholic drinks and liquor
• Disco scenes
• Places of worship and other religious symbols or content

In addition, there are other items which are expressly prohibited by local laws to be included in ads such as the actual advertising of fire-crackers, slimming products, and national emblems and names including national flags, coat of arms and other insignia. There are further industry specific regulations for certain industries such as medical products and services, pesticides, food and drinks, alcoholic and liquor, sanitary pads, cosmetics etc.

While this article attempts to cover some advertising basics, there are a myriad of things which may be regarded as unacceptable or insensitive and which may potentially offend the religious, political, sentimental or racial susceptibilities of certain communities in Malaysia. In this regard, many would not have imagined that a Raya (Eid) ad of a wombat, which was mistakenly perceived to be a pig and therefore an unclean animal, would spark public outrage and Westerners may not understand the decision to ban TV ads which were set in a hair salon and foot reflexology centre (as they are common places which provide cover for people to engage in illicit activities in certain Asian countries). It is thus important for advertisers to conduct due diligence and seek a legal review of their ads before they are published to avoid running into unnecessary legal issues and adverse publicity.

Joanne is a Senior Associate at Wong Jin Nee & Teo. Her practice predominantly focuses on trademark prosecution, media and advertising clearance, and other compliance matters.