Subliminal Marketing and Indian Consumer Protection Laws

By – Shreya Gupta, FY BBA LLB (Hons.)

Introduction

More than half a century ago, Pablo Picasso famously said “everything you can imagine is real.” Today not only is this true, but it is also available for purchase. Through artificial intelligence software, with just a few strokes of your finger, you can arrange for the most absurd object from anywhere on this planet, and additionally have the computer pre-emptively tell you what else you would like to have arranged based on seemingly inconspicuous data, like the amount of time you take to swipe out of a website. Steve Jobs dream of “The world in your hands” has been fully realized, but is this dream closer to a nightmare?

We are in the fourth industrial revolution[1], with the advent of widespread artificial intelligence and quantum computing power. This means that it is now easier than ever for companies to build user profiles[2] and target your specific behaviour to manipulate you into the activity they prefer. “Half the money that is spent on marketing is lost, the issue is you can never know which half” has been a common saying in the world of marketing for years, but increasingly, technology is rendering this false. Brands now know which advertisements you tapped on and bought their product from and even know which products you left in your cart. What times the consumer is more likely to buy at and what hooks lure them in. The reason this is harmful is that we aren’t aware of our biases either – brands are bypassing rational thinking and choice.

There was a study conducted where participants were divided into two groups. Both were shown the exact same video, but in one, a Starbucks coffee cup was kept in the background. Participants were told they would be called to check the results of another fake study, thanked, and asked to leave. While leaving, they were offered a choice of 6 beverages as a thank you. The group which saw the Starbucks cup in the background was significantly more likely to choose the Starbucks beverage.[3] This is non-targeted persuasion, which begs the question– what all can you be convinced of, with active manipulation and your own data? All while you watch unaware.

Who exactly is a consumer?

Before we take a deep dive into the limitation and advantages of the Consumer Protection Act and how it applies to advertisements, we must conclude who the consumer is and what the relevant act is. The Act overseeing this purview in India today is the Consumer Protection Act, 2019. It defines a consumer as someone who buys something or receives a service in exchange for money. A person who gets a good for resale or a good or service for business purposes is not included. It encompasses all types of transactions, including those conducted offline and online via technological methods, teleshopping, multi-level marketing, and direct selling.

This does not include those who do not make a purchase but are still being impacted by the marketing strategies. This is despite subliminal marketing being illegal in the UK, USA, and Australia since 1956.[1]

Is it legal and/or ethical to target psychology?

One may now be tempted to say that the government would not allow this. The right to choose is a fundamental[2] right, and this is getting perilously close to breaching that.

Businesses do that by subliminal stimuli. These are “sensory stimuli below our capacity for conscious consumption.” A good example of this would be Marlboro. They were in partnership with F1 when the government banned the advertising of cigarettes. What they did then was put a seemingly inconspicuous barcode against the car. (Figure 1, left) as the car zoomed past, for an instant, not long enough for the viewer to notice, but long enough for the brain to register, one could see the logo (Figure 1, right). This is an example of sub-visual messaging marketing.

Figure 1


There are three broad types of subliminal marketing – backmasking, sub-audible messaging, and sub-visual messaging. Backmasking is superposing an audio backward onto a forward one. Sub-audible messaging is playing the wanted audio at a lower volume than the main audio, too low to consciously hear, but perhaps enough for the brain to gauge. Sub-visual messaging is hiding a small image in another image, too small to register, once again, but your brain knows of its existence.

Now, one may make the argument that what does it matter if our subconscious is convinced of something? After all, we rationally weigh the benefits of a product before we buy it. In reality, our subconscious brain makes decisions and we attempt to justify those using logic. There was a study where participants were connected to an MRI machine monitoring brain activity. They were shown an animation of a ball going around a spherical path. They were told to press down the button as soon as they consciously wish to stop the ball from moving. What the researchers found was that a whole second before the participants had the urge to stop the ball, the brain flared up with an activity for it. This cannot be written up to reaction time, which is only 0.2 seconds.

A common misconception is that because a lot of attention is not paid, information is not being stored. This is false. Since before we can even speak, we have been consistently “implicit learning.” Our brains have a limbic system that is constantly alert, receiving messages and assigning meaning to them. This system works significantly faster than we can process, subconsciously altering our worldview in the background.

Another common misconception is that because it is just pictures and videos, it does not affect real life judgements. This is not how the brain works. This is called the priming effect. [1]It is when our exposure to a stimulus affects our behaviour towards another stimulus without our conscious knowledge.

If enough people are primed to behave or think in a certain way, the priming effect can have an impact on society. The priming effect can be utilized by firms to manipulate people’s thinking in order to get them to buy more of their products. Companies can, in fact, activate or bring specific associations to the forefront of consumers’ minds in order to increase their receptivity to the goods they want to offer. This is known as a ‘behavioural pump,’ and it can have a significant impact on consumer decision-making.

Need and feasibility for international consumer protection law

We live in an era of globalization and free trade, where most large firms are MNCs with branches worldwide. We have unprecedented opportunities for maximising consumer satisfaction, but with this also comes a new wave of challenges. In the recent past, there have been large multinational scandals with companies like Facebook and Apple, and there are only going to be more in the future.

Odcom, the UK’s communications regulator makes it illegal, under Section 7 of the ITC for advertisers to flash images for a very brief duration, the same cannot be said for India. This means that companies who used to use such underhand tactics before their ban can just double their efforts in foreign markets – with the software already ready.

The F.T.C (federal trade commission) protects American consumers in international markets. It makes use of these tools.

  1. Information sharing
  2. Investigative assistance
  3. Cross border jurisdiction authority
  4. Enforcement relationships.

They work with multiple international organizations like OECD (the organization for economic cooperation and development) to maximise their purview, allowing maximum benefit to consumers.

Conclusion

Under the ambit of advertising, the issue is that the act focuses on protection against false or misleading advertisements, which is not the need of the hour. The people need to be protected from companies exploiting consumer data and bypassing consumer choice. They need to be protected from what they cannot protect themselves against. That is the function of the law and that must be carried out by the law. Progress is indeed happening, but it is not fast enough. As late as 2019, the law extended to include digital consumers. With the increasing ease of the internet, people want to buy things from around the world. It is the government’s duty to protect them from being harmed.

Endnotes –

[1] Chakraborty, C. (2021). Artificial intelligence and the fourth industrial revolution. Jenny Stanford Publishing

[2] Zwick, D., & Dholakia, N. (2004). Whose identity is it anyway? Consumer representation in the age of database marketing. Journal of Macromarketing, 24(1), 31-43.

[3] Trappey, C. (1996). A meta‐analysis of consumer choice and subliminal advertising. Psychology & Marketing, 13(5), 517-530.

[4] Consumer Protection Act, 2019

[5] Article 21 of Indian Constitution.

[6] Tipper, S. P. (1985). The negative priming effect: Inhibitory priming by ignored objects. The quarterly journal of experimental psychology, 37(4), 571-590.

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