What is the relationship between Freedom of Speech and Expression and the Right to Advertisement?

Introduction

Advertising plays a crucial role in marketing, significantly influencing the revenue generated from shares and profits. However, marketing strategies often rely on exaggeration or misinformation to promote businesses, which can mislead consumers and, in some cases, cause harm. For instance, insurance companies might overpromise returns they cannot deliver, or health drink ads may set unrealistic expectations about child growth. Additionally, certain products like cigarettes, which pose health risks, should ideally not be advertised at all. While this highlights the need for stringent regulation of advertising, it also raises concerns about balancing such control with the Constitutional guarantee of freedom of speech, as advertising is a form of communication. 

Freedom of Speech and Right to Advertisement

• In India, freedom of speech and expression is a Fundamental Right according to Article 19 (1) (a) of the Constitution of India[1] which also includes freedom of press or media.
• According to the Advertising Association of the UK, advertising is a paid communication intended to inform or influence the audience regarding a product or service.
• In the United States the freedom of speech is protected by the First Amendment[2]. The issue of advertising and its regulation has been examined from multiple perspectives by courts in both India and the United States, leading to differing opinions. To address this, it is essential to first define advertising.
• In the U.S., the judiciary distinguishes between two types of advertising: commercial speech, which is profit-driven, such as promoting products for purchase, and non-commercial speech, which serves public awareness or social purposes, like government campaigns. Essentially, expressions driven by commercial interests fall under commercial speech.

Freedom of Speech in Advertising Media in the United States

• The United States has faced significant challenges in determining whether advertising falls under the protection of freedom of speech. In Valentine v. Chrestensen[3], the U.S. Supreme Court deliberated on the distinction between commercial and non-commercial advertisements, ruling that commercial advertising does not enjoy the protections guaranteed by the First Amendment, unlike non-commercial speech. However, this stance was revisited in subsequent cases.
• In Cammarano v. United States[4], the Court argued that the First Amendment is not limited to specific types of discourse, suggesting that all advertising may be protected.
• This position was reinforced in Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations[5], which affirmed that commercial speech has the same First Amendment rights as other forms of speech.
• However, Bigelow v. Virginia[6] challenged this notion, holding that commercial advertisements are not inherently entitled to First Amendment protection, while leaving the precise boundaries of protection for future cases. 

Freedom of Speech in Advertising Media in India

• These evolving judicial interpretations influenced Indian courts' approach to determining whether advertising is protected under Article 19(1)(a) of the Indian Constitution[7].
• In Hamdard Dawakhana v. Union of India[8], the Indian judiciary adopted a similar stance to Chrestensen, ruling that advertisements related to commerce or trade, particularly those promoting prohibited drugs, do not constitute speech under Article 19(1)(a)[9].
• This position shifted with Indian Express Newspapers v. Union of India[10], where the Supreme Court held that commercial advertisements cannot be denied Article 19(1)(a)[11] protection merely because they originate from businesses.
• Similarly, in Bennett Coleman & Co. v. Union of India[12], the Court viewed restrictions on advertisements as a violation of the fundamental right to freedom of speech, emphasizing the economic implications of such restrictions.
• The landmark case Tata Press Limited v. Mahanagar Telecom-Nigam Limited[13] decisively settled the debate in India. The Supreme Court observed that advertising is integral to the economic system and critical for funding the media, stating, “Without advertising, the resources available for expenditure on ‘news’ would decline, leading to a potential erosion of quality and quantity.” Consequently, the Court ruled that "commercial speech" is protected under Article 19(1)(a) of the Constitution[14], establishing advertising as a fundamental component of freedom of speech and expression.
• Contravention of any of the above laws is an offence and penalties and punishments for such breach of law are prescribed in the respective statutes. The laws have been enforced over the years in various cases.
• In the year 2007 two advertisements of men’s underwear were banned by the Ministry of Information and Broadcasting for being 'indecent, vulgar and suggestive'.
• In 2011, a Wild Stone deodorant advertisement was heavily censored for showing a woman in indecent lights and containing obscene content. However, there is no single guideline that has been followed or uniformity in such enforcements. However, it has to be kept in mind that it is not up to individual citizens to call for banning certain advertisements that have not been found to contravene any of the existing laws of the land.
• The recent Tanishq advertisement that showed inter-community marriage of a Hindu woman in a Muslim family, came under controversy and a large number of people called for banning of the ad over social media and ultimately the advertisement had to be taken down. Such acts violate the fundamental right of Freedom of Speech and Expression guaranteed by the Constitution of India and the judiciary must rectify such violations on an urgent basis. 

Advertising Regulation: Striking a Balance Between Freedom and Responsibility

While advertising enjoys protection under the fundamental right to freedom of speech and expression, this right is not absolute and is subject to reasonable restrictions as provided by the Indian Constitution. It is essential to strike a balance between protecting advertisers' rights and safeguarding consumers from fraud, harm, or exploitation. To achieve this, various laws and regulatory bodies govern advertising practices to ensure ethical standards and consumer protection.

In the UK, advertising is regulated by the Code of Non-broadcast Advertising and Direct & Promotional Marketing and the Code of Broadcast Advertising, enforced by the Advertising Standards Authority. Similarly, in the U.S., the Federal Trade Commission (FTC) oversees advertising regulations, addressing concerns like deceptive health claims, targeted advertising toward children, and online advertising practices.

India has also faced challenges in regulating advertisements, often encountering controversy in their enforcement. For instance, in 1995, a Tuff Shoes advertisement featuring models Milind Soman and Madhu Sapre was banned for being indecent, leading to legal action. Despite such controversies, India lacks a comprehensive advertising law, relying instead on multiple statutes:

• The Cable Television Network Rules, 1994 provides in Section 7[15] the ‘Advertising Code’. This Code contains several rules that must be followed in broadcasting advertising such as no advertisement shall be permitted which derides any race, caste, creed, and nationality or tends to incite people to crime, cause disorder or violence, or breach of law or glorifies violence or obscenity in any way. Social evils like dowry and child marriage cannot be permitted in advertising. Advertising cannot promote sales of harmful products like cigarettes or products like baby food. It cannot hurt religious sentiment, put children in danger etc.
• Drug and Magic Remedies (Objectionable Advertisement) Act, 1954 is the legislation that was relied upon in the judgment of Hamdard Dawakhana[16]. It prohibits advertisement of drugs for miscarriage, correction of menstrual disorder etc. It also prohibits advertisements that give false impressions or make a false claim about a drug. No advertisement can claim any magic remedies in Sections 4 and 5[17].
• The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, strictly prohibits advertisement of cigarettes and other tobacco products (Section 5)[18].
• Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 prohibits in Section 22[19] advertising of facilities for pre-natal sex determination available at any laboratory or clinic.
• Food Safety and Standards Act, 2006, provides in Section 24[20] that no advertisement shall be made of any food which is misleading or deceiving.
• Young Persons (Harmful Publications) Act, 1956, prohibits advertising of any “harmful publication” which means a portrayal of the commission of offences or any act(s) of violence or cruelty or any incident of a repulsive or horrible nature [Section 3(c)][21].
• The Indecent Representation of Women (Prohibition) Act, 1986 prohibits advertisement representing women in an indecent manner which means depiction of a woman’s figure or body in a manner that is derogatory or denigrating to them.
• Additionally, the Consumer Protection Act, 1986 categorizes misleading advertisements as unfair trade practices, subjecting offenders to penalties under respective laws.

However, the enforcement of these regulations has often been inconsistent. For example, in 2007, advertisements for men’s underwear were banned for being vulgar, and in 2011, a Wild Stone deodorant ad was censored for indecency. Meanwhile, public outrage, such as the backlash against a Tanishq advertisement depicting interfaith marriage, highlights the misuse of social platforms to force ad bans without any legal basis, infringing on the advertiser's right to free expression.

While advertising must operate within legal limits, arbitrary censorship undermines freedom of speech and expression. It is imperative for the judiciary to address such violations promptly, ensuring that advertising remains both creative and compliant with the law. 

Regulating Advertisements: The ASCI Code

In India, the Advertising Standards Council of India (ASCI) serves as the primary self-regulatory body for advertisements. Established in 1985, ASCI is a non-statutory organization dedicated to promoting ethical advertising practices. To achieve this, ASCI developed the ‘Code for Self-Regulation of Advertising Content in India,’ commonly referred to as the ASCI Code. This code outlines guidelines for advertising content, complaint resolution, and fast-track complaint handling procedures.

The ASCI Code is structured around four key principles:

1. Honesty and Truthfulness: Advertisements must represent products and services truthfully to avoid misleading consumers or competitors. This ensures fair play and fosters trust among all stakeholders.
2. Decency and Morality: Content in advertisements must adhere to societal moral standards, refraining from vulgar, indecent, or offensive representations.
3. Safety and Responsibility: Advertising must not feature content that could be harmful or hazardous to society, particularly to vulnerable groups like children. It ensures content aligns with socially acceptable norms.
4. Fair Competition: The Code promotes fair competition by ensuring advertisements offer clear and unbiased information about consumer choices. It also discourages plagiarism and other unfair practices.

ASCI actively monitors advertisements and addresses complaints through its Consumer Complaints Council (CCC). The CCC evaluates complaints and the advertiser’s response, ensuring a fair review process. However, advertisements are neither pre-approved nor pre-censored. ASCI's role is activated only when a complaint is lodged.

Despite these measures, concerns about ASCI’s effectiveness have surfaced. For instance, in 2011, the Ministry of Information and Broadcasting criticized ASCI for its failure to curb deodorant advertisements that objectify women and violated decency standards. Such instances highlight the need for stricter enforcement of the ASCI Code to uphold ethical advertising in India. 

Comparative Advertising: Safeguarding the Goodwill of Competitors

• The regulation of comparative advertising falls under a key principle of advertising standards, which requires that any comparisons made must be factual, accurate, and free from artificial advantages or disparagement.
• Advertisements must not denigrate or attack the reputation of competing products or brands, nor attempt to destroy their goodwill. Judicial precedents have established that advertisements which disparage a competitor’s product or create doubt in the minds of consumers, leading to potential losses, are deemed unlawful.
• In Dabur India Limited v. Emami Limited[22], the controversy centered around a television commercial for Himani Sona-Chandi Amritprash. The advertisement allegedly disparaged Dabur Chyawanprash by advising viewers against consuming Chyawanprash during the summer, promoting Amritprash as a better alternative. The court held that such statements insinuated that Dabur Chyawanprash was unsuitable for summer consumption and harmful to health, thereby disparaging the plaintiff’s product and violating advertising norms.
• Similarly, in the ongoing case of Reckitt Benckiser (India) Ltd. v. Hindustan Unilever Ltd[23]., the issue arose from a television commercial for Lifebuoy that implied Dettol, a competing product, was ineffective as an antiseptic in bathing water, allegedly causing sickness in children. The Delhi High Court observed that the advertisement actively disparaged Dettol by portraying it as inferior. The court issued an injunction to stop the advertisement, emphasizing that active disparagement of a competitor’s product is impermissible and can lead to unfair harm to the competitor’s reputation and market interests. 

Conclusion

The advertising industry is one of the most profitable sectors, leveraging its connection with businesses of all sizes. However, despite enjoying the constitutional right to freedom of speech, it must operate within legal boundaries. Unfortunately, many advertisements, particularly in the digital space, fail to comply with regulations due to the absence of a pre-release screening system, lack of a comprehensive advertising law, and insufficient monitoring of online content. To address these issues, there is a need for a dedicated statute that not only governs traditional advertising but also incorporates regulations for online platforms. Additionally, establishing a pre-release oversight mechanism, enhancing digital content monitoring, and ensuring that new regulations strike a balance with the freedom of speech will be crucial. Public awareness and training for industry professionals can further promote ethical practices. A reformed legal framework will ensure that advertising in India remains ethical, transparent, and aligned with societal values while fostering industry growth.

[1] The Constitution of India, art. 19(1)(a).

[2] The First Amendment to the United States Constitution.

[3] 316 U.S. 52 (1942) rev'd 122 F.2d 511 (2d Cir.1942).

[4] 358 U.S. 498 (1959).

[5] 413 U.S. 376, 385 (1973).

[6] 421 U.S. 809 (1975).

[7] Supra at 1.

[8] (1960) A.I.R. 554.

[9] Supra at 1.

[10] (1986) A.I.R. 515.

[11] Supra at 1.

[12] (1973) 2 S.C.R. 757.

[13] (1995) A.I.R. 2438.

[14] Supra at 1.

[15] The Cable Television Network Rules, 1994, s. 7.

[16] Supra at 9

[17] The Drug and Magic Remedies (Objectionable Advertisement) Act, 1954, ss. 4,5.

[18] The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, s. 5.

[19] The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994, s. 22.

[20] The Food Safety and Standards Act, 2006, s. 24.

[21] The Young Persons (Harmful Publications) Act, 1956, s. 3(c).

[22] 2004 (29) P.T.C. 1 Del.

[23] CS(COMM) 629/2016 AND CS(OS) 237/2018 & IA No.4428/2018.

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