Advertisements as “Commercial Speech”

1395877_10151968390789528_1665612140_n

The Supreme Court of India has held that advertisements, regarded as commercial speech, form part of the fundamental right to freedom of speech and expression recognised under Article 19(1)(a) of the Constitution of India.[1] As advertising is one of the elements of the right to information, it facilitates the dissemination of information about sellers and their products.

With respect to advertising, the Ministry of Information and Broadcasting is the wing of the Government of India which broadly deals with content regulation in television and radio. In 2008, it set up the Electronic Media Monitoring Centre with a view to monitor content on television and report violation of its Programme and Advertising Code.[2]

At present, the Advertising Standards Council of India (ASCI) is the foremost body for the regulation of advertisements in India. It promotes self-regulation in advertising, ensuring the protection of the interests of consumers. One of the most important features of this body is its Consumer Complaints Council (CCC).

Legislations such as the Consumer Protection Act, 1986, the Indecent Representation of Women (Prohibition) Act, 1986, the Food Safety and Standards Act, 2006, the Drugs and Cosmetics Act, 1940 and many others relating to the content and ethics of advertisements have been enacted. The author is of the opinion that the current quality of the average advertisement whether in print, on television, radio or other electronic media, is not up to the mark and this in turn makes us question the regulatory framework that the said bodies and legislations provide. This framework needs to be examined at length to gauge its impact. However, in order to understand advertising in India, it is pertinent to first identify where the groundwork for such advertisements lies.

Constitutional Framework

In Tata Press Limited v. Mahanagar Telephone Nigam Limited[3], the Apex Court has given recognition to advertisements under Article 19(1) (a) of the Constitution in the following manner:

“Advertising which is no more than a commercial transaction is nonetheless dissemination of information regarding the product advertised. Public at large is benefitted by the information made available through the advertisement. In a democratic economy free flow of commercial information is indispensable. There cannot be honest and economical marketing by the public at large without being educated by the information disseminated through advertisements. The economic system in a democracy would be handicapped without there being freedom of ‘commercial speech’.”

The Constitution itself lays down in Article 19(2) the restrictions which can be imposed on the fundamental right guaranteed under Article 19(1) (a) of the Constitution. The “commercial speech” which is deceptive, unfair, misleading and untruthful would be hit by Article 19(2) of the Constitution and can be regulated or prohibited by the State.

The Apex Court in Hamdard Dawakhana v. Union of India[4] dealt with advertising of prohibited drugs and commodities. The Court came to the conclusion that the sale of prohibited drugs was not in the interest of the general public and as such could not be “speech” within the meaning of freedom of speech and expression under Article 19(1) (a) of the Constitution. The Court further held that an advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed.

The Hamdard Dawakhana case was considered by the Supreme Court in Indian Express Newspapers (Bombay) Private Limited & Others v. Union of India & Others.[5] The combined reading of both cases led the Court in the Tata Press case to conclude that “commercial speech” cannot be denied the protection of Article 19(1) (a) of the Constitution merely because the same is issued by businessmen.

Advertising is considered to be the cornerstone of our economic system. Low prices for consumers are dependent upon mass production, mass production is dependent upon volume sales, and volume sales are dependent upon advertising. Apart from the lifeline of the free economy in a democratic country, advertising can be viewed as the life blood of free media, paying most of the costs and thus making the media widely available. The newspaper industry obtains sixty to eighty per cent of its revenue from advertising. Advertising pays a large portion of the costs of supplying the public with newspaper. For a democratic press the advertising “subsidy” is crucial. Without advertising, the resources available for expenditure on the “news” would decline, which may lead to an erosion of quality and quantity. The cost of the “news” to the public would increase, thereby restricting its “democratic” availability.[6]

Further, the Apex Court has laid down that, “A restraint on the number of pages, a restraint on circulation and a restraint on advertisements would affect the fundamental rights under Article 19(1) (a) on the aspects of propagation, publication and circulation.”[7]

The Constitution, being the law of the land, interpreted as seen above, provides the basic foundation to understanding advertisements and their accountability. Where, to advertise is a fundamental right under Article 19(1)(a), advertising in an obnoxious, irresponsible and misleading manner may be reasonably restrained under Article 19(2).

 

Author: Nikita Sayam, Associate Advocate at Kaden Boriss Partners, Lawyers. This article was written while she was pursuing B.A. LL.B (Hons.) from Amity Law School, Delhi (GGSIPU).


 

[1] Tata Press Limited v. Mahanagar Telephone Nigam Limited, (1995) 5 SCC 139 (Tata Press case)

[2] Government of India, Ministry of Information and Broadcasting, Electronic Media Monitoring Centre, available at <http://emmc.gov.in/About.aspx>, (viewed on 27-04-2015).

[3] (1995) 5 SCC 139

[4] AIR 1960 SC 554

[5] (1985) 2 SCR 287

[6] Tata Press Limited case

[7] Bennett Coleman and Company and Others etc. v. Union of Indi and Others, etc., (1972) 2 SCC 788