Advertisement and Freedom of Speech

The current judicial position in India views "Commercial speech" with reasonable restriction as a part of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution

With the race to propagate their wares; India Inc. is engaged in a battle of advertisements in various mediums including the recently found but prominent internet media space. This article attempts to answer whether advertisement is a matter of right; while examining the judicial precedents of the last 50 years and focussing how this right has evolved.

Do We Have The Freedom To Advertise?

The Constitution of India has bestowed upon every citizen; the fundamental right of freedom of speech and expression under Article 19(1)(a). Fundamental right is a supreme right, a natural right which is inherent in the status of a citizen of a free country. Over the years, the Courts have expanded the ambit of these rights. Hence, various judicial pronouncements have increased the scope of freedom of expression to include the right to acquire and disseminate information1; right to communicate through any media as an advertisement, movie, article, speech1; right to free debate and open discussion2, freedom of press; right to be informed3, right to remain silent as also symbolic speech. Thus, freedom of speech and expression has been extended to include advertisement.

Is Company A Citizen?

These fundamental rights being civil rights are available to citizens i.e. natural persons. A company is not a natural person and hence the rights available under Article 19 are not available to a company; as held in State Trading Corporation case4. The nine judge constitutional bench of Supreme Court addressed this question which was not considered in earlier cases before5. The Court clearly brought out the distinction between citizenship and nationality. The Citizenship Act qualifies only a natural person as a citizen and not artificial persons. A company being an artificial person though being incorporated in India is considered an Indian national but would not qualify as a citizen of India. Thus, this landmark judgement negated the possibility of extending the fundamental rights to a corporate/company.

However, this view was radically replaced in the Bennett Coleman case6 where the Apex Court recognised that a restriction on printing and publication of a newspaper would impact the fundamental right of the shareholders, editors, readers etc. being the persons associated with the company. Hence, the remedy could not be denied even to the company. The five judge bench held that in appropriate cases where the right of the company would extend to cover the right of the shareholder, editor etc. restriction on the company would invariably mean restriction on the shareholders or persons connected with the company. In such cases, the Court felt that it should peep through the corporate veil and provide protection to the company as well.

This conceptualised three different views (a) the company can exercise its own right, (b) company's right stems from the rights of its shareholders, and (c) the shareholders exercise their right through the company. State Trading Corporation case4 clearly rejects the view (a) and further does not give any right to the company even indirectly through the shareholder as in view (b). Whereas in the Bennett Coleman case, the view in (c) is supported and justified by lending the right to the Company through its shareholders or affected persons.

In many cases where advertisement was considered as freedom of speech, the Courts have indirectly considered extension of the fundamental right to a company. However, there have been no grounds raised or considered to clarify or accurately enumerate the position of law, whether, a company/ corporation will be protected as a citizen and enjoy the rights enumerated in Article 19 (1)(a); thus leaving it in a nebulous state.

Is Advertisement Protected As Commercial Speech?

The next question that we need to examine is whether advertisement is considered as the commercial speech protected under Article 19 (1)(a). So let us examine a few definitions for advertisement and understand whether it qualifies as commercial speech:

a) Under section 2(a) of the Drugs and Magic Remedies (objectionable Advertisements) Act, 1954; advertisement includes any notice, circular, label, wrapper or other document and any announcement made orally or by means of producing or transmitting light, sound or smoke.

b) Under section 3 (a) of The Cigarettes And Other Tobacco Products (Prohibition Of Advertisement And Regulation Of Trade And Commerce, Production, Supply And Distribution) Act, 2003; advertisement includes any visible representation by way of notice, circular, label, wrapper or other document and also includes any announcement made orally or by any means of producing or transmitting light, sound, smoke or gas.

c) The Advertising Standards Council of India defines advertisement as; any audio or visual publicity, representation or pronouncement made by means of any light, sound, smoke, gas, print, electronic media, internet or website and includes through any notice, circular, label, wrapper, invoice or any other documents be published in any media by printing, exhibiting, broadcasting, displaying, distributing etc. free or paid for communication includes written or graphic matter on label, wrapper and any package for unitary or bulk purpose.

d) Blacks' Law dictionary defines advertisement as an action which draws the public's attention to something to promote its sale.

The definitions as cited in a, b, c are inclusive definitions describing the mediums of advertisement than indicating what the term advertisement means. Whereas the Blacks' Law dictionary gives the objective of this term. Thus, advertisement is a medium for merely identifying and describing the quality of goods with the sole motto to propagate and draw attention to the article to be sold thereby inducing its purchase. This is definitely a commercial aspect which draws great importance since it disseminates information about the article sold, at what price and the purpose of the same. In a democratic country, free flow of commercial information should be encouraged as it furthers the right of every citizen to be informed.

To determine if a particular speech is commercial or not, we need to answer only one question; whether the speech proposes nothing but a commercial transaction. Its true character or intention is reflected by the object for the promotion of which it is employed. This commercial objective clearly classifies advertisement as a commercial speech.

But since advertisement is a speech which is backed by the motive of influencing ostensibly a consumer's purchasing habit and which may be harmful to the public or, may be against public decency, may be defaming or unlawful; is hence subjected to stringent standards by the Courts.

Can We Then Claim Freedom Of Speech And Expression As An Absolute Right In Case Of Commercial Speech Like Advertisement?

The answer is ‘No', except where this freedom of speech and expression is subject to reasonable restrictions. There are many legislations in India which prohibit advertisements of certain class of goods and services like advertisements of tobacco and liquor is banned. Certain professions like doctors, lawyers are not allowed to engage in advertisements. At times, an advertisement in a newspaper or radio would have been allowed but the same advertisement on billboard may be restricted because the street car audience is a forced captive audience but the same audience can choose to read or hear the advertisement on another medium. Where the commercial activity is itself illegal, the advertisement of which is bound to be illegal like gambling or prostitution. Broadly, advertisements which are illegal, defamatory, obscene, undermining the respect of judiciary, inciting someone to commit a crime etc. are prohibited by various statutes.

Thus, advertisement as a commercial speech has two facets: on one hand, the Constitution gives right to advertise because public at large benefits by the dissemination of information. On the other hand, the public at large has the right to receive the information, therefore, there are other statutes that impose reasonable restrictions on certain advertisements. Also, content regulation of commercial speech is warranted to prevent false, deceptive or misleading information from being disseminated to public.

What Is Considered Reasonable ?

There are certain limitations which are coined as 'reasonable restrictions' on freedoms as guaranteed by the Article 19 (1) which are enumerated in Article 19 (2) to 19 (6) and left to the Court to interpret and formulate the reasonableness of these restrictions. Reasonable restriction has to have a reasonable relation to the authorised purpose i.e. should fall within the bracket of Article 19 (2) to 19 (6) and should not be an arbitrary abridgement of the freedom guaranteed by the Article under the cloak of any exceptions. There is no formulated test for reasonableness or what would fall under the ambit of the restrictions but the Court has to look into every case and lay down the reasonable restrictions.

Let us therefore examine some prominent judicial pronouncements on this subject.

The repeatedly quoted Hamdard Dawakhana's case3 where the advertisement of drug which squarely fell under the prohibition of the Drugs and Magic Remedies (objectionable Advertisements) Act, 1954 was considered a reasonable restriction. The Constitution Bench of the Apex Court carefully examined the right to publish a commercial speech versus the Protection of the public at large against the evils of self-medication and self-treatment. It was therefore held that when an advertisement takes the form of a commercial advertisement which has an element of trade or commerce, it no longer falls within the ambit of freedom of speech, for the object is not propagation of ideas, social, political or economic of furtherance of literature or human thought; but the commendation of the efficacy, value and importance of the product which it seeks to promote.

This decision however categorised that commercial advertisement is ‘no speech' as guaranteed under the freedom of speech and expression. It was prudent to consider that certain reasonable restrictions should curtail commercial speech of certain types but to categorise all commercial speech in one basket would be improper. It was inappropriate not to consider that in a democratic economy, free flow of information is indispensible which keeps the public at large well informed and enhances the ability to form intelligent opinions.

Thereafter, hence, where curtailment of the advertisements would bring down the circulation of the newspaper, the Apex court took a contrary view than Hamdard Dawakhana3. In Bennett Coleman case6, Indian Express Newspapers case and Sakal Papers case7, The view brought was that commercial advertisement cannot be denied protection just because it was issued by a businessman. Since any restraint or curtailment of advertisements would affect the fundamental rights under Article 19(1)(a) on the aspects of propagation, publication and circulation.

The entire law was reconsidered in the Tata Press case8 where the company had freely distributed "Yellow Pages", a buyer's guide being a compilation of advertisements from traders. The Supreme Court considered that yellow pages was a compilation of paid advertisements attached to a telephone directory and does not qualify as a public utility service; hence, not barred by law. It was further held that the right to publish advertisements could not be denied by creating a monopoly in favour of government. The Courts analysed that "publication of advertisements is a free commercial speech" hence protected under Article 19(1)(a) of the Constitution8.

Here the Court laid emphasis that the protection conferred by Article 19(1)(a) was available to the speaker and as well as to the recipient of speech. Public at large has the right to speak and also the right to receive commercial speech. Where commercial speech would be in furtherance of benefiting the public with the information it propagates, it should be protected.

This view was further echoed in the Colgate Palmolive case9 where the Court while examining the aspects of comparative advertisements between two toothpaste giants held that the public at large is benefited by the information made available by competitors 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 judgement further elucidated that in market forces where the manufacturers are comparing the virtues of each other's products, in the bargain the consumer is benefited with the information that is spelt out. This evidently guides the consumer at large to arrive at an informed decision to intellectually choose the best.

Recently, in Himachal Pradesh, many multinationals had advertised their wares vide painting on ecologically sensitive rocks; the Supreme Court strictly fined the advertisers as this was a fit case of reasonable restriction on commercial speech. The court had sent a clear message that those who exploit environment for commercial gains cannot fall under the freedom offered for advertisements.

An interesting question arose in Mahesh Bhatt's case10 where two cases were discussed which involved (a) depicting smoking scene in a film (Mahesh Bhatt's case); and (b) reporting Formula one photo with logo of tobacco company (Kasturi and Sons). A common judgment was pronounced as issues involved were similar. In the joint order, the Court stated that a cinematographer's film must reflect the realities of life and since smoking is a reality of life, it cannot be said that such a scene advertises smoking. Further, where Formula one race photos which was reported as a news item in the newspaper The Hindu, the Court analysed that though The Cigarettes And Other Tobacco Products (Prohibition Of Advertisement And Regulation Of Trade And Commerce, Production, Supply And Distribution) Act, 2003 restricted the use of logo or advertisement in movie or television programmes, it did not mean that the section extends to newsprint. In fact, the news carrying the "logo" on the "jacket" of a driver in a Formula One Race was with the primary objective to inform and circulate news and not to advertise tobacco. Mere reproduction of the photo as news item does not amount to advertisement of tobacco. Therefore, it was held that if the press or cinematograph film was not allowed to publish its news item or portray such scene, it would be violative of the right available to the press under 19 (1) (a). Currently however, this judgement is being reconsidered in Supreme Court.

Conclusion:

With the advent of globalisation and cut throat competition, India Inc. is exhibiting aggressive promotion of their products and services. In the bargain, even the literate consumer may be forced to believe what the advertisers say. The situation worsens when regulations controlling the advertisements are itself nascent, scattered and lacking the deterrence. In order to strike this balance of freedom of advertisement where the advertiser is given the qualified protection to advertise and the consumer on the other hand is benefited and guided to make an intellectual choice; there is a clear need of a single integrated law which shall combine the scattered various regulations which fail to display any stringent enforcement mechanism, thereby ruling out any deterrent effect on India Inc.

Table of cases

1 Secretary, Ministry of Information & Broadcasting, Govt. of India vs. Cricket Association of Bengal (1995)2 SCC 161: AIR 1995 SC 1236. 2 Maneka Gandhi vs. Union of India, AIR 1978 SC 597 :(1978) 1 SCC 248. 3 Hamdard Dwakhana v. Union of India MANU/SC/0016/1959: AIR 1960 SC 554 (564). 4 The State Trading Corporation of India vs The Commercial Tax Officer,... 1963 AIR 1811, 1964 SCR (4) 89. 5 Express Newspaper Pvt. Ltd. V. Union of India AIR 1958 SC 578; Sakal Papers (P) Ltd. v. Union of India AIR 1962 SC 305; HamdardDwakhana v. Union of India MANU/SC/0016/1959: AIR 1960 SC 554 (564). 6 Bennett Coleman v Union of India AIR 1973 SC 106. 7 Sakal Papers (P) Ltd. v. Union of India AIR 1962 SC 305. 8 Tata Press Ltd v. Mahanagar Telephone Nigam Ltd. AIR 1995 SC 2438. 9 Colgate Palmolive India Limited v. Anchor Health and Beauty Care Private Ltd. 2009 (40) PTC 653 (MAD). 10 Mahesh Bhatt v. Union of India, Delhi High Court being W.P. (C) No. 18761 of 2005 & W.P. (C) No. 23761 of 2005 decision dated 23.01.2009.

Bibliography

a Durga Das Basu; Commentary on the Constitution of India, 8th Edition 2007. b Ram Jethmalani & D. D. Chopra; Media Law, first edition. c Krishnaprasad K. V. in his Essay "Unveiling the rights: Corporate Citizenship in India Post State Trading Corporation"

Disclaimer - The views expressed in this article is the personal view of the author and are purely informative in nature.