Freedom of Speech and Expression and Advertising in India

Speech is God’s gift to mankind. Through speech a human being conveys his thoughts, sentiments and feeling to others. Freedom of speech and expression is thus a natural right, which a human being acquires on birth. It is, therefore, a basic right. “Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek and receive and impart information and ideas through any media and regardless of frontiers” proclaims the Universal Declaration Of Human Rights (1948). The people of India declared in the Preamble of the Constitution, which they gave unto themselves their resolve to secure to all the citizens liberty of thought and expression. This resolve is reflected in Article 19(1)(a) which is one of the Articles found in Part III of the Constitution, which enumerates the Fundamental Rights.

Ban on AdvertismentMan as rational being desires to do many things, but in a civil society his desires have to be controlled, regulated and reconciled with the exercise of similar desires by other individuals. The guarantee of each of the above right is, therefore, restricted by the Constitution in the larger interest of the community. The right to freedom of speech and expression is subject to limitations imposed under Article 19(2).

Public order as a ground of imposing restrictions was added by the Constitution (First Amendment) Act, 1951. Public order is something more than ordinary maintenance of law and order. Public order in the present context is synonymous with public peace, safety and tranquility.

Advertising communication is a mix of arts and facts subservient to ethical principles. In order to be consumer-oriented, advertisement will have to be truthful and ethical. It should not mislead the consumer. If it so happens, the credibility is lost.

In order to enforce an ethical regulating code, the Advertising Standards Council of India was set up. Inspired by a similar code of the Advertising Standards Authority (ASA) UK, ASCI follows the following basic guidelines in order to achieve the acceptance of fair advertising practices in the interest of the consumer:

  • To ensure the truthfulness and honesty of representations and claims made by advertisements and to safe guard against misleading advertising;
  • To ensure that advertisement are not offensive to generally accepted standards of public decency;
  • To safeguard against indiscriminate use of advertising for promotion of products which are regarded as hazardous to society or to individuals to a degree or of a type which is unacceptable to society at large; and
  • To ensure that advertisements observe fairness in competition so that the consumers need to be informed on choices in the market places and canons of generally accepted competitive behaviour in business are both served.

 

Constitution of India: Restrictions on Offensive Advertisements

Article 19 (2) of Constitution of India provides that the government can impose restrictions on the right to freedom of speech and expression to protect the country’s integrity, security, public order, morality and decency and to prevent contempt of court, vulgarity, incitement to an offence and defamation.

However, advertisers often view these rules and regulations as violating their right to freedom of speech. Some ads, in particular, were considered derogatory and banned by the government, such as:

  • A deodorant advertisement that showed a man accompanied by scantily clad women was banned by the government after several complaints were received from viewers about the advertisement being offensive to family viewers.
  • A soft drink advertisement that showed a child bringing the drink for the Indian cricket players was banned after complaints from child labor activists.
  • Advertisements of two underwear ads were banned due to vulgarity and indecency. Objectionable content in ad is usually a reason for taking it off channels.

Freedom of speech and expression is a natural right guaranteed under the Article 19 (1) (a) of the Constitution of India. Freedom of speech and expression implies the right to express one’s thoughts and ideas freely via any medium, such as gestures, signs, verbal communication, print media, radio or television.

Through several landmark judgments, the Supreme Court has broadened the scope of the right to freedom of speech and expression. It has held that the government has no monopoly over the electronic media. Further it has ruled that forms of commercial speech, such as advertisements are included in the purview of this right called freedom of speech and expression. However, the court has mentioned that the government is authorized to regulate commercial advertisements. It can restrict deceptive, unfair, false and misleading advertisements.

In the advertising and media industry, a self-regulatory guideline of code and conduct is a self-imposed discipline, whose primary objective is to monitor and prescribe the advertising standards for public interest. This system complements government legislation and regulations as well. As the categories of sensitive advertisers are constantly increasing; consumer groups, governments and regulators became more cautious to take lively interest. Monitoring and voluntary self-regulations in advertising, allow reasonable freedom of speech and expression. The members of Communication Council should be aware about the importance of self-regulation.

Constitution of India: Restrictions to Publish Yellow Pages Directory

In a landmark case of Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd, (1995) 5 SCC 139, the litigant – Mahanagar Telephone Nigam Ltd (MTNL) – is a public sector company and a licensee within the meaning of the Indian Telegraph Act, 1885. It has telecommunication services in Delhi and Mumbai. The MTNL used to publish and circulate a telephone directory with white pages but after 1987, it started giving contracts to outsiders to publish this directory. Further, the MTNL allowed the contractors to earn revenue by publishing advertisements in the directory.

The Tata Press Ltd also published the Tata Press Yellow Pages. The MTNL and the Union Government filed a case before the Bombay Civil Court that it has a monopoly in printing and publication of list of telephone subscribers and that Tata Press Ltd. has no right to do the same. It was pointed out that Tata Press was violating the provisions of the Indian Telegraph Act, 1885. The court rejected the MTNL plea and an appeal reached the High Court. The High Court ruled in favor of MTNL, following which Tata Press Ltd challenged the High Court’s decision before the Supreme Court. The Supreme Court ruled that the MTNL has no right to hold back Tata Press Ltd. from publishing ‘Tata Yellow Pages.’

In Hamdard Dawakhana v. Union of India, the Supreme Court was faced with the question as to whether the Drug and Magic Remedies Act, which put restrictions on the advertisements of drugs in certain cases and prohibited advertisements of drugs having magic qualities for curing diseases, was valid as it curbed the freedom of speech and expression of a person by imposing restrictions on advertisements. The Supreme Court held that, an advertisement is no doubt a form of speech and expression but every advertisement is not a matter dealing with the expression of ideas and hence advertisement of a commercial nature cannot fall within the concept of Article 19(1)(a).

Conclusion

In this age of media explosion, one cannot simply remain confined to the boundaries of the traditional media. The media world has expanded its dimensions by encompassing within its orbit, the widening vistas of cyber media etc. As a consequence, the laws governing them are also numerous. It is not within the scope of this Article to deal with the whole subject of media laws, but this Article makes a person aware of the various important legislations affecting the various branches of Media Communication, making him aware of his rights and facilitating him to exercise them within the framework of law existing in India and in the end furthering the cause of “Freedom Of Speech And Expression” and “Dissemination of Knowledge”.

By Yashvardhan Rana on June 8, 2013 · Posted in Constitutional Law, Law And Society, Media Law

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