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NAME: Mukkamala Pallavi CLASS: MJMC1

In a democracy where people have freedom of speech and expression, why do we need

laws governing commercial speech i.e. advertising? Discuss with argument.

“H.G. Wells, said that advertising was legalized lying”. But one must not forget in world‟s

different constitutions have different laws and every law has certain limitations which gets

suspended under certain circumstances (India- art.19 suspends during emergency) and when

it comes to India – quasi federal state, various amendments have been passed since 1955 with

the intellectual maturity and need of nation.

At first, advertising was excluded from the ambit of the provision, with the Supreme Court

holding in Hamdard Dawakhana v. Union of India, that while advertisements were a form of 

speech, they were not constitutive of the concept of „free speech‟ as it was being guided by

the object of commercial gain. But later, a shift in the constitutional position was evidencedin the case of Tata Press v. Mahanagar Telephone Nigam Ltd. wherein advertising was

observed to be beneficial to consumers as it facilitated the free dissemination of information,

leading to greater public awareness in a free market economy. In the same light, the Supreme

Court reversed the position as adopted in Hamdard Dawakhana, and held advertising to be

constitutive of  „commercial speech‟, and therefore brought it within the ambit of 

constitutional protection conferred by Art. 19(1)(a).

In an environment of zealous competition in the foreground of a market economy, self 

regulation in advertising should be and has been a subject matter of high importance. If such

regulations are not respected and adhered to by all those concerned, it might not be long

 before advertising is exploited. Many countries in Europe restrict domestic advertising that

target children below a certain age. In the UK, the Advertising Standards Authority lays

down the standards for advertising in all kinds of media while all outdoor advertising is done

with permission from the local town planning authorities. As for the US, the Federal Trade

Commission is the relevant and the ultimate authority on the subject although local

governments are allowed to enact their own regulations in this regard.

In India, Primarily, matters related to untrue and misleading advertising were adjudicated

upon by the Monopolies and Restrictive Trade Practices („MRTP‟) Commission, constituted

under the Monopolies and Restrictive Trade Practices Act, 1969 („MRTP Act‟) later came

Consumer Protection Act 1986 with the motive of consumer grievances. Further, emulating

the various countries, the Indian marketing and advertising professionals also took the

initiative to set up a council for self regulating the content of advertisements, in the form of 

the Advertising Standards Council of India for the stoppage of misleading, untruthful,

indecent or unfair advertisements under certain fundamental principles:

  SAFEGUARD AGAINST MISREPRESENTATIONS AND MISLEADING

ADVERTISEMENTS: eg Glindia claimed “Drinking Complain helps one to emerge

as top-ranker”. 

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  TO ENSURE STANDARDS OF PUBLIC DECENCY: eg -in the advertisement of 

„Gel Pen‟ the exposure of women & copy saying „sab kuchh dikhta hai‟ 

   NO PROMOTION OF HAZARDOUS THINGS: eg Bharat Beedi – showing child to

 present the brand.

  FAIRNESS IN COMPETITON: eg - The advertisements of Pepsi of Coca Cola: Boththe brands try to compare their brands & the series try to cut the features shown in

their advertisements.

RECENT JUDICIAL TRENDS: A more recent dispute has arisen between Procter & Gamble

(„P&G‟) and Hindustan Unilever Ltd („HUL‟), wherein the latter has contended that the latest

advertisement of the former‟s shampoo brand „Pantene‟ is false and misleading in asserting

that the said product was the most preferred one in the Indian market. In addition, it was

alleged that the said campaign was disparaging Unilever‟s brand „Dove‟. The hoardings put

up by P&G towards the end of July 2010 depicted a „mystery shampoo‟ which „„80% women

say is better than anything else.‟‟ P&G‟s move was immediately countered by Unilever,which came out with a parallel campaign of „Dove‟, saying, “There is no myster y. Dove is

the No.1 shampoo‟‟. It later filed a complaint with the Advertising Standards Council of India

(„ASCI‟) against P&G‟s original assertion of popularity, terming it as misleading and untrue,

as the conclusions were based on an old study conducted in Thailand, rather than indicating

recent trends in the Indian market. ASCI upheld the complaint and recommended that P&G

desist from engaging in any advertising campaign of such nature. Unilever has subsequently

approached the Delhi High Court to seek an authoritative determination of the issue. Hence,

the right that had been conferred on advertisers to make untrue statements regarding the

utility of the product was extinguished.

CONCLUSION: Advertising plays an important role by creating primary demand for the

 product or service and its usage rate to increase the product‟s customer base. Advertising

Ethics means “good conduct” or “conduct which is right in view of the society and the time

 period”. And this advertising ethics becomes more important in case of India – a young

democratic nation in comparison to a fully developed nation like USA or UK because the

illiteracy rate is much higher than the literacy rate to understand the real motive of that

 particular product . Democracy is the term used for justice, freedom and equality one must

not forget this and try to make fool and profit out of someone who is still competing with

himself.

This is the reason why regulation is important and thus the three major participants in theadvertising procedure - advertisers, agencies and the media should work individually and

collectively to encourage truthful, ethical, and responsible advertising ensuring that the rights

of both the competitor and consumer are safeguarded.