RIGHT TO ADVERTISE VS MISREPRESENTATION OF GROUPS
AUTHORED BY - SHYAM SAXENA
The object of its usefulness is always a factor for the accomplishment of the work. For example, If you are doing the work, then it is always be decided if the object is accomplished or not. In the present time, there is always a discussion whether the promotion of immoral products is legal? Whether it is valid to compare the products with others? Are they protected under free speech? The discussion is very deep and if we go deep into the waters we will find the real meaning of the gem.
WHAT ARE ADVERTISEMENTS
Advertisement is a term that is basically used to represent the qualities of the product to lure or to induce the customer to buy it. They are very generally used by various governments as well as corporate to increase their financial profit or for the social welfare of the citizens basically commercial oriented or public interest-oriented.
In John W. Rast v. Van Deman & Lewis Company, Mr Justice Mckenna, dealing with advertisements said:-"Advertising is merely identification and description, apprising of quality and place. It has no other object than to draw attention to the article to be sold and the acquisition of the article to be sold constitutes the only inducement to its purchase.” In the Indian legal context well the advertisement has been defined in various ways. In Mahesh Bhatt and anr vs UOI, the court has observed that “advertisements means to make an announcement and inform public and disseminate information through media and other means, to draw the attention of the public/individual concerned to some information.”
TYPES OF ADVERTISEMENT
The advertisements are important for profit-making. But to identify its importance we have to categorize it into 2 category
These ads are basically profit-making ads. These are for trade purposes. But during advertising the product it was strictly prohibited to denigrate the other product. But if the stats are of such a nature that is really important for the public to know about it, then it can be considered as an exception as decided in Colgate Palmolive (India) Limited v Anchor Health & Beauty Care Private Limited case.
This type of advertisement to spread awareness to the public for the scheme of any government or which is of the nature that the public should know about it like vaccination for COVID-19 Ads.
LEGALITY OF ADVERTISEMENTS
Through the definition of advertisement decided in the case of Mahesh Bhatt and anr vs UOI, we can inferred 2 important rights : 1) The right of the of customer to know every act and 2) Freedom of the Speech and expression of the advertisements
The first right i.e. Right to know is the very important right not only in India but also in the world. Each and every citizen of each and every country has a right to receive, read or listen the information of news irrespective of its importance. In case State of UP vs Raj Narain, it was held that “The people of this country have a right to know every public act by their public functionaries. The right to know is derived from the concept of freedom of speech.” Through advertisements, not only is the right to know is assured but it is directly proportional to the advertisers freedom of speech and expression. Advertisements maintain competition in the market and help in educating the public.”
In another judgement, Reliance Petrochemicals Ltd v. Indian Express it has been observed by the bench deciding the case that “We must remember that people at large have a right to know in order to be able to take part in a participatory development in the industrial life and democracy. Right to know is a basic right which citizens of a free country aspire in the broader horizon of the right to live n this age on our land under Art. 21 of the Constitution.” In the following judgements, it is really important to know that Right to know is very important right of the citizen and deprivation of access leads to infringement of article 21.
The freedom of speech and expression on which many judgement has been passed by the SC of India under Article 19 of COI. But the question is whether the Advertisements are protected under Article 19 of COI? It is an ambiguous statement to say that Advertisements are protected under article 19(1)(a) of COI. In MTNL vs Tata(ii) press, it was held advertising is a part of free speech the right to "commercial speech" or advertisement is part of the fundamental right to freedom of speech and expression guaranteed by Article 19(l)(a) of the Constitution. And from now it can only be restricted to article 19(2) of COI. However, In another judgement Indian Express Newspaper v. Union of India it was held that commercial speech is protected under the ambit of free speech and expression under Article 19 and the Supreme Court observed that “We are of the view that all commercial advertisements cannot be denied the protection of Article 19(1)(a) of the Constitution merely because they are issued by businessmen and its true character is detected by the object for the promotion of which it is employed.” But in Hamdard Dawakhana (WAKF) Lal Kuan, Delhi v. Union of India(iii), it was 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. It assumes the attributes and elements of the activity under Art. 19(1) which it seeks to aid by bringing it to the notice of the public. When it takes the form of a commercial advertisement that has an element of trade or commerce it no longer falls within the concept of freedom of speech for the object is not the propagation of ideas social, political or economic or furtherance of literature or human thought; but as in the present case the commendation of the efficacy, value and importance in the treatment of particular diseases by certain drugs and medicines. In such a case, advertisement is a part of business and it was being used for the purpose of furthering the business of the petitioners and had no relationship with what may be called the essential concept of the freedom of speech. It cannot be said that the right to publish and distribute commercial advertisements advertising an individual's personal business is a part of freedom of speech guaranteed by the Constitution.”Through the following judgement, we can easily understand the purview whether it has come under Article 19(1)(a) of COI. We can easily infer that though it has considered as free speech under Article 19(1)(a) of COI in when the advertisement has been taken the form of trade or profit-making, it has lost the protection of free speech under article 19(1)(a) of COI. However it was also held that the validity of the advertisement whether it has been for public interest or not has been decided by the important and golden plated line,” its true character is reflected by the object for the promotion of which it is employed.” and it was considered as the baseline for most of the judgement.
CONSEQUENCES OF MISLEADING AND DISPARAGING ADVERTISEMENTS
Misleading advertisements(iv) are the ads that mislead the consumers from true reality and diverted their interest through untrue facts. The court while deciding the case has to maintain the balance between commercial speech and the interest of the consumers. The court in judgement Reckitt & Colman of India Ltd. v. M.P. Ramchandran held that the company is allowed to advertise its product as best or better than the other product. It may also that the company may also show disadvantages and advantages of the product comparing to other products. But the company does not have the right to denigrate the other product as it may lead to defamation and appropriate cause of action will be taken. In various other judgement as well like Dabur India v. Colortek Meghalaya Pvt. Ltd., the court laid down certain principles:
advertisements are protected under article 19(1)(a) as free speech. An advertisement must not be false, misleading or deceptive; However, there are certain cases where the advertisement must not be taken as false, but as a glorious representation of one’s own product; and Only when the impugned advertisement goes beyond glorifying its product and is deceptive and misleading, the protection under Article 19(1)(a) would not be available.
LAWS AND BODY RELATING TO ADVERTISEMENT
At present, there is no statutory body to regulate advertisement in India. But there is a self-regulatory body established in 1985 as the Advertising standards council of India. The body helps to monitor certain standards and fairness in the domain of advertising. It has laid certain provisions for advertising and if anyone infringes the right of the consumer, then he/she is free to move complaints against them as the infringement of the code laid by them.
There is no specific legislation relating to the advertisement but the court, to safeguard the interest of the consumers, through the various laws(v), interprets the decision. Some of them are -
4) Cable television networks Regulation Act, 1995 - Under this act(vi), The transmission of any advertisement that promotes disharmony, hatred, and ill-will among different races, religion, and linguistic groups are prohibited.
STEREOTYPES OF ROLES DURING ADVERTISING A PRODUCT
The roles of group are very important while advertising. Though the advertising has got the protection under article 19(1)(a) of COI but the significance of Article 14 has not yet been identified in advertising sector.The stereotypes of gender roles is a problem lies in advertising sector as well like sectors.
The stereotypes of roles during advertisement is considered one of the problems in the present world. Therefore to study the problem and analyse and address it, the UNICEF along with Geena Davis Institute of Gender in Media ( GDI) published a report(vii) titled,” Gender Bias and inclusion in Advertising in India”. The study has been done on the most popular 1000 advertisements in India. The study finds (1) that female characters dominate screen time (59.7%) and speaking time (56.3%) in Indian ads. Most of the ads we examined passed the See Jane Test (77.8%) that measures whether there is at least one prominent female character who is not depicted as a trope or stereotype. It is important to note that while girls and women have a strong presence in Indian advertising, they are mostly reinforcing traditional gender roles by selling domestic and beauty products to the female consumers.A greater percentage of female characters is depicted as married than male characters (11.0% compared with 8.8%). Female characters are three times more likely to be depicted as parents than male characters (18.7% compared with 5.9%). While male characters are more likely to be shown making decisions about their future than female characters (7.3% compared with 4.8%), the latter is twice as likely to be shown making household decisions(viii) than male characters (4.9% compared with 2.0%).
The SDG 5 goal signed in 2015 states for the equality and empowerment of women and girls. Thus it is important to promote it through advertising and marketing. Advertising is considered as the important sector because it is the visible representation of the product depicting a male and female. India is a country where the patriarchal system is followed in most of the parts of India. Therefore in most of the ads, there is a huge disparity of gender roles. India is also considered as the country of Youth. Thus what the child sees, he will follow the same trend. Therefore to change the thinking of the youth it is important to change the advertisement industry as it is considered to be the most influential sector. And I think this change will help the society of their perception which may help us to new and Emerging India.
Advertisement is a never-ending and profitable financial sector. It is very important for the company to advertise the product to increase the sales of the product. The advertisements must be commercial or public interest. Therefore it is very important that the advertisement must give some message.
Right to advertise a right which is itself very ambiguous in nature. It is protected under Article 19(1)(a) of COI and it is considered to be free speech. But sometimes the advertisement is for commercial purposes which leads to confusion about whether the advertisement is free speech or not? Therefore I think the court through various judgement has inferred rightly by held that 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. It assumes the attributes and elements of the activity under Art. 19(1) which it seeks to aid by bringing it to the notice of the public.
Though the court has interpreted the difference between free speech, there are still differences between the gender roles in society. According to the study, we find that there is huge disparity lies in the sector of advertisement which may affect the mindset of youth and hinder the development. Therefore it is very important to address the stereotype of different gender roles.
At last I want to conclude that though the advertisements are of utmost importance but the interest of public must always be respected. Not only the free speech but also the equality between gender roles must be maintained and both gender works for the development of new and Emerging India.
iv.Advertisement to Misleading Advertisement | Horlicks Ltd. v. Zydus Wellness Products | SCC Blog (scconline.com)
v. ADVERTISING LAWS IN INDIA: WHAT THE PRESENT IS – WHAT THE FUTURE NEEDS TO BE - GameChanger (gamechangerlaw.com)
vi. Laws of digital advertising - Lexology
vii. Executive Summary - Gender Bias & Inclusion in Advertising in India - April 2021.pdf (unicef.org)
viii. Indian ads further gender stereotypes, shows study - The Hindu
 240 U.S. 342 (1916)
 2008 Bus LR 366 (Del)
 2003 (27) PTC 478 Del
 1975 SCR (3) 333
 1988 SCR Supl. (3) 212
 AIR 2019 SC 1233
 1985 SCR (2) 287
 1960 SCR (2) 671
 1999 PTC (19) 74
 2010 (42) PTC 88 (Del)
 ‘Gender Bias and Inclusion in Advertising in India’, Delhi, April 2021