This article is written by Neeraj Salodkar, pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. The article has been edited by Zigishu Singh (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).
Introduction and importance of advertisements
Advertisement can be defined as a notice made to the public at large to promote a product, service, event, vacancy, etc. The concept of advertising is as old as the existence of the business. Advertisement is synonymous with business. A business cannot thrive without advertisement. This is even more true in the modern world. In the modern world, hundreds of businesses offer identical products or services, as the case may be. How can a person choose a particular business out of a plethora of options? The answer lies in the quality of the product and the reach of the advertisement. The quality of the product depends upon the provider’s technical expertise, and so is an internal matter of the provider. However, the advertisement places reliance upon the ability of the provider to capture the attention and trust of the consumers.
Right to livelihood and advertisements
In the introduction itself, the magnitude and significance of advertisements have been proved. A business cannot survive without proper advertisement. Ergo, it can be safely said that the right to livelihood of a person or entity depends directly as well as indirectly upon the reach and quality of advertisements. The right to livelihood is a fundamental right enshrined in the Constitution of India. The right to livelihood is enumerated under:
All citizens shall have the right to practice any profession or carry on any occupation, trade, or business.
No person shall be deprived of his life or personal liberty except according to the procedure established by law.
The State shall, in particular, direct its policy towards securing that the citizens, men, and women equally have the right to an adequate means of livelihood.
In Olga Tellis v. Bombay Municipal Corporation [1986 AIR 180], the Supreme Court had stated that the ‘right to livelihood’ is borne out of the ‘right to life’ as no person can live without the means of living, that is, the means of livelihood.
Banning advertisement : ethics, and freedom of speech
Banning advertising means the prohibition of displaying the advertisement to the public. Banning advertisements directly limits the reach of the business towards the consumers. The consumers are stopped from knowing about the products and services of the business. This directly affects the profits of the business and thus affects the right to livelihood of the person or the entity. Therefore, prima facie directly infringes upon the fundamental right of the livelihood of the person. Ergo, banning advertisements should not be permitted.
Also, every person, business, and entity has the inherent right and fundamental right to advertise. It also comes under the right to free speech and expression. The fundamental right to free speech and expression is enshrined under section 19(1)(a) of the Constitution of India.
So, when a person, business, or entity, as the case may be, is banned from advertising or a specific advertisement is banned, it affects the right to livelihood and the right to freedom of speech and expression.
Ethics is a subject that refers to the moral principles that govern a person’s behaviour or activity. In other words, it is a branch of knowledge that deals with the moral principles of justness, fair play, equity, morality, etc.
With regard to the debate on ethics and freedom of speech and expression, the former must always pave the way for the latter. The former is nothing but a vague and subjective concept that is different from country to country, culture to culture, community to community, and even person to person. A person may find something to be ethical and some other thing to be unethical. Another person may find the same thing highly ethical. Freedom of speech and expression is one of the most important fundamental rights under the Constitution. It is not only a fundamental right but also an inherent human right of every person. The Universal Declaration of Human Rights adopted by almost all countries globally also recognizes the right to freedom of speech and expression as a human right. From the macro point of view, it is the right that separates a democracy from a dictatorship. In a fascist and authoritarian system, no contrary views are permitted, and only the views that are consistent or in line with the ideology of the dictator are allowed to be disseminated. The other contrarian view may be questionable, debatable, or even downright incorrect; it must not be put down. There must not be any muzzle placed on the fundamental right of freedom of speech and expression. Therefore, when there is a debate between ethics and freedom of speech and expression, the latter must always prevail.
Ban of advertisement by lawyers in India
In India, lawyers and law firms cannot advertise their services. According to Rule 36 of the Bar Council of India Rules is as follows:
“An Advocate shall not solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, touts, personal communications, interview not warranted by personal relations, furnishing or inspiring newspaper comments or procuring his photograph to be published in connection with cases in which he has been engaged or concerned.”
The above provision almost imposes a blanket ban on all kinds of advertisements by advocates and law firms. In case any person visits any of the law firms’ websites, they would be greeted with a disclaimer and a confirmation stating that the website is not meant for promotion and advertising as per the rules of the Bar Council of India.
What is the reason for such a ban? Following are some reasons for the ban:
- The legal profession is a noble profession, and advertising would commercialize it and cause dishonour to the profession;
- Advertisements are considered undignified;
- It is believed that if advertising is not prohibited, lawyers or law firms will be more inclined to create an image or a brand instead of rendering legal services efficiently.
- The advertisements may be misleading, and people shall fall prey to false advertising.
Each and every ground mentioned above is flimsy and wafer-thin. First of all, people should stop pretending that the legal profession is noble. It only remains noble on paper. The question of nobility must not arise at all. It is a profession meant to earn money while satisfying a demand for legal services. All businesses are allowed to profess and promote their services and goods. Are they not noble? Is a tailor offering his tailoring services not noble? Well, the latter is allowed to promote his business and not the former. Also, stating that advertisements are undignified is also baseless.
Almost all developed countries in the world allow advertisements for lawyers. The United States of America, the United Kingdom, Australia, Singapore, the European Union, every single country allows lawyers to promote themselves by placing advertisements in televisions channels, social media, hoardings, etc. In Bates v. State Bar of Arizona, the Supreme Court stated that lawyers have the right to advertise their services.
Certain judicial precedents
In Hamdard Dawakhana v. Union of India [AIR 1960 SC 554] and Indian Express v. Union of India [AIR 1986 SC 515], the Supreme Court had classified advertising as commercial speech. It was said that advertising comes under commercial speech, and it is beneficial for the public. The public at large stands to benefit from the information that is made available through advertisement. In a democratic country, the free flow of information is indispensable. Ergo, any curtailment of the right to advertise would directly affect the Fundamental right given in 19(1)(a) as regards the propagation, publication, and circulation of information.
However, no right is absolute. It has certain restrictions. The restrictions need to be reasonable. What is reasonable is a question of fact. In R Rajagopal v. State of Tamil Nadu [AIR 1995 SC 264], the following restrictions were allowed on the freedom of speech and expression:
2) Defamation (IPC section 499 to 502 and torts);
3) Sovereignty and integrity of India;
4) Security of the State;
5) Friendly relations with the foreign States;
6) Public order;
7) Contempt of court;
8) Incitement of an offence.
Each and every point mentioned above must be construed in the narrowest sense because these are meant to curb the right of freedom of speech and expression. In other words, the right under Article 19(1)(a) must be interpreted liberally, and the restrictions on it must be interpreted narrowly so as to give wide scope to the said right.
In a recent judgment of the Delhi High Court in Horlicks Ltd v. Heinz Private Limited [CS (COMM) 808/2017], the following was stated:
In a democratic country, the free flow of commercial information is indispensable, and the public has a right to receive commercial speech. In fact, the protection given to an advertisement under Article 19(1)(a) of the Constitution is a necessary concomitant of the right of the public to receive the information in the advertisement.”
The right to advertise is three-pronged; it is connected to the right to livelihood, the freedom of speech and expression, and the right to any profession or to carry on any occupation, trade, or business. It should be curtailed only under highly exceptional grounds, not flimsy grounds like nobility, decency, morality, ethics, etc. A careful and timely approach must have opted whenever any question of banning any advertisement is raised. Therefore, to answer the question initially posed, yes, banning advertisements is not ethical and puts unreasonable curbs on freedom of speech and expression.
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