Commercial Free Speech – What’s that?

Posted 1/16/2013

For sheer impact, almost nothing compares with the First Amendment to the American Constitution. Here it is, in its breathtaking simplicity:


Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


You needn’t be a legal scholar to appreciate, or be familiar with, the powerful resonance this articulation of fundamental freedoms has had since it was written into the US Constitution on December 15, 1791.


Almost from its inception, the First Amendment has also provided a foundation on which tradesmen and businesspeople base their freedom to communicate the virtues of their products and services to attract customers. However, the weight of judicial precedence from around the world, and in India, has tempered Commercial Free Speech (CFS) as this is known, on account of its transactional intent, by: subjecting it to exacting standards of probity and privileging consumer protection above business promotion.


Advertising self-regulation emerged in various countries, in India in the form of the Advertising Standards Council of India (ASCI) est. 1985, to ensure that businesses would not give cause to lawmakers to enact draconian legislation curbing CFS.


Why is CFS important? Here are the three principal reasons:


Informed consumer: Choices will tend to widen as markets develop and competition grows for the consumer’s attention and wallet. Consumers need to have access to relevant information that will enable them to make informed choices.


Innovation spur: Businesses will be kept on their toes by their competitor’s product and marketing innovations thereby creating a permanent incentive for being most innovative and responsive to consumer needs. Businesses that fail to serve the consumer will fail while those that do will grow creating a circle of life that optimizes economic good in the community.


Affordable media access: Advertising revenue is, by a wide margin, the biggest source of revenue for newspapers, magazines, radio stations, television channels and even the new media. You paid a mere R 2 for this newspaper. As you probably know, even its raddi value is more than that. What enables the publisher to pay for news gathering, printing, delivering the newspaper to your doorstep and the overall administration of the complex enterprise? Advertising revenue does. 


In spite of 27 years of efforts by the ASCI to ensure CFS is protected in India, key stakeholders continue to be utterly oblivious of their obligations to self-regulate. Teleshopping slots for spurious exercise equipment, newspaper classifieds for euphemistic ‘Escort’ services and magazine ‘advertorials’ for liquor brands not only damage consumer interest, they offend specific laws of the land.


While no statistics are available in the public domain, empirical evidence suggests that offenders against advertising self-regulation represent a small minority in the overall volume of commercial communication.


Unfortunately, this irresponsible minority continues to go unchallenged thereby endangering CFS for the compliant and responsible majority.