Freedom of Expression: An Ethical Issue in Innovative Advertising

Muninder Puri Lecturer, OM Institute of Technology and Management, Hisar. 09467545009-M, e-mail: purimuninder@gmail.com & Yashodeep Yadav Lecturer, OM Institute of Technology and Management, Hisar 09996383999, e-mail: purimuninder@gmail.com

Abstract The Constitution of India contains the right to freedom, given in articles 19, 20, 21 and 22, with the view of guaranteeing individual rights that were considered vital by the framers of the constitution. The right to freedom in Article 19 guarantees the FREEDOM OF SPEECH AND EXPRESSION, as one of six fundamental rights. In a landmark judgment of the case Maneka Gandhi v. Union of India the Supreme Court held that the freedom of speech and expression

has no geographical limitation and it carries with it the right of a citizen to gather information and to exchange thought with others not only in India but abroad also. The word obscenity is identical with the word indecency of the Indian Constitution. In an English case of R. v. Hicklin, the test was laid down according to which it is seen whether the tendency of the matter charged as obscene tend to deprave and corrupt the minds which are open to such immoral influences. This test was upheld by the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra (AIR 1965 SC 881). In this case the Court upheld the conviction of a book seller who was prosecuted under Section 292, I.P.C., for selling and keeping the book The Lady Chatterleys Lover. The standard of morality varies from time to time and from place to place. Though in India, Advertisers has been using this right in a quite creative manner, there have been

instances when this particular fundamental right has been used unethically. This paper is about the prospective impact of this fundamental right given by constitution on the advertising business in India. Key Words: Fundamental rights, obscenity, indecency, ethics, advertising, creativity.

1. Introduction The field of advertising is extremely broad and diverse. In general terms, an advertisement is simply a public notice meant to deliver information and invite patronage or some other response from the target. As that suggests, advertising has two basic purposes: to inform and to persuade, and while these purposes are distinguishable both very often are simultaneously present. Though advertising is not the same as marketing (the complex of commercial functions involved in transferring goods from producers and consumers) or public relations (the systematic effort to create a favorable public impression or image of some person, group, or entity) still in many cases, it is a technique or instrument employed by one or both of these. Advertising can be very simple a local, even neighborhood, phenomenon or it can be very complex, involving sophisticated research and multimedia campaigns that span the globe. It differs according to its intended audience, so that, for example, advertising aimed at children raises some technical and moral issues significantly different from those raised by advertising aimed at competent adults. Not only are many different media and techniques employed in advertising; advertising itself is of several different kinds: commercial advertising for products and services; public service advertising on behalf of various institutions, programs, and causes; and a phenomenon of growing importance today political advertising in the interests of parties and candidates. Making allowance for the differences among the different kinds and methods of advertising, we intend what follows to be applicable to them all.

2. Advertising and Innovation Innovation generally refers to the creation of better or more effective products, processes, technologies, or ideas that affect markets, governments, and society. For a company trying to sell something, an ad is like getting a job interview with millions of people all at once. The ad wants to make a good first impression and really, really doesn't want to make people mad. But different people react differently (Chris Moore, 2010). The secret of all effective originality in advertising is not the creation of new and tricky words and pictures, but one of putting the familiar words and pictures into new relationships (Leo Burnett). With products attaining parity, communication remains the only major differentiation tool for a marketer. The immense scope for creativity it offers has made the field of communication very popular. As in the words of William Bernbach, former CEO of DDB Needham, People wont listen to you if you arent interesting, and you wont be interesting unless, you say things imaginatively, originally, freshly. Innovativeness has become the key for successful communication. If you are not creative or fresh, the chances are you will be having no one listening to you. Though creativity and innovativeness has become the backbone for successful communication between the marketer and the prospective customer or consumer as the case may be, still the work is easily said than done. Nothing can be creative if it is not freely expressed. Liberty and freedom of expression is the basic funda for creativity and innovation. Only a free mind can prove to be creative, limitations never worked in favor of creativity, and mind it they will never ever do.

3.

Innovation, Creativity & Freedom of Expression

Advertising Industry in India is on the expansion spree for the last few years and has become a serious and big business growing at a considerable rate. However, the growth of this industry is affected by the prevalent malpractices carried out by advertisers in order to lure the consumers and sustaining an edge over the competitors. Advertisement is often described as commercial speech and enjoys protection under Article 19(1) (a) of the Indian Constitution. It facilitates the dissemination of information about the sellers and their products. However, the manner of

facilitation is subject to a number of statutory provisions. The Constitution of India contains the right to freedom, given in articles 19, 20, 21 and 22, with the view of guaranteeing individual rights that were considered vital by the framers of the constitution. The right to freedom in Article 19 guarantees the Freedom of speech and expression, as one of them. Advertising being a kind of mass communication, advertisers have been using the freedom of speech in a quite creative manner, both in print and electronic media. Whether it is television, Radio, Newspaper or Magazine; this article 19 of the constitution of India has given tremendous liberty about how and what the advertisers have to say for their offering. As mentioned earlier, creativity comes out with freedom of expression and thoughts, so one can say that article 19(1) (a) of constitution of India is at the root of innovative advertising. Still the freedom of speech and of the press does not confer an absolute right to express without any responsibility. 4. Ethics and Freedom of Speech There is nothing intrinsically good or intrinsically evil about advertising. It is a tool, an instrument: it can be used well, and it can be used badly. If it can have, and sometimes does have, beneficial results such as increased sales and profit or good image, it also can, and often does, have a negative, harmful impact on individuals and society. Ethics is such a subjective term what is ethical to one person may not be to another. Moreover the concept of what is ethical is not fixed in stone for example it used to be thought ethical to advertise cigarettes but not condoms however, these days the position has completely reversed. The reality is that ethical is not an absolute term and the word ethics, strictly speaking, merely means the moral code by which someone decides right from wrong and is therefore highly personal. The difference between what is ethical and what is termed as unethical is same as the difference between the term persuasion and manipulation. Manipulation implies persuasion with the intent to fool, control or contrive the person on the other side of the conversation into doing something, believing something, or buying into something that leaves them either harmed or without benefit. It may also imply that you are concealing a desire to move them to your point of view in a way that will benefit you. And if this benefit were disclosed, that revelation would make the other

person far less receptive to your message because it would either demonstrate a strong bias towards their lack of benefit in the exchange or demonstrate an ulterior motive for the attempt at persuasion, often driven by one-sided benefit, or some combination of both. Lord Denning, in his famous book Road to Justice, observed that press is the watchdog to see that every trial is conducted fairly, openly and above board, but the watchdog may sometimes break loose and has to be punished for misbehavior. With the same token Clause (2) of Article 19 of the Indian constitution enables the legislature to impose reasonable restrictions on free speech under the following heads Security of the State, Public order, Decency and Morality, Contempt of court, Defamation, Incitement to an offence Sovereignty and integrity of Country.

      

4.1 Obscenity, Decency and Morality: The word obscenity is identical with the word indecency of the Indian Constitution. In an English case of R. v. Hicklin, the test was laid down according to which it is seen whether the tendency of the matter charged as obscene tend to deprave and corrupt the minds which are open to such immoral influences. This test was upheld by the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra (AIR 1965 SC 881). In this case the Court upheld the conviction of a book seller who was prosecuted under Section 292, I.P.C., for selling and keeping the book The Lady Chatterleys Lover. The standard of morality varies from time to time and from place to place.

4.2 Defamation: The clause (2) of Article 19 prevents any person from making any statement that injures the reputation of another. With the same view, defamation has been criminalized in India by inserting it into Section 499 of the I.P.C.

5. Problem in this Current Scenario Having said that advertising, creativity, innovation and freedom of expression or speech are interrelated in manner or two, and that the constitution of India has given full authority to every national to express whatever he feels, the so called marketers in India had misused this liberty provided by the constitution. Unnecessary sex appeal elements in the commercials , using superlative terms without any evidence from any source, ill comparison with competitors products had made it a guileful game rather than a creative one. Sex has been employed in advertising since the beginning of advertising. At the beginning, wood carvings and illustrations of attractive women (often unclothed from the waist up) adorned posters, signs, and ads for saloons, tonics, and tobacco. In several notable cases, sex in advertising has been claimed as the reason for increased consumer interest and sales. The use of sex in advertising can be highly overt or extremely subtle. It ranges from relatively explicit displays of sexual acts, to the use of basic cosmetics to enhance attractive features. In contemporary mainstream consumer advertising, sex is present in promotional messages for a wide range of branded goods. Ads feature provocative images of well-defined women (and men) in revealing outfits and postures selling clothing, alcohol, beauty products, and fragrances. It is not only about the sexuality used in very exorbitant way in advertising but also, false claims about a product or service to do wonders with your body or personality is also a big issue, there in a very thin line between the term creative and misrepresentation. Direct comparison with competitors in the ad commercials has taken a new step with the RIN vs. TIDE case, where after the aggressive response from the TIDE ultimately forced HUL (Hindustan Unilever Ltd.) to pull back the commercial from the media. In the latest case between the two brands ROYAL STAG and McDowells the situation was not very much different from the tide and Rin case. And again the culprit was forced to pull back the ad commercial from the media after a strong aggressive response from the competitor. Several other examples can be quoted which are taken as creative but are other way around. Such as LUX-COZY, AXE-TEMPTATION, AMUL-MACHO, AMBASSADOR VS. PEUGEOT. Number is increasing day by day. Though commercials related to giving hundred percent satisfaction, contraceptive ads have been banned now a days in the country.

6. Course of Action Ministry of Information & Broadcasting has banned the transmission and re-transmission of the advertisements of indecent, vulgar and suggestive nature. It has also taken some strict actions towards the companies which are not working according to the rules set by MIB. A set of guidelines has been created to control the content that is/or can be broadcasted on national television. Such as; Advertising carried in the cable service shall be so designed as to conform to the laws of the country and should not offend morality, decency and religious susceptibilities of the subscribers. No advertisement shall be permitted which derides any race, caste, color, creed and nationality; and is against any provision of the Constitution of India. Tends to incite people to crime, cause disorder or violence or breach of law or glorifies violence or obscenity in any way; presents criminality as desirable; Exploits the national emblem, or any part of the Constitution or the person or personality of a national leader or a State dignitary; In particular, no advertisement shall be permitted which projects a derogatory image of women. Women must not be portrayed in a manner that emphasizes passive, submissive qualities and encourages them to play a subordinate, secondary role in the family and society. The cable operator shall ensure that the portrayal of the female form, in the programmes carried in his cable service, is tasteful and aesthetic, and is within the well established norms of good taste and decency; Advertisements which exploits social evils like dowry, child marriage, or promotes directly or indirectly

production, sale or consumption of cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants and infant milk substitutes, feeding bottle or infant food. No advertisement shall be permitted, the objects whereof, are wholly or mainly of a religious or political nature; advertisements must not be directed towards any religious or political end. No advertisement shall contain references which hurt religious sentiments. The goods or services advertised shall not suffer from any defect or deficiency as mentioned in Consumer Protection Act, 1986. No advertisement shall contain references which are likely to lead the public to infer that the product advertised or any of its ingredients has some special or miraculous or supernatural property or quality, which is difficult of being proved. The picture and the audible matter of the advertisement shall not be excessively loud; No advertisement which endangers

the safety of children or creates in them any interest in unhealthy practices or shows them begging or in an undignified or indecent manner shall not be carried in the cable service. Indecent, vulgar, suggestive, repulsive or offensive themes or treatment shall be avoided in all advertisements. No advertisement which violates the Code for self-regulation in advertising, as adopted by the Advertising Standard Council of India (ASCI), Mumbai, for public exhibition in India, from time to time, shall be carried in the cable service. 7. Conclusion Study of the complete scenario suggests that, though the ministry of information and broadcasting has taken some serious steps to control the unethical content in the advertisement commercials, still there are some loop holes in the guidelines set by the MIB, and the marketers have been using these loopholes in the name of freedom of speech and expression. No doubt the actions are efficient but, they need to be more effective.

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