Advertisements protected as freedom of speech

By Deepak Sabharwal, Deepak Sabharwal & Associates

The Delhi High Court, in a 17 November 2018 interim order (subject to the final outcome of the case) in Horlicks and Anr v Heinz India, held that advertisements are protected under article 19(1) (a) of the Constitution as facets of commercial speech and can only be restricted in accordance with the provisions of article 19(2). The protection given to an advertisement is a necessary concomitant of the right of the public to receive the information. It also clarified that right to privacy cannot be asserted against information that is already in the public domain and that in a democratic country. The free flow of commercial information is indispensable and the public has a right to receive commercial speech.

Deepak Sabharwal
Deepak Sabharwal & Associates

In view of this order companies need to realign their advertising strategies and take advantage of the order while advertising their products and gaining distinct advantages, as against the competitions.

The court held that “a comparison which is unfavourable to a competitor does not necessarily mean that it is dishonest or unduly detrimental”. It held that the main objective of sections 29(8) and 30(1) of the Trademarks Act and the code made by the Advertising Standards Council of India was “to stimulate competition between suppliers of goods and services to the consumer’s advantage, by allowing competitors to highlight objectively the merits of various comparative products, at the same time, prohibiting practices which may distort competition, be detrimental to competitors and have an adverse effect on consumer choice”. Thus, the intent of the legislature was to allow comparative advertising while at the same time ensuring that consumers are always protected from possibly misleading advertisements.

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Deepak Sabharwal is the managing partner of Deepak Sabharwal & Associates.

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