Advertising and Censorship

A

Dissertation on

Advertising and Censorship

By

Kapil Suravaram

NALSAR ID No. Mlh07_03

A Project paper submitted in partial fulfilment of

P.G. Diploma in Media Laws for Module – 4 (Advertisement & Law)

AUGUST 2004

NALSAR UNIVERSITY OF LAW, HYDERABAD

Table of Contents

Table of Contents. 2

INTRODUCTION.. 3

METHODOLOGY.. 4

UNDERSTANDING CENSORSHIP & RELEVENT HISTORICAL CONTEXTS. 5

ADVERTISING.. 18

CASE STUDIES. 20

ADVERTISING CONTENT & MEDIA REGULATION.. 21

ISSUES REQUIRING REGULATION OF ADVERTISING CONTENT.. 25

CONCLUSIONS. 26

BIBILOGRAPHY.. 27

INTRODUCTION

Censorship has been a topic of heated debate for decades. This debate has helped stabilise the censorship laws. However Censorship of Advertising is far from any kind of stabilisation. The creativity of the advertising industry seems to reflecting more in skirting the regulations they should be following.

The recent effort of the government to stop Liquor Advertisements has become a very comic story with the liquor majors having increased their Advertising budgets and continuing advertisements in a surrogate manner.

There are advertisements that are making clear statements against rival companies in the most derogatory manner. These advertisements continue despite efforts of rival companies to seek legal action.

Then there are advertisements making wildly false claims as is the case of a mineral water company. The company claims two hundred percent extra oxygen in its water, which is not possible. The company at the same time is promoting the brand name of its other product - Gutkha. The Advertising of Gutkha is otherwise banned.

This study aspires to look into these issues through the lens of the regulations controlling them.

METHODOLOGY

Advertising industry is growing by heaps and bounds save for a small hiccup in the post 9/11 situation. Advertising has become a battle field for multi-billion dollars wars. Advertising wars between multi-national brands are being as keenly or more than military wars. Furthermore these wars are fought in the drawing rooms of each and every household that media has access to. It is happening in our Tv’s, Newspapers, Radio, Internet, on the bill boards on the streets and were not. For a sector that has such outstanding reach, it is very important that there be a complex mechanism in place to regulate it. This study makes an effort to trace the contours of the mechanism & its strengths and weaknesses. To do so the study first dwells into the concept of censorship and its historical experiences. Then it tries to understand Advertising and the rules regulating it. To get a inside view of the subject, some case studies have also been taken into consideration and the advertising content and its regulatory structures are studied. Based on these insights the issues that require regulation of content in advertising are listed and some conclusions drawn.

UNDERSTANDING CENSORSHIP & RELEVENT HISTORICAL CONTEXTS[1]

Censorship has followed the free expressions of men and women like a shadow through history. In ancient societies, such as those of Israel or China, censorship was considered a legitimate instrument for regulating the moral and political life of the population. In China, the first censorship law was introduced in 300 AD. The origin of the term censor in English can be traced to the office of censor established in Rome in 443 BC. In Rome, as in the ancient Greek communities, the ideal of good governance included shaping the character of the people. Hence censorship would have been regarded as an honourable task. The most famous case of censorship in ancient times is that of Socrates, sentenced to drink poison in 399 BC for his corruption of youth and his acknowledgement of unorthodox divinities. But it is fair to assume that Socrates was not the first person to be severely punished for violating the moral and political code of his time. This ancient view of censorship, as a benevolent public service in the best interest of the people, is still upheld by countries such as China, as it was advocated by the rulers of the Soviet Union (USSR), responsible for the longest lasting and most extensive censorship of the 20th Century.

The struggle for freedom of expression is as ancient as the history of censorship. The playwright Euripides (480 -406 BC) defended the true liberty of freeborn men; the right to speak freely, and he added diplomatically: "Who neither can nor will may hold his peace. What can be more just in a State than this?".

Free speech and freely expressed thoughts and ideas may have posed problems to pre-Christian rulers, but hardly more troublesome than to the guardians of Christianity, as orthodoxy became established. Helpful measures to fend off a heretical threat to Christian doctrine were introduced, such as the Nicene Creed, promulgated in AD 325. But as more books were written, copied and increasingly widely disseminated, subversive and heretical ideas were spread beyond control. Consequently, censorship became more rigid and punishment more severe. The problem increased with the invention of the printing press in Europe in the middle of the 15th Century. Although printing greatly aided the Catholic church and its mission, it also aided the Protestant Reformation and "heretics" such as Martin Luther, thus the printed book became an arena for a religious battle. In western history, the very term censorship takes on a whole new meaning with the introduction of the Index Librorum Prohibitorum - lists of books banned for their heretical or ideologically dangerous content, issued by the Roman Catholic Church, and with the Sacred Inquisition as the zealous guardians, banning and burning books and sometimes also the authors. The most famous of banned authors undoubtedly being Galileo in 1633. The most famous victims of the Inquisitions trials being Joan of Arc (1431) and Thomas More (1535).

The first Index of Prohibited Books was drawn up by order of Pope Paul IV in 1559. The lists were issued 20 times through the centuries by different popes, the last issued as recently as in 1948, and finally suppressed in 1966.

The Catholic Church, controlling universities such as the Sorbonne, also controlled all publications through its decree in 1543 that no book could be printed or sold without permission of the church. Then in 1563, Charles IX of France decreed that nothing could be printed without the special permission of the king. Soon other secular rulers of Europe followed suit, and scientific and artistic expressions, potentially threatening to the moral and political order of society, were brought under control through systems of governmental licence to print and publish.

The dual system of censorship created through the close alliance between church and state in Catholic countries, was also exported to the forcibly colonised countries in the Americas.

"The Spanish authorities were not only worried about the religious situation in Europe, but also in America. The possibility that America could be invaded with ideas from protestant countries was considered a permanent threat." Notes the Peruvian historian Pedro Guibovich in his article The Lima Inquisition and Book Censorship.

The Inquisition established in Peru in 1568, was part of a colonial policy by Philip II of Spain, designed to deal with the political and ideological crisis in the Peruvian viceroyalty. The Peruvian system was a blueprint of the Spanish, entailing control of the import of books, the inquisitorial officers periodically examining ships and luggage in ports, inspecting libraries, bookstores and printing houses. When the Inquisition was established in Peru in 1569, the Tribunal's district ranged from Panama to Chile and Rio de La Plata.

Oppressive and sinister as the censorship executed by the Inquisition no doubt was to the peoples of the colonies of the Americas, hardly anything can compare to the devastating effect of the destruction by the Spanish invaders of the unique literature of the Maya people. The burning of the Maya Codex remains one of the worst criminal acts committed against a people and their cultural heritage, and no less a terrible loss to the world heritage of literature and language.

The importance of dissemination of information

As vital to dissemination of information as the art of printing was, was also the development of regular postal service. First established in France in 1464, the postal service soon became the most widely used transportation system of person-to-person and country-to-country communication. However, the postal service also came to play a crucial role as an instrument of censorship in many countries, particularly in times of war, not least efficiently employed by the British Empire during the first half of the 20th Century. Even today the postal service remains a tool of censorship in many countries where the import of prohibited literature, magazines, films etc. is regulated

In Europe, printing naturally also spurned the development of newsletters/papers. The Relation of Strasbourg, regarded as the first regularly printed newsletter, appeared in 1609. This was soon followed by the establishment of newspapers in other European countries catering for a growing public demand for news and information, such as in Switzerland in 1610, the Habsburg domains in central Europe in 1620, England in 1621, France in 1631, Denmark in 1634, Italy in 1636, Sweden in 1645, and Poland in 1661. In parts of India, however, newsletters had been circulated already from the 16th century.

As the number of newspapers rapidly grew, greatly improving the sources of information accessible to the literate peoples of Europe, so did also the official concern of the harm inflicted on peoples morals and minds, particularly in times of war or internal crisis. Thus the Licensing Act of 1662 was ruthlessly enforced in Britain until after the Great Plague of 1664-65. In Germany, the press was effectively inhibited during the Thirty Years' War (1618-48), not only through censorship, but also through trade restrictions and lack of paper. Notably, such means of restriction are still today effectively hampering the development of a free press in many countries across the world.

The age of Enlightenment and freedom of expression

The powerful bureaucratic system of pre-censorship practised in late Medieval Europe, was the target for John Milton in his much disputed speech "Areopagitica" to the Parliament of England in 1644, vigorously opposing the Licensing Act passed by Parliament in 1643. In Milton’s noble plea for freedom of the press, he also quoted Euripides, adding the weight of the ancient struggle for free expression to his own arguments. Milton's strong advocacy in defence of free expression contributed to the final lapse of the Licensing Act in Britain in 1694. Milton’s "Areopagitica" also became one of the most quoted sources of argument for freedom of expression, and remains today a true beacon of enlightenment.

The 17th and 18th centuries represented a time of reason; the rights, liberty and dignity of the individual coming into political focus, and subsequently becoming subject to legislative protection. Sweden was the first country to abolish censorship and introduce a law guaranteeing freedom of the press in 1766, then Denmark/Norway followed suit in 1770. Today, the First Amendment of the Constitution of the United States ( 1787 ), guaranteeing freedom of speech as well as of the press, is regarded as the root of the comprehensive protection of freedom of expression in western countries, along with the much quoted statement by the French National Assembly in 1789:

"The free communication of thought and opinion is one of the most precious rights of man; every citizen may therefore speak, write and print freely."

Although censorship, as a frequently applied legislated instrument, lost ground during and after the 18th century in Europe, governments maintained legal frameworks curbing freedom of expression. The instruments now being acts of national security, criminal acts on obscenity or blasphemy, or laws on libel. In the United States, were formal censorship never existed, the law on libel and thus the courts became the testing ground for free expression. This was also the case in Britain after the lapse of the Licensing Act in 1694. Subsequently, the courts became the controllers in many a country embracing the principles of freedom of expression. Laws of libel were often subject to loose interpretations, giving license to continued restraint, harassment, and persecution of the mounting challenges by artists, journalists and other intellectuals to the contemporary concepts of national security, blasphemy and obscenity.

Censorship and the establishment of newspapers

In the 18th century, the press in most of Europe was frequently subject to strict censorship. The 19th century saw the emergence of an independent press, censorship gradually having to cede to the demand for a free press. Yet this was also an age of strict press censorship in countries such as Japan; their first daily newspaper (1870), the Yokohama Mainichi, born in a time when arrests of journalists and suppression of newspapers were all too common. Also colonial governments, such as those of Russia or Britain, exercised a tight control on political publications in their domains; Russia as in the Baltic states, Britain as in Australia, Canada, India and the colonised Africa. In Australia, full censorship lasted until 1823, while in South Africa a press law was passed in 1828 to secure a modicum of publishing freedom. In South Africa however, politics of racial division prevented freedom, being totally suppressive during Apartheid, only to be abandoned in the last decade of the 20th century. In modern times, restrictions on press freedom continue in many African and Asian countries, in eastern Europe, and in Latin America.

Censorship in libraries - the benevolent public concern for morality

Although government-instituted censorship had apparently been abandoned in most western countries during the 19th and most of the 20th century, public concern for offensive literature did not subside. Subsequently, public libraries were expected to act as the benevolent guardians of literature, particularly concerning books for young readers. This, in turn, gave teachers and librarians licence to censor a wide range of books in libraries under the pretext of protecting readers from morally destructive and offensive literature. Surprisingly, in liberal minded countries such as Sweden and Norway, boasting the earliest laws on press freedom, surveillance of public and school libraries remained a concern to authors and publishers even through the latter part of the century. No less surprising is the die-hard tradition of surveillance of books in schools and libraries in the United States. One of the most stunning examples being Mark Twain's "The Adventures of Huckleberry Finn", first banned in 1885 in the Concord Public Library, but still in 1984 in jeopardy, according to the author Arthur Schlesinger in the "Censorship - 500 years of conflict". In spite of the Library Bill of Rights, the library profession’s interpretation of the First Amendment of the US Constitution, public and school libraries in the US are still subject to pressure from groups claiming to represent the interest of parents or religious moral codes, having to face demands to remove books of "questionable content". However, this practice has not remained unchallenged by the libraries themselves. The American Library Association – ALA – through its Office of Intellectual Freedom, maintains statistics on attempts to censor libraries in various states, and regularly publish lists of challenged books.

However, censorship of libraries is far from a recent practice. On the contrary, libraries have been the targets of censorship since ancient times. History is littered with the destruction of library collections, and libraries themselves becoming flaming pyres on all continents, the deliberate burning of a library recorded in China as early as in 221 BC. Although the destruction by fire of 400,000 rolls in the Bibliotheca Alexandrina in 47 BC was by all accounts accidental, the burning of the entire collection of the University of Oxford library in 1683 was on direct orders from the king. Even in the 20th century, the burning and destruction of libraries has been extensively applied by rulers, as a warning to subversives and a method of ethnic language purging, as was the case in Sarajevo and Kosova. In 1991 the Serbian government banned Albanian as a language of instruction at all levels of education. During the period 1990- 99, all the libraries in Kosova were subjected to the burning or destruction of the Albanian–language collections, according to reports from the joint UNESCO, Council of Europe and IFLA/FAIFE Kosova Library Mission in 2000. The Serbian governments deliberate cultural ethnic cleansing on the brink of a new millennium will stand as a distressful monument to the enduring tradition of destructive censorship.

Public book pyres were favoured by the Nazi–regime in Germany in the late 1930s as one of their many brutal methods of censorship. The destruction of libraries was systematically applied by the rulers of the Union of Soviet Socialist Republics, USSR, infamous for the longest lasting and most extensive censorship in the 20th century.

Censorship in the Union of Soviet Socialist Republics – the longest lasting in the 20th century

The Russian empire, having a long tradition of strict censorship, was slow to undergo the changes that central European countries had passed a century before. Censorship reforms were started in a single decade of tolerance, from 1855 to 1865 during the reign of tsar Alexander II, when the transition was made from legislation on pre-censorship to the punitive system based on legal responsibility. During the decade, the press enjoyed greater freedom and more radical ideas were voiced, thus censorship laws were re-imposed in 1866, practically eliminating the basic ideas of the reform. Only half a century later, pre-censorship was abrogated in the law of 1905-1906. Finally, all censorship were abolished in the decrees dated April 27, 1917 issued by the Temporary Government. However, the freedom was short lived. The decrees were only in force until October 1917. Then a new, long and extensive era of strict censorship began, now executed by the revolutionary rulers of the USSR, lasting until the end of the 1980s. Taking into account the long history of strict censorship during tsar-regimes, the Russian people have only been without formal censorship in the last decade of this millennium.

The new order of the USSR meant drastic political and economic changes, but also the areas of culture, education and religion were subject to revolutionary changes, all with the idealistic intentions of relieving the new Soviet citizen of the suppressive yokes of feudalism. Hence religion, regarded as gross and misleading superstition, was targeted only a few months after the revolution. In the spring of 1918, a decree was issued formally separating church from state, followed by strict prohibitions imposed on religious bodies along with nationalisation of all church property. In 1922, the central censorship office was established, known for short as Glavlit. Aiming to purge the Soviet society of all expressions regarded as destructive to the new order and contagious to the minds of people, the Glavlit had absolute authority to subject the performing arts and all publications to preventive censorship, and suppress political dissidence by shutting down "hostile" newspapers. However, in the early 1920s during the time of Lenin and Trotsky, writers and artists were granted creative freedom, provided they observed the rule of not engaging in overt political dissent. This leniency may be attributed to the regime’s recognition of the importance of intellectuals for the conveyance of the new ideals. Although the majority of intellectuals were opposed to the revolution, many artists and intellectuals supported the revolution’s ideals of equality for all and freedom from slavery and poverty. Also Russian artists had embraced the ideals of the European Modernist Movement, already in 1915 forming the visionary Avant Garde aesthetic movement, surviving until 1932. Thus, the first years of the new order saw a degree of innovation in literature and the arts, starkly contrasting to the overall political rigidity of the regime. All leniency was to end with the Stalin regime. Hence forward, the censorship system became all the more elaborate, and the methods of purging increasingly sinister; authorising printing, banning publications and preventing import of foreign books.

The Glavlit system exported to countries occupied by the USSR

After a time, the strict censorship system of the USSR was also imposed on all occupied countries and satellite-states, many of whom had been subject to the censorship of imperial Russia. When Soviet occupied independent Lithuania in 1940, a "bibliocide" started, lasting in effect until 1989, only interrupted in 1941-1944 by the German occupation, infamous for their book pyres and deadly censorship in Germany and occupied countries. In the study "Forbidden Authors and Publications", Klemensas Sinkevicius describes the strategy of the Soviet censorship in occupied Lithuania performed by zealous local inspectors, engaged by the then infamous Glavlit. "After the restoration of Lithuanian independence we got an opportunity to study the most tragic period in the history of Lithuanian libraries" Sinkevicius concludes. His study for the National Library of Lithuania is the first of its kind in Lithuania. Many of the works of Lithuanian writers now only exist in the long list of banned and destroyed books.

WW II – Nazi Germany and occupied countries

"From these ashes will rise the phoenix of the new spirit", Goebbels optimistically declared as the massive funeral pyres of some 20 000 volumes of offensive books were devoured by flames in Germany in 1933. Numerous book pyres were enthusiastically lit by the Hitler Jugend, the young members of the fanatical Nazi movement, growing stronger and gaining ever more power in Austria and Germany during the 1930s. In order to cleanse the minds of people and society, any book written by a Jewish author, or a communist or humanist, was fed to the flames. "Where they have burned books, they will end in burning human beings", observed the German author Heinrich Heine. He was sadly right, as proved by Nazi–Germany’s gruesome mass extermination of people, including at least 6 million Jews, but also Romani, communists, dissidents, handicapped – any deviators from the ideal "Arian Race".

Hitler, the omnipotent Fürer of the Third Reich, also implemented the severe censorship and intolerable propaganda machine of the Nazi regime to all countries occupied during WW II (1940-45). In occupied countries, national newspapers, publishers and radios were taken over at once, or shut down. In countries such as Norway, strict censorship was put in place, making listening to "foreign" radio or producing, reading or disseminate illegal newspapers punishable with death.

Despite the threat of severe punishment, the illegal press flourished in occupied countries such as Norway, where more than 400 newsletters and papers were published by groups of activists recruited from all parts of society. As activists were arrested or had to flee the country, new volunteers took on the illegal work, keeping the chain of communication unbroken until the end of the war. In Denmark, 541 illegal newsletters and papers were published, and as in Norway, members of the illegal groups were executed or died in concentration camps because of their activities.

The illegal and underground publishing of all suppressed nations represents the most outstanding monuments to the people’s relentless struggle for freedom of expression. Most outstanding is the vigorous illegal (samizdat) press and publishing in the former East Block countries, during the Soviet and the Nazi reign, representing both a firm stand against brainwashing, and against the most devastating consequence of censorship; oblivion. From countries such as Poland, writers’ manuscripts were smuggled out and printed abroad. Classical and contemporary works of foreign writers were translated into Polish and smuggled back into Poland.

Apartheid censorship in South Africa

The Apartheid regime in South Africa (1950- 1994), in upholding their cruel policy of racism, doted on severe censorship, torture and killings, not only to strangle the South African extra-parliamentary liberation movement - the African National Congress, ANC, - but seemingly also to erase memory. In this respect, the prohibitive policies of the Apartheid regime strongly resembles that of the USSR. The censorship affected every aspect of cultural, intellectual and educational life, and although grimly menacing, the magnitude of the banning of ANC-symbols; buttons, T-shirts and lighters included, was truly paranoid. Detailed information about all items censored has been carefully compiled by the South African publisher Jacobsen, in the "Jacobsen's index of objectionable literature" (1996). This admirable work is restoring to memory and for posterity all the details of the Apartheid madness. The relentless struggle against the Apartheid regime has been subject to numerous studies, notably also by the South African historian Christopher Merrett, who besides producing books such as "A Culture of Censorship", also has compiled a complete list of censorship through the entire history of South-Africa. The list included in the Beacon for freedom of expression database, has been given with the gracious consent of the author.

"Truth is the first victim in a war" - the press in times of war

All through its 400 years history, the media has been the first hostage to be taken, either by occupying forces or by military dictators when overthrowing governments. As a rule, the press has been faced with the choices of gagging or closure, and many a respectable newspaper was simply taken over by or submitted to becoming the mouthpiece of the new rulers. In the years prior to the outbreak of World War II, the press in Germany, Italy, Spain, and Portugal was subject to rigid Fascist censorship, no less strict than that practised by the enemy – the USSR. The stranglehold on the press tightened considerably during World War II, not least in countries like Japan. In the United States and Britain there was an expected clampdown on news coverage, as was the case during World War I. The British and American press and media, often submitting voluntarily to self-censorship, was also the targets of a steady flow of official news and propaganda issued by The British Ministry of Information and the U.S. Office of War Information. In USA, a "Code of Wartime Practices for the American Press" was also issued by the Office of Censorship.

The war of words is less lethal, but no less dirty than the war of weapons. The combination of demonising the enemy and whitewashing one's own cruel deeds, while blindfolding the people through rigid censorship, have been favoured strategies of many a warlord and dictator throughout history. Some of the worst examples of rigid press censorship induced by military dictators in the 20th century were those of Spain (Spanish Civil War 1936-39 - the regime lasted from 1936-1975), Greece 1967 -1974, Chile 1973-1990 and Nigeria 1966-1999. Also Turkey, under the pretext of ensuring national security against "the enemy within" – the Kurd minority - still upholds strict censorship through the Anti–Terror Act of 1991, in spite of countless pleas from the international society.

The role of media in war was starkly demonstrated in the spring of 1999, when the NATO alliance started the campaign of bombing, designed to force the Yugoslav government to stop ethnic cleansing in Kosova and secure peace and human rights. The Yugoslav government, having clamped down on independent national media for almost a decade, expelled from Kosova all foreign media and independent observers. Thus the government gained unlimited license to kill, terrorise and deport hundreds of thousands of ethnic Albanians from Kosova. Due to their leader’s archaic policy of censorship and propaganda, the Serb population of Yugoslavia lost all sympathy in international public opinion. But also the NATO alliance launched a war of words, portraying their "war for peace" as just and clean. When in April 1999 it became indisputably evident that NATO bombs had killed Kosova-Albanian refugees, NATO Headquarters informed the international media in a manner that was characterised as misleading by the international media. NATO’s deliberate and deadly bombings of the radio and television stations in Belgrade were also strongly criticised as contradictory to the humanistic aims of the NATO operation.

"Those that live by the pen shall die by the sword"

With these words the Armed Islamic Group (GIA) declared war on the media in Algeria, instigating one of the most chilling contemporary examples of the deliberate murder of the messenger. From May 1993 until the end of 1995, 58 editors, journalists and media workers were systematically executed; 9 in 1993, 19 in 1994 and 24 in 1995, with the intent of punishing and scaring journalists from acting as mouthpieces for the Algerian authorities. This slaughtering was triggered by the conflict exploding when the Algerian army disrupted the election of a National Assembly in 1992, to prevent what seemed the be the certain victory of the fundamentalist party Islamic Salvation Front (FIS). The Algerian press, having long suffered rigorous censorship, not least during French colonial rule, was caught in the crossfire between the authorities and the opposition. As the conflict mounted, the authorities introduced sterner press censorship under the pretext of national security, clamping down ever harder on the coverage of civilian killings, introducing in 1996 rigid pre-censorship of all "non official" reports on the bloody conflict. With Algeria being off-limits to foreign press and independent observers, the killings could go on behind closed doors. By 1998, independent observers estimated that between 80 000 and 100 000 civilians had fallen victim to the frenzied slaughter. Only then, in 1998, did the Algerian government amend their press law, no doubt thanks to the incessant pressure from independent freedom of expression organisations.

Modern day Inquisition in Iran

Even though centuries and cultures apart, there are striking resemblance between the arguments and zealousness of the Inquisition of the Catholic Church and that of the Ministry of Islamic Guidance in the modern Islamic Republic of Iran. After a period of a liberalised climate for publishing following the Islamic revolution in 1979, the war against Iraq (1981) and the combat against opposition groups within the Islamic Republic gave the government opportunity to introduce strict censorship. When the war ended in 1988, censorship became monopolised by the traditional extremists, eager to purge the Iranian society of freedom-seekers and dissenters. The Supreme Council of Cultural Revolution (SCCR) issued in the spring of 1988 resolutions on limitations of publishing. With the aid of the revolutionary courts, offenders have regularly been charged with propaganda against the Islamic Republic and the desecration of public morals, often resulting in executions. Even though the people of Iran in two successive elections, the latest in 2001, have elected a liberal president, the Supreme Council of Cultural Revolution holds the reins of power, and the revolutionary courts still continue to gag the press and punish editors and journalists.

"Not to forget and never let it happen again"

When signing the Universal Declaration of Human Rights in 1948, the members of the newly established United Nations pledged to remember the millions of people murdered in Nazi Germany. But history has repeated itself, also in full view of the international media-saturated community, as in Rwanda in 1994 and in the Yugoslav dominions in the I990s. And yet, most member countries of the UN has signed the declaration, and a substantial number of countries across the world have made legislative adjustments in accordance with the principles of Article 19, even in sensitive areas such as the official secrets acts. Reality, alas, contradicts the theory. In 1998 alone, the year of international celebrations of the 50th anniversary of the United Nations Declaration of Human Rights, independent human rights and freedom of expression organisations reported violations of freedom of expression in almost 120 countries; 118 journalists were imprisoned in 25 countries and 24 journalists were murdered. Numerous newspapers, publishers and broadcasters were subject to banning, closure or violent attacks such as bombings. Currently, most of the serious attacks on freedom of expression are committed in countries in the Southern hemisphere or former East Block countries, and even today, more than half the world's population still lacks an independent press.

Considering the vital importance of the written media in the process of democratisation and transparency in any society, and the no less important contribution of the written word to the growth of literacy in numerous countries, this is indeed a tragic state of affairs.

However, while Western governments and human rights defenders justly criticise the abuses committed in countries of the Southern Hemisphere or former East Block countries, we should in all fairness not forget the dark history of censorship in Europe and the colonised countries, nor our cruel suppression of indigenous cultures, languages and non-written literature. After all, no amount of past crimes can ever justify present crimes. It is a crucial mistake, made by too many Western defenders of human rights, not to acknowledge our past, and fail to criticise our allies for their current abuses of human rights. The non-existent European criticism in the UN of the systematic purging of libraries in Southern France by Front National, gives perpetrating governments such as those of China or Burma a welcome opportunity to accuse the Western countries of being one-sided in their criticisms. If Western countries, when protesting violations committed in the Southern hemisphere, more readily admitted their past and the violations of their allies, the climate of the vital dialogues might improve.

The painful paradox of history's worst crimes continuing to repeat themselves can not be resolved by creating a database such as the Beacon for freedom of expression, but it will provide another tool for enlightenment and actions by people, thus hopefully contributing to end the violations.

Thanks to the generous contribution by numerous universities and national libraries, institutions and freedom of expression organizations across the world, this memory bank now contains guides to the accumulated documentation and knowledge of the world status on censorship and freedom of expression for more than 2000 years, as well as many thousands of books and newspapers that fell subject to banning through most of the last millennium.

Each entry of title and author’s name represents a minute but significant monument to memory, the entire collection of titles in the database still representing but a small section of the books and newspapers that have been censored in the history of the world. Yet the Beacon for freedom of expression is an electronic monument under construction that will be steadily growing through the continued joint efforts of all the very competent partners concerned.

ADVERTISING

Advertising communication is a mix of arts and facts subservient to ethical principles. In order to be consumer-oriented, advertisement will have to be truthful and ethical. It should not mislead the consumer. If it so happens, the credibility is lost.

In order to enforce an ethical regulating code, the Advertising Standards Council of India was set up. Inspired by a similar code of the Advertising Standards Authority (ASA) UK, ASCI follows the following basic guidelines in order to achieve the acceptance of fair advertising practices in the interest of the consumer: -

Ø To ensure the truthfulness and honesty of representations and claims made by advertisements and to safe guard against misleading advertising;

Ø To ensure that advertisement are not offensive to generally accepted standards of public decency;

Ø To safeguard against indiscriminate use of advertising for promotion of products which are regarded as hazardous to society or to individuals to a degree or of a type which is unacceptable to society at large; and

Ø To ensure that advertisements observe fairness in competition so that the consumers need to be informed on choices in the market places and canons of generally accepted competitive behaviour in business are both served.

Few Complaints filed with ASCI –

o HLL’s Clinic All Clear Dandruff shampoo claimed that it had ZPTO, the special ingredient in Clinic All Clear that stops dandruff. This claim was found to be untrue since ZPTO is a micro biocide, when in reality, dandruff is known to be caused by several other factors, besides, microbes. HLL’s multi-crore research wing ‘clearly overlooked’ this aspect. The advertisement has been withdrawn.

o Novartis India claimed that their disposable contact lenses ensure there is no protein build-up. This claim was found to be totally false. The truth is that build up is a natural biological phenomenon with all contact lenses. The ad was discontinued.

The other legislations affecting the area of advertising are: -

Ø Drug and Magic Remedies (Objectionable Advertisement) Act, 1954 – This Act has been enacted to control the advertisements of drugs in certain cases and to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities and to provide for matters connected therewith.

CASE STUDIES

In Hamdard Dawakhana v. Union of India[2] the Supreme Court was faced with the question as to whether the Drug and Magic Remedies Act, which put restrictions on the advertisements of drugs in certain cases and prohibited advertisements of drugs having magic qualities for curing diseases, was valid as it curbed the freedom of speech and expression of a person by imposing restrictions on advertisements. The Supreme Court held that, an advertisement is no doubt a form of speech and expression but every advertisement is not a matter dealing with the expression of ideas and hence advertisement of a commercial nature cannot fall within the concept of Article 19(1)(a).

However, in Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd[3], a three judge bench of the Supreme Court differed from the view expressed in the Dawakhana case and held that ‘commercial advertisement’ was definitely a part of Article 19(1)(a) as it aimed at the dissemination of information regarding the product. The Court, however, made it clear that the government could regulate commercial advertisements, which are deceptive, unfair, misleading and untruthful.

ADVERTISING CONTENT & MEDIA REGULATION[4]

Last year, the Indian government banned advertising of liquor products in the electronic media.

The liquor industry along with their agencies responded by releasing a spate of ads featuring surrogate brands.

The govt. issued a number of warnings & finally threatened to 'black out' TV channels who aired surrogate liquor brands.

Next in line was a 'stern warning' to TV Channels for airing ads with gender & colour bias.

And recently, govt. issued warnings to music channels for airing sexually explicit music videos. (Some producers responded by obtaining 'Universal Viewing' certificates from the Film Censor Board.)

Self Regulation

As far as the govt. is concerned, the issue of regulating media content is in a way, connected to the issue of regulating media itself. Both are ostensibly driven by the desire to check & control content that is aired / published in mass media.

Since total censorship is not an option in any democratic state, govt. can do little about objectionable advertising (leave alone biased programming/editorial) without the co-operation of the media/advertising industry.

Therefore, it is imperative that the media/advertising industry establishes a voluntary code that its members adhere to. This will restrict the govt.'s role to that of a watchdog who, apart from growling regularly, will crack the whip only occasionally!

Industry bodies like the Indian Broadcasting Federation (IBF), Advertising Standards Council of India (ASCI) & the Indian Newspaper Society (INS) have to ensure that their members adhere to a well-defined code for media content.

Despite positive response from industry bodies like the IBF, the progress of self regulation is poor. This is not surprising: given the number of players involved, it will naturally take some time to arrive at a consensus.

In fact the first step is the most difficult: to define the code/guidelines which is agreeable to all players.

Defining Guidelines

Media content comprises of advertising as well as editorial/programming. And myriad issues are involved in regulating both. Issues in advertising content can be segregated into objectionable products/portrayal and mis-representation. While issues for programming/editorial content are diffrerent for news and entertainment (sports, movies, etc.)

The definition & relevance of objectionable products may vary with local culture and even depend on the media vehicle. (For example, adult channels & niche magazines could get away with content that would be unthinkable in a daily newspaper.)

But there can be no justification for misrepresentation, which is mostly (but not solely!) represented by the financial sector. Not that it is simple to monitor such cases. A recent judgement passed against an automobile giant for misleading consumers about the source of its technology, highlights the difficulty in identifying & bringing to book such cases. (It took nearly 2 years to get a judgement in a consumer court.)

The panel at the bottom was created by our team: it lists the basic issues behind regulating media & advertising content - making it obvious that defining a set of codes / guidelines for content is far from easy. And the complexity only increases manifold when you delve deeper!

Different Guidelines for Different Media

Print medium Newspapers & news magazines may be subjected to stricter guidelines than other magazines

Radio medium Being an "instant" audio medium, guidelines for radio may be more stringent than print

Television An "instant" audiovisual medium like television may need guidelines which are many times more stringent than radio & print. Also, since 30% of content comprises of movies, it makes sense for (partial) involvement of the Film Censor authority. And news channels will need a separate set of codes

Outdoor Freely viewable, larger-than-life, visual media like outdoor sites will demand its own set of codes

Cinema Since the content (films) is regulated by the Film Censor authority, the ads may be regulated by the same authority

Control on Internet Content & Access

The raging debates on regulating content on the Internet are legendary. And although there are a few countries who control access to Internet sites, these form but a minority. By and large there is little or no control in most democratic states. Suffice it to say that this topic forms adequate material for a separate study!

ISSUES REQUIRING REGULATION OF ADVERTISING CONTENT

Objectionable Products:

Ø Portrayal Liquor

Ø Tobacco products[5]

Objectionable characteristics:

Ø Products which promote Gender bias Race & colour bias

Disguised Ads:

Ø Belonging to objectionable product categories Sponsorship field events which are highlighted in print/electronic media.

Surrogate brand advertising.

Ø In-content endorsements of objectionable product categories

Misrepresentation / misleading ads

Ø Misleading financial ads

Ø Misleading product/service ads

CONCLUSIONS

Since the reach of media advertising is tremendous, their impact on the public psyche is the same. In all this we are forgetting our traditions and values. Though the need of the hour is not avocation of conservatism or suppression, but there is immediate requirement of certain ethics and regulations.

There should be structural dynamism in the evolution of censorship. The dynamism should incorporate the changing times and flexibility of the society. As the five year plans change according to the requirements and needs of the people, ideally the rules and regulations of the Censor Board should change at least every five or ten years according to the current issues and the attitudes of the people

The control mechanisms in place now are in-adept to deal with the current advertising industry. The way the liquor companies are promoting their brand names in a surrogate manner is a slap in the face for the mechanism.

A dynamic structure to script regulations for the advertising industry is necessary. The mechanism should take into consideration not only the content factors like the ones listed in the previous page but also control mechanisms. The broadcasters and publishers should be held responsible for ensuring that all the advertisements that they carry are in concurrence with the latest regulations.

BIBILOGRAPHY

1. http://www.beaconforfreedom.org/about_project/history.html
2. Mette Newth(2001) ‘Beacon for freedom of expression, dedicated to the Bibliotheca Alexandrina.’
3. http://www.mediaware-infotech.com/newsletter/Str_content.htm#b dated April 21, 2003
4. http://www.mediaware-infotech.com/newsletter/Str_content.htm#b
5. http://www.expressindia.com/kashmir/full_story.php?content_id=45034&type=ie
6. http://pib.myiris.com/facts/article.php3?fl=D3485
7. http://web.mid-day.com/columns/nadita_puri/2003/july/57685.htm
8. http://www.iimcal.ac.in/imz/imz-archive/article.asp?id=zapping
9. P.Saravanavel(1984) International Marketing
10. Harper W.Boyd & Joseph W Newman (1972)Advertising Management
11. Nigel Rees(1982) Slogans
12. Philip Kotler (1997) Marketing Management
13. Naomi Klein (2002) Fences & Windows
14. Edward S Hermen & Robert W Mc.Chensy (1998) The Global Media

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[1] Extracts from an article Mette Newth(2001) in http://www.beaconforfreedom.org/about_project/history.html and ‘Beacon for freedom of expression, dedicated to the Bibliotheca Alexandrina.’

[2] AIR 1960 SC 554.[2]

[3] (1995) 5 SCC 139.

[4] Extracts from an article in http://www.mediaware-infotech.com/newsletter/Str_content.htm#b dated April 21, 2003

[5] Indian laws against tobacco products under consideration