Advertisement and freedom of speech

“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties”. – John Milton

The essence of free speech is the ability to think and speak freely and to obtain information from others through publications and public discourse without fear of retribution, restriction, or repression by the government. Advertising is a form of communication for marketing and used to encourage orpersuade an audience (viewers, readers or listeners; sometimes a specific group) to continue or take some new action. Most commonly, the desired result is to drive consumer behaviour with respect to a commercial offering, although political and ideological advertising is also common.

In John W. Rast v. Van Deman& Lewis Company, Mr. Justice Mckenna, dealing with advertisements said:-

“Advertising is merely identification and description, apprising of quality and place. It has no other object than to draw attention to the article to be sold and the acquisition of the article to be sold constitutes the only inducement to its purchase.”above advertisement takes the same attributes as the object it seeks to promote or bring to the notice of the public to be used by it. Examples can be multiplied which would show that advertisement dealing with trade and business has relation with the item “business or trade” and not with “freedom of speech”.


The principles, as stated in the case of Reckitt & Coleman of India Ltd v Kiwi TTKLtd (63 (1996) DLT 29), are as follows:

a) An advertisement can declare that theadvertised goods are the best in theworld, even though this declaration isuntrue;

b) An advertisement can state that theadvertised goods are better than thoseof competitors, even if this statement isuntrue;

c) An advertisement can compare theadvertised goods with those ofcompetitors;

d) An advertisement cannot, while statingthat the advertised goods are betterthan those of a competitor, state thatthe competitor’s products are bad, as this would be defamation;

e) In a case of defamation, damages can beclaimed. The court can also grant aninjunction against repetition of the defamatory action.


Today, new era of advertising has evolved, which is both cost-effective as well as efficient at global level. Online advertising is the fastest growing medium of advertising that has proven its effectiveness and stability in the advertising world.In a developing economy like India, advertising has a profound impact on how people understand life, the world and themselves, especially with regard to their values, choices and behaviour. Advertising is considered to be the cornerstone of our socio-economic system and may be viewed as the lifeline of free media, paying costs and making media widely accessible. Advertising agencies perform deep research before they create and feature the advertisement for the targeted audience. Few platforms dominated the advertising market and offered an opportunity for the advertisers to pass on the message to people, and market their products.

Freedom to speak freely, without limitation or regulation is termed as the Freedom of Speech. Freedom of Expression implies not only the freedom to speak but also to distribute and access of the information through various media modes. In the advertising and media industry, a self-regulatory guideline of code and conduct is a self-imposed discipline, whose primary objective is to monitor and prescribe the advertising standards for public interest. This system complements government legislation and regulations as well. As the categories of sensitive advertisers are constantly increasing; consumer groups, governments and regulators became more cautious to take lively interest. Monitoring and voluntary self-regulations in advertising, allow reasonable freedom of speech and expression. The members of Communication Council should be aware about the importance of self-regulation.

In many countries, the government controls media so that nobody can publish or broadcast anything that the government considers harmful, immoral or threatening for the stability of the country. Censorship is regulated by a particular body or the government that retains the power base, on the media content.

Right To Advertisement As A Part Of Freedom Of Speech And Expression

Advertising which is no more than a commercial transaction, is nonetheless dissemination of information regarding the product advertised. Public at large is benefitted by the information made available through the advertisement. In a democratic economy free flow ofcommercial information is indispensable. There cannot be honest and economical marketing by the public at large without being educated by the information disseminated through advertisements. The economic system in a democracy would be handicapped without there being freedom of “commercial speech” and when examined from another angle, the public at large has a right to receive the “Commercial speech”. Article (19) (1) (a) not only guarantees freedom of speech and expression, it also protects the rights of an individual to listen, read and receive the said speech. So far as the economic needs of a citizen are concerned, their fulfilment has to be guided by the information disseminated through the advertisements. An advertisement giving information regarding a life saving drug may be of much more importance to general public than to the advertiser who may be having purely a trade consideration.

An advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed. It assumes the attributes and elements of the activity under Article 19(1) which it seeks to aid by bringing it to the notice of the public. When it takes the form of a commercial advertisement which has an element of trade or commerce it no longer falls within the concept of freedom of speech for the object is not propagation of ideas ‘ social, political or economic or furtherance of literature or human thought; but as in the present case the commendation of the efficacy, value and importance in treatment of particular diseases by certain drugs and medicines. In such a case, advertisement is a part of business.

It was asserted in HamdardDawakhana (WAKF) LalKuan, Delhi and Another v Union of India, [SCR 1960 (2) 671]that an advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed. It assumes the attributes and elements of the activity under Art. 19(1) which it seeks to aid by bringing it to the notice of the public.

It allows us to freely express our ideas and thoughts through any medium such as print, visual, and voice. One can use any communication medium of visual representation such as signs, pictures, or movies. Freedom of speech would amount to nothing if it were not possible to propagate the ideas. Thus, the freedom of publication is also covered under freedom of speech. Freedom of speech serves 4 purposes:

a) Allows an individual to attain self fulfillment.

b) Assists in the discovery of truth.

c) It strengthens the capacity of a person to make decisions.

d) It facilitates a balance between stability and social change.


This right is not only about communicating your ideas to others but also about being able to publish and propagate other people’s views as well. Thus, freedom of speech and expression is linked to the people’s right to know. Freedom of speech and expression is a broad term and encompasses several things Freedom of speech is guaranteed not only by the constitution or statutes of various states but also by various international conventions like Universal Declaration of Human Rights, European convention on Human Rights and fundamental freedoms, International Covenant on Civil and Political Rights etc. These declarations expressly talk about protection of freedom of speech and expression.

Right to know, to information is other facet of freedom of speech. The right to know, to receive and to impart information has been recognized within the right to freedom of speech and expression. A citizen has a fundamental right to use the best means of imparting and receiving information and as such to have an access to telecasting for the purpose. In State of Uttar Pradesh v. Raj Narain it was observed that, “The people of this country have a right to know every public act by their public functionaries. The right to know is derived from the concept of freedom of speech.” Through advertisements, not only is the right to know is assured but it is directly proportional to the advertisers freedom of speech and expression. Advertisements maintain competition in the market and help in educating the public.

In Reliance Petrochemicals Ltd v. Indian Express it has been observed by the bench deciding the case that “We must remember that people at large have a right to know in order to be able to take part in a participatory development in the industrial life and democracy. Right to know is a basic right which citizens of a free country aspire in the broader horizon of the right to live n this age on our land under Art. 21 of the Constitution.”

Since, advertising is a form of communication for marketing and is used to encourage or persuade audience. It is nonetheless dissemination of information regarding the product advertised and the public at large is benefitted by the information made available through the advertisement. In a democratic economy free flow of commercial information is indispensable. There cannot be honest and economical marketing by the public at large without being educated by the information disseminated through advertisements.

It is necessary to maintain and preserve freedom of speech and expression in a democracy, so also it is necessary to place some restrictions on this freedom for the maintenance of social order, because no freedom can be absolute or completely unrestricted. Accordingly, under Article 19(2) of the Constitution of India, the State may make a law imposing “reasonable restrictions” on the exercise of the right to freedom of speech and expression “in the interest of” the public on the following grounds:

a) Security of State

b) Friendly relations with foreign states

c) Public Order

d) Decency or morality

e) Contempt of Court

f) Defamation

g) Incitement to an offence Sovereignty and integrity of India.


However, advertisers often view these rules and regulations as violating their right to freedom of speech. Some ads, in particular, were considered derogatory and banned by the government, such as:

  •  A deodorant advertisement that showed a man accompanied by scantily clad women was banned by the government after several complaints were received from viewers about the advertisement being offensive to family viewers.
  • A soft drink advertisement that showed a child bringing the drink for the Indian cricket players was banned after complaints from child labor activists.
  • Advertisements of two underwear ads were banned due to vulgarity and indecency. Objectionable content in ad is usually a reason for taking it off channels.


As stated previously, no right can be absolute and without restrictions or else they might not act in the best interest of the public. Advertisement has been considered as an act of communication or expressing one’s views but the said right may be exploited by the advertisers if not guarded. Restrictions on advertisements might be imposed when the advertiser indulges in the following acts, for it is necessary for the government/the appropriate authorities to intervene if such advertisements are detrimental to the interests of the public at large:

 1. Deception– exists when an advertisement is introduced into the perceptual process of the audience in such a way that the output of that perceptual process differs from the reality of the situation. It includes a misrepresentation, omission or a practice that is likely to mislead. These may include the following:

  • Violates Consumers’ Right to Information: Use of untrue paid testimonials to convince buyers, quoting misleading prices, disparaging a rival product in a misleading manner are some examples of deception. Advertisers of anti- aging creams, complexion improving creams, weight loss programs, anti-dandruff shampoos, and manufacturers of vitamins or dietary supplements are usually guilty of making exaggerated product claims. Some of the examples of advertisements in this category are:

“A fairness cream is advertised with the claim that its user will get a fair complexion within a month” is deceptive in nature  as it deceives/misleads the public into believing such facts which might not take place.

  • Violates Consumers’ Right to Safety: When an advertisement for cooking oil says that using the said oil frees the user from heart problems, and then such an advertisement is misrepresenting the facts. Companies advertise products highlighting health cures and drugs of questionable efficacy and health gadgets of unknown values.
  • Violates Consumers’ Right to Choice: When material facts which are likely to influence buying decisions are not disclosed the advertisement becomes deceptive. In several advertisements it is stated that ‘conditions apply’ but these conditions are not stated. Not disclosing material facts amounts to deception. For example, the recent print ad for Videocon mentions a 1-ton split-AC available for Rs. 15,990/, a very attractive offer. But there is a small asterisk which mentions three things in small font, such as “Conditions apply”, “Prices valid in Delhi and NCR under exchange only”.

2. Bait advertising :It means taking advantage of consumer psychology and depriving consumers of a choice. For example, a consumer is lured into a retail outlet by an advertisement for a low cost item and then is sold a higher priced version or to be defective. Once the consumer enters the store, he or she is pressured to purchase another more expensive item. On visiting such stores, one finds a handful of outdated products on the discount announced and other better products as ‘fresh stock’.

3. Advertising of harmful products: Advertising is not restricted to products that are good for people. According to law in India advertisements for cigarettes, liquor, paan masala, products that are harmful to the public continue to find a place despite the ban imposed by the government in private channels, cable, and through the use of surrogates.

4. Puffery/Fraudulation: Very often we hear that advertisement exaggerates about the product qualities. Now a days ‘puffery’ i.e. “metaphor of idea” forms to be main element in advertising. On the one hand critics accuse it, while on the other defenders i.e. advertisers and advertising professionals opined it as a helping agent to differentiate their brands from the competitors. Puffery is considered to be an ‘opinion’ and not a ‘factual information’. Advertisers claim that the consumers are intelligent enough to distinguish between truth and exaggeration. Moreover they are not blindly going to believe everything as such presented in an advertisement.

5. For a better understanding of the above and relationship between commercial advertisement and freedom of speech and expression, the remarks made by the Hon’ble judge in Colgate Palmolive (India) Limited v Anchor Health & Beauty Care Private Limited (Case (2008) 7 MLJ 1119) might be of utmost relevance: it was heldthat false claims by traders about the superiority of their products, either directly or by comparing them against the products of their rivals, were not permissible. Recognizing the right of producers to puff their own products even with untrue claims, but without denigrating or slandering each other’s products, would be to ‘de-recognize’ the rights of the consumers guaranteed under the Consumer Protection Act 1986.”

To permit two rival traders to indulge in puffery, without denigrating each other’s products, would benefit both of them, but would leave the consumer helpless. If on the other hand, the falsity of the claim of a trader about the quality and utility value of his product is exposed by his rival, the consumer stands to benefit by the knowledge derived out of such exposure. After all, in a free market economy, the products will find their place, as water would find its level, provided the consumers are well informed. Consumer education, in a country with limited resources and a low literacy level, is possible only by allowing a free play for the trade rivals in the advertising arena, so that each exposes the other and the consumer thereby derives a fringe benefit.

Notably, the court found to be permissible advertisements which “tend to enlighten the consumer, either by exposing the falsity or misleading nature of the claim made by the trade rival or by presenting a comparison of the merits (or demerits) of their respective products”. Interpreting such advertisements to be in the ‘public good’, the court cited two instances as an exception to this – namely, if an advertisement is motivated by malice, and if it is false. The court held that this sort of advertising would benefit society because competitors are naturally better equipped to expose a rival’s untrue claims.

The court also held that the benefit to society from such an exposure would “outweigh the loss of business for the person affected”. This observation was based on the court’s assumption that comparative advertising, even if it did not amount to a disparagement of other goods, could result in consumers being misled.

The Court in HamdardDawakhana (WAKF) LalKuan, Delhi v Union of Indiaprimarily relied on the judgment of the United States Supreme Court in Valentine v Chrestensen for the proposition that “purely commercial advertising” is not protected by Article 19(1) (a) of the Constitution. As also in Bigelow v Virginia,421 U.S. 804 the United States Supreme Court reversed the conviction of a Virginia newspaper editor who had been found guilty of publishing an advertisement which offered assistance to women seeking abortion. Abortion was illegal in Virginia in 1971 when the advertisement was published. The women Pavilion, a New York group, urged women who wanted an abortion to come to New York. Blackmun, J. analysing earlier judgments of the Court observed that speech does not lose the protection of the First Amendment merely because it appears in the form of a commercial advertisement.

Laws Imposing Restrictions On Advertising:

1. Consumer Protection Act– This statute provides for the establishment of a Central Consumer Protection Council with the object of promotion and protection of the rights of the consumer, including protection against unfair trade practices. The Act also empowers the District Forum to take measures to discontinue the unfair trade practices. The Forum also has the power to issue corrective advertisements to neutralize the effect of a misleading advertisement. India does have other legislations that regulate unfair trade practices, in addition to the Consumer Protection Act.

2. The Monopolies and Restrictive Trade Practice act, 1969: It had been the most effective Act in the eighties and nineties to regulate undesirable advertising. In the year 1984, the government brought, through an amendment, “unfair trade practices” under the purview of the MRTP Commission and the Office of the Director General (Investigation and Registration). However, this Act is being replaced by the Competition Act, 2002 but the cases pending under the MRTP Commission are still being heard. Moreover, a Competition Commission has been set up under the Competition Act to deal with monopolies and restrictive trade practices. The complaints pertaining to unfair trade practices are still being handled by the MRTP Commission or the consumer courts. The MRTP Act has been very effective in hauling a number of advertisers to stop advertisements which are prejudicial to consumer interest through its ‘cease and desist orders’.

3. Information Technology Act, 2000 (IT Act): The IT Act makes the publication and transmission in electronic form of material which is lascivious or appeals to the prurient interest or it its effect is such as to tend to deprave and corrupt persons who arelikely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, punishable with imprisonment and fine. The IT Act applies to any offence committed by any person outside India, if it involves a computer, computer system or computer network located in India. The offences under the IT Act are punishable with imprisonment and/or fine.

4. Indian Penal Code, 1860 (IPC): The IPC makes it a punishable offence to advertise any obscene publication or its distribution, sale, hire or circulation. It is also an offence under IPC to publish advertisements relating to any lottery which is not a state lottery or which is not authorized by the State Government. The IPC prohibits the sale, distribution, public exhibition or circulation of any obscene book, pamphlet, paper, drawing, painting, representation, figure or any other obscene object.

5. The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (CTPA): The CTPA prohibits advertisement of cigarettes and other tobacco products which, directly or indirectly, suggest or promote the use or consumption of cigarettes or any other tobacco products, by any person who is either engaged in the production, supply or distribution of such products or by a person having control over a medium who causes such advertisements to be advertised through that medium or by a person who takes part in such advertisement.

6. The Drugs and Magic Remedies (Objectionable Advertisements) Act : This statute prohibits advertisements of drugs for certain purposes and of treatment of certain diseases and disorders. It also prohibits misleading advertisements relating to drugs and advertisements of magical remedies for the treatment of certain diseases and disorders. Under this Act, “advertisement” includes any notice, circular, label, wrapper or other document and any announcement made orally or by means of producing or transmitting light, sound or smoke.

7. The Emblems and Names (Prevention of Improper Use) Act, 1950: This statute prohibits the use, for professional or commercial purposes, of select emblems and names of national or international significance. An advertiser who makes commercial use of such emblems and names would be liable under this statute

 8. SEBI (Mutual Funds Regulation), 1996: SEBI Guidelines for Advertisements by Mutual Funds – the Guidelines list out detailed requirements for advertisements by Mutual Funds. The guidelines apply to all forms of advertisements, communications, released in any form and through any media including websites. It defines an “advertisement” as any material published or designed to be published on which a mutual fund has no control over the audience and which is broadly distributed.

9. The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994: This statute prohibits advertisements relating to predetermination of sex.

10.The Transplantation of Human Organs Act, 1994: This statute makes it a punishable offence to issue advertisements inviting persons to supply, for payment a human organ.




HamdardDawakhana (WAKF) LalKuan, Delhi v. Union of India, [SCR 1960 (2) 671] – The Court in this case dealt with advertising of prohibited drugs and commodities. The Court was principally dealing with the right to advertise prohibited drugs, to prevent self-medication and self-treatment. It is in no doubt true that some of the observations referred to above go beyond the needs of the case and tend to affect the right to publish all commercial advertisements. A Constitution Bench of this Court held that an advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed. It assumes the attributes and elements of the activity under Art. 19(1) which it seeks to aid by bringing it to the notice of the public.

When it takes the form of a commercial advertisement which has an element of trade or commerce it no longer falls within the concept of freedom of speech for the object is not propagation of ideas social, political or economic or furtherance of literature or human thought; but as in the present case the commendation of the efficacy, value and importance in treatment of particular diseases by certain drugs and medicines. In such a case, advertisement is a part of business and it was being used for the purpose of furthering the business of the petitioners and had no relationship with what may be called the essential concept of the freedom of speech. It cannot be said that the right to publish and distribute commercial advertisements advertising an individual’s personal business is a part of freedom of speech guaranteed by the Constitution.

The Court came to the conclusion that the sale of prohibited drugs was not in the interest of the general public and as such “could not be a speech” within the meaning of freedom of speech and expression under Article 19(1) (a) of the Constitution. The Court further held in the said case that an advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed.

HamdardDawakhana’s case was considered by this Court in Indian Express Newspapers (Bombay) Private Ltd. &Ors. etc. etc. vs. Union of India, 1985(2) SCR 287 – herein, the Parliament of India enacted a statute that was aimed at controlling advertisements of drugs in some specified cases [Drugs and Magic Remedies (ObjectionableAdvertisements) Act (1954)]. Purpose of the act was to prevent ‘objectionable’ and‘unethical’ advertisements in order to discourage self-medication and self treatment. Theconstitutionality of this Act was challenged by the plaintiff on the grounds that itrestricted his right to freedom of speech and expression unfairly, in contravention of Arts19(1)(a) and Art 19(2) and also that it violated his rights to carry on business because therestrictions were allegedly in contravention of Art 19(1)(g) .

The Judgment: The Bench that decided the case acknowledge that advertisement was no doubt a form of speech but that “it’s true character is detected by the object for the promotion of which it is employed. The judgment acknowledged that advertisements acquire some, but notall, elements of speech or expression intended for protection by Art 19(1)(a) by bringing to the notice of the public”.

The activity or product or service that it seeks to publicize [the right to disseminate and receive information that Art 19(1)(a) recognizes in certain cases]. But the judgment goes onto to state that the content and intent of the advertisement is extremely important when deciding whether it deserves protection under Arts 19(1)(a) and 19(2).When it (advertisement)takes the form of a commercial advertisement which has an element of trade and commerce, it no longer falls within the concept of freedom of speech, for the object is not propagation of ideas, social political or economic, or furtherance of literature or human thought, but the commendation of the efficacy , value and importance of certain goods.

This statement forms the crux of the judgment and encapsulates the legal position occupied by commercial speech when it comes to protection under Art 19(1)(a).The judgment iterated that advertisements prohibited by the impugned Act relate to trade and commerce and not the propagation of ideas and that advertising of prohibited drugs and commodities of which the sale is not in the interest of the general public cannot be speech within the meaning of Art 19(1)(a).

The observations in HamdardDawakhana’s case to the effect that advertising by itself would not come within Article 19(1) (a) of the Constitution, were explained by this Court in Indian Express Newspapers’s case in the following words: The main plank of that decision was that the type of advertisement dealt with there did not carry with it the protection of Article 19(1) (a). the court finally opined that all commercial advertisements cannot be denied the protection of Article 19(1) (a) of the Constitution merely because they are issued by businessmen.”

The combined reading of HamdardDawakhana’s case and the Indian Express Newspapers’s case leads us to the conclusion that “commercial speech” cannot be denied the protection of Article 19(1) (a) of the Constitution merely because the same are issued by businessmen. Advertising is considered to be the cornerstone of our economic system. Low prices for consumers are dependent upon mass production, mass production is dependent upon volume sales, and volume sales are dependent upon advertising. Apart from the lifeline of the free economy in a democratic country, advertising can be viewed as the life blood of free media, paying most of the costs and thus making the media widely available. Without advertising, the resources available for expenditure on the “news” would decline, which may lead to an erosion of quality and quantity. The cost of the “news” to the public would increase, thereby restricting its “democratic” availability.

In the case of Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal reported in (1995) 5 SCC 161 Supreme Could held that commercial advertisement no doubt is a form of speech but its true character is reflected by the object for promotion of which it is employed. Only when an advertisement is concerned with the expression or prorogation of ideas that it can be said to be related to freedom of expression and speech. The object and purpose for which advertisement is published is the determining factor. When propagation of ideas and thoughts is inconsequential, but the real purpose and object is promotion of sales of goods and services and personal benefit without any social purpose, commercial advertisement cannot have the same decree of constitutional protection as in case of social or political speeches.

The Supreme Court further observed that commercial advertisements helps dissemination of information regarding the product and the public also benefits by the information which is available and honest and economic marketing is protected under Article 19(1)(a). It was observed that said freedom is both for the speaker as well as the recipient of the speech, but an advertisement for a life saving drug may be more important and leads greater public interest than an advertisement for pure trade consideration.

Mahesh Bhatt and anrv. Union Of India, 147 (2008) DLT 561was another landmark judgement on the said point – herein, the Writ Petitions challenged the legality and validity of some of the provisions of the Cigarette and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 under which “advertisement” was defined to include any visible representation by way of notice, circular, label, wrapper or other document and also includes any announcement made orally or by any means of producing or transmitting light, sound, smoke or gas.

The court had observed advertisements means to make an announcement and inform public and disseminate information through media and other means, to draw the attention of the public/individual concerned to some information.It was held thatAdvertisements of tobacco products cannot per-se be regarded as immoral. Consumption Consumption of tobacco or smoking is unhealthy but is not immoral. The term ‘decency’ is more expansive in its scope. Commercial advertisements are entitled to limited protection under Article 19(1)(a) of the Constitution if they are in public interest. Commercial advertisements of tobacco products are not expressions protected under Article 19(1)(a) of the Constitution. Commercial advertisements will include indirect or surrogate advertisements which promote and encourage use of tobacco products. However, commercial advertisements are different and distinct from news. The purpose and object behind news is to disseminate information, thoughts and ideas. Pre-dominant nature and character of the article, picture, etc, will determine whether it is a commercial advertisement or a news item/picture.

Curtailment Of The Advertisements

A Constitution Bench held in Sakal Papers (p) Ltd. and others. vs. Union of India, AIR 1962 SC 305 – considered the constitutional validity of the Newspaper (Price and Page) Act, 1956. The said Act empowered the Government to regulate the prices of newspaper in relation to their pages and sizes and to regulate allocation of space for advertisement matter. This Court held that the Act placed restraints on the freedom of press to circulate. This Court further held that the curtailment of the advertisements would bring down the circulation of the newspaper and as such would be hit by Article 19(1) (a) of the Constitution of India.

It was argued before this Court that the publication of advertisements was a trading activity. The diminution of advertisement revenue could not be regarded as an infringement of the right under Article 19(1) (a). It was further argued before this Court that devoting large volume of space to advertisements could not be the lawful exercise of the right of freedom to speech and expression or the right of dissemination of news and views. It was also contended that instead of raising the price of the newspaper the object could be achieved by reducing the advertisements. The Supreme Court ruled that it is not open to the State to curtail the freedom of the press for promoting the general welfare of a section or a group of people unless its action can be justified by a law strictly falling under clause 2 of Article 19. Freedom of the Press cannot be curtailed on such omnibus grounds as in the interest of the general public as in the case of the freedom to carry on trade, business or profession. The restriction must be reasonable. In other words, it must not be excessive or disproportionate. The procedure and the manner of imposition of the restriction also must be just, fair and reasonable.

In Bennett Coleman & Co. &Ors. v. Union of India, 1973 2 SCR 757it was held that the law which lays excessive and prohibitive burden which would restrict the circulation of a newspaper will not be saved by Article 19 (2). If the area of advertisements is restricted, price of paper goes up. If the price goes up circulation will go down.The High Court did not accept the contention that a newspaper has a constitutional right to obtain advertisements from the government. It, however, held that the government cannot exercise this power or privilege to favour one set of newspapers or to show its displeasure against another section of the press. It should not use the power over such large funds in its hands to muzzle the press, or as a weapon to punish newspapers which criticise its policies and actions. It has to use the funds in a reasonable manner consistently with the object of the advertisement viz. to educate and inform the public about the activities of the government.

Advertisement And Freedom Of Speech

It was later held in the landmark case of Tata Press Limited v.Mahanagar Telephone-Nigam, 1995 AIR 2438 that it cannot be said that every advertisement is a matter dealing with freedom of speech nor can it be said that it is an expression of ideas. In every case one has to see what is the nature of the advertisement and what activity falling under Art. 19(1) it seeks to further. The advertisements in the instant case relate to commerce or trade and not to propagating of ideas; and advertising of prohibited drugs or commodities of which the sale is not in the interest of the general public cannot be speech within the meaning of freedom of speech and would not fall within Art. 19(1) (a). The main purpose and true intent and aim, object and scope of the Act is to prevent self- medication or self-treatment and for that purpose advertisements commending certain drugs and medicines have been prohibited.

TheSupreme Court of India gave out one of the most progressive pieces of judicial interpretation: the right to commercial freedom of speech and expression. Of far reaching consequence to media and business, wholly synonymous with the spirit of liberalisation “this great constitutional advance was made on simple and relatively boring facts”.

In a nutshell it means that, for the first time in India, advertising is protected as a form of free speech.

The judgement results from a dispute between Tata Press and MTNL whose monopoly on printing telephone directories under the Indian Telegraph Act, was successfully challenged by Tata’s Yellow Pages.

It was contended that it is the public’s right to receive information by way of advertising implicit in the concept of “free speech and expression” guaranteed under Article 19(1)A of the Constitution. In taking a holistic approach to the issue, Justice Kuldip Singh described the free flow of commercial information as “the cornerstone of our economic system. Low prices for consumers are dependent on mass production (which) is dependent on volume sales (which) is dependent on advertising.”

To safeguard free enterprise, the heart of liberalisation, advertising is vital to both manufacturer and consumer. In fact, Justice Singh goes further in supporting the right of the consumer, ‘the recipient of commercial speech’, with a striking example: “An advertisement giving information regarding a life saving drug may be of much more importance to the general public than to the advertiser who may be having purely a trade consideration Article 19(1) (a) not only guarantees freedom of speech and expression, it also protects the rights of


Individuals to listen, read and receive the said speech.”

The judgement is also interpreted “as a resounding victory for the media,” because it dwells at length on the role of “advertising as the life blood of a free media…the newspaper industry obtains 60 to 80 per cent of it’s revenue from advertising.For a democratic press the advertising ‘subsidy’ is crucial. Without advertising,’ the resources available for expenditure on ‘news’ would decline, which may lead to the erosion of quality and quantity. The cost of ‘news’ to the public would increase, thereby restricting it’s ‘democratic’ availability.” “Cutting off advertising is like cutting off the lifeblood of a newspaper and state authorities which have indulged in this form of coercion in the past have been pulled up by the court.” The absolute right of a newspaper to receive advertising “as commercial free speech” is an issue which bears further legislative review in the light of the new law.

Freedom of speech goes to the heart of the natural right of an organised freedom-loving society to “impart and acquire information about that common interest”. If any limitation is placed which results in the society being deprived of such right then no doubt it would fall within the guaranteed freedom under Art. 19(1) (a). But if all it does is that it deprives a trader from commending his wares it would not fall within that term.


Misleading & Surrogate Advertising:

The Consumer Protection Act, the advertising Code, the Censor Boardand the working group on Misleading Advertisements set up by the Consumer Affairs, Food and Public Distribution Department, Government of India, have all dealt with the issue of misleading advertisements. The preferred solution is to ask the advertiser to issue a corrective advertisement to neutralize the effect of misleading advertisements. In India, due to severe restrictions on advertising certain products like alcohol, tobacco products, medicines and baby food, a whole genre of misleading / surrogate advertising has emerged. In such advertising, a brand is endorsed using a product different from the actual product being promoted.

Like in the matter of United Breweries Limited v. Mumbai GrahakPanchayat, the matter of debate included the advertisements of Bagpiper Soda. This advertisement was held to be a surrogate advertisement for Bagpiper whiskey.

The National Consumer Disputes Redressal Commission, New Delhi, held that the word “soda” was used in an inconspicuous manner, while the word “Bagpiper” was boldly stated, with the baseline “India’s largest, World’s No. 3”. Advertisements canbe direct and also indirect whereby surrogate or product placement, use or trade name display, techniques are adopted but with the object and purpose of drawing attention to the object of publicity. In the present day context, direct and indirect advertisements are employed to attract attention and interest, make the product known and justify it’s consumption and use. Supply of free medicines to doctors by pharmaceutical companies has been held to be publicity and advertisement.


Advertising Regulation in India

The Government of India has not set up a regulatory body in India to regulate advertisements. Depending on the nature of the grievances, the power to regulate advertisements may be exercised by a vast variety of authorities, including the courts, Central and State Governments, tribunalsor the police authorities. In addition to these authorities, is the Press Council of India Act, 1978 which is also empowered to regulate press advertisements. The Council is guided by its “Norms of Journalistic Conduct”. in the regulation of advertisements. The Press Council has the power to hold an inquiry into a complaint against a newspaper and if it finds that the newspaper has violated the standards prescribed by the council, it may warn, admonish or censure the newspaper, the editor or journalist as the case may be.

India however, does have a self regulatory body dealing with both online and other forms of advertising. The Advertising Standards Council of India (ASCI) monitors certain standards and fairness in the domain of advertising. It was established in India in 1985. It is a self regulatory voluntary organization whose role and function of the ASCI is to deal with complaints received from consumers and industry against advertisements which are considered as false, misleading, indecent, illegal, leading to unsafe practices or unfair to competition and in contravention to the advertising codelaid down by the ASCI. While safeguarding consumer interests, ASCI also monitors and guides the commercial communications of practitioners in advertising. The aim of advertisement is to promote sales of products or service by affecting a purchasing decision. Although the benefits of advertising are numerous it is one aspect of marketing that is subjected to a severe criticisms. And now there is a new medium for advertisers to explore, the Internet!

While there may be no specific legislations governing online advertising in India, ASCI does recognize online advertising. ASCI’s Code of advertising and existing statutes provides necessary guidance and arsenal to combat errant advertisers. Finally, guidance may be sought by simplify reading the Terms and Condition’s of the website, the advertiser wants to advertise on. This exercise will avoid any negative repercussions following release of an online advertisement.


Advertising as a “commercial speech” has two facets. Advertising which is no more than a commercial transaction, is nonetheless dissemination of information regarding the product-advertised. Public at large is benefitted by the information made available through the advertisement. In a democratic economy free flow of commercial information is indispensable. There cannot be honest and economical marketing by the public at large without being educated by the information disseminated through advertisements.

The economic system in a democracy would be handicapped without there being freedom of “commercial speech”. In relation to the publication and circulation of newspapers, this Court in Indian Express newspaper’s case, Sakal paper’s case and Bennett Coleman’s case has authoritatively held that any restraint or curtailment of advertisements would affect the fundamental right under Article 19(1) (a) on the aspects of propagation, publication and circulation. Examined from another angle, the public at large has a right to receive the “Commercial speech”. Article (19) (1) (a) not only guarantees freedom of speech and expression, it also protects the rights of an individual to listen, read and receive the said speech. So far as the economic needs of a citizen are concerned, their fulfilment has to be guided by the information disseminated through the advertisements.

The protection of Article 19(1)(a) is available to the speaker as well as to the recipient of the speech. The recipient of “commercial speech” may be having much deeper interest in the advertisement than the businessman who is behind the publication. An advertisement giving information regarding a life saving drug may be of much more importance to general public than to the advertiser who may be having purely a trade consideration.We, therefore, hold that “commercial speech” is a part of the freedom of speech and expression guaranteed under Article 19(1) (a) of the constitution.


Copyright Piracy: A Legal Divide

Copyright PiracyYashvardhan Rana


It is a well settled principle in the framework of the copyright laws, in the field of intellectual property rights, that one cannot trespass an exclusive right of the originator of a particular piece of work. The principle is in line with a renowned proverb that, ‘there are no free lunches in life’. No individual has got the right to benefit himself, at the expense of the long haul made by the original author, without acquiring the required affirmation of the latter or even accrediting him. It would simply amount to ‘theft’. On basis of this established principle, I would be discussing and analysing the two different landmark judgements, enshrined within the books of two diverse legal systems. The particular piece of work would depict an instance of contrasting treatment of a similar situation by the two judicial systems. The study would show as to how one legal establishment succumbed to committing multiple flaws, in road to passing of a shambolic verdict, shattering the very foundation on which the copyright laws were based, while the other hitting the bull’s eye, in preserving the sanctity of the same. The particular research model enumerates the theoretical aspect, pertaining to copyright laws, coupled with the detailed study of the U.S and the Indian legal establishments, via a critical analysis of the two landmark verdicts namely, ‘VIACOM vs. YouTube’ and ‘SCIL vs. YouTube’ respectively.

Case no.1:Viacom v. YouTube

Appellant – Viacom International, Inc.

Respondent– YouTube, Inc.

Decided on – June 23, 2010.

Citation- No. 07 Civ. 2103

Decided by – U.S. Federal court, San Francisco

Keywords: Copyright,Safe Harbor, rogue enabler, unlicensed, copyrighted material, pirated clips.

Case no. 2:SCIL vs. YOUTUBE

Appellant – Super Cassettes Industries (SCIL)

Respondents – YOUTUBE

Decided on – CASE PENDING

Decided by – Delhi High Court.

Keywords: subsisting copyright, ISPs, copyrighted songs, rank infringement, pirated content.


In the garb of Intellectual property rights, Copyright is a term that has been well established in law relating to an inventor’s exclusive right to protect his own work. Copyright is all about balancing the rights of authors with the rights of the public to use the work without seeking permission or paying royalties. Under copyright, authors have the right to control the use of their work subject to exceptions permitted under the law.

“Of all the creative work produced by humans anywhere, a tiny fraction has continuing commercial value. For that tiny fraction, the copyright is a crucially important legal device.” –Lawrence Lessig.

It is appropriate in law that rigid laws are made which can boost economic return on their creativeendeavours that in turn provides a vibrant industry in the fields of music, literature,films and software in particular.

In light of the above quote as put forth by L. Lessig, I would merely demand an answer to a simple query, “Why should I being an originator of a certain piece of work, give away my tough grind, for public usage, without even being accredited for the same?”

With this rhetoric statement forming the premise of my discussion, I would be dealing with the aspect of copyright and copyright infringement in detail.

Copyright is the legal protection given to the creator of an original literary or artistic work. It is the exclusive right granted by the law to creator of such original work, to do, authorize, or prohibit certain acts in relation to such work. Copyright law’s perennial dilemma is to determine where exclusive rights should end and unrestrained public access should begin. In the intellectual property domain every area has been given its due, whether it’s trademarks, patents or designs. Similarly, copyrights also enjoy an aura of unique standard, which in no manner should be tampered with.

Thus it assumes supreme importance for authors, artists, architects, composers, music production companies and producers, film production companies, computer programmers and designers.

In case of infringement (or copyright violation) it is the unauthorized or prohibited use of works covered by copyright law, in a way that violates one of the copyright owner’s exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.The essence of a copyright infringement is the use of a work in relation to one or more rights of the copyright owner.

By giving a brief idea about the essence of copyright my intention of describing infringement of the same is of much importance as it would do a great deal to the reader.


Refers to a legal concept perpetuated by most governments by giving the creator of an original work exclusive rights,usually for a limited period of time. It is an intellectual property form applicable to any expressible form of an idea or information that is substantive and discrete.


It may well be applied to a wide range of creative, intellectual, or artistic forms, or “works”.

Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed derives a sense of understanding with the nitty-gritties of a well -known fact of law. Meanwhile, other laws may impose additional restrictions that copyright does not-such as trademarks and patents.

They are laws which are standardised somewhat through international conventions on the basis of which all the rules and principles are applied within the scope of this form as it is mandatory for a member state to comply with them.


The on-going controversies over matters of copyright enforcement and piracy are infected by virulent strains of propaganda and misunderstanding. The entire issue is commonly framed as a battle between content creators and peer to peer file sharers. Let us take the two most extreme views, and refer to them by names they often choose for themselves. At one extreme, there are the defenders of “content owners” who either believe that copyright is a basic property right imperfectly embodied in law or who just believe that treating copyright that way is an important expedient that they should defend. At the other extreme, there are the “copyfighters” who believe that copyright is an authoritarian imposition, establishing harmful monopolies, either as corrupt and immoral support for capitalist plutocrats, or as unconscionable governmental interference in markets that should be free.

The copyfighter faction favours serving the consumer, often whether a given consumer has paid for what he or she consumes or not; strong protections provided by the legal doctrine of “fair use”; and free peer to peer file sharing. They sometimes characterize their counterparts as nothing more than corrupt politicians and fatcat corporate bureaucrats making obscene amounts of money doing nothing but taking egregious advantage of the financial and legal vulnerability of both actual content creators and content consumers.

Part of the propagandizing that goes on involves inventing new terms, or misapplying old terms, to confuse the nature of copyright law in the minds of the general public. By calling copyrightable and patentable materials “intellectual property”, for instance, there is a strong correlation drawn between copyright infringement and theft where no such correlation exists by nature. Contrary to the implications of terms like “intellectual property”, copyright is not a matter of property law : it is a government enforced monopoly on the manufacture and distribution of copies of a particular work. The key difference lies in the fact that in the case of copyright infringement a copy is made of the original without permission, while in the case of theft the original is actually removed from its possessor. This difference is recognized in law, by inculcating a different scenario in the minds of people as a truly acceptable form that one can relate to.

Regardless of one’s feelings about the matter of whether copyright enforcement is justified, it makes little sense to cover our ears, close our eyes, and ignore the facts that face us. In the end, if you want to make money by providing content for others’ consumption in years to come, you are going to have to start recognizing the increasing difficulty of maintaining a state of artificial scarcity enforced by copyright law. Strict copyright enforcement is not quite obsolete yet, but obsolescence is definitely nipping at its heels free to copy.

Another important fact that brings to our notice is that copyrights are generally enforced by the holder in a civil court, but there are also criminal infringement statutes applied in some jurisdictions.

The mechanism of establishing central registries are kept in some countries which aid in claims of proving ownership, registering does not necessarily prove ownership, nor does the fact of copying necessarily prove that copyright was infringed.


OWNER – Owner or author as defined under the act-

“Author” means –

• In relation to a literary or dramatic work, the author of the work;

• In relation to a musical work, the composer;

• In relation to an artistic work other than a photograph, the artist;

• In relation to a photograph, the person taking the photograph;

• In relation to a cinematographor sound recording the producer; and

• In relation to any literary, dramatic, musical or artistic work which is computer-generated, theperson who causes the work to be created;

The phrase “exclusive right” means that only the copyright holder is free to exercise those rights, and others are prohibited from using the work without the holder’s permission.

 There are several exclusive rights that typically attach to the holder of a copyright:

• To produce copies or reproductions of the work and to sell those copies (mainly electronic copies)

• To import or export the work

• To create derivative works (works that adapt the original work)

• To perform or display the work publicly

• To sell or assign these rights to others

• To transmit or display by radio or video


Copyright does not prohibit all copying or replication. In my view a new theory should be put into place that reconceptualises fair use as a collective user right in copyright law relating to public interest which has not yet unleashed its full energy to a certain extent.

There are four non-exclusive factors to consider in a fair use analysis. Those factors are:

I. The purpose and character of your use

II. The nature of the copyrighted work

III. What amount and proportion of the whole work was taken, and

IV. The effect of the use upon the potential market for or value of the copyrighted work.

The failure is caused by a firmly ingrained notion in copyright law that treats fair use as an affirmative defense against allegations of copyright infringements. Such a fixed characterization of fair use has led legislators and judges to define it as merely an individual right enjoyed by each user of copyrighted works. This characterization has further reduced fair use to a procedural right enjoyed by each user of copyrighted works, significantly diminishing the substantive value of fair use in protecting the public interest.

In my view, fair use should instead be redefined as a collective right held by the public which facilitates and enhances their participation in communicative actions which in turn provides a method to achieve the purpose of ensuring the public’s access to copyrighted material and promoting the public welfare. Therefore, copyright owners’ rights are not untrammeled; they are subject to important exceptions and limitations or, as itis called in the American system, the “fair use” doctrine.

With the coming of the digital era, there arises a conflict between the fact that new digital technologies provide incentive to the free flow of ideas, knowledge and information, and the fundamental design of copyright law which is to limit the unauthorized flow of copyrighted works.

In that context, “fair use” is more needed to promote User-Generated-Content (creative activity without a business structure); to promote remix, mash-up culture which can create a wider creative space; to ensure the freedom of speech (and freedom of expression in general); and to protect privacy.

Furthermore, the protection of created works and their creators must always be balanced with the guarantee of public interest and fundamental freedoms. Fair use is designed to maintain such balance. The growing use of contracts and application of technological measures may threaten the fair use doctrine thus cause an unprecedented break in the balance inherent in all intellectual property system.


Copyright piracy is a phenomenon prevalent worldwide and to that effect a highly important aspect in the area of research that I would be dealing in regarding the case-laws. It is considered to be the illegitimate use of materials held by the copyright. Thus like any other theft which leads to loss to the owners of the property, besides economic loss, piracy also adversely affects the creative potential of a society as it denies creative people such as authors and artists their legitimate dues primarily targeting the software, music and film industry.

Furthermore, the main area of research put forth in my generalised study would be dealing with the comparison of two important case-laws embarking a new set of dimension in this field of law.

U.S.Context: VIACOM vs. YouTube

Case background

An ideal legal system has to perform plethora of functions, in their quest to enforcement of justice and restoration of equality. The following case in discussion sketches a pivotal picture in the books of justice. As far as the theoretical aspect of the case is concerned, it undoubtedly carves out a niche for itself, due to its negative impact upon the law professionals and legal aspirants.

The case enshrines a perfect reflection of the fact that, even the best legal systems at times, succumb to err in their judgement.

The verdict delivered by Justice Stanton within the confines of the U.S. Federal court, blessed the unethical state of play on the internet. It completely tormented the very foundation on which the copyright laws were based. It attacked one of the cornerstones of the Intellectual Property Rights, by favouring the respondents, in regard to their acts which set the exclusive rights of the petitioner on recluse.

Facets of the case

Viacom, an owner of a popular cable channel such as-MTV, Comedy Central, Nickelodean had filed an appeal against Google, an established internet service engine. The allegations levied against the respondents was that YouTube, a component of Google had built up its reputation as the most gauged site, by milking unlicensed use of copyright protected video clips obtained from professionally produced shows such as-The Colbert Report and The Daily Show, thereby causing huge monetary loss to the parent company. On the pretext of this contention, the appellant seek damages.


Various allegations were levelled and were simultaneously countered, in this particular case, which ran for a span of over 3 years. I would however, confine my discussion to, stating the contentions put forth by Viacom’s general counsel and their respective treatment by the District Judge, Louis Stanton.

Viacom’s lawyer Michael Fricklas,disputed that YouTube, an entity of Google was engaged in rampant copyright violation, when he stated “Mostly YouTube behaves”.

The major allegations levied by the counsel, on behalf of appellant was that, copyright protection is essential for the survival of the creative industries and it should be considered illegal, if others build their market, via the material stolen from them.

Moreover, he went a step ahead, accusing YouTube of having Malafide intentions, in not trying its level best to keep the illegal content off its site, with the aid of copyright protection tools.

In response to the allegations levied by Viacom, Justice Stanton in favour of Google, stated that the respondents have not indulged in any copyright violation after they virtually removed all the copyright protected clips in compliance with the mass takedown notice, slapped upon them by the appellant.

He also inferred that the claim put forth by the media company may merely be a case of sour grapes, as they were defeated in their quest to overtake YouTube.


The U.S. Federal Court benched at San Francisco delivered its verdict in favour of the respondents, Google. It dismissed the lawsuit before the trial, on the ground that YouTube had acted bona fide, in removing the illegal copyright protected material in response to the mass takedown order, slapped upon them by the owner, thereby, refraining themselves from constituting any copyright infringement.

Critical Analysis

The case would undoubtedly go down the history books as being one of the darkest chapters of the U.S. legal system. It was definitely a shambolic experience. The err in judgement was not committed once, but twice.

The gravity of the verdict delivered by the court was immense. It rendered the copyright laws a stature of being a facade. The judgement was passed, interpreting that no infringement occurs if the illegal content is promptly removed, when notified of a violation. This however fails to negate the fact that an infringement has already taken place and, even worse an exclusive right has already been trespassed.

According to me, the U.S. Federal court, failed to preserve the sanctity of the copyright principles. My assertion is based upon the following instances from the case itself;

When the court based its judgement, upon the interpretation of a 12 year old law that no copyright infringement occurs as far as the illegal content are promptly removed when notified of a violation, it fails to realise that a violation has already taken place. To make it even worse, the exclusive rights of the originator is already tampered with. YouTube had Ab-initio indulged into copyright infringement by broadcasting the professionally created videos of Viacom, without obtaining their required affirmation or reimbursing them in form of any royalty.

Also, in an embarrassing chain of events that culminated before the court, there was clear evidence depicting the owners of the disputed site, personally to have been involved in the process of infringement. The evidence, basically was an e-mail, written by one of the co-owners of the site, Chen to his partner, jawed, requesting the latter to refrain himself from uploading stolen videos on the site, as it would make it very difficult for them to prove their innocence. Thus, it’s crystal clear, that the owners had knowingly committed an offence of theft.

YouTube, on being sold to Google had developed a system that helps flag copyright violations, when videos are posted. But, herein, YouTube fails to appropriately implement the copyright detection tools and intentionally succumbs to uploading the illegal content on its site. This validates the presence of Mens Rea on the part of the respondents.

Moreover, YouTube deprives Viacom of their deserved dues, by showcasing their professionally created videos, without obtaining any licence or reimbursing them, in form of a royalty. Thus, they go about minting money, through the hard toil, made by the originator, Viacom, without even accrediting them.

Finally, apart from Viacom, there are various other instances wherein, other search leader’s own executives have gone to the extent of branding the video sharing service, ‘a rogue enabler of content theft’. This was in accordance with the documents unearthed in other copyright cases.

Indian Context: SCIL vs. YouTube

Case background

While the US approach, to copyright laws, as discussed earlier, turned out to be a muddled one, resulting this case be deemed as a revolution.

The Delhi High Court has, in its own way done a huge favour, to the copyright laws & principles. The judgement passed by the court is apt in this case, as it deems to have been spot on, in preserving the exclusive rights of the copyright owners & thereby restoring their faith in the legal system. This also sets up an ideal example for the evolving legal aspirants & established law professionals.

Facets of the case

SCIL, an owner of a reputed music label, T-series, moved the Delhi High Court against the respondents, YouTube, a component of Google, on account of rank infringement. Basically, YouTube LLC & its parent Google Inc. have on their website (, been showing aides& SCIL’s copyrighted songs without acquiring any Licence or permission. Thus they seek damages.


Under this head, I would be elucidating the grounds which might have favoured YouTube in evading copyright infringement, in consonance with the arguments put forth by the Delhi high court, in support of the injunction order passed by them against the respondents.

YouTube might have contended that they were not liable for any copyright violation, on account of their user policy which is published, whenever a new user try to upload any content on its site. It basically, prompts the individual that he should not upload any content, which has not been obtained with due affirmation from the concerned owner. It lays down the guidelines for the users in compliance of which, he may deter himself from committing theft.

Also, the respondent may bring into the picture, the aspect of performing a technically impossible task of creating filters, that would restrict the uploading of over 300000-500000 illegal content on their site.

On the contrary, the prime reason put forth by the court in support of the injunction order passed , was that YouTube had depicted a mala fide intention of making profits at the expense of SCIL, by broadcasting their songs for free to the public, coupled with displaying advertisements and collecting revenue from the same.

It also brought into light the malignant nature on the part of YouTube, in showcasing SCIL’s songs for free, which resulted in forcing the appellant into severe loss on its revenue, accruing from the sale of CDs, DVDs and audio cassettes.


The Delhi High Court passed an order of interim injunction, against the business practices of YouTube &its parent company Google, restraining them from making any profits at the expense of rightful copyright owners. They were barred from reproduction, adaptation., transmission, distribution, or displaying on their website or any other manner, any audio visual works in which SCIL owns exclusive, valid or subsisting copyright.


In my opinion, the Delhi High Court has hit the bull’s eye, in this instance, by passing an interim injunction against the illegal & unethical business practices of YouTube & its parent co., Google. They have succeeded in re-enforcing the certitude of the owners of the copyright works in the legal system, by assuring them the preservation of their Copyright exclusive rights. This therefore, would also buoy advancement of art & science.

I would support my stance, in the light of the following reasons;

YouTube, along with its parent Co. Google have undoubtedly indulged themselves into copyright violation, by displaying copyright – protected audio & videos, without obtaining required license for the same, from the concerned owners.

Further to outline, YouTube had also displayed its Malafide intentions of minting green paper, using hard toil done by SCIL’s music label T-Series, by not only showing their songs for free to the public, but also displaying advertisements & collecting revenues from the same.

Similarly it had forced SCIL into incurring huge losses, by broadcasting their songs for free to the public, Basically, SCIL’s revenue is generated from the manufacturing of DVD’s, CDS, & audio cassettes and from royalties collected by licensing their original work to hotels, restaurant, telecom operators & internet services. Now, if the public has acquired a free access to their work, why would they opt paying for the same. Thus their scope of generating revenues out of their own work, has been reduced to zilch.

Also its important to understand the hypocrite nature of Google, when they contend that its technically impossible for a website worth $158 billion to make filter, restricting the upload of 300000 to 500000 illegal contents, where on the contrary various minor sites sales manage to restrict the same.