Tuesday, 26 May 2020

Freedom Of Media And Censorship

Updated: July 28, 2012 3:05 pm

“We are creating a world where anyone anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity.”

—John Perry Barlow


With these famous words of John Perry Barlow it is true that the development of cyberspace has fundamentally changed the way in which society communicates. In such an era, social networking sites (SNS) have rapidly become a ubiquitous method of public communication and expression. While speaking on the revolutionary impact of the Internet or SNS on free speech, it is necessary to also deal with the emerging conflict between the advocates of free speech and advocates of control and filtration. The recent case of censorship of social networking sites is a glaring instance that portrays this ongoing struggle and the most vexed issue of liability of intermediaries for third-party content. Different jurisdictions around the world have dealt with this issue either through legislative provisions or through judicial pronouncements. No doubt, the amendment to Section 79 of the IT Act, 2000 and Intermediaries Guidelines has significantly clarified the position regarding immunities available to intermediaries. However, the Indian laws with regard to their liability are still unclear. Thus, an attempt is made to examine the basis of their liability and scope of their immunities, by comparatively analysing them with similar provisions prevailing in the countries like the UK and the United States. This article further makes an endeavour to provide a critical analysis of the prevailing legislative provisions in India and bring out loopholes in the present legal framework.

Comparative advertising and trademark law

Comparative advertising is one of the best ways of relaying relative information to the consumers. Honest, non-misleading and fair comparative advertising plays the role of salesman who removes the doubts about a brand and is generally viewed positively by law as well as by the public. However, the problem arises when the firms or companies, while aggressively and vigorously promoting their products and services disregarded truthfulness and fairness of representation. As per trademark law this amounts to disparagement of product or infringement of trademark only if it is based on ‘false and misleading facts’. Now establishing facts often require detailed scientific and technical evaluation of the products. Our judicial system is not equipped to deal with this. The proceeding in courts can take a long time to settle a dispute, by the time the advertisement may have already done the substantial damage to the established brand. The competition commission and trademark law have provisions for compensating the party for ‘loss of business and profit’. However, computing losses is another headache and not free from ‘complications and complexities. As a result, courts have not been inclined in awarding compensation to affected parties. Moreover, trademark act only provides for circumstances under which the comparative advertisement is allowed and fails to address many issues like what amounts to comparative advertisement as well as honest practices, when it would lead to product disparagement. It’s the judicial pronouncements that are playing the important role in determining the ambit of comparative advertising but they are handful in number. Thus the law needs to be strengthened in its application for the disputes arising out of comparative advertising.

All these factors together have left the field of comparative advertisement under trademark law effectively unregulated. Thus there is a need for a statute which would consolidate and codify the fundamental principles, values and aims and objectives of the prohibition of product disparagement. It would help in providing a legal framework and would certainly have an advantage over the judicial pronouncements as it reflects the will of the majority in a democracy and will be able to provide a more settled law unlike judicial pronouncements which a court can entirely regard or disregard as a precedent.

By Ruchi Aggarwal

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