The Attack On Product Advertising
From Human Rights In Australia by LJM Cooray (c. 1985)

Its Necessity
Part Of The Freedom Of Expression
To Engage In A Trade, Profession Or Occupation
Restricting Expression
Juvenile Consumption Of Liquor And Use Of Tobacco

In countries such as Australia, where democratic and libertarian traditions are strong, attacks on fundamental freedoms seldom take the form of direct suppression or abrogation. The threats instead arise from the paternalistic concerns of elected governments and their bureaucratic agencies. In these countries restrictive measures are introduced as compelling requirements of public policy. Often the measures are claimed to be based on empirically ascertained and scientifically verified needs of society. In reality, the measures reflect particular ideological policy preferences or special interests of minority groups. In general they form a part of the philosophy of social engineering. Viewed in isolation each restriction does not appear to significantly affect individual liberty, although, some have far reaching consequences in themselves. Nevertheless, the measures, over a period, add up to substantial abridgement of personal freedom. In this and the following chapter, it is proposed to discuss governmental policy towards product advertising. This topic is selected for special consideration as it illustrates most of the above observations. The dangers inherent in the present policy are very significant. The policy affects some of the most important basic rights, including the freedom of expression and the freedom to engage in a trade.

Moves to curb the existing freedom to advertise commercial products are gaining momentum in Australia and elsewhere in the democratic world. The major implications for human rights arising from these moves are unknown to large sections of the public who regard such measures as benign attempts to protect the public from the deleterious effects of consuming certain types of products. The danger to freedom posed by these measures are not readily appreciated as their ostensible targets are large corporations and their declared purpose the promotion of public well-being. However, these developments represent serious and wide-ranging threats to human rights.

10.1 The Necessity Of Product Advertising
To understand the importance of product advertising one has to first understand the nature and function of the market.

The market is one of the most ancient institutions known to humankind. Contrary to modern assumptions the market was not the creation of an individual or a class. It arose from the behaviour of individuals who realized the possibility of individual gain through mutually beneficial exchange with others. This explanation may seem rather obvious to most thinking persons but it has taken much anthropological and socio-biological research to convince other learned individuals that the market from the outset of humankind was an adaptation for the purpose of promoting survival.

It is apparent that wherever human beings exist there is the market. Not even the most authoritarian socialist state has succeeded in eliminating the market. Apart from the irrepressible and ever present black market, communist dictatorships have also been compelled to permit limited market operations. The reason has been the realization that it is impossible for the state to provide all goods and all services required by the people. In a communist dictatorship, however, the monopolistic position of the state in relation to most goods and services and the absence of significant bargaining power in the consumer makes the market unrecognisable in most areas of the economy. What is demonstrated by communist economies is the fact that although the market can be forcibly distorted and controlled it cannot be eliminated as long as there are human wants.

In the early times exchange took place mostly by direct bargaining and examination of goods and services. The relative isolation of communities and the limited availability of goods made that method convenient. However, the growth of modern civilization brought about immense economic changes. The. advances of modern technology and communications meant not only the availability of an infinitely wider range of products and choices but also meant that goods could be produced and delivered across great distances at low cost. These developments made it impossible for the individual consumer to effectively exercise his choice without access to extensive information about available products and services. Therefore the dissemination of such information became imperative in the interest of both the seller and the buyer. The role of modern product advertising is essentially the provision of this service.

There is often a tendency to regard product advertising as something carried out by the manufacturers and traders in their self interest and therefore of little importance to consumers. This type of reasoning can only result from deep misconceptions regarding the market. It is no doubt in the interest of traders to advertise their goods. However, in a free market, the self interest of traders demands the satisfaction of the interests of the consumer. The mutual satisfaction of wants is the essence of the free market. It is in a captive or controlled market that suppliers have the capacity to disregard the consumer interest. In a free market, therefore, product advertising is not merely beneficial but is essential if consumers are to exercise individual choice.

Product advertising also creates greater competition to produce better goods and services at lower prices. Advertising enhances the consumer's capacity to discriminate between products and between services. By informing the consumer of his choice, advertising elevates him to a position of strength in relation to individual producers. The principle of consumer sovereignty is misappropriated by people who set themselves up as protectors of the consumer and then press for regulation which is not in the interests of individual consumers. Consumer sovereignty entails not just the right of choice, but the right to be informed about the choices available through advertising and other marketing methods. Restrictions on advertising and marketing are a limitation of the individual's right to be informed and to exercise free choice, and are thus a suppression of his or her civil liberties.

10.2 Product Advertising As Part Of The Freedom Of Expression
Most people readily appreciate the necessity of the freedom of expression to the conduct of political and cultural activity. But few understand its importance in relation to economic activity.

In the literal sense, product advertising is very much a form of expression. Thus it would seem logical that the freedom of expression should protect it. However, there is an unfortunate tendency to draw a distinction between commercial communication and political or non-commercial communication for the purpose of applying the freedom of expression. This distinction is based on the view that the freedom of expression is concerned with the creation of a "marketplace of ideas" and not with a marketplace of material goods. It is therefore contended that communication for profit is not protected by the freedom of expression.

This view is both irrational and unreasonable. According to this thinking, the right to advocate the nationalization of all breweries in Australia is protected by the freedom of expression for that is a communication of a political idea. But the right to say that one brand of beer is superior to others is not protected as it leads to profits. In effect this theory leads to the conclusion that the believer in profits has no right to preach the "adman's gospel" while the socialist may preach the marxian gospel. That conclusion will also be based on the very doubtful presupposition that the motives for advocating state ownership are less selfish than the motives for gaining individual profit.

There are many reasons for regarding the right to advertise as a part of the freedom of expression. One reason is that the distinction between commercial and non-commercial activity is often deceptive and of little consequence. Political choices are made in the political system consisting of elections and representative assemblies. Economic choices are made in the marketplace. However the political and economic systems are not mutually exclusive. They are complementary to each other and one cannot exist without the other. Whilst political choice may ultimately determine economic conditions, it is through economic choices that the individual satisfies his or her wants and also acquires the capacity to effectively exercise political choice. See further chapter 8.

A second reason for extending the protection of the freedom of expression to product advertising has already been explained. It is that without advertising the market cannot function let alone maximize benefits for the consumer. Suppression of commercial information is most harmful to the underprivileged. This fact was recently recognized by the American Supreme Court when it invalidated a statute which prohibited pharmacists from advertising the prices of prescription drugs. The Court stated:

"Those whom the suppression of prescription drug price information hits the hardest are the poor, the sick and particularly the aged. A disproportionate amount of their income tends to be spent on prescription drugs; yet they are the least able to learn, by shopping from pharmacist to pharmacist, where their scarce dollars are best spent". Virginia State Board of Pharmacy v Virginia Consumer Council, 425 US 748 (1976).

The case for individual liberty rests on the proposition that it is the individual concerned who is most competent to decide on the choices that best promote his or her own interests. Product advertising is a means by which the individual becomes aware of his choices at the market place and for that reason it directly enhances individual freedom. As the court in the above mentioned case stated:

"Information is not in itself harmful, people will perceive their own best interests only if they are well enough informed and the best means to that end is to open the channels of communication rather than to close them".

10.3 Product Advertising As Part Of The Freedom To Engage In A Trade, Profession Or Occupation
The freedom to engage in a lawful trade, profession or occupation is recognized in most free societies either explicitly or implicitly. Where this freedom is lacking, the inevitable consequence is that the state becomes the sole provider of employment, income and security. It is hardly necessary to emphasise that under such conditions the capacity for political dissent is drastically reduced if not eliminated.

In certain self-regulated professions such as medicine and law, there have always been restrictions upon advertising. These restrictions flow from the code of ethics evolved by the professions on account of the highly specialised nature of their functions. However, advertising has always been accepted as part of legitimate trading practice. The right to trade carries with it the obligation to compete fairly. Without the right to advertise the right to compete is pretty meaningless especially in the conditions of modern society. In the traditional market place the vendors advertised their wares by the power of their vocal chords. But in the vast and complex markets of today, there is no substitute for mass communication of product and service information.

Advertising is not only essential to modern trade but is itself a legitimate trade or occupation and like most trades is highly competitive. A competitive advertising trade benefits the new and small entrants and intensifies the competitiveness of the market. It thus serves the interests of the consumer.

10.4 Restricting Expression
Advertising of cigarettes has been severely restricted. There are moves afoot to similarly restrict liquor advertising. These restrictions are sought to be imposed on alleged grounds of protecting the public health and morals.

Before considering some of the far reaching consequences these measures have for fundamental freedoms, it is necessary to ask the question whether even as a proposition of law the manner in which such restrictions have been imposed or are being sought to be imposed in Australia can be justified. To consider this question it is essential to understand at least the rudimentary principles regarding the protection of human rights.

First of these is that a human right is identified as such because it accrues to the individual as against everyone. It means that it should be respected not only by the citizens but also by all the organs of government. It cannot be violated by the Judiciary, the Executive or the Legislature. In Australia, because of the absence of constitutional guarantees of human rights, Parliament may if it so wishes violate human rights. It is no doubt possible to uphold human rights without constitutional guarantees but that would require the voluntary recognition and respect for such rights by Parliament and the bureaucracy.

The second principle is that although many human rights are not absolute and may be restricted on such grounds as public health, morality or national security, the justification for such restrictions should be established not by majority view but by objective assessment. Such an assessment must proceed on a balancing of conflicting interests which are analysed in chapter 2.2. What is important is that the mere fact that a restriction is considered necessary by the government in office and its supporters in Parliament is an insufficient ground for restricting a human right. If a right may be restricted according to majority view it is not a human right in the fundamental sense but is a right which is conditional on majority approval.

In most countries which effectively guarantee human rights, the courts have the authority to decide whether or not a restriction imposed by Parliament is valid, and in doing so the courts pay no heed to actual or claimed public support for the restrictive measure. This is because the human right of the individual is inviolable even by the majority. Citizens living in the member nations of the Council of Europe can sue their own country in the European Court of Justice when their human rights are violated. In Australia, however, Parliament and bureaucratic authorities have arrogated to themselves the power to determine the justification of restrictions they themselves propose. Thus the Australian Broadcasting Tribunal is both proposer and the judge of the reasonableness of restrictions on broadcasting. Its decision cannot be challenged in a Court on the grounds of violation of a human right.

Australia has no procedures for enforcement of human rights as against Parliament or the bureaucracy. The Human Rights Commission was set up as a watchdog but is in fact a feeble pretence at the protection of human rights. To start with, it has jurisdiction over a limited and selected range of rights. It is not an impartial judicial body. Although its function is to examine laws and proposed laws to locate any inconsistency with human rights, all it could do in case of violation is to make a report to the Minister (Section 9 of the Human Rights Commission Act). In practice there is no evidence of the Commission discharging this function and even if it did the Minister or the Government may ignore its advice. On the contrary, the Human Rights Commission has proposed the enactment of laws which do violate human rights.

Given the absence of effective procedures for the protection of human rights, the legislatures and governments in Australia can claim to respect such rights only if they observe the highest standards of self judgement as regards the justification for restrictive measures. Legislators and bureaucrats in Australia, however, have shown little objectivity in imposing or proposing the imposition of restrictions on product advertising. They have ignored the essential task of balancing the conflicting interests. They seem rather to be pursuing ideological censorship in the guise of consumer protection.

In seeking to protect the consumer from harmful products, governments can adopt different approaches. It can encourage the free flow of information in order to enable the consumer to make his own assessment of risk and benefit. Such an approach will be consistent with individual liberty and consumer sovereignty. Or it can suppress information which promotes the perceived harm. The latter option is inimical to freedom in that the government thereby attempts to limit the consumers' choice and to impose on him the decision preferred by government. Such a course of action cannot be justified except in extraordinary circumstances such as the sudden arrival in the market of a noxious product regarding which the public cannot be adequately forewarned.

In curbing the freedom of product advertising government is seeking to influence the personal choice of individuals. This is the paternalistic approach to government which distrusts the capacity of the people to look after their own best interests and which considers ever present government to be necessary to guide the individual to self-realization.

The object of the restrictions placed on tobacco and alcohol advertising is to save the people from themselves. However, once embarked upon, the task of saving the people cannot end there. People take countless risks in everyday life. They indulge in over-eating. They engage in hazardous forms of amusement such as mountain climbing, hang gliding and rugby football. Motor car driving is one of the most hazardous activities. The risks are endless.

A novel justification for risk avoidance is that by doing so it is possible to limit public expenditure on services such as health care. But this is a circular argument. Government initially undertakes universal health care for those who can and cannot afford to look after their own health. This is the first paternal measure. Individual health becomes the government's responsibility. This paternalistic logic then dictates that the authority that pays the bill should have the right to ensure that the bill does not become too big. Hence the second paternal measure to make the people live the healthy life. It is not difficult to see where it all leads. Under the embrace of paternal government, individuality recedes and government (and with it bureaucratic discretion) grows.

Risk is of essence to individual freedom. It is fundamental to human enterprise. Coercive risk removal destroys initiative and self reliance, the very qualities upon which free and prosperous societies are built.

10.5 Juvenile Consumption Of Liquor And Use Of Tobacco As A Ground For Restriction Of Indirect Advertising
The campaign for restriction of indirect advertising of tobacco and alcohol is gradually gaining ground. These restrictions are being viewed in public debate primarily in terms of the financial loss to sport. However, there are more fundamental issues involved. Some of these have been referred to above.

The move to further restrict liquor and cigarette advertising is being pushed by pressure groups. Consumption of alcohol and tobacco have side effects. However, there is considerable medical opinion favouring the view that, used in moderation they are not objectionable and may even have the benefits of providing relaxation and release of tension.

There are many activities (some sports, overeating) which have unpleasant side effects if carried to excess. They cannot all be banned. Unless a product is extremely hazardous and dangerous, there is little justification for banning it or restricting the advertising of it.

Once the principle is accepted that mere harmful side effects are grounds for banning or restriction of advertising, it places immense power in the hands of the State. Ultimately what is to be permitted and what is to be banned is a decision which will be taken by a few select and imperfect human beings with possibilities of error and prejudice affecting their decisions. It is far better to place the ultimate decision with the consumer. Pressure groups who feel strongly on the issue could campaign to point out the hazards of consumption of alcohol and tobacco. This provides in a free society an opportunity for exchange of views.

The argument is made that there is widespread teenage and juvenile consumption of these two items. Advertising plays only a small part in teenage consumption (if any). Banning of advertising will not touch the problem. The main reasons for the growth of juvenile consumption are threefold. Parents and schools are exercising less control over their children. Some children are growing up without parental influence or with inadequate parental and scholastic influence. School children in uniform openly smoke in public places without any risk of disciplinary action. Second, so-called progressivists have been encouraging children to think of themselves as young adults and encouraging them to rebel against their parents, and to make independent decisions. Third, children in contemporary society have a far greater spending power, compared with children of previous generations, and are not prevented from purchasing alcohol or cigarettes because of the ineffectual enforcement of the laws. These are the primary causes of the growth of juvenile consumption and banning advertising will not touch the problem.

If only the authoritarian trendy pressure groups determined to impose their views on others through government regulation would care to spend a fraction of the time and money on educating children and adults about the problems of smoking and drinking they would make a genuine contribution to society.