When comparison becomes defamation


Manisha Singh Nair

Comparative advertising makes claims for a given product over others. While India does not have a dedicated statute governing comparative advertising, it is addressed by the Trademarks Act, 1999.

Comparative advertising cases often arise from the difficulty of balancing freedom of speech and expression as guaranteed under the Indian Constitution and advertising requirements. The Monopolies and Restrictive Trade Practices Act, 1969 (MRTP), which defined ‘unfair trade practices’, did not explicitly mention comparative advertising. The Competition Act, 2002, which replaced the MRTP Act, also ignored the subject.

Article 19(1)(a) of India’s constitution protects freedom of speech and expression. This freedom embraces public speaking, radio, television and press. The question of whether ‘commercial speech’ falls under the umbrella of free speech arose in Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd. The Supreme Court held that commercial speech could not be denied the protection of Article 19(1)(a) of the constitution merely because it came from business.

The court also recognised the right of the public at large to receive commercial speech. However, Article 19(2) permits the state to impose reasonable restrictions on freedom of speech and expression in the interest of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement.

Comparative advertising