Human Rights In Australia by
Doctor Mark Cooray
The Attack On Product Advertising
| 10.0 | Introduction |
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| 10.1 | The Necessity Of Product Advertising |
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| 10.2 | Product Advertising As Part Of The Freedom Of Expression |
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| 10.3 | Product Advertising As Part Of The Freedom
To Engage In A Trade, Profession Or Occupation |
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| 10.4 | Restricting Expression |
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| 10.5 | Juvenile Consumption Of Liquor And Use Of Tobacco
As A Ground For Restriction Of Indirect Advertising |
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Introduction
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.