Freedom of Commercial Speech in Europe
Verlag Dr Kovac, Studien zum Völker- und Europarecht, Vol. 58, p. 292, Hamburg 2008
9 Pages Posted: 7 Aug 2009 Last revised: 10 Sep 2009
Date Written: August 1, 2008
Due to the politicisation of commercial life and the commercialisation of political life the freedom of expression enters new territories and triggers conflicts in areas to which fundamental rights considerations have been rather unusual so far. The companies participate in public debates or advertise with reference to social or environmental problems. In Germany the civil courts adopted a very strict approach to this type of advertising and held that it contravened the unfair competition law. The Bundesverfassungsgericht had to ensure that the civil courts considered the right to freedom of speech on the part of the commercial speaker. The U.S. Supreme Court extended the First Amendment protection to commercial speech in 1976. Since then, the courts and legal scholars have been trying to define this category of expression. The European Court of Human Rights included commercial speech within the realm of Article 10 ECHR in the late eighties. However, the American commercial speech doctrine does not have its counterpart in Europe. In fact, the European lawyer is not familiar with the notion of commercial speech. This is due primarily to the different method of constitutional adjudication applied in Europe – balancing as opposed to categorisation in the U.S. The book examines critically the constitutional status of commercial speech in the selected legal systems: under the European Convention on Human Rights, in the European Union, in Germany and Poland. It explores how the commercial speech has been recognised in those systems. In Germany it was a product of a long and complex process of the constitutionalisation of unfair competition law. In Poland, on the other hand, the courts transposed the standards of protection developed under the European Convention on Human Rights. The analysis reveals the complexity of the interrelation between the multiple systems of protection of fundamental rights on the European continent. It shows, however, a spontaneous convergence of the standards of protection of commercial speech. The courts in different European countries develop similar standards of protection despite the lack of positive harmonisation measures. The book examines the case law of different European courts and many variables of commercial speech: advertising, calls for boycott, criticism of competitors, and comments about a sector of business activity. Because of this variety it is difficult to establish the scope of protection to commercial speech. The most problematic category is, however, the mixed speech, which is a blending of commercial self-interest and a commentary on issues of public concern. The analysis extends to the general freedom of speech theory and other constitutional law matters. This book is therefore intended for law students, scholars and practitioners, especially comparativists, who wish to gain more general understanding of the constitutional issues and the standards of protection of freedom of speech across Europe.
Keywords: freedom of expression, commercial speech, advertising, comparative constitutional law, unfair competition law, constitutionalisation of unfair competition law, horizontal effect of fundamental rights
JEL Classification: K
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