Freedom of Commercial Speech in Europe

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Freedom of Commercial Speech in Europe

Joanna Krzemińska

Zentrum für Europäische Rechtspolitik

Universität Bremen

Research Training Network

“Fundamental Rights and Private Law in the European Union”

The European lawyer is not familiar with the notion of commercial speech. The commercial speech doctrine has been originally developed under the First Amendment case law in the United States and does not have its counterpart in Europe. Closer investigation of the European jurisprudence shows, however, that the commercial speech has already and increasingly does give the European courts and scholars a splitting headache.
What encourages the discussion on commercial speech in Europe?
The European Court of Human Rights has held on several occasions, that statements made in the commercial context shall come within the realm of protection provided for by Article 10 of the European Convention on Human Rights and Fundamental Freedoms (hereinafter: ECHR). According to Article 10 ECHR “Everyone has the right to freedom of expression”. This is a rather general declaration, as it does not specify which categories of expression are to be protected. The Court noted that it does not distinguish between various forms of expression.1 Consequently all expression, whatever its content, falls within the scope of Article 10 ECHR. The key question is therefore the scrutiny of the justification for interference under Art. 10 (2) ECHR.2 The necessity test is less strict with regard to commercial statements than in case of political speech. The states enjoy a wider margin of appreciation in commercial matters, which implies that they may interfere with commercial speech to a greater extent than it would be allowed with regard to other kinds of expression (e.g. political speech).3 Consequently, the jurisprudence of the European Court of Human Rights encourages the discussion on the extent to which political speech occupies a higher level of constitutional protection.
To speak about fundamental rights in Europe poses a certain risk of neglecting the complexity of the multiple systems of protection of fundamental rights on the European continent. There are three systems to be taken into account: (1) national constitutions, (2) the Council of Europe’s European Convention on Human Rights and Fundamental Freedoms, and the system of protection of fundamental rights and freedoms established in the European Union/Community. Yet, it does not suffice to discuss these three systems separately. The main difficulty when speaking about fundamental rights in Europe is to reveal and analyse the mutual interactions and links between these systems. This paper examines the status of commercial speech in the context of the protection of rights under the European Convention on Human Rights and in the European Community.
Why does commercial speech create problems?
The need to communicate is the key characteristic of our society. The constitutional right to impart and receive information, encompassed by freedom of expression, is a reflection of this need. The increasing presence of business in society raises a question of the scope of protection accorded to speech by commercial actors.
The source of the problem with commercial speech is the social dimension of business. This notion reflects on one hand the development of advertising techniques and on the other the involvement of business entities in debates on issues of public concern. In today’s world of mass communication and increased competition, advertising is constantly meeting new challenges. It becomes more and more sophisticated. But this not only in the sense of developing new techniques to draw consumer’s attention to a particular product. The public awareness and sensitivity to social problems and human rights issues tremendously influence business strategies. Businesses are more sensitive to social and human rights issues. Complying with good commercial standards and human rights has obtained an important commercial dimension. More and more often the producers will not try to attract us to a particular product but to the company itself. They sell us an image. Due to all these reasons, advertisements brake existing standards and go beyond definitions that legal systems used to ascribe to them.
The aim of this study is to deal with speech, which includes both commercial and non-commercial elements and constitutes therefore a mix of commercial self-interest and a comment on issues of public concern. The analysis will mainly concentrate on the relationship between freedom of speech and fair competition in cases of disparaging comment by a competitor and statements by business entities about their own activity, which may be capable of distorting competition. Therefore, the influence of constitutional freedom of expression provisions on general clause in unfair competition laws will be analysed.
For the sake of clarity three categories of speech have been singled out in this paper: (1) political speech, which enjoys full constitutional protection, (2) commercial speech (e.g. “purely commercial” advertising), which does enjoy some constitutional protection.4 It has been assumed, however, that it is basically subject to the strict liability regime of unfair competition and misleading advertising laws. The third (3) category of speech is a so-called mixed speech, including both commercial and non-commercial statements.
Restrictions on advertising constitute the core of commercial speech doctrine (2nd group above). Bans on tobacco or professional advertising rise concerns about their compatibility with the fundamental right to freedom of expression. The question how far can governmental regulation go in restricting truthful information on lawful activity is repeatedly dealt with by courts in Europe and United States. In this regard, the American courts emphasise the importance of commercial information for consumer choice. In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council5 the US Supreme Court held, that “[p]eople will perceive their own best interests if only they are well enough informed, and … the best means to that end is to open the channels of communication rather than to close them…6 Justice Blackman put it quite strongly: “[a]s to the particular consumer’s interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day’s most urgent political debate”.7
The third group consists of cases, in which commercial and non-commercial elements of speech are strongly intertwined. It is one of the main aims of this study to establish whether this kind of speech, due to its non-commercial element should be lifted to the higher protection standard accorded traditionally to political speech, or whether it should be subjected to strict liability regimes resulting from unfair competition and misleading advertising laws. The examples of cases belonging to this group are Markt Intern8 and Hertel9 cases decided by the European Court of Human Rights. These cases, which will be discussed in more detail later in this paper, concern disparaging statements by competitors, which constituted part of a public debate. Another case belonging to this group has been decided in Germany10. It concerned a dispute between Kirch-Gruppe and Deutsche Bank over statements about creditworthiness (or lack thereof) of the former, made by the management board’s speaker of Deutsche Bank – Mr Breuer. On the occasion of the World’s Economic Forum, Mr Breuer had been interviewed in New York about general economic developments in Germany, the situation of Deutsche Bank and, finally - at that time the topic in Germany – the situation of the heavily indebted Kirch-Gruppe, of which Deutsche Bank happened to be one of the creditors. Mr Breuer implied that Kirch-Gruppe would probably not obtain any further help from the financial sector. Deutsche Bank and Mr Breuer were sued for the contractual breach of confidentiality duty through having revealed details about the financial situation of the debtor. Mr Breuer raised the freedom of expression defence by claiming that the information on the lack of creditworthiness of the plaintiff was generally accessible by the public from the media and that the statements made constituted a contribution to a debate on an issue of public concern.

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