Commercial speech and advertisement, which fall under the protection of the right to freedom of expression, are restricted in many countries to prevent unfair competition and untruthful or misleading advertising. Moreover, some advertisement, even when objective, may be restricted to ensure, inter alia, respect for the rights of others.
The European Court has demonstrated in cases concerning commercial speech that although it considers commercial speech to fall under the protection conferred by Article 10 (1), it considers that the level of protection must be less than that accorded to the expression of ‘political’ ideas, in the broadest sense, with which the values underpinning the concept of freedom of expression in the Convention are chiefly concerned. In the following case, Barthold v. Germany , the applicant, a veterinary surgeon, had been interviewed by the press in Hamburg about the availability of emergency veterinary services in the city. Several other veterinaries complained to their professional association that the interview was ‘publicity’ which conflicted with the Rules of Professional Conduct applicable to veterinarians and others in the liberal professions. The association obtained a court injunction against the applicant, restraining him from repeating specified statements to the press. The applicant claimed the injunction violated his right of free expression under Article 10.
Barthold v. Germany
European Court of Human Rights
Application No. 8734/79
Judgement of 25 March 1985
Keywords: expression –democratic society
[?]
B. Compliance with Article 10
43. There has clearly been an “interference by public authority” with the exercise of the applicant’s freedom of expression, namely the interference resulting from the judgment delivered at final instance in the main proceedings by the Hanseatic Court of Appeal on 24 January 1980 at the close of the action brought by the Central Agency. This interference will not be compatible with Article 10 unless it satisfies the conditions laid down in paragraph 2, a clause calling for a narrow interpretation [?]. Thus, the interference must be “prescribed by law”, have an aim or aims that is or are legitimate under Article 10 para. 2 and be “necessary in a democratic society” for the aforesaid aim or aims [?].
1. Is the interference “prescribed by law”?
[?]
46. The legal basis of the interference under consideration was provided by section 1 of the 1909 Act, section 8 (1) of the 1964 Act and Rule 7, paragraph (a), of the Rules of Professional Conduct, as applied by the Hanseatic Court of Appeal. Unlike the first two of these provisions, the third emanated from the Veterinary Surgeons’ Council and not directly from parliament. It is nonetheless to be regarded as a “law” within the meaning of Article 10 para. 2 of the Convention. The competence of the Veterinary Surgeons’ Council in the sphere of professional conduct derives from the independent rule-making power that the veterinary profession - in company with other liberal professions - traditionally enjoys, by parliamentary delegation, in the Federal Republic of Germany [?]. Furthermore, it is a competence exercised by the Council under the control of the State, which in particular satisfies itself as to observance of national legislation, and the Council is obliged to submit its rules of professional conduct to the Land Government for approval (sections 8 (3) and 18 of the 1964 Act [?].
[?]
It is in the first place for the national authorities, notably the courts, to interpret and apply the domestic law: the national authorities are, in the nature of things, particularly qualified to settle the issues arising in this connection [?]. The evidence adduced in the present case does not disclose any clear non-observance either of the 1909 Act or of the Rules of Professional Conduct. The applicant’s arguments - to which, moreover, he did not revert before the Court - do no more than evince his disagreement with the Hamburg courts.
49. To sum up, the injunctions complained of are “prescribed by law”.
2. Does the interference have an aim that is legitimate under Article 10 para. 2 ?
[?]
51. The Court notes that, according to the reasons given in the judgment of 24 January 1980, the final injunction in the present case was issued in order to prevent the applicant from acquiring a commercial advantage over professional colleagues prepared to conduct themselves in compliance with the rule of professional conduct that requires veterinary surgeons to refrain from advertising [?]. The Hanseatic Court of Appeal grounded its decision on the protection of the “rights of others” and there is no cause for believing that it was pursuing other objectives alien to the Convention. The judgment of 24 January 1980 thus had an aim that was in itself legitimate - that is to say, subject to the “necessity” of the measure in issue - for the purposes of Article 10 para. 2 of the Convention. There is no need to inquire whether that judgment is capable of being justified under Article 10 para. 2 on other grounds as well.
3. Is the interference “necessary in a democratic society”?
[?]
55. It has been pointed out in the Court’s case-law that, whilst the adjective “necessary”, within the meaning of Article 10 para. 2 “admissible”, “ordinary”, “useful”, “reasonable” or “desirable”; rather, it implies a “pressing social need”. The Contracting States enjoy a power of appreciation in this respect, but that power of appreciation goes hand in hand with a European supervision which is more or less extensive depending upon the circumstances; it is for the Court to make the final determination as to whether the interference in issue corresponds to such a need, whether it is “proportionate to the legitimate aim pursued” and whether the reasons given by the national authorities to justify it are “relevant and sufficient” [?].
56. In order to assess the necessity for restraining Dr. Barthold from repeating those of his declarations which were adjudged to be incompatible with the 1909 Act and with the Rules of Professional Conduct, the prohibited declarations must be placed in their proper context and examined in the light of the particular circumstances of the case.
The gist of the article in the Hamburger Abendblatt concerned the absence in Hamburg of a night service operated by the entirety of veterinary surgeons. The article explained the general problem to readers by illustrating it with the case of the cat “Shalen” and then by quoting interviews given by the applicant and by Dr. Arndt, who at that time was Vice-Chairman of the local Veterinary Surgeons’ Council. In addition, the newspaper indicated to readers the telephone number of the emergency service where they could obtain the name and address of practitioners available at the weekend. The article was thus pursuing a specific object, that is to say, informing the public about the situation obtaining in Hamburg, at a time when, according to the two practitioners interviewed, the enactment of new legislation on veterinary surgeons was under consideration.
[?]
58. The Court must come to its decision on the basis of all these various factors.
As the Court has already had the occasion to point out, freedom of expression holds a prominent place in a democratic society. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for the development of every man and woman [?]. The necessity for restricting that freedom for one of the purposes listed in Article 10 para. 2 must be convincingly established.
When considered from this viewpoint, the interference complained of went further than the requirements of the legitimate aim pursued.
It is true, as was stated in the judgment of the Hanseatic Court of Appeal, that the applicant retained the right to express his opinion on the problem of a night service for veterinary surgeons in Hamburg and even, in so doing, to divulge his name, have a photograph of himself published and disclose that he was the director of the Fuhlsbüttel veterinary clinic. He was, however, directed not to supplement his opinion, when accompanied by such indications, with certain factual examples drawn from his own experience and illustrating the difficulties encountered by animal owners in obtaining the assistance of a veterinary surgeon during the night.
It may well be that these illustrations had the effect of giving publicity to Dr. Barthold’s own clinic, thereby providing a source of complaint for his fellow veterinary surgeons, but in the particular circumstances this effect proved to be altogether secondary having regard to the principal content of the article and to the nature of the issue being put to the public at large. The injunction issued on 24 January 1980 does not achieve a fair balance between the two interests at stake. According to the Hanseatic Court of Appeal, there remains an intent to act for the purposes of commercial competition, within the meaning of section 1 of the 1909 Act, as long as that intent has not been entirely overriden by other motives [?].
A criterion as strict as this in approaching the matter of advertising and publicity in the liberal professions is not consonant with freedom of expression. Its application risks discouraging members of the liberal professions from contributing to public debate on topics affecting the life of the community if ever there is the slightest likelihood of their utterances being treated as entailing, to some degree, an advertising effect. By the same token, application of a criterion such as this is liable to hamper the press in the performance of its task of purveyor of information and public watchdog.
59. In conclusion, the injunctions complained of are not proportionate to the legitimate aim pursued and, accordingly, are not “necessary in a democratic society” “for the protection of the rights of others”, with the result that they give rise to a violation of Article 10 of the Convention.
Selected additional cases: Markt Intern Verlag GmbH and Klaus Beermann v. Germany , Application No. 10572/83, Judgement of 20 November 1989 and Hertel v. Switzerland , Application No. 25181/94, Judgement of 25 August 1998.
In the following case,Ballantyne et al. v. Canada , the applicants were English speakers in the French speaking province of Quebec, in Canada. A law of the province forbade them to use the English language on commercial signs outside their business premises or in the name of their firms.
Ballantyne et al. v. Canada
Human Rights Committee
Communication Nos. 359/1989, 385/1989
Views of 31 March 1993
Keywords: expression - rights or reputations of others –minorities - language
[?]
Consideration of the merits
11.1 On the merits, three major issues are before the Committee:
[?]
(b) whether Sec.58 of the Charter of the French Language, as amended by Bill 178, Sec.1, violates the authors’ right to freedom of expression;
[?]
11.3 Under article 19 of the Covenant, everyone shall have the right to freedom of expression; this right may be subjected to restrictions, conditions for which are set out in article 19, paragraph 3. The Government of Quebec has asserted that commercial activity such as outdoor advertising does not fall within the ambit of article 19. The Committee does not share this opinion. Article 19, paragraph 2, must be interpreted as encompassing every form of subjective ideas and opinions capable of transmission to others, which are compatible with article 20 of the Covenant, of news and information, of commercial expression and advertising, of works of art, etc.; it should not be confined to means of political, cultural or artistic expression. In the Committee’s opinion, the commercial element in an expression taking the form of outdoor advertising cannot have the effect of removing this expression from the scope of protected freedom. The Committee does not agree either that any of the above forms of expression can be subjected to varying degrees of limitation, with the result that some forms of expression may suffer broader restrictions than others.
11.4 Any restriction of the freedom of expression must cumulatively meet the following conditions: it must be provided for by law, it must address one of the aims enumerated in paragraph 3(a) and (b) of article 19, and must be necessary to achieve the legitimate purpose. While the restrictions on outdoor advertising are indeed provided for by law, the issue to be addressed is whether they are necessary for the respect of the rights of others. The rights of others could only be the rights of the francophone minority within Canada under article 27. This is the right to use their own language, which is not jeopardized by the freedom of others to advertise in other than the French language. Nor does the Committee have reason to believe that public order would be jeopardized by commercial advertising outdoors in a language other than French. The Committee notes that the State party does not seek to defend Bill 178 on these grounds. Any constraints under paragraphs 3(a) and 3(b) of article 19 would in any event have to be shown to be necessary. The Committee believes that it is not necessary, in order to protect the vulnerable position in Canada of the francophone group, to prohibit commercial advertising in English. This protection may be achieved in other ways that do not preclude the freedom of expression, in a language of their choice, of those engaged in such fields as trade. For example, the law could have required that advertising be in both French and English. A State may choose one or more official languages, but it may not exclude, outside the spheres of public life, the freedom to express oneself in a language of one’s choice. The Committee accordingly concludes that there has been a violation of article 19, paragraph 2.
[?]
12. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to theInternational Covenant on Civil and Political Rights , is of the view that the facts before it reveal a violation of article 19, paragraph 2, of the Covenant.
13. The Committee calls upon the State party to remedy the violation of article 19 of the Covenant by an appropriate amendment to the law.
[?]