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Less is More: A Normative Evaluation of the ECtHR’s Protection of Commercial Speech

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Abstract

Academics and legal practitioners unanimously agree that two of the main justifications for protecting free speech are autonomy and democracy. Free speech contributes to both the self-development of individuals, as well as to robust democratic processes, and should therefore be protected. This is also the position of the European Court of Human Rights (ECtHR). However, the explicit endorsement of both justifications might give rise to normative questions regarding its protection of commercial speech. While the Court has acknowledged that commercial speech does not contribute significantly to self-development nor democracy, it still awards that form of speech a relatively high level of protection. Moreover, a compelling case can be made suggesting that some forms of commercial speech, such as commercial advertising, might even harm those values. This argument is investigated closely to demonstrate an internal contradiction within ECtHR jurisprudence, between its rhetoric focused on respecting autonomy and democracy, and its practice that might in reality undermine these values.

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Notes

  1. On corporate speech: Greenwood, ‘Essential speech’; Greenwood, ‘First amendment imperialism’; Coates, ‘Corporate speech and the first amendment’; Stoll, ‘Corporate rights to free speech?’; Schauer, ‘First amendment opportunism’. On commercial speech: Weiland, ‘Expanding the periphery and threatening the core’; Piety, ‘Against freedom of commercial expression’; Piety, Brandishing the First Amendment; Sullivan and Gunther, Constitutional law.

  2. Emberland (2006).

  3. Handyside v. UK, No. 5493/72 (Court of Justice of the European Union 7 December 1976); Lingens v. Austria, No. 9815/82 (European Court of Human Rights 8 July 1986); Sener v. Turkey, No. 1676/13 (European Court of Human Rights 24 September 2019); Thoma v. Luxemburg, No. 38432/97 (European Court of Human Rights 29 March 2001); Dichand and Others v. Austria, No. 29271/95 (European Court of Human Rights 26 February 2002).

  4. E.g. Greenawalt (1989, pp. 119–155), Brison (1998, pp. 312–339), Scordato and Monopoli (2002, pp. 185–206), and Barendt (2007).

  5. Retail, Wholesale and Department Store Union v. Dolphin Delivery, 1986(2) RCS 573, 583 (Supreme Court of Canada 1986); South African National Defence Union v Minister of Defence, 1999(4) SA 469, para. 67 (South African Constitutional Court 1999); Animal Defenders International vs. The United Kingdom, No. 48876/08 (European Court of Human Rights 22 April 2013); Partidul Comunistilor (Nepeceristi) v Romania (European Court of Human Rights 2007); Republican Party of Russia v. Russia (European Court of Human Rights 2015); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (U.S. Supreme Court 24 May 1976).

  6. Alongside other arguments such as discovery of truth—in the US context: the marketplace of ideas—and the ‘safety valve function’ of freedom of speech, which draws attention to the role of free speech in the promotion of social stability and tolerance.

  7. One notable exception to this view is Sartori (1987, pp. 315–320).

  8. For example: Dahl, Democracy and its critics, 91; For a historical overview of theories built on this assumption: Lakoff, ‘Autonomy and liberal democracy’, 394.

  9. This position has been defended, for example, by Moore (2019, pp. 620–641).

  10. Christman (2020).

  11. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. at 770.

  12. Sneddon (2001, 15–28).

  13. Taylor (1992, p. 14) and Taylor (1985, p. 16).

  14. Taylor, Sources of the self, 68; Taylor, ‘Self-Interpreting Animals’, 35–38.

  15. Sneddon, ‘Advertising and deep autonomy’, 21.

  16. Marks (1996, pp. 209–238) and Mowbray (2014).

  17. Handyside v. UK at 49.

  18. For example: Lingens v. Austria paragraph 41; Sener v. Turkey paragraph 39; Thoma v. Luxemburg paragraph 43; Dichand and Others v. Austria paragraph 37.

  19. Barthold v. Germany, No. 8734/79 (European Court of Human Rights 25 March 1985); X and Church of Scientology v. Sweden, No. Application No. 7805/77 (European Court of Human Rights 5 May 1979); Hertel v. Switzerland, No. 59/1997/843/1049 (European Court of Human Rights 25 August 1998); Mouvement Raëlien Suisse v. Switzerland, No. 16354/06 (European Court of Human Rights 13 July 2012).

  20. Markt Intern Verlag GmbH and Klaus Beermann v. Germany, No. 10572/83 (European Court of Human Rights 20 November 1989); Hertel v. Switzerland paragraph 47; Schweizerische Radio- Und Fernsehgesellschaft Srg v. Switzerland, No. 34124/06 (ECtHR 21 June 2012).

  21. Barthold v. Germany.

  22. This becomes particularly interesting in the context of contemporary advertising, which sees a trend towards ‘brand activism', where corporations align their brands with certain values and take public stances on socio-political issues, blurring the lines between commercial and political speech for free speech jurisprudence.

  23. Sunday Times v. The United Kingdom, No. 6538/74 (European Court of Human Right 26 April 1979).

  24. Sunday Times v. The United Kingdom; Markt Intern Verlag GmbH and Klaus Beermann v. Germany; Groppera Radio AG and Others v. Switzerland, No. 10890/84 (European Court of Human Rights 28 March 1990); Autronic AG v. Switzerland, No. 12726/87 (European Court of Human Rights 22 May 1990); X and Church of Scientology v. Sweden.

  25. Council of Europe, European Convention on Human Rights Article 10(2): ‘The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary'.

  26. Mouvement Raëlien Suisse v. Switzerland paragraph 63.

  27. The Court has consistently granted States a wider margin of appreciation in the areas of protection of morals and religious sensitivities, see for example: Wingrove v. The United Kingdom (European Court of Human Rights 25 November 1996); Giniewski v. France (European Court of Human Rights 31 April 2006).

  28. Sunday Times v. The United Kingdom, which involved discussion of matters of public interest; TV Vest As and Rogaland Pensjonistparti v. Norway, in which the political nature of the advertisements that were prohibited called for strict scrutiny on restrictions.

  29. X and Church of Scientology v. Sweden.

  30. X and Church of Scientology v. Sweden.

  31. Piety, Brandishing the first amendment; Mouvement Raëlien Suisse v. Switzerland paragraph 62.

  32. Mouvement Raëlien Suisse v. Switzerland paragraph 7.

  33. Casado Coca v. Spain, No. 15450/89 (European Court of Human Rights 24 February 1994).

  34. Mouvement Raëlien Suisse v. Switzerland paragraph 62.

  35. Shiner (2003, chap. Introduction).

  36. Shiner, Introduction.

  37. Munro (2003, p. 138).

  38. X and Church of Scientology v. Sweden at 73.

  39. Munro, ‘The value of commercial speech’, 141.

  40. For example, the commercial speech at hand in Barthold v. Germany or Hertel v. Switzerland.

  41. For example, the commercial speech at hand in Casado Coca v. Spain.

  42. Barthold v. Germany.

  43. Markt Intern Verlag GmbH and Klaus Beermann v. Germany paragraph 32; Hertel v. Switzerland paragraph 47; Schweizerische Radio- Und Fernsehgesellschaft Srg v. Switzerland paragraph 13.

  44. Corporate speech refers to expressions made by corporations and can be either political or commercial speech. Not all forms of commercial speech are corporate speech (see for example, Markt Intern Verlag GmbH and Klaus Beermann v. Germany, which considered bulletins critiquing the commercial practices of large companies as commercial speech), and not all corporate speech is commercial speech (see for example Citizens United v. Federal Election Commission, which concerned corporate political speech).

  45. Citizens United, a non-profit organization, contested a federal statute that imposed restrictions on autonomous corporate financial contributions towards political campaigns. In essence, this statute prohibited corporations from spending money on political campaigns (even without being directly involved in the campaign). In the case of Citizens United, this consisted in broadcasting a movie in which Hillary Clinton was portrayed as unfit for presidency. Citizens United claimed that this statute infringed on its free speech rights under the First Amendment. The Supreme Court ruled that suppressing political speech based on a speaker’s corporate identity violates the First Amendment.

  46. In Burwell v. Hobby Lobby, the Court allowed a ‘closely held' for-profit corporation to be exempt from regulations that its owners religiously object to, thus recognizing a for-profit corporation’s claim of religious freedom. The Affordable Care Act (ACA), which covers certain contraceptives, like Plan B and certain IUDs, was seen as violating the religious freedom of Hobby Lobby, an arts-and-crafts store held by a Christian family.

  47. Addo (1999, p. 187 at p. 188).

  48. See Grear (2006, pp. 171–199), Grear (2007, pp. 511–543), Petersen (2021, pp. 179–197), and Schauer (1982, chaps 4–5).

  49. Piety, Brandishing the first amendment.

  50. Citizens United v. Federal Election Commission at 46.

  51. Tucker (2010, p. 538).

  52. For readers who wish to know more about the concept of the fictional shareholder, I refer to Greenwood (1996).

  53. Burwell v. Hobby Lobby, No. 13–354; 13–356 (United States Supreme Court 30 June 2014).

  54. Burwell v. Hobby Lobby at 4.

  55. Rosenberg (2016).

  56. Citizens United v. Federal Election Commission, Dissenting opinion of Judge Stevens (referring to the American Law Institute’s Principles of Corporate Governance), ‘[A] corporation… should have as its objective the conduct of business activities with a view to enhancing corporate profit and shareholder gain'.

  57. Rosenberg, ‘The Corporate Paradox of Citizens United and Hobby Lobby’, n. 18: ‘Any other goal of corporate political spending would appear highly suspicious. Without a clear profit motive, it could easily be seen as an act of self-interest by management (possibly seeking personal political favors). Further, since the subject is itself so controversial, it cannot fit neatly into the category of goodwill that justifies much real corporate philanthrophy'.

  58. Brief for American Independent Business Alliance as Amicus Curiae 11: ‘the corporation must engage the electoral process with the aim to enhance the profitability of the company, no matter how persuasive the arguments for a broader or conflicting set of priorities'.

  59. Naturally, considerations related to listener autonomy and democratic principles should still be taken into account, which will be done in the following paragraphs.

  60. See notes 54, 55, and 56.

  61. The ECtHR’s understanding of autonomy as more than a mere naked right against the state, but rather as a human capacity for self-realization is clear from its focus on autonomy as self-fulfillment and self-development in cases such as Lingens v. Austria paragraph 41: ‘[F]reedom of expression... constitutes one of the essential […] conditions for […] each individual’s self-fulfilment'; Handyside v. UK paragraph 49: ‘Freedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man'.

  62. Weiland, ‘Expanding the periphery and threatening the core’.

  63. The ECtHR’s understanding of autonomy as more than a mere naked right against the state, but rather as a human capacity for self-realization is clear from its focus on autonomy as self-fulfillment and self-development in cases such as Lingens v. Austria paragraph 41: ‘[F]reedom of expression... constitutes one of the essential […] conditions for […] each individual’s self-fulfilment'; Handyside v. UK paragraph 49: ‘Freedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man'.

  64. Barendt, Freedom of Speech, p. 15.

  65. Sneddon, ‘Advertising and deep autonomy’.

  66. Craig, ‘Living in world we’d like to live In: Capitalist utopias in an age of counterfactuality’ on how capitalist utopias sketched in advertising are made to fit a neoliberal paradigm; Budinsky and Bryant, ‘“It’s not easy being green”' on the transformation of political action and social justice in consumerist behavioral patterns; Meyers, Neoliberalism and the media; Gill and Kanai, ‘Affirmative advertising and the mediated feeling rules of neoliberalism’ on how neoliberalism focusses on gender, race, and disability as individual characteristics rather than ties to particular communities of identity or affiliation.

  67. Carrigan et al. (2004, pp. 401–417), Freestone and McGoldrick (2007, pp. 651–673), Harrison et al. (eds) (2005), Starr (2009, pp. 916–925).

  68. Carrier (2008), Maniates (2001, pp. 31–52), Smith (1998), Szasz (2007), Thompson (2011, pp. 139–144).

  69. Budinsky and Bryant ‘“It’s not easy being green”’, Cock (2011), Lubbers (2002), Kahn (2009, pp. 47–57) and Kassiola (2015).

  70. Karliner (1997) and Parguel and Guillaume (2021).

  71. Pickard, ‘The great evasion’, p. 154: (‘Because public goods are non-rivalrous (one person’s consumption does not detract from another’s) and non-excludable (difficult to monetize and to exclude from free riders), they differ from other commodities, like cars or clothes, within a capitalistic economy').

  72. Hamilton (2006), p. 8. (‘A person can consume a public good without paying for it, since it may be difficult or impossible to exclude any person from consumption').

  73. Napoli (2018, p. 90).

  74. Pickard, ‘The great evasion’, p. 155. (‘The inadequacy of commercial support for democracy-sustaining infrastructures suggests what should be obvious by now: the systematic underproduction of vital communications like journalistic media').

  75. See for example, Randall (2012, pp. 183–280). (‘Owing to the lack of direct profit motive and its pronounced public goods characteristics, speech from independent sources, like political speech, is more easily chilled than commercial speech. Economic approaches focusing on the regulation of speech account for this difference and support a higher level of protection for speech on matters of public concern than for commercial speech').

  76. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. note 24.: (‘[…] commercial speech may be more durable than other kinds. Since advertising is the sine qua non of commercial profits, there is little likelihood of its being chilled by proper regulation and forgone entirely').

  77. Moore (2016, p. 29).

  78. The EU’s Digital Services Act is certainly a step in the right direction of regulating social media platforms, with regulations of certain types of targeted ads, increased transparency measures, etc. However, the estimated 230 new workers that will be hired to enforce the new laws are argued to be hardly sufficient compared to the vast resources available to the tech giants. Regulation of tech giants has been proven difficult to enforce in the past as well, as with the EU’s General Data Protection Regulation (G.D.P.R.), see: Satariano (2020, sec. Technology), https://www.nytimes.com/2020/04/27/technology/GDPR-privacy-law-europe.html.

  79. Ghosh and Scott (2018), Napoli (2019, pp. 203–272), Van Dijk (1998, pp. 1–384), Bucher (2018).

  80. GrrlScientist (2012).

  81. Dougherty and Isaac (2015, sec. Technology), https://www.nytimes.com/2015/11/05/technology/airbnb-and-uber-mobilize-vast-user-base-to-sway-policy.html.

  82. Fuchs (2021).

  83. Sneddon ‘Advertising and deep autonomy’, p. 18; Harry Frankfurt describes freedom as being ‘free to will what he wants to will, or to have the will he wants', or ‘securing the conformity of his will to his second-order volitions' (Frankfurt, ‘Freedom of the will and the concept of a person’, p. 15).

  84. Frankfurt, ‘Freedom of the will and the concept of a person’.

  85. Mill (1863, chap. 2).

  86. Christman (1991, pp. 1–24).

  87. Aylsworth (2020).

  88. Preston (1996, pp. 13–20).

  89. Calvert (2008, p. 205).

  90. Belk (1985, pp. 394–398).

  91. Lee et al. (2007, pp. 199–204), Ulman et al. (2015, pp. 1271–1284).

  92. Griner et al. (2021), https://www.adweek.com/agencies/the-25-best-ads-of-2021/.

  93. Oliver (1979, pp. 8–27), Lee (2014, pp. 219–239), and Yang (2019, pp. 151–165).

  94. Belk, ‘Materialism: Trait aspects of living in the material world’; Preston, The Great American Blow-Up; Lee, Broderick, and Chamberlain, ‘What Is “Neuromarketing”?’; Calvert, ‘Children as consumers’; Ulman, Cakar, and Yildiz, ‘Ethical Issues in Neuromarketing’.

  95. Stoll et al. (2008, pp. 342–359).

  96. Hubert and Kenning (2008, pp. 272–292).

  97. Pluta-Olearnik and Szulga (2022, pp. 87–104).

  98. Pluta-Olearnik and Szulga.

  99. Pluta-Olearnik and Szulga.

  100. Noggle (1996, pp. 43–55), Hanson and Kysar (1999, pp. 630–749), and Danciu (2014, pp. 19–34).

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This work was supported by the Institute of Philosophy at the KU Leuven. The content is solely the responsibility of the author and does not necessarily represent the official views of the Institute.

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    Roxan Degeyter

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Degeyter, R. Less is More: A Normative Evaluation of the ECtHR’s Protection of Commercial Speech. Res Publica (2024). https://doi.org/10.1007/s11158-024-09665-z

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