Free Speech 6- Different Types of Speech Flashcards
1
Q
Introduction-
A
Good news this lec wont take full 2 horus
Unpack media fr 2 parts
Shorter lec today
Next week 2 houir
Today- how polictal and comrival speech in –partic is treated in diff jurisdiciton
2
Q
Introduction-
A
This lecture:
Political speech
Commercial speech
Next week: a way of communicating - anonymous and pseudonymous speech
3
Q
Introduction-
A
Mentioned before that the eucthr in partic afford political expression, the highlest level of protection in contrast commercial expression is afforded far more limited protection lthough it is still protected, remember earliest lec, if you kind of ranking catgeories of speech,
political exp by far highest of prote- poliutcal exp = public interest expression not just expression relating to the casting vote, then it be
commercial then artistic speech
So there are other types, artistic speech, pornography, religious speech, hate speech- there are other diff types- but purpose of this lec only focus these 2
4
Q
Introduction-
A
Next weeks – anonymous and pseudonymous expression- which cause is WAY OF COMMUNICATIAN which can apply to all types of speech, whether that be political commercial religious etc – that’s gonna do netx couple of weeks
5
Q
A view from the US
A
Start fo with view from us- so as well see th eus supreme cour juris is very similar to echt hr in repsect of the importance it places on political speech.
cratic self goverencne. And just gonna recap
6
Q
A view from the US
A
Now in the new York times- very famous case
7
Q
A view from the US
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the supreme court held that a civil liable action, bought by public official, could only be constitutionally sustained if the statement was made with malice, in that the d must have known that it was either runtrue or they were reckless as to its truth, now the fundamental rationale for the decision supreme court,
8
Q
A view from the US
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can be found in justice brennans dictime, this is what he said,
9
Q
A view from the US
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we consider this case against background of a profund national committmenet, to the principle, the debate on r.a.w
10
Q
A view from the US
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New York Times v Sullivan 376 US 254 (1964)
‘…we consider this case against the background of a profound national commitment to the principle that the debate on public issues should be uninhibited, robust and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials…’
per Brennan J 376 US 254, 270 (1964)
11
Q
A view from the US
A
thus it has been argued tha political speech, partic context of us juris, echthr aswell , occupies what is refereed to in us constitutional juris as a preferred position, so political speech, occupies or be elevated to, what is referred to as a preffered position
12
Q
A view from the US
A
were gonna look at this preferred position, of political speech and the arg from democratic self goverencne. And just gonna recap
13
Q
The ‘preferred position’ of political speech and the AFDSG
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Recap stuff went over in 2nd lec
Remebr some of this principes is impor
Remember: Alexander Meiklejohn – political expression includes speech of public interest
As we saw from 2nd lec – the argument from democratic self gov, argument from democracy is largly attributed to alexander meikle-
14
Q
The ‘preferred position’ of political speech and the AFDSG
A
now as we saw in that lec- miek argued for the subsition of political expression, with the wider and less restrictive notion of public discussion.
15
Q
The ‘preferred position’ of political speech and the AFDSG
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Which relates to any matter of public interest, as opposed to expression purely linked to the casting of votes-
16
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The ‘preferred position’ of political speech and the AFDSG
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so that’s ewhat he said he sai dpoltiical expression actually should mena public discission which relates to any matter of public interest not just the casting of votes.
17
Q
The ‘preferred position’ of political speech and the AFDSG
A
What miekljohn sai dis that public expression is speech which impoacts directly or indirectly upon these issues with which voters have to deal. In other words matters of public interest.
18
Q
The ‘preferred position’ of political speech and the AFDSG
A
Now later on in later wrtings miekkljohn clarified this wider view of pub discussion- so we rtalked about this in more detail and he satted in later wrtiigns that voting is merely’the external expression of a wide and diverse no of activites by means at which xcitizens attempt to meet the responsibilits of making judgments.
19
Q
The ‘preferred position’ of political speech and the AFDSG
A
‘ so what that means is is that education, philoshophy, sciene literat , the arts and public discussion on public issues, are activities that will educate citizens for self govenrnce, all come under that wide umbrella of arg form democracy.
20
Q
The ‘preferred position’ of political speech and the AFDSG
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Now the genral preference for political speech in our juris, can be justified by reference to the underlying argumnts for foe.
21
Q
The ‘preferred position’ of political speech and the AFDSG
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Liberal contstitiuions /lib countries show a commitment to an open participatory democracy.
22
Q
The ‘preferred position’ of political speech and the AFDSG
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And this commitiment conclude or makes difficult to defend total bans on public discourse.
23
Q
The ‘preferred position’ of political speech and the AFDSG
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Strong protection afforded to political speech justified by AFDSG.
24
Q
The ‘preferred position’ of political speech and the AFDSG
A
As a result the strong protection which is afforded to political speech, can be justified by refernce to the weight of the argument from democrati c self gov. and what that does – arg democratic sel fgov affectively elvevates political discours-e discourse on public interest to a special staus
25
The ‘preferred position’ of political speech and the AFDSG
Q is- why does r.a.w ?-Why does political speech enjoy a special status?
Well eric barenft answered that- according to him, he says that free political speech, encourages a well informe, politically sophistacked electorate.
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The ‘preferred position’ of political speech and the AFDSG
Which is able to confront governments on more or less equal terms.
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The ‘preferred position’ of political speech and the AFDSG
Professor Barendt: electorate and government on equal terms.
| Whitney v California 274 US 357, 376 (1927) per Justice Brandeis: prevents stifling of debate.
28
The ‘preferred position’ of political speech and the AFDSG
So barendts vuew atcualy is mirrored to extent –us supreme court whitney v – in paritc by justice brandies in his judgement- he said that poltical discourse prevents the sti- r.a.w on political amtters.
29
The ‘preferred position’ of political speech and the AFDSG
Which he said in the long term might indager the stabikit of the community and make rfevolution more likely. So in a nutshell that why we have this elevated status or political speech.
30
The ‘preferred position’ of political speech and the AFDSG
That’s why its so improtnant.
And quite clearly its been – it enjoys this elevated status in diff jurisdci around wroled in respect of echtr and us supreme court.
31
The ‘preferred position’ of political speech
AFDSG may be reinforced by other indications that political speech enjoys special status.
So …
Staying with this preffere dpsotion- so strength of the arg from democracy, arg form democ self gov may be reinforced by r.a.w over and above other types of speech.
For instance free speech rights may be incorp in the respesctive countries consituion, together with other political freedoms such as right 2 vote and right of political parties to play role in demcoractic process.
32
The ‘preferred position’ of political speech
Court’s may uphold a ‘right’ of political discourse as a inherent element of a free society.
As a result a court may uphold a right’ of r.a.w on gorunf that it is inherent r.aw
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The ‘preferred position’ of political speech
Even though there is nos peciific consituinal provision whicbc guarantees that right.
34
The ‘preferred position’ of political speech
So what that means that ctrs may find that inherent right exists within a democracy even though not actually anything written in consituion which actually guarantees right to political speech, it just inherent within a democ.
35
The ‘preferred position’ of political speech
Bc within democ have right to vote, political parties have right tot ka epart in democratic process.and thereofr as result of this there is an inherent right of public discourse within a democracy.
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The ‘preferred position’ of political speech
Illustrated by case law from Canada and Australian:
Re Alberta Statutes [1938] SCR 100
Nationwide New Pty v Wills (1992) 177 CLR; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106
-This is illustrated- the upholding of a inherent right of political discourse as an element of free soc is i;llustatretd case law through dif fjursidictions
Actually cases from cananda and Australia
Look breifle these case
37
The ‘preferred position’ of political speech
Earlies t1 re alberta canandian supreme court case- very old case- in this case 3 member s of the candian supreme court, which had been asked for an advisory opinion on an alberat press law.
38
The ‘preferred position’ of political speech
These 3 member sof supreme court found such a rifght implicit in the british north Americana ct 1867. which is there few reflected the spirit of the unwritten britsh consti. So what they found inherint int hata ct was this right inherent right o fpoltiical discourse. Because of course cnada that time was a colony common wealth country we as britan we don’t have written consit.
39
The ‘preferred position’ of political speech
We are 1 of few countries that don’t have written const. we are 1 of them, but its is inheren twihtin our other rights. That there is for discourse.
40
The ‘preferred position’ of political speech
So 2 austra cases much more recent
In both these cases the high ct of Australia upheld an implied right to freedom of political comm which they found was implicit in the expressed commimtment of the austrialian constitution, to the holding of free elctions and democratic gov. so Australian const there is a right to holding of free eelctions and democratic gov that is explaicit within the austral consition, its written ink. What high ct found is that inherent within those 2 rights I aright to political discourse.
41
The ‘preferred position’ of political speech
So as u can see this elevated status of poltical speech sint just found jursi echtr us – its wide spread, cananda and alos australi asell and im sure many other countries.
42
The ‘preferred position’: a balancing exercise
So gonna look at how balancing exercise is undertaken in relation to this 3rd position.
Political discourse balanced against countervailing rights
So the us courts not just us supremem court bus us court genrally and also echtr blance the relvant gov interests underlying the partic challneg law against the speech which the state wishes to punish or restrain.
Rules adopted to provide greater clarity/consistency:
E.g: US – ‘clear and present danger’ test
Schenk v United States 249 US 47 (1919) per Holmes J
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The ‘preferred position’: a balancing exercise
Now the weight of consideration, such as national security or public ordr is assessed to determine whether it is enough to justify the suppression of the restriction of speech.
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The ‘preferred position’: a balancing exercise
Now sometimes the process involves a adhock calculation of the improtanr in the partic circumstances of the competing interests.
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The ‘preferred position’: a balancing exercise
Rules adopted to provide greater clarity/consistency:
The courts have also forumualted general rules which are adopted and used it order to try to ensure greate consitiency across their decisions.
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The ‘preferred position’: a balancing exercise
So for instance in the us we have the clear and present danager trst- forumulated by justice holmes r.a.w –old test
-E.g: US – ‘clear and present danger’ test
Schenk v United States 249 US 47 (1919) per Holmes J
47
The ‘preferred position’: a balancing exercise
Now in schenk the d’s had been rpoesucted under the espinarge act 1917. they were prosec for circulating leafkets which opposed the draft to the he great wall. This is when us was joingin the wall.
48
The ‘preferred position’: a balancing exercise
Opposing draft and also participation in wall. Now upholding d conviiton under the act justice homes formaulted following rule ‘ clear and present danger tets’ q in evry case is whether words are used in such cirucm and such nature as to creat a clear and present danger that they will brin about the substantive evils that congress has a right to prevent.
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The ‘preferred position’: a balancing exercise
So in other words saying is, well look if the speech creates a clear and present danger to the coutnervielign rights then in that sit the speech can be restricted.
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The ‘preferred position’: a balancing exercise
So of course in thius partic cir cumsance u had people distrib leaflets panfles that were opposing the draft walla nd partic wall- in this aprtic sit the clear an p danger there was maybe threat to national security public order, numbe rof reasons but the words that were expressed by the individs concern created a clear and present danger.
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The ‘preferred position’: a balancing exercise
That brought out substantive evils thjat congress wanted to prevent. So that’s 1 of the tests that’s been appkied try to atleast find some sort of consit In us clear and oresnt danger test.
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The ‘preferred position’: a balancing exercise
The echt hr approach tobalancing political speech with coutnervielign rights is similar- before that is there any q’s.
53
The ‘preferred position’: a view from the ECtHR
So we look noe evelvated status of poltical speech but from echtr persp than us.
ECtHR attaches highest importance to political speech: Handyside v UK (1976) 1 EHRR 737; Sunday Times v UK (1979) 2 EHRR 245.
54
The ‘preferred position’: a view from the ECtHR
Political speech = defined expansively to include matters of general public concern.
So we know form 2nd lec that poltical expression has been itnerp expansively to inclide speech on matters of public concern/interst as a result the stras court, has viwed expression concerning things such as litgation, alleged speech police mail practice , the allege cruelty to seals, inflicted by hunters,
55
The ‘preferred position’: a view from the ECtHR
r.aw cases above the comments on vet surg- have all been reviwed by eu court as obtaing to matters of public concern which have ben worth of strong protection,
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The ‘preferred position’: a view from the ECtHR
Sunday Times v UK (1979) 2 EHRR 245: litigation
Thorgeirson v Iceland (1992) 14 EHRR 843: police malpractice
Bladet Tromso and Stensaas v Norway (1999) 29 EHRR 125: seals
Bergens Tidende v Norway (2001) 31 EHRR 16: cosmetic surgeons
Barthold v Germany (1985) 7 EHRR 383: veterinary surgeons
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The ‘preferred position’: a view from the ECtHR
so this illyusttrates really how wide the ambit of political expression under euchrt juris actually is. Cos under political expression like said its been inter expansively.
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The ‘preferred position’: a view from the ECtHR
So it would be massive publicconcern all this stuff here are e.gs of speech which have been held to const matters of ppbulci concern.Gives idea how expansivelty interp.
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The ‘preferred position’: a view from the ECtHR
Now as wev epreviously disccued the chtr atatches the highest importance to polticla speech including speech of public interst and concner.
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The ‘preferred position’: a view from the ECtHR
Now in handsyide the cts said the guarantee of freedo of express, was primarly concerned to protect dissemination of political idea.s. so said protection that weafford free speech we althjouh ther to protect other forms , its priamryy prupose its act to protect this kind of speech.
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The ‘preferred position’: a view from the ECtHR
Speech that relates to poltical discourse and discouse on issues of public cocnernt hats its primary function.
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The ‘preferred position’: a view from the ECtHR
In Sunday times- the eu ct held that each member state , has a greater margiun of appreaciation in framing measures to protect morals than it does in the cases or in case of rules required to maintain confidence in the adminstraiton of jusitcde.
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The ‘preferred position’: a view from the ECtHR
And according to profess barnedt this distinc by echt and sunda times against uk reflects the preferred psotion of speech concerned with polticala nd public affirs.
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The ‘preferred position’: a view from the ECtHR
And this preferred position is emoahsis and illustrated very nicely by judgement in lingens v Austria. Another famous echtr judgment.
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The ‘preferred position’: a view from the ECtHR (2)
So in lingens- the a[plicant was a journalist who ahd alleged that the then chancer of austra at time had protrcted and had assisted former Nazis. Now mr lingens was concicted and was fined for criminal lible. It appeared to echtr the eu ct mpahsies the imprtnace of freedo of poltical debate in a free and democratic soci. And this si what they said in famous jdugement.
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The ‘preferred position’: a view from the ECtHR (2)
Lingens v Austria (1986) 8 EHRR 407 [41]-[42]:
‘…it is incumbent on the press to impart information and ideas on political issues just as those in other areas of public interest. Not only does the press have the task of imparting such ideas: the public also has a right to receive them…The limits of acceptable criticism are…wider as regards a politician as such than as regards a private individual: unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and must consequently display a greater degree of tolerance.’
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The ‘preferred position’: a view from the ECtHR (2)
r.a.w and thay cetainlty remains the principle which echr consitenyl applied since lignn since 1986.
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The ‘preferred position’: a view from the ECtHR (3)?
Free flow of information = critical during elections: Bowman v UK (1998) 26 EHRR 1.
So according to stra court echrt it is partic important to have a free flow of opinions and info during the run up to elections, so it’s a part important moment to run up to elections.
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The ‘preferred position’: a view from the ECtHR (3)?
What about where the expression is directed at undermining democracy/human rights?
-Hw what about when expression is directed at actually undermining democracy or udnerming hr. in this insta where u have sppech which is direct at repeat/..
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The ‘preferred position’: a view from the ECtHR (3)?
The respective ememebr state is not required by art 10 to provide or to confirm the same proetcion as it would be obliged to do so in the case of orthodox political expression.
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The ‘preferred position’: a view from the ECtHR (3)?
Extreme left-wing / neo-Nazi groups: Glimmerveen and Hagenbeek v Netherlands App. nos. 8348/78 and 8406/78 (1979) 18 DR 187 [7.15]-[7.16]; Jersild v Denmark (1994) 19 EHRR 1.
- And an e.g of this. This has been applied in partic to the expression by the extreme left wing and also neo nazi groupsand u got couple of cases- c
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The ‘preferred position’: a view from the ECtHR (3)?
ases – jersil v Denmark paritc famous casw but qalso glimmer v neth- bc speech in these partic cases were deisgned to undermine democracy of hr.
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The ‘preferred position’: a view from the ECtHR (3)?
and that sit where they had political flavor to speech, they weren’t granted same protection as orthodox speech cos of their purpose, which was to undermine democr of hr. no inte
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The ‘preferred position’: a view from the ECtHR (3)?
Communist sympathisers? Vogt v Germany (1995) 21 EHRR 205.
Vogt v germ- more recent stras case law e.g case here suggests that the collapse of communism in eastern Europe has meant it is no logner necc to impose restriction on speech of cumm sympathy-
75
The ‘preferred position’: a view from the ECtHR (3)?
so prior to collapse of communi in eastern Europe, so going back 20 yrs bit more than that, speech by comm, probs would be treated same way as speech by neo nazi groups.
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The ‘preferred position’: a view from the ECtHR (3)?
Woudlnt be given same level of protection but bc now collapsed in Europe. Bc think only communist country left in whole of eu = Belarus think so, but not that issue anymore.
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The ‘preferred position’: a view from the ECtHR (3)?
So it seems as though there aren’t gonna be same restrictions imposed on comm speech as there would have been in the past/ anyu thoughts? –
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The ‘preferred position’: a view from the ECtHR (3)?
So gonna look at now position from uk- critical speech
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The ‘preferred position’: a view from the UK
House of lords - - sure supreme ct would do if ever had to make dec on this partic issue- but hol adopted similar approach to both eu ct hr and the us supreme court in respect of political expression.
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The ‘preferred position’: a view from the UK
There are 2 particular decisiibs, which demonstrate the willingness of the uk cts to give strong protection to freedom of political speech. Elevating it to something akin to a preffered posi.
Don’t call it a preferred pos in uk that’s an American term. But its similar sit.
81
The ‘preferred position’: a view from the UK
So we no preffered pos is an American term we got similar sit in respect of echrand have similar sit in uk. So in case of Derbyshire r.a.w -Derbyshire County Council v Times Newspapers [1993] AC 534 per Lord Keith at 547.
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The ‘preferred position’: a view from the UK
The hol held that it was contrary to public int to allow any govermemtnal auth whether that be central gov or local gov, to sue for liable.
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The ‘preferred position’: a view from the UK
As tht would feter freedom of speech,. Lord heeth again very famlus judhement he said it was vital that a democratically elected gov body or indedd any gov body should be open tl uninhibited critcm.
84
The ‘preferred position’: a view from the UK
So since that case gov auth , gov bodies at any level, local or central cannot sue for liabilit.. We also have case in 2004 crown v bbc pro life all- another famous case lord Nichols said above.
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The ‘preferred position’: a view from the UK
R (ProLife Alliance) v BBC [2004] 1 AC 185, at 224 per Lord Nicholls:
‘Freedom of political speech is a freedom of the very highest importance in any country which lays claim to being a democracy. Restrictions on this freedom need to be examined rigorously by all concerned, not least the courts.’
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Defining political speech
Political speech and public discourse = vague terms
Meaning of terms polit speech and public discourse are very vague terms, some extent there scope can be determined
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Defining political speech
Scope can be determined by contrasting them with other types of speech: commercial, artistic etc.
- by contrasting them with other types of speech such as comm speech , artistic speech, pronorgahic speech etc, now reflections on the implications of the arg from democratic self governance may also hdelp to shed some light on the meaning of business speech In public discourse.
AFDSG also helps to shed light on their meaning.
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Defining political speech
This is bc the arg from democracy underpins the special status which is given to political speech.
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Defining political speech
But as eric barend thas said it would be wrong to look for too much precision theyre vague terms for good reason I other wrods.
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Defining political speech
The cts and not just uk cts but also other cts other countries, they dislike drwing disrinctions in this area of political speech pbilci concedrn prob bc they do not wish to arbitrally discirmiante against cetain types of expression on the basis of that expressions content.
91
Defining political speech
Now in principle, political speech shouldn’t be confided to comm which directly concern the conduct of goc. Or which seek to influence electroical choices.
92
Defining political speech
That would be much too narrow, in principle. What that would do is it would privleeg speech raised by political parties and candidates.
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Defining political speech
Only that sort of speech would be elevated that special status. Instead wha we have is that th public are entield wide range of topics irrespective of whether they are taken up by gov and political parties.
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Defining political speech
-Political speech should not be confined to communications concerning the conduct of government/seek to influence electoral choices.
As a result political speech, refers to all speech which is frleevant to the devleopemnt of public opinion. On the whole rnage of issues which an intlelignet citizen should think about. Right .. Break.
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Defining political speech
Any qs before commercial speech? Poltical speech refers to all speech which ios relevant to the development of public opinion on whole range of issues which an intelligent citizen should think about. If u want quick break 5 mins and then resume.
96
What is commercial expression? The US position
Commerical speech, so numerous defintosn have been advanced for comme speech and what comm speech ac means for both us supreme court and echtr well start by looking at the us supreme court def, there are 2 So 1t#st def was laid down in v r..aw case above. –
97
What is commercial expression? The US position
Virginia State Board of Pharmacy v Virginia Citizens Consumer Council 425 US 748: defined narrowly as the provision of information, through advertising, about the price of goods and services to induce a commercial transaction.
98
What is commercial expression? The US position
and in v blackman said that the q before ct was whwteher speech which does not no more than propse a commercial transaction is so removed from the expression of ideas about political, mroalrt, the arts and science that it should be without protection- jutsiocte balckm man.
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What is commercial expression? The US position
So idea in this case wa sthat pharmacist were involved in wanted to communicate with simply this- I will sell u x prscription drug at y price. Idea pharm wanted to sell.
100
What is commercial expression? The US position
So in effect under formulation that was laid down by justice blacman in virhna, comm speech is defined as the provision of info during advertsing about the Christ and other aspects that good and services to infuse a comm transaction.
101
What is commercial expression? The US position
Under virgin pharm formula – comm speech define as the provision of info r.aw – now this is a very narrow def.
102
What is commercial expression? The US position
its unclear it still remains unclearf whether rit covers lifestyle and by lifestyle ad. This is where a favoruable image is conveyed about the rpodcut but theres no actualy info given about product.
103
What is commercial expression? The US position
Good e.g? so where uve got a favorbal image conveyed about product but no info about it, other than maybe products name. alchol very good e.g lot of alc favporable image partic lifestyle any other e.gs cars another good 1. convey lifestyle u buy this car etc. very little info no specific schdeme about. Proably to an extent..
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What is commercial expression? The US position
1 always think about asweel in partic is afertshave or perfumed. – no written messga eiof other than fact gave certain lifdestyle
105
What is commercial expression? The US position
So well as lifestyle ad other types of sppech are also very problematic under the virgina pharmacy narrow def of comm speech. By way of exa ple for isntnacde, statements ina company perpespctus, or statenments made in comp annual call would appear to form outside virgina pharmacy def of commercial speech which may create prob.
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What is commercial expression? The US position
We the had further def given by us supreme ct in case of central Hudson gas – in this case comm speech was defined by justice pwoling as expression related solely to the economic int of the speaker and its audience.
107
What is commercial expression? The US position
Central Hudson Gas and Electricity Corporation v Public Service Commission 447 US 557 (1980): ‘expression related solely to the economic interests of the speaker and its audience’
108
What is commercial expression? The US position
So expression relates soelely to the economic interst of speaker and its audience, now this is much broader def which encompases a wider rane of areas, not covered.by narrow def under virigna.
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What is commercial expression? The US position
Now under huson the expression relates solely toe conomic interests . As eric barendt suggested, what this means is that adv by family planning centre/clinic might not be regarded as commercial speech under this def, since it provides info of real importance which does not primarly yet alone solelty concern the reciptents economic itners.t so u have private family planning clinic, under this def that adv wouldn’t be clases as commericla speech bc what advertsing doesn’t solely relate to recipetnets economic int. it realtes to toher info which is of much greater importance.
110
What is commercial expression? The US position
Also another case
NAACP, against cali, borne – 458 us 886 1982.
Case illusrratws is tht advocacy of boycott of partic traders for political reasons such as to use them and to employ minority workers, is political expression .
111
What is commercial expression? The US position
So advocating that we should boycott poltical trader to get them to employe minority workers is political expression, to the contray of advocacy which is itnened purely to persuade the recipe of the info the audience, to terminante its contracts with those tradrs for purely conocmic reasons, should be treated as comm speech.
112
What is commercial expression? The US position
So if there say u should terminate contract for those traders bc they don’t employ minor workers that’s polticial speech.- economicreaosns that’s comm speech even tho relates to same traders.
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What is commercial expression? The ECtHR position
Echt here- arguably dominate view on what is comm speech from echt perspective was laid down by echt in case of Demuth r..a.w
Demuth v Switzerland (2004) 38 EHRR 20: speech designed to promote commercial, economic or financial interests
and the def givien by eu ct is similar tot hat which was devised by us supremem ct in case of hudosn. In essence acoridng to echr.
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What is commercial expression? The ECtHR position
Comm speech is speech that is primarly designed to promote the commercial economic or finaicl interests of individuals or eenterprieses.
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What is commercial expression? The ECtHR position
So most obv e.g of this si advertising but it also has ben found to include any means of covneyring commercial info to consumer.
Most obvious example = advertising, but also includes any means of conveying commercial information to the consumer.
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What is commercial expression? The ECtHR position
So if go back to comm def in virgina- which looked as if that would exclude lifestyle ad or even info found in company prospectus the def given by echt wouldn’t exclude that sort of info, lifestyle info would be covered as would info in compamy prospectus for instance.
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What is commercial expression? The ECtHR position
So q is hen why do we nee to protect commercial speech why is it worthy of protexiton. So invirgina pharmacy, excluding comm speech art 10 proeciton would require courts to draw arbitay disitnc btw it and other forms of expression. Now in virg pharmayc
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Why protect commercial speech?
So q is hen why do we nee to protect commercial speech why is it worthy of protexiton. So invirgina pharmacy, excluding comm speech art 10 proeciton would require courts to draw arbitay disitnc btw it and other forms of expression
-Excluding commercial speech from Art. 10 protection would require courts to draw arbitrary distinctions between it and other forms of expression.
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Why protect commercial speech?
. Now in virg pharmayc
| Virginia Pharmacy
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Why protect commercial speech?
Now in v pharma us supreme court summed up the importance of comm speech. In that cionsmers have an interst in the reciving accurate trufhul ingo about partic productrrs, and this is what supreme cort said
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Why protect commercial speech?
‘As 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…When drug prices vary as strikingly as they do, information as to who is charging what becomes more than a convenience. It could mean the alleviation of physical pain or the enjoyment of basic necessities.’
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Why protect commercial speech?
proudcut- what saying is although comm expression is not as genral principle held to enjoy a more privleenge space speech – polticla highest expre withi us etc, what saying ehre is that aprti individ in partic circumstance- commercial exp may be far more import inthat cifrcum than polticla debate that’s going on in that partic dya. Very often it is. If you looking to buy something/big comm deci- that’s info ur gonna taken on board, day or logne rpeirod od time. So is important.
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Competing interests and categorisation
Look at competing int of commericla speech, and how comm speech been catgeorised. So the justifications for restricting comm speech, are genrll accepted to be sgronfer than in the case of political speech.
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Competing interests and categorisation
Competing interests of consumer protection and fair competition justify regulation.
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Competing interests and categorisation
Clealy there is a public int in forbidding false or misleading claims about products/services. False adv in this country is monitored by adv standard auth, so deerin whether certain breahcer regualtions buy certain countries.
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Competing interests and categorisation
Now these competing int of consumer ptrtoection and fair competionmean that id eveyr juris commericla speech is subject to considerable regulation.
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Competing interests and categorisation
Now as we no echy and us supreme ct have sort to break donwn speech into sep cat – with political expression recivien substanitla protectiona nd commercial speech. Reciievign relatively limited protecon
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Competing interests and categorisation
The echtr has consitentl deferred to member sgtate in relation to regulation of both misleading and truthful adve.
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Competing interests and categorisation
So other words wider marign of appreciation tod etemrie whether a piece of adv, piece of comer info is msieldaidng. Not gonna intefre much would do if poltica
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Competing interests and categorisation
Hw expression does not often fall neatly into partic categroeis.
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Competing interests and categorisation
Cross-category speech: Amnesty International (UK) v UK App. no. 383383/97 18th January 2000.
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Competing interests and categorisation
So for e.f case of amnesty r.a.w – the speech in q is paid for speech. Concenrns matters of public cocnener. Speechwas adv but it concerned matters o fpublic itn. And in this case partic advert in q , braodcats that was paid for #by amnest related to hr violations in Ruanda and.. K so ahd av that was on matter of public int. see commercial and political speech. Speech of public concnern.
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Competing interests and categorisation
So sits across 2 categories not fit fo 1.
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Competing interests and categorisation
So echtr has treated comm speech on political matter and matter sif publiv conern which we know it ahs defined ver broadly, as entiled to heightened protection whislt pure comm speech adv producrs. E.g normal ad. Recieives relatively relvane tproection.
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Competing interests and categorisation
So comm speech which amsses public int. rthta process heightned protection. Yoru pure commercial speech = Far Less protection.
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Competing interests and categorisation
NOW UNTIL RELATIVLY recently the courts classification of speech in q, has determined the outcome of the proceedigns .
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Competing interests and categorisation
Hertel v Switzerland (1998) 28 EHRR 534
This illsuteated by case hetel. Case told us that all cases cocnenring restrictions on comm speech, relating ot matter so public cocnedrn, including but not limited to polticial issues rreuslted in a finding that article 10, so right to art 10 had been violated.
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Competing interests and categorisation
Hw things have changed slightly, in murphy v Ireland, the eu ct concluded that a ban on religious adv in the broadcast media was poltical. Not withsatdnign fatc that the adv related to mass public cocnenr, rather than promotion of comm int.
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Competing interests and categorisation
So murphy seems toc ontradict hertel.-Murphy v Ireland (2004) 38 EHRR 13
Hw more delvipemnts
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Competing interests and categorisation
Until rel recently all cass cocnenring limtis on expresson classified a spurely commerival had been found not to violate art 10. so if had poster hr and speech purely comm and that speech restricted by domestic ct- ther erestriticn hadn’t violated the right ot freedom of exp until rel recently that s what const fund.
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Competing interests and categorisation
Hw things changed krone, in this case eucht concluded that Austriarestricons o comapritve adv did breach art 10. what happened was the Austrian cts ahd prohibited th applicant form palcing adv which cotnratsed costs of his newpspaer with local rival newspae, unless ct said adv explain the differences in reporting style economic amtters in paprer in q.
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Competing interests and categorisation
if didn’t compare reporting styles on those partic subjects then couldn’t publish that ad.
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Competing interests and categorisation
Now echtr found that this restition on appl ability to adv was overly broa.d very difficult to comply with and sai dimpared very essence of comapritve adv.
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Competing interests and categorisation
They sad consequently it was disporpttionate to the elgitmate aims of protecting rights of others and it wasn’t necc a democratic society.
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Competing interests and categorisation
So all of sudden we have more enahced level of protection of comm speech.
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Competing interests and categorisation
However: Krone Verlag GmbH & Co v Austria (No 3) (2004) 39 EHRR 42 – restrictionon on purely commercial speech violates Art 10.
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Competing interests and categorisation
So what some commenters sugges this much more commen sense apprahc echtr to protection of comm speech. 2004 while ago- there are he cases on this aprtic area of speech see what happened ovesr tiem after krone. But met quite positive reaction.
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Commercial expression: a wide margin of appreciation
Touched on this, although know case of krone looked at thata rt 10 right to freedom exp now extends to cover comm speech. The cts ech dec in 1 othe leading case case of markt r.a.w
-Markt Intern Verlag and Klaus Beerman v Germany (1989) 12 EHRR 161: wide margin of appreciation granted to States
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Commercial expression: a wide margin of appreciation
What that case does is granted member states and extrely wide margin of appr in regulating and in baning commericla speeh, partic in resect of unfair competiton.
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Commercial expression: a wide margin of appreciation
Consumer protection = legitimate justification for banning false or misleading adverts
-What find is that consumer protection, is a legit justifiaaation for banning false or misleading adv. And tht will remain since 1989 that sit psoiton of echtr has not changed,
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Commercial expression: a wide margin of appreciation
So said finish
| Any qs?
