IECL Lunchtime Seminar - "Free Commercial Speech and Advertising"

Professor Caroline Heide-Jørgensen

The right to advertise or communicate commercially is an important prerequisite for a well-functioning market economy. The regulation of advertising is therefore of great importance legally as well as economically but also raises the question of the interplay between the regulation of advertising and the protection of free speech.

On the one hand, the right to advertise and communicate commercially is a fundamental right. Commercial speech is protected under national constitutions, the European Convention of Human Rights and the EU Charter of Fundamental Rights as part of the general protection of free speech. On the other hand, advertising and other forms of commercial communication as a whole are subject to intense regulation all over the world. Rules on misleading and comparative advertising in general as well as rules on commercial communication in specific sectors (tobacco, food, medicine, television) govern the way advertising and other forms of commercial communication can legally take place. In the EU, the harmonization and regulation is intense and has developed over 40 years.

This presentation will highlight some of the many, potential problems the interplay between fundamental rights protection of commercial speech and the regulation of advertising and other forms of commercial communication raises, especially in the EU. With reference to the US, the presentation will invite to discussion on possible point of views on how to strike the right balance between protection of commercial speech and societal interest in regulation of advertising.