Commercial Speech under the European Convention on Human Rights: Subordinate or Equal?

Abstract

The pattern arising from the case-law on Article 10 of the European Convention on Human Rights shows that member states are granted a wide margin of appreciation when commercial expression is involved. However, the theoretical justification for this deferential approach has thus far not been clearly spelled out, leading to uncertainties as to what categories of speech are to be classified as commercial expression. This article first reviews commercial speech cases concerning commercial advertising and speech critical of market players sanctioned under national unfair competition rules as well as cases of hybrid speech, involving both commercial and non-commercial elements. The article then argues that the category of commercial advertising has, in practice, not led to major problems of classification, whilst the criteria relied upon to classify speech critical of market players as commercial expression have remained unclear. Finally, the article reviews the theoretical rationales advanced to justify a low level of scrutiny for commercial speech cases. Apart from free speech theory, it also draws on an economic analysis of law to conclude that objective criteria exist to justify a more deferential approach where commercial speech is involved. These criteria are then used to suggest clearer boundaries of the commercial speech category.

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