Extending freedom of expression to advertising.

Giles Crown takes a look at how the new Human Rights Act will affect advertisers

October 2 was a momentous day. That's when the Human Rights Act, which incorporates the European Convention on Human Rights into domestic law, came into force. It is now possible to rely on Convention rights -- such as freedom of expression and respect for private life -- in the UK courts, where previously it was necessary to go all the way to the European Court of Human Rights in Strasbourg. This has very important implications for advertisers.

The European Court has recognised that advertising is the public's principal means of discovering the characteristics of services and goods offered to them. Advertising therefore falls within the definition of "expression", the freedom of which is guaranteed by the convention. Any interference with this right must be "prescribed by law" and "necessary in a democratic society" for certain specified legitimate aims, including public safety, the protection of health or morals, and the protection of the reputation or rights of others. The interference must also impose no greater a restriction on freedom of expression than is strictly necessary for the legitimate aim to be achieved.

Before getting carried away by the potential significance of such language in combating ad restrictions, it is important to note that in the area of unfair competition and advertising, the European Court has traditionally given individual states considerable discretion in deciding whether a particular restriction is necessary and how best to implement it.

This leeway, it claims, is necessary to take account of the varying social, cultural and economic conditions that exist throughout Europe. The discretion is more limited, and advertising restrictions are more likely to be unlawful, when what is at stake is not solely "commercial" statements but those affecting the general interest, for example, relating to politics or public health. But general rules preventing untruthful, misleading or potentially harmful advertising are likely to be acceptable, so long as they do not amount to an absolute ban on the promotion of lawful products or services.

For example, professional rules forbidding most (but not all) advertising by members of the Spanish Bar were deemed acceptable in order to preserve the "dignity of the profession", as were former GMC rules banning advertising by doctors. However, an injunction granted to prevent a scientist from publicising the alleged dangers to health of microwave ovens was held to be in breach of the Convention, as were laws preventing women from receiving advice about options for abortion. The European Court is considering a case involving a TV company which, because of an ordinance prohibiting "religious and political propaganda", refused to broadcast an ad promoting vegetarianism.

In Europe, therefore, restrictions on advertising have tended not to be subject to particularly vigorous review. As might be expected, in the US the emphasis is more on freedom of speech (as guaranteed by the First Amendment of the Constitution) with any infringement of that right having to be fully justified, even for commercial speech.