Article 10 of the European Convention protects the right to freedom of expression. This right includes the “freedom to hold opinions and to receive and impart information and ideas” without the sanction of public authority and regardless of frontiers.13 With the introduction of Article 10 into English domestic law, Parliament is no longer free to limit the right to freedom of expression in any manner whatsoever. The restrictions to this right must not only be “prescribed by law,”14 they must also be “necessary in a democratic society,”15 and serve one of the legitimate purposes listed in Article 10(2),16 as it will be explained below.17
The way each legal system has historically developed and the circumstances in which they operate are important considerations in any international comparison of constitutional law. American courts give the First Amendment a broad construction while British courts, committed to Parliamentary supremacy, find themselves subject to international law obligations regarding the implementation of the European Convention. By adhering to that Convention, the UK has submitted itself to the supervisory jurisdiction of the European Court of Human Rights (ECtHR) for potential violations of that Convention. There are no analogous supervisions by the Inter-American Court or Commission of Human Rights because the United States only signed the American Convention on Human Rights on January 6, 1977 and never ratified that treaty.18 These fundamentally different views underpin the approaches taken by each country to free expression, despite stated commitments to the principle of freedom of expression.
After analyzing the legal landscape in each jurisdiction separately, this article will proceed to a comparison of the following points: (1) the diverging historical provenance of the two legal systems on freedom of expression; (2) the definition and scope of commercial speech; (3) the implementation of the notion of ‘public interest’ or ‘public debate’; (4) the way courts examine whether a limitation to the freedom is lawful by juxtaposing the “narrowly tailored” test and the proportionality test; and (5) the balancing of freedom of expression with other rights, such as the right to privacy.
II. Regulation of Expression in the United States
The original United States Constitution, ratified in 1787, was a structural document. It outlined the limits and operations of the federal government, while leaving the choices as to their own operations outside the federal sphere to the states. Some reasons for the allocation of power had to do with the jealousy by which state prerogatives were guarded, while others had to do with the preservation of peculiar institutions, such as slavery. In any event, the 1787 Constitution did not purport to deal much with individual rights.
Fear over the threat posed by the national government to the interests of the various states and to individuals led to the circulation, and eventual adoption in 1791, of ten amendments to the Constitution, often called the “Bill of Rights,” to limit the powers of the federal government. The First Amendment dealt with free expression and provided:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.19 (Emphasis supplied)
In 1833, the United States Supreme Court held that the protections in the Bill of Rights did not apply to the states.20 That position changed with the interpretation of the Fourteenth Amendment over the years, particularly its Due Process clause, which gradually “incorporated” many of the personal liberty guarantees of the Bill of Rights so as to make those guarantees applicable to the various states. The Free Speech clause, specifically, was recognized as incorporated to the states in Gitlow v. New York,21 which upheld a conviction under New York’s Criminal Anarchy Law, but asserted that this22 state law was subject to review under the First Amendment under the federal constitution.23
Even outside the context of criminal law, political speech has received protection because it relates to the strong inclination of the Constitution to aid in the search for truth generally unhampered. That protection includes prohibition on prepublication censure of revelation of governmental action,24 relaxation of common-law slander and libel standards,25 overturning laws on flag desecration,26 and, of course, campaign financing.27
Similarly, religious expression has received federal constitutional protection, particularly in the light of the Free Exercise Clause of the First Amendment. The cases make the distinction between religious belief, which may not be regulated, and the manifestation of that belief in religious conduct.28 While government must make some accommodations for religious conduct,29 general laws may punish religious practice (as opposed to belief ).30
No discussion of the United States position on free expression would be complete without a few words on obscenity. The United States Supreme Court has found obscenity unprotected by the First Amendment31 and has effectively denied pre-publication censure.32 While the Supreme Court has determined that once a publication or action is deemed “obscene,” it is unprotected by the First Amendment, the Court mandates that stringent standards must be applied in making that determination.33
Nevertheless, these broad protections given to political, religious, and artistic speech do not extend as widely to commercial speech. In Orahilk v. Ohio State Bar Association,34 the Supreme Court made the distinction:
Expression concerning purely commercial transactions has come within the ambit of the Amendment’s protection only recently. In rejecting the notion that such speech “is wholly outside the protection of the First Amendment,” … we were careful not to hold “that it is wholly undifferentiable from other forms” of speech. We have not discarded the “commonsense” distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech … To require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the Amendment’s guarantee with respect to the latter kind of speech. Rather than subject the First Amendment to such a devitalization, we instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression.35
Indeed, the treatment of commercial speech took a different course from expression involving political, religious, and artistic matters. Orahilk recognized there was a difference between those kinds of expression closely protected by the First Amendment and commercial speech, which fell between this high level of protection and unprotected status, such as obscenity,36 common-law slander or libel,37 or “fighting words.”38 While Bigelow v. Virginia found that commercial speech was not unprotected by the First Amendment,39 it remained for future cases to establish the contours of that protection.
Before formulating those contours, the Supreme Court dealt with governmental attempts to inhibit or suppress price information in the marketplace. In Goldfarb v. Virginia, the Court invalidated a minimum fee schedule for legal transactions that had been adopted by the Fairfax County Bar Association.40 A violation of this minimum fee schedule would be deemed “unprofessional conduct” under the rules of the Virginia State Bar, which could be enforced in proceedings before the state supreme court.41 The Court found the minimum fee schedule involved interstate commerce,42 that the schedule violated the Sherman Antitrust Act,43 and was not exempt from federal regulation.44 Similarly, rules by a state pharmacy board to prohibit advertising of prices for pharmacy products as “unprofessional conduct” were struck down by the United States Supreme Court in Virginia Board of Pharmacy v. Virginia Citizens Consumer Council.45 And in Bates v. State Bar of Arizona, the Court invalidated rules that prohibited lawyer advertising regarding the prices to be paid for certain legal services.46
The Court was faced with regulation of commercial expression outside the context of prohibitions on price information or setting in Central Hudson Gas & Electric Corp. v. Public Service Comm., which involved a regulation that limited advertising for higher electric consumption and the commission justified on energy conservation grounds.47 The Court set out its views on commercial speech regulation as derived from the First Amendment:
… The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation.
The First Amendment's concern for commercial speech is based on the informational function of advertising… Consequently, there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it … or commercial speech related to illegal activity…48
However, assuming these consumer protection standards are met, public regulation of commercial speech was far more limited than had traditionally been the case:
If the communication is neither misleading nor related to unlawful activity, the government's power is more circumscribed. The State must assert a substantial interest to be achieved by restrictions on commercial speech. Moreover, the regulatory technique must be in proportion to that interest. The limitation on expression must be designed carefully to achieve the State's goal. Compliance with this requirement may be measured by two criteria. First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government's purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive.49
The Central Hudson case resulted in a four-part test summarized as follows:
- Is the speech protected, i.e., does it concern lawful activity and is not misleading50
- Is the asserted governmental interest substantial?51
- If substantial, is that interest directly advanced by the regulation at issue?52
- Is the regulation more extensive than necessary to serve the identified substantial public interest?53
A final major issue in regulation of expression deals with the distinction between commercial and non-commercial advertising. That distinction was presented in Metromedia, Inc. v. City of San Diego which involved a ban on billboards with non-commercial messages, as well as a ban on billboards that advertised goods and services no offered on the site.54 The case was resolved in a plurality opinion that reversed a lower court decision that had upheld the ban on commercial messages not relating to goods and services sold on the same property, but did so on a narrow ground.55 A plurality of the Court found that even though there was a difference between constitutional protections of political, religious, and artistic speech on the one hand and commercial speech on the other (and perhaps because of that distinction), an ordinance imposing the ban favoring commercial over non-commercial messages was unconstitutional.56 The Court noted that it would have upheld the ban on commercial messages as a “time, place, and manner” regulation justified by traffic safety and aesthetical considerations,57 but that commercial messages advertising goods or services sold on the same property have the same impacts on those interests as noncommercial messages. The court concluded that the impact of the regulations is that certain commercial messages would receive a higher priority over noncommercial political, religious, or artistic messages; thus a complete ban on noncommercial messages is unconstitutional.58
Aside from the failure to treat noncommercial messages as favorably as commercial messages, one of the issues in Metromedia was the impact of exemptions or exceptions from the general prohibition on billboards.59 The ordinance at issue had a number of exemptions.
The plurality opinion said:
The ordinance provides two kinds of exceptions to the general prohibition: onsite signs and signs falling within 12 specified categories. Onsite signs are defined as those
“designating the name of the owner or occupant of the premises upon which such signs are placed, or identifying such premises; or signs advertising goods manufactured or produced or services rendered on the premises upon which such signs are placed.”
The specific categories exempted from the prohibition include: government signs; signs located at public bus stops; signs manufactured, transported, or stored within the city, if not used for advertising purposes; commemorative historical plaques; religious symbols; signs within shopping malls; for sale and for lease signs; signs on public and commercial vehicles; signs depicting time, temperature, and news; approved temporary, off-premises, subdivision directional signs; and “[t]emporary political campaign signs. Under this scheme, onsite commercial advertising is permitted but other commercial advertising and noncommercial communications using fixed-structure signs are everywhere forbidden unless permitted by one of the specified exceptions.60
Exempted by definition of onsite signs are those designating the owner or occupant, identification of the premises or those relating to goods or services sold on the premises.61 Specific exemptions by virtue of the ordinance are those listed above. The four- Justice plurality opinion invalidated the ordinance because of the better treatment given to certain commercial speech, i.e., relating to goods and services sold on the premises than non- commercial speech, which was largely banned on billboards.62 While Metromedia may be remembered for its prohibition on choosing non-commercial over commercial messages, this second ground for the decision, preferring some non-commercial messages to others, would later be the sole ground for invalidation of an ordinance.63 The fifth and sixth votes for the reversal were supplied by the opinions of Justices Brennan and Blackmun, who would have reversed on very different grounds, namely that the ordinance imposed a complete ban on billboards that could not be justified without additional justification and a showing that a more narrowly tailored regulation would achieve substantial governmental interests less well.64 The lack of an agreed-upon rationale for the Court’s action has made sign regulation much more difficult in the United States.65
Metromedia may be contrasted with another California case on signs that also reached the Supreme Court. In Members of the City Council v. Taxpayers for Vincent, the Court upheld prohibitions on affixing signs to utility poles, which were uniformly prohibited and uniformly enforced,66 because the ban could not be claimed to be discriminatory regarding the content of the signs.
In 2015, the Supreme Court interpreted the First Amendment in the context of free expression in two cases. In Walker v. Texas Division, Sons of Confederate Veterans67 the Court upheld the denial by the Texas Department of Motor Vehicles to allow the Confederate Battle Flag to be used on a license plate design, when other groups were allowed to have their own such designs, because the statute providing for multiple designs of state license plates allowed the Department to deny an application “if the design might be offensive to any member of the public &hellp; or for any other reason established by rule.”68 The Court found the speech contained in the license plate design to be government speech, made by a politically responsible entity, and not private speech, for which strict rules regarding content-based discrimination may apply.69 While not relating directly to signs, Walker does appear to give responsibility, as well as control of public agency speech to government.
The case that occasioned this article, Reed v. Town of Gilbert,70 involved different exemptions for different kinds of non-commercial signs. Reed was a pastor of a small church and wanted to place signs on private property to give directions to church services.71 The Town’s regulations had size, number, and time constraints on such signs that differed from, and more restrictive than, those for political and ideological signs, which Reed contended constituted unconstitutional content-based regulation.72 The majority opinion found the distinctions between these non-commercial sign categories to be content based and applied a strict scrutiny standard to find the sign ordinance insufficiently justified.73 Reed thus uses the same alternative ground identified by Justice Stevens in Metromedia as a basis for invalidating a sign code, or portions thereof, under the First Amendment.74 The irony is that there was no explicit majority holding that preference of commercial over non-commercial messages is unconstitutional.
Reed now establishes a precedent that content-based discrimination among non-commercial messages is unconstitutional, a result that has profound effects with regard to all public regulation of expression. As noted above, the Supreme Court has, since Metromedia, applied a strict scrutiny analysis to distinctions between commercial and non-commercial sign regulations if non-commercial expression is treated less favorably than commercial expression. Regulations that make no distinction between those messages are otherwise subject to analysis as to whether they are reasonable time, place and manner restrictions.
III. Free Expression in the United Kingdom
A. English Common Law before the Human Rights Act 1998
Before the implementation of the Human Rights Act 1998 (HRA),75 English common law treated freedom of speech as a principle taken into account by the courts when interpreting legislation or when considering defenses to, for example, an action for libel or breach of confidence.76 This principle was taken into consideration by English courts, as a public interest, to limit the application of some other principle the operation of which would disproportionately impair the free expression of views, ideas, and information.77 In order to warrant a restraint, the courts require identification of a social need that must be sufficiently pressing to outweigh the public interest in freedom of expression.78 As early as 1992, it was held that:
‘[T]he expression of opinion and the conveyance of information will not be restrained by the courts, save on pressing grounds. Freedom of expression is as much a sinew of the common law as it is of the European Convention.’79
The limitation of the common law, prior the HRA 1998, was its inability to generate positive rights and as such English courts showed no readiness to accord it any priority over other competing public interests.80 Nevertheless, the House of Lords recognized in 2001 that “there is a constitutional right to freedom of expression.”81
However, this pronouncement was made before the HRA 1998 and another constitutional principle played a competing role, namely that of Parliamentary supremacy, in so far as statutes curtailing freedom of expression were concerned. For example, in the case of R v. Jordan, the Divisional Court rejected an argument that Parliament could not introduce the offense of incitement to racial hatred, as the law infringed on free speech.82 The Race Relations Act 1965 took precedence over the principle of freedom of expression when the will of the Parliament was explicitly expressed in a statute and the courts were unable to interpret it in a way that would safeguard its exercise.83
B. Freedom of Expression Post-Enactment of the Human Rights Act 1998
The legal landscape on freedom of expression in the UK has been transformed by the HRA 1998, which incorporated the European Convention into domestic law.84 Article 10 of the European Convention consists of two parts. The first one focuses on the definition of the right to freedom of expression. Article 10(1) reads as follows:
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.85
The second part of Article 10 sets out a series of restrictions to freedom of expression and is dealt with below. The scope of Article 10 has been delineated in Handyside v. United Kingdom, where the ECtHR held that it “is applicable not only to single ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or a matter of indifference, but also to those that offend, shock or disturb the State or any section of the population.86 Such are the demands of that pluralism, tolerance, and broad- mindedness without which there is no ‘democratic society.’ ”87
It has to be noted that the HRA 1998 only applies to public authorities and not to private entities, unless the latter exercise function of a “public nature.”88 Section 12 of the HRA 1998 is devoted to freedom of expression, particularly when its exercise might be affected by the grant of any relief.89 Section 12(4) mandates courts to have particular regard to the importance of this right when proceedings relate to material which might be “journalistic, literary or artistic” to the extent which the material has or is about to become available to the public, it is or would be in the public interest to be published.90
The HRA 1998 provides that that courts should read and give effect to primary and subordinate legislation “so far as it is possible” to be compatible with Convention rights.91 If that proves impossible, then an English court may make a “declaration of incompatibility,” namely that a statutory provision is incompatible with a Convention right.92 Such a declaration “does not affect the validity, continuing operation, or enforcement of the provision in respect of which it is given.”93 This provision preserves the doctrine of Parliamentary supremacy, as it does not give the power to courts to strike down any legislation. Instead, they declare it incompatible with the European Convention, and it is up to a Minister of the Crown, if the minister considers there to be compelling reasons, to make an order to make such amendments to the legislation as he considers necessary to remove the incompatibility.94
Even if English courts cannot strike down Acts of Parliament because of their incompatibility with the European Convention, they may grant “such relief or remedy, or make such order, within its powers as it considers just and appropriate.”95 If a party exhausts all domestic remedies and fulfills all the admissibility criteria,96 including the exhaustion of domestic remedies, then the party can bring a case against the UK before the ECtHR for violating the European Convention.97 According to Article 34 of the European Convention:
The Court may receive applications from any person, nongovernmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.98
Given that the UK is currently a member state of the European Union (EU),99 the EU Charter of Fundamental Rights is legally binding on the UK.100 With the entry into force of the Treaty of Lisbon on December 1, 2009, the EU Charter became legally binding on the EU institutions and on national government, including the UK.101 The Charter is compatible with the European Convention. The EU Charter is primarily addressed to the institutions and bodies of the EU, and the national authorities only when they are implementing EU law. It protects the right to free expression in Article II-11, while at the same time setting out a series of limitations in Article II-52. It is important to note that Article II-52(3) states that:
In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.102
C. Commercial or Non-Commercial Speech?
The characterisation of speech as commercial or non-commercial is less important in the UK and, as such, commercial speech does not seem to enjoy a significant degree of protection as in the United States. It is so unimportant that an author has argued that the doctrine of commercial speech “does not have its counterpart in Europe.”103 Commercial speech is generally considered to fall within the remit of freedom of expression in the UK given that Article 10 of the European Convention does not specify the categories of expression that it protects.104 All forms of expression fall within the scope of Article 10.
No distinction is made with respect to the role played by those who exercise freedom of expression or whether the aim pursued is to make profit in the case law of the ECtHR.105 This includes advertising, which in the UK is not only regulated by statute, but also by the Advertising Standards Authority.106 This body enforces the UK Codes of Broadcast Advertising and of Non-broadcast Advertising, Sales Promotion, and Direct Marketing, drafted by the Committee of Advertising Practice.107 Professional advertising is governed by the rules of the relevant professional bodies.108 For example, barristers in England and Wales are regulated by the Bar Standards Board Code of Conduct, which governs advertising.109
Notwithstanding the lesser importance of the distinction between commercial and non- commercial speech in the UK, it seems that the ECtHR is less willing to uphold restraints on commercial speech than they are for comparable restrictions on political speech.110 The ECtHR has held that publications that relate to matters of general concern, including political expression, are entitled to “a high level of protection of the right to freedom of expression.”111 It seems that the margin of appreciation accorded to Contracting States is wider where commercial speech is involved and narrower in the case of non-commercial speech — in other words, if what is at stake affects the public interest and is not in one’s pure commercial interests, the more likely it is that it will be protected by the ECtHR.112 Such a margin of appreciation is particularly essential in commercial matters, especially in complex and fluctuating areas, such as that of unfair competition.113 The ECtHR has, however, considered it necessary to reduce the extent of the margin of appreciation when what is at stake is not a given individual’s purely commercial statements, but his or her participation in a debate affecting the general interest, such as for example, public health.114
For the purposes of the present comparative article, the legal analysis of the UK legal framework will focus on what would be considered noncommercial expression on real property in the United States. The definition of commercial and non-commercial speech adopted in the United States is worthy of mention in that respect. The United States Supreme Court in Virginia Pharmacy v. Bigelow used a narrow definition when it held that commercial speech is the provision of information through advertising, about the price and other aspects of goods and services to induce a commercial transaction.115 That Court used a broader definition in the Central Hudson case, holding that commercial speech is the “expression related solely to the economic interests of the speaker and its audience.”116 The following instances have been characterised as commercial in the United States: personal solicitation of customers,117 references to professional credentials,118 and certificates in letter headings and the use of news-racks on streets for advertising journals.119 The present article will focus on non-commercial uses of real property, that is cases where the economic interests of both parties are not necessary elements of the speech vis-à-vis the use of property or when they have significant public interest.
One of the earliest rulings of the ECtHR on commercial speech is Markt Intern & Beerman v. Germany.120 The Court held that an article in a trade bulletin reporting allegations of bad business practice by a mail-order firm “conveyed information of a commercial nature” could not be excluded from the scope of Article 10(1), which did not apply “solely to certain types of information or ideas or forms of expression.”121 The prohibition ordered by the Federal Court of Justice of a German publishing firm and its editor-in-chief not to repeat certain statements published in the aforementioned bulletin was held as not going beyond the margin of appreciation left to the national authorities in imposing formalities, conditions, restrictions, or penalties on the exercise of the right to freedom of expression.122 The Court limited its review to the question whether the national measures were in principle justifiable and proportionate and it did not intervene when a national court “on reasonable grounds, had considered the restrictions to be necessary.”123 The ECtHR concluded that there had been no violation of Article 10.
Another important freedom of expression case regarding the distinction between commercial and non-commercial speech was Hertel v. Switzerland.124 Swiss Courts prohibited Hertel from making certain statements about microwave ovens being a danger to health and from using, in publications and public speeches on microwave ovens, the image of death.125 Given that Hertel did not expect any commercial profit and that his paper contributed to a debate of a general interest, concerning the effects of microwaves on human health, the ECtHR considered this case to be different to the Markt Intern case,126 and it concluded that there was a violation of Article 10 because the measure at issue could not be considered necessary in a democratic society.127
Another leading case in the European sphere was Open Door Counselling and Dublin Woman v. Ireland,128 in which the ECtHR held that there had been a breach of Article 10 relating to restrictions placed on the applicant companies from providing information to pregnant women as to the location or identity of, or method of communication with, abortion clinics in Great Britain.129 The ECtHR did not seem to be concerned about the characterisation of advertisements for abortion services as commercial or non-commercial expressions of freedom of expression; it considered them as falling within the ambit of Article 10,130 and proceeded to conclude that the restraint imposed on the applicants was disproportionate.131 In United States terms, it is legitimate under Bigelow to hold public interest advertising for abortion services covered by freedom of speech because it is linked to political and social discourse, entitled to constitutional immunity from governmental restriction.
There are ample examples stemming from the ECtHR regarding noncommercial uses of real property: a display of dirty clothing near the Hungarian Parliament as a representation of the “dirty laundry of the nation” was deemed to fall within the scope of Article 10;132 the pouring of red paint on statutes of Ataturk as a means of expressing “lack of affection” for the Turkish leader also fell within the remit of Article 10;133 and the removal of a ribbon from a wreath that had been laid by the president of Ukraine on the country’s independence day to express the view that he was not the legitimate head of State was treated in the same way by the ECtHR.134 Furthermore, a conviction for “public defense of war crimes or the crimes of collaboration” following appearance in a national daily newspaper of an advertisement presenting in a positive light certain acts of Philippe Pétain was also held to violate Article 10.135
D. Restrictions to Freedom of Expression
Article 10(2) of the European Convention sets out a series of restrictions to freedom of expression as follows:
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.136
Handyside v. United Kingdom is one of the earliest landmark cases on freedom of expression, where it clarified the scope of Article 10(2).137 The ECtHR held therein that:
Whoever exercises his freedom of expression undertakes “duties and responsibilities” the scope of which depends on his situation and the technical means he uses. The Court cannot overlook such a person’s “duties” and “responsibilities” when it enquires, as in this case, whether “restrictions” or “penalties” were conducive to the protection of morals which made them “necessary” in a “democratic society.”138
Apart from the duties and responsibilities one carries when expressing their freedom of expression, the ECtHR held that law should prescribe restrictions to this freedom, which should be clear, foreseeable and precise.139 An example is the case of Dink v. Turkey, where the ECtHR held that the criminal offence of ‘denigrating Turkishness’, set out in Article 301 of the Criminal Code of Turkey, lacked necessary clarity. While the legislator’s aim of protecting and preserving valued and state institutions from public denigration can be accepted to a certain extent, the scope of the terms under Article 301 of the Criminal Code, as interpreted by the judiciary, is too wide and vague and thus the provision constitutes a continuing threat to the exercise of the right to freedom of expression.140
Any infringement on freedom of expression must also be “necessary in a democratic society.”141 The necessity for any restriction on freedom of expression must be established convincingly”142 and it must be taken in response to a “pressing social need”.143 In Steel and Morris v. United Kingdom, the ECtHR found a breach of Article 10 because defendants were required to prove the truth of what they were saying, in the context of the enormous length, detail and complexity of the case and without legal aid.144 The ECtHR specifically held that:
The safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism…, and the same principle must apply to others who engage in public debate.145
Furthermore, a restriction of freedom of expression must pursue a legitimate aim.146 Such aims are listed in the second paragraph of Article 10 and they will be analysed in turn, in so far as they relate to noncommercial expressions relating to property. Whenever the ECtHR examines whether a measure pursues a legitimate aim, it applies a proportionality test, which examines whether the restrictive measure taken is proportionate to the aim pursued and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’.147 In doing so, the Court must determine that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and that they relied on an acceptable assessment of the relevant facts.148
1. PREVENTION OF DISORDER OR CRIME
When it comes to pursuing the legitimate aim of prevention of disorder or crime, Donaldson v. the United Kingdom is worthy of mention.149 In Donaldson,, an Irish republican detainee in a British prison complained that his right to freedom of expression had been violated when he sought to wear an Easter lily as a manifestation of his political views, which was banned by the Prison Service because it was considered a sectarian emblem as it was directly related to the community conflict.150 The ECtHR held that this ban in a Northern Irish prison was deemed to fulfil the legitimate aim of prevention of disorder or crime.151 The Court readily accepted that:
[T]he policy pursued the legitimate aim of the prevention of disorder and crime … [and that] insofar as the policy was designed to create a neutral working environment for prison employees and to prevent discrimination against “ordinary”, nonsegregated prisoners … the aim of the interference was to protect the rights of others, and was therefore also a legitimate aim under Article 10 of the Convention.152
2. PROTECTION OF HEALTH
The UK has imposed a comprehensive ban, under which all advertising for tobacco products is prohibited, with a few exceptions.153 The Secretary of State for Health is allowed to permit, subject to regulation, advertising, “where tobacco products are offered for sale” at retail premises, on vending machines, or on a website.154 In R (British American Tobacco) and Others v Secretary of State for Health, tobacco manufacturers challenged the validity of regulations that limited the size of the advertisements and their place of display.155 The Queen’s Bench Division of the High Court held that regulations restricting advertising the sale of tobacco products were a proportionate interference with the right to freedom of expression because they aimed at achieving the legitimate goal of the protection of public health.156 The Court further held that freedom of commercial expression was of lesser significance than freedom of political or artistic speech.157
Another case relevant to tobacco advertising is Germany v. European Parliament and European Union Council,158 handed down by the European Court of Justice. This case is relevant to the UK because the European Communities Act 1972 provides for the incorporation of European Union (EU) law into the domestic law of the UK.159 Furthermore, fundamental rights, such as those protected under Article 10 of the European Convention, are also protected in the UK under general principles of EU law.160 While the ECJ itself did not consider any freedom of expression points, the Opinion of the Advocate General in that case provided some useful guidance.161 The Advocate General considered the EU-wide comprehensive tobacco advertising ban proportionate because there were reasonable grounds for the belief that it would lead to a significant reduction in tobacco consumption and thus to better health outcomes.162 Furthermore, the right of commercial expression was not unacceptably impaired because tobacco manufacturers remain free to market their products and to argue that smoking is safe.163
3. PROTECTION OF THE REPUTATION OR RIGHTS OF OTHERS
The ECtHR has, on a number of occasions, examined cases where the exercise of free speech may infringe upon property rights. An example is Appleby v. United Kingdom.164 Where a bar on access to property had the effect of preventing any effective exercise of freedom of expression, the ECtHR would not exclude that a positive obligation could arise for the state to protect the enjoyment of rights under the European Convention by regulating property rights.165 In that case, a private property owner barred a campaign group from its shopping mall, but other locations were available for campaigning, the court held that, balancing the rights in issue, there had been no breach of the campaigners’ rights under Article 10.166
Connolly v. the Director of Public Prosecutions concerns the interaction between the right to freedom of expression and the right to freedom of thought, conscience and religion, protected under Article 9 of the European Convention.167 The claimant was a Roman Catholic anti-abortion campaigner who sent photographs of aborted fetuses to three pharmacies that sold the morning-after pill, and was convicted of offences contrary to the Malicious Communications Act s.1 for sending articles that were indecent or grossly offensive with the purpose of causing distress or anxiety to the recipients.168 The Queen’s Bench Division of the High Court held that the claimant’s conviction was proportionate to the legitimate aim pursued, namely “the protection of the rights of others,” and that it was necessary in a democratic society.169 Furthermore, the Court held that religious expression was of no higher order than secular expression and that Article 9 added nothing to the appeal under Article 10.170
Another right that interplays with freedom of expression is the right to privacy, protected under Article 8 of the European Convention. The leading case of the ECtHR on this point is Von Hannover v. Germany.171 Caroline, Princess of Hanover, sought to prevent pictures of her private life being published in the German press, but the German Constitutional Court considered there was no breach of the right to privacy because she was a public figure. The ECtHR reached the contrary conclusion, finding a violation of Article 8, relevantly holding that:
The decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest. It is clear in the instance case that they made no such contribution since the applicant exercises no official function and the photos and articles related exclusively to details of her private life. Furthermore, the Court considers that the public does not have a legitimate interest in knowing where the applicant is and how she behaves generally in her private life even if she appears in places that cannot always be described as secluded and despite the fact that she is well known to the public. Even if such a public interest exists, as does a commercial interest of the magazines in publishing these photos and these articles, in the instant case those interests must, in the Court’s view, yield to the applicant’s right to the effective protection of her private life.172
An important precedent in English law is that of Douglas v. Hello!. Sedley LJ pointed out in that case:
The European Court of Human Rights has always recognised the high importance of free media of communication in a democracy, but its jurisprudence does not — and could not consistently with the Convention itself — give article 10(1) the presumptive priority which is given, for example, to the First Amendment in the jurisprudence of the United States’ courts. Everything will ultimately depend on the proper balance between privacy and publicity in the situation facing the court.173
This line of reasoning can be identified in the judgment of the House of Lords in Campbell v. MGN, where the pictures of a famous model stepping out of Narcotics Anonymous were published in the Mirror.174 The Claimant admitted that there was a public interest justifying publication of the fact that she was a drug addict and was having therapy, but claimed damages for breach of confidentiality and compensation under s.13 Data Protection Act 1998 for the publication of further details.175 The House of Lords held that the additional information was confidential, as its publication would have caused substantial offence to a person of ordinary sensibilities in the Claimant’s position. The Claimant’s Article 8 rights outweighed the Defendant’s Article 10 rights, so that publication of the additional information was an infringement of the Claimant’s Article 8 rights for which she was entitled to damages.176
Thus, as with the First Amendment, the HRA and the European Convention provide broadly stated rights that are fleshed out by precedent, interspersed with policy changes by law or custom, which are in turn tested and refined as social norms.
IV. Comparisons of the Two Systems
A. Diverging historical provenance
As shown above, the American and British approaches to expression responded to different historical stimuli, which still produce different reactions in given circumstances. The First Amendment was part of a reaction to the perception of an overweening federal leviathan that threatened the interests of the states and of citizens.177 The amendment provided that “Congress shall make no law” respecting establishment of, or impeding the free exercise of religion, abridging freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances.178 Following the Civil War, these same limitations were extended to the states. In a more limited form, they are applicable to commercial speech as well. However, they apply in full rigor to political, religious, social and artistic expression. These rights may be limited in time, place and manner, but cannot be prohibited outright.179
The UK recognition of free expression involves interactions between international treaty obligations and the constitutional doctrine of the sovereignty of Parliament. Before the HRA 1998 common law rights could be, and were, limited by parliamentary action.180 Even after these external limitations were accepted, there were internal limitations allowing for responses to extraordinary circumstances, such as those relating to public order and public health discussed above. There are proposals mooted, but not acted upon, under which the United Kingdom would withdraw participation in the European Convention and establish its own bill of rights.
B. The Definition and Scope of Commercial Speech in the USA and the UK
In the United States, commercial speech may include “speech that does nothing more than propose a commercial transaction.”181 This transactional speech is considered to be commercial speech and accorded a lesser degree of protection.182 The United States Supreme Court has answered the question as to what constitutes commercial speech in the negative. In Central Hudson, commercial speech was defined by reference to the economic interests of the speaker and its audience.183
The American courts emphasize the importance of commercial information so that consumers can make informed choices. For example, in Virginia State Board of Pharmacy, the United States Supreme Court held that “people will perceive their own best interests if only they are well enough informed, and … the best means to that end is to open the channels of communication rather than to close them …”184 Justice Blackman stated in that case: “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.”185
There is no exact equivalent of the American doctrine of commercial speech in England. Freedom of expression is protected in a general manner under Article 10 of the European Convention, and such commercial speech is also protected. The ECtHR has held in Müller v. Switzerland that it does not distinguish between commercial and non-commercial expressions.186 As stated above, states enjoy a wide margin of appreciation when it comes to commercial freedom of expression, as the ECtHR has shown itself to be less strict than when it deals with purely political freedom of expression.187 In contrast to the United States, the ECtHR considers the profit-making purpose of expression as irrelevant when examining a potential breach of Article 10 of the European Convention.188 Consumers are considered to have the right to receive information in order to make informed choices about the products or services they will purchase.
C. The Public Interest/Debate Test: Interpretation in the United States and the UK
In the United States, courts accord a lesser value to commercial, as opposed to non-commercial speech.189 Even with commercial speech however, the regulation must still sweep no more extensively than necessary to accomplish its purpose and regulation of content is much less intrusive.190
In the UK, there are cases where commercial and non-commercial expressions are enmeshed, such as for example the commercial advertisement of a product that might potentially affect the public health of consumers. When such cases are at stake, the ECtHR has shown readiness to find a breach of freedom of expression, particularly by using the test of necessity in a democratic society in order to achieve the aims pursued. In such cases, the ECtHR balances commercial and noncommercial elements of expression within the “public debate” framework, by answering the question whether the disputed speech contributes to a public debate on the issue under examination. If the ECtHR finds that the non-commercial element outweighs the commercial, then a higher level of protection is accorded to the contested speech.191 How much protection the ECtHR will accord depends on the level of commercial involvement.
The ECtHR tends to accord a lower level of protection when a commercial interest is identified in the expression. In the Hertel case, discussed above, the ECtHR held that:
[A] margin of appreciation is particularly essential in commercial matters, especially in an area as complex and fluctuating as that of unfair competition … It is however necessary to reduce the extent of margin of appreciation when what is at stake is not a given individual’s purely ‘commercial’ statements, but his participation in a debate affecting the general interest, for example over public health; in the instant case, it cannot be denied that such a debate existed.192
It is apparent from the above dictum that the public debate to which a given statement may contribute is an important factor taken into account by the ECtHR when considering the extent of the margin of appreciation it will grant to a respondent state. The ECtHR will first identify whether a public debate on a given issue indeed exists.193 It will secondly determine whether the disputed speech has the same subject matter as that public debate.194 It will thirdly analyse whether the disputed speech contributes significantly to the identified public debate.195 The ECtHR usually adopts this approach, but there have been cases where it has departed from this systematic analysis.196
D. The Proportionality Test in the UK/ECtHR and How it Compares with the “Narrowly-tailored” Test in the United States
When American courts evaluate regulations that limit the content of speech, they apply “narrow tailoring” and strict scrutiny analyses.197 Strict scrutiny is called for when a suspect class (such as race)198 or a specifically protected constitutional right199 is involved. The “narrow tailoring” requirement mandates that a government regulation of a constitutionally protected right be crafted narrowly as possible to fulfil the prohibition’s intended goals without adding unnecessary burdens.200 For example, in Grutter v. Bollinger, in applying the narrowly tailoring requirement to a case involving a public university’s use of race in its admissions process, the Court stated that, the “government is still constrained … in how it may pursue that end: the means chosen to accomplish the government’s asserted purpose must be specifically and narrowly framed to accomplish that purpose.”201 This requirement thus assures that the regulation does not sweep too broadly so as to include more speech than necessary202 and presents a difficult barrier for a public agency to cross. Not only must a high level of justification be expected for the need to apply the regulation at all, but the regulation must also be drawn in such a way that it does not impinge on otherwise protected speech.203
A major difference between the American and English approaches to freedom of expression is that the latter explicitly includes a set of limits to the protection of freedom of expression in Article 10(2) of the European Convention. This set of restrictions mandates not only the ECtHR but also the English courts to balance freedom of expression with other interests protected by the law or other rights and freedoms protected by the European Convention. When engaging in this balancing exercise, courts have used the margin of appreciation doctrine and the proportionality test.
One of the very first cases where these interpretative maxims were used concerned was Handyside v. United Kingdom, concerning freedom of expression.204 In that case, the issue at stake was whether the forfeiture of the Little Red School Book on grounds of obscenity violated freedom of expression.205 The ECtHR held that Article 10(2) leaves to the contracting states a “margin of appreciation,” which is “given both to the domestic legislator (‘prescribed by law’) and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force.”206 Article 10(2), however, does not grant member states an unlimited power of appreciation and the ECtHR exercises supervision concerning “both the aim of the measure challenged and its ‘necessity’; it covers not only the basic legislation but also the decision applying it, even one given by an independent court.”207
Once the Court establishes that a particular measure falls outside the margin of appreciation granted to a state, it assesses the proportionality of the restriction. It does so by establishing a reasonable relationship between the means and the aim sought to be realized.208 When freedom of expression, which is considered a fundamental right, is at stake, the Handyside approach to proportionality is used:
- a) Is there a pressing social need for some restriction of the Convention?
- b) If so, does the particular restriction correspond to this need?
- c) If so, is it a proportionate response to that need?
- d) In any case, are the reasons presented by the authorities, relevant and sufficient?209
The ECtHR takes into account a number of factors when deciding whether an interference with Convention rights is proportionate or not, such as the extent to which the interference restricts the right or whether the particular measure could be achieved by a less restrictive means.
E. Balancing of Freedom of Expression with Other Rights (Privacy)
With the exception of public figures, discussed above in connection with New York Times v. Sullivan,210 American courts struggle with the right to privacy, a right not explicitly contained in the Constitution, but emanating from, inter alia, considerations under the Fourth Amendment’s prohibition against unreasonable searches and seizures,211 the Fifth Amendment’s right against self-incrimination,212 and on the Fourteenth Amendment’s Due Process Clause213 to deal with inherently personal issues such as a parent’s right to make educational choices for their children,214 abortion,215 living arrangements,216 birth control,217 and personal sexual choices.218 Yet the indefinite nature and scope of that right leaves it in danger of ebbing and flowing with the changes in social priorities and the personnel of the Supreme Court. Moreover, the specifically enumerated right to free expression will likely have more weight than the less specific and unenumerated right of privacy in the event of a conflict.
The ECtHR and English courts have oftentimes been called to balance the right to freedom of expression with the right to privacy. A notable difference between the American and the English legal systems is that in the latter privacy enjoys a much higher level of protection, while the contrary is the case in the United States. This is apparent from cases, discussed above, where English courts have balanced the right to freedom of expression with the right to privacy and have found that there has been a breach of the latter right and granted an analogous remedy to the applicant,219 particularly when the privacy rights protected belong to children.220 At the same time, the right to privacy does not always prevail in the European sphere; a fair balance must be struck between freedom of expression and the right to private life.221
This article has sought to compare the United States and UK legal positions on public regulation of non-commercial speech. It has identified two major differences between the two legal systems. First, while the United States has a commercial speech doctrine, the UK makes no distinction between commercial and non-commercial speech, protecting both types of expression, while according a wider margin of appreciation to states when the speech is of a commercial nature. Second, the expressly enumerated right to private life does not exist in the United States system, whereas the latter is the case in the UK. As a result, the freedom of speech prevails when privacy issues come into play in a specific case.
This article has also shown that the legal treatment of freedom of expression in the United States and the UK has two major similarities. First, the Courts in both jurisdictions engage in a careful balancing exercise when considering whether a particular measure taken by a public authority has breached freedom of expression, protected by the First Amendment or Article 10 of the European Convention. This takes the form of the “narrowly tailored” test in the US or the “proportionality” test in the UK. Second, when engaging in that balancing exercise, Courts in both legal systems take the public interest into account. When doing so they “almost” elevate speech of a commercial nature to speech of a political nature, therefore giving it a higher level of protection, leaving states with a lesser margin of appreciation in that respect.