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Expression Here and Abroad: A Comparative Analysis of the U.S. Supreme Court's and the European Court of Human Rights' Commercial Speech Doctrines
Unformatted Document Text:  ICA 1-10808 15 practice and to instigate or tolerate publicity of it. The association asked Barthold to sign a declaration saying that he would never do it again and to pay a fine. Barthold refused and the association then obtained an injunction against Barthold that prohibited him from discussing any of the items in the prior interview or risk being fined and imprisoned. Barthold maintained that both the professional conduct advertising rules and the injunction by the German court to prevent him from discussing the matter were violations of Article 10. 109 The German government said that Article 10 did not cover commercial advertising and this matter was related to the free exercise of a trade or profession, a right not protected by the Convention on Human Rights. 110 The European Court stated that Article 10 was applicable in the case even though the subject matter was not advertising per se. The Court further noted that the question of whether or not commercial advertising was recognized by Article 10 as protected expression had been answered previously in another case before the Court. 111 This public recognition of commercial speech’s stature is what makes Barthold a significant case in this area. In applying the restriction standards in Article 10(2), the European Court found the interference to be prescribed by law and pursuing a legitimate aim. However, it failed to pass the necessity test as the Court found that the interference went further than the requirements of the legitimate aim pursued. 112 The criterion as strict as the one found in German law relating to advertising and publicity in the liberal professions “is not consonant with freedom of expression. Its application risks discouraging members of the liberal professions from contributing to public debate on topics.” 113 Markt Intern Verlag GmbH and Klaus Beerman v. F.R.G.:Yes, Article 10 Protects Commercial Information Even after the Barthold judgment, there was still some discussion as to whether Article 10 completely protected information of a commercial nature. 114 The Markt Intern case 115 again addressed this point. Markt Intern was a specialized publication directed to small retailers in the cosmetics, chemist, and beauty products trade. It published an

Authors: Hollerbach, Karie.
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ICA 1-10808 15
practice and to instigate or tolerate publicity of it. The association asked Barthold to sign
a declaration saying that he would never do it again and to pay a fine. Barthold refused
and the association then obtained an injunction against Barthold that prohibited him from
discussing any of the items in the prior interview or risk being fined and imprisoned.
Barthold maintained that both the professional conduct advertising rules and the
injunction by the German court to prevent him from discussing the matter were violations
of Article 10.
109
The German government said that Article 10 did not cover commercial
advertising and this matter was related to the free exercise of a trade or profession, a right
not protected by the Convention on Human Rights.
110
The European Court stated that
Article 10 was applicable in the case even though the subject matter was not advertising
per se. The Court further noted that the question of whether or not commercial
advertising was recognized by Article 10 as protected expression had been answered
previously in another case before the Court.
111
This public recognition of commercial
speech’s stature is what makes Barthold a significant case in this area.
In applying the restriction standards in Article 10(2), the European Court found
the interference to be prescribed by law and pursuing a legitimate aim. However, it failed
to pass the necessity test as the Court found that the interference went further than the
requirements of the legitimate aim pursued.
112
The criterion as strict as the one found in
German law relating to advertising and publicity in the liberal professions “is not
consonant with freedom of expression. Its application risks discouraging members of the
liberal professions from contributing to public debate on topics.”
113
Markt Intern Verlag GmbH and Klaus Beerman v. F.R.G.:
Yes, Article 10 Protects Commercial Information
Even after the Barthold judgment, there was still some discussion as to whether
Article 10 completely protected information of a commercial nature.
114
The Markt Intern
case
115
again addressed this point. Markt Intern was a specialized publication directed to
small retailers in the cosmetics, chemist, and beauty products trade. It published an


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