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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 16 article relating the dissatisfaction of a consumer with a mail-order cosmetic firm and a product she had purchased from the firm. 116 The article asked for input from its subscribers as to whether other customers or the retailers themselves had experienced similar problems with the company. The company sought and obtained an injunction, based on the German Unfair Competition Act, to keep Markt Intern from republishing the article or other derogatory statements about the company. 117 Markt Intern claimed this violated their Article 10 rights. The injunction was found not to violate Article 10 as it passed all three tests outlined in 10(2). However, in regards to the necessity test, the European Court pointed out that it had carefully weighed the requirements of the protection of reputation and the rights of others against the publication of the information in question. 118 The German government had attempted to persuade the Court to not even hear the case based on the fact that the contents of the publication and the nature of the publisher’s activities fell to the extreme limit of Article 10’s field of application. The government’s view was that such actions fell within the scope of the freedom to conduct business and engage in competition, which are rights not protected by the Convention. 119 The Court clearly understood that the article in question was directed to a limited audience of retailers. Yet, “it conveyed information of a commercial nature. Such information cannot be excluded from the scope of Article 10 which does not apply solely to certain types of information or ideas or forms of expression.” 120 This explicitly stated support for commercial speech, as a participant under Article 10, is important to the development of the commercial speech doctrine in the European Court’s case law. Casado Coca v. Spain: The First Article 10 Case Involving an Advertisement A Spanish lawyer petitioned the Commission to accept his case 121 that claimed his Article 10 rights had been violated when he was sanctioned by the Barcelona Bar Council for a print advertisement that appeared in a local homeowners’ newsletter. 122 Coca had already been the subject of Bar Council disciplinary proceedings for previously

Authors: Hollerbach, Karie.
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ICA 1-10808 16
article relating the dissatisfaction of a consumer with a mail-order cosmetic firm and a
product she had purchased from the firm.
116
The article asked for input from its
subscribers as to whether other customers or the retailers themselves had experienced
similar problems with the company. The company sought and obtained an injunction,
based on the German Unfair Competition Act, to keep Markt Intern from republishing the
article or other derogatory statements about the company.
117
Markt Intern claimed this
violated their Article 10 rights. The injunction was found not to violate Article 10 as it
passed all three tests outlined in 10(2). However, in regards to the necessity test, the
European Court pointed out that it had carefully weighed the requirements of the
protection of reputation and the rights of others against the publication of the information
in question.
118
The German government had attempted to persuade the Court to not even hear the
case based on the fact that the contents of the publication and the nature of the publisher’s
activities fell to the extreme limit of Article 10’s field of application. The government’s
view was that such actions fell within the scope of the freedom to conduct business and
engage in competition, which are rights not protected by the Convention.
119
The Court
clearly understood that the article in question was directed to a limited audience of
retailers. Yet, “it conveyed information of a commercial nature. Such information
cannot be excluded from the scope of Article 10 which does not apply solely to certain
types of information or ideas or forms of expression.”
120
This explicitly stated support
for commercial speech, as a participant under Article 10, is important to the development
of the commercial speech doctrine in the European Court’s case law.
Casado Coca v. Spain: The First Article 10 Case Involving an Advertisement
A Spanish lawyer petitioned the Commission to accept his case
121
that claimed his
Article 10 rights had been violated when he was sanctioned by the Barcelona Bar Council
for a print advertisement that appeared in a local homeowners’ newsletter.
122
Coca had
already been the subject of Bar Council disciplinary proceedings for previously


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