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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 17 advertising in several Barcelona newspapers and another Spanish newspaper. 123 Spanish courts upheld the written warning Coca received for advertising in the newsletter, saying that a ban on professional advertising by the Bar Council had legitimate aims, such as to uphold competition and to protect clients’ interests. The Spanish government, in its appearance before the European Court, attempted to claim that Article 10 did not apply to the case because the notices in the newsletter did not constitute information of a commercial nature; they were simply advertising! 124 The government argued that advertising did not serve the public interest but served only the private interests of the individuals concerned, and that any application of Article 10 to advertising would fundamentally change the scope of Article 10. 125 The European Court unequivocally stated that “Article 10 guarantees freedom of expression to ‘everyone.’ No distinction is made in it according to whether the type of aim pursued is profit-making or not.” 126 The Court conceded that in the Barthold decision that it had left open the question of whether commercial advertising was within the scope of Article 10 guarantees. However, the Court felt this was quickly rectified as “later case law provides guidance on this matter.” 127 The Court found that the first two parts of the test in Article 10(2) had been satisfied. The rule in question was a legal basis for the prohibition of advertising and was accessible and precise. 128 The protection of the public and other members of the legal profession was a legitimate goal. 129 In determining if the restriction was necessary in a democratic society, the Court examined whether the restriction was proportionate to the aim pursued and found that it was. The Court reasoned that even “objective, truthful advertisements might be restricted in order to ensure respect for the rights of others or owing to the special circumstances of particular business activities and professions.” 130 The Court also indicated that professional conduct rules, particularly those dealing with advertising, vary from country to country according to cultural tradition. 131 In addition, the Court said that the Bar authorities and the courts in each country were in closer

Authors: Hollerbach, Karie.
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ICA 1-10808 17
advertising in several Barcelona newspapers and another Spanish newspaper.
123
Spanish
courts upheld the written warning Coca received for advertising in the newsletter, saying
that a ban on professional advertising by the Bar Council had legitimate aims, such as to
uphold competition and to protect clients’ interests.
The Spanish government, in its appearance before the European Court, attempted
to claim that Article 10 did not apply to the case because the notices in the newsletter did
not constitute information of a commercial nature; they were simply advertising!
124
The
government argued that advertising did not serve the public interest but served only the
private interests of the individuals concerned, and that any application of Article 10 to
advertising would fundamentally change the scope of Article 10.
125
The European Court unequivocally stated that “Article 10 guarantees freedom of
expression to ‘everyone.’ No distinction is made in it according to whether the type of
aim pursued is profit-making or not.”
126
The Court conceded that in the Barthold
decision that it had left open the question of whether commercial advertising was within
the scope of Article 10 guarantees. However, the Court felt this was quickly rectified as
“later case law provides guidance on this matter.”
127
The Court found that the first two parts of the test in Article 10(2) had been
satisfied. The rule in question was a legal basis for the prohibition of advertising and was
accessible and precise.
128
The protection of the public and other members of the legal
profession was a legitimate goal.
129
In determining if the restriction was necessary in a
democratic society, the Court examined whether the restriction was proportionate to the
aim pursued and found that it was. The Court reasoned that even “objective, truthful
advertisements might be restricted in order to ensure respect for the rights of others or
owing to the special circumstances of particular business activities and professions.”
130
The Court also indicated that professional conduct rules, particularly those dealing with
advertising, vary from country to country according to cultural tradition.
131
In addition,
the Court said that the Bar authorities and the courts in each country were in closer


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