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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 20 information expressed, including ideas that shock and disturb as these are part of the “pluralism, tolerance, and broadmindedness without which there is no ‘democratic society.’” 148 In Vgt Verein Gegen Tierfabriken v. Switzerland 149 , an animal rights association produced a television commercial depicting a pig farm and its less than favorable conditions. The commercial ended with a plea for consumers to eat less meat for the sake of their own health, the animals, and the environment. 150 When the Commercial Television Company refused to air the advertisement due to its “clear political character,” the association appealed to the various broadcasting authorities in Switzerland with no success. 151 As an applicant before the European Court, the association argued that its Article 10 rights had been infringed by the refusals to broadcast its commercial. The interference was found to be prescribed by law in that the commercial generally met the requirements of the Swiss Federal Radio and Television Act regarding the airing of commercials of a political nature, all of which are prohibited in Switzerland. 152 The prohibition against airing the commercial was found to be in accordance with the pursuit of a legitimate aim. However, the necessity in a democratic society of refusing to air the animal rights association’s commercial was not sufficiently established in the Court’s mind. 153 In defending the Federal Radio and Television Act’s measure that prohibits political advertising, the Swiss government had argued that such a prohibition kept powerful financial groups from essentially taking over the airwaves. 154 However, the Government did not argue that the animal rights association constituted such a powerful financial group. Instead of abusing some type of competitive advantage, the association simply sought to join the ongoing general debate about animal protection. In the Court’s eyes, the domestic authorities did not demonstrate in a “relevant and sufficient” manner how the grounds advanced for the general support of a prohibition of political advertising applied in the particular circumstances of the applicant’s case. 155 Thus, the restriction was overturned as a violation of Article 10.

Authors: Hollerbach, Karie.
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ICA 1-10808 20
information expressed, including ideas that shock and disturb as these are part of the
“pluralism, tolerance, and broadmindedness without which there is no ‘democratic
society.’”
148
In Vgt Verein Gegen Tierfabriken v. Switzerland
149
, an animal rights association
produced a television commercial depicting a pig farm and its less than favorable
conditions. The commercial ended with a plea for consumers to eat less meat for the sake
of their own health, the animals, and the environment.
150
When the Commercial
Television Company refused to air the advertisement due to its “clear political character,”
the association appealed to the various broadcasting authorities in Switzerland with no
success.
151
As an applicant before the European Court, the association argued that its
Article 10 rights had been infringed by the refusals to broadcast its commercial.
The interference was found to be prescribed by law in that the commercial
generally met the requirements of the Swiss Federal Radio and Television Act regarding
the airing of commercials of a political nature, all of which are prohibited in
Switzerland.
152
The prohibition against airing the commercial was found to be in
accordance with the pursuit of a legitimate aim. However, the necessity in a democratic
society of refusing to air the animal rights association’s commercial was not sufficiently
established in the Court’s mind.
153
In defending the Federal Radio and Television Act’s
measure that prohibits political advertising, the Swiss government had argued that such a
prohibition kept powerful financial groups from essentially taking over the airwaves.
154
However, the Government did not argue that the animal rights association constituted
such a powerful financial group. Instead of abusing some type of competitive advantage,
the association simply sought to join the ongoing general debate about animal protection.
In the Court’s eyes, the domestic authorities did not demonstrate in a “relevant and
sufficient” manner how the grounds advanced for the general support of a prohibition of
political advertising applied in the particular circumstances of the applicant’s case.
155
Thus, the restriction was overturned as a violation of Article 10.


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