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Due to the politicisation of commercial life and the commercialisation of political life the freedom of expression enters new territories and triggers conflicts in areas to which fundamental rights considerations have been rather unusual so far. The companies participate in public debates or advertise with reference to social or environmental problems. In Germany the civil courts adopted a very strict approach to this type of advertising and held that it contravened the unfair competition law. The Bundesverfassungsgericht had to ensure that the civil courts considered the right to freedom of speech on the part of the commercial speaker.

The U.S. Supreme Court extended the First Amendment protection to commercial speech in 1976. Since then, the courts and legal scholars have been trying to define this category of expression. The European Court of Human Rights included commercial speech within the realm of Article 10 ECHR in the late eighties. However, the American commercial speech doctrine does not have its counterpart in Europe. In fact, the European lawyer is not familiar with the notion of commercial speech. This is due primarily to the different method of constitutional adjudication applied in Europe – balancing as opposed to categorisation in the U.S.

This book examines critically the constitutional status of commercial speech in the selected legal systems: under the European Convention on Human Rights, in the European Union, in Germany and Poland. It explores how the commercial speech has been recognised in those systems. In Germany it was a product of a long and complex process of the constitutionalisation of unfair competition law. In Poland, on the other hand, the courts transposed the standards of protection developed under the European Convention on Human Rights. The analysis reveals the complexity of the interrelation between the multiple systems of protection of fundamental rights on the European continent. It shows, however, a…

Schlagworte

Commercial speech, Freedom of speech, Comparative constitutional law, Unfair competition law, Fundamental rights, European Union, International Law, Rechtswissenschaft