Book Reviews

W. Skouris (ed.), Advertising and Constitutional Rights in Europe, Nomos

Verlagsgesellschaft, 1994, 387 pages, hardback, DM 138.

That advertising is capable of arousing strong emotions is clearly illustrated by the

controversy surrounding the clothing company Benetton's use of striking contemporary
photographs to promote its brand image. I Have we lost all sense of proportion when
pictures of the dying are used to sell woollen pullovers - or were these nothing more
than the logical end-point of a system in which manufacturers sell not just a bar of
chocolate or a perfume but a lifestyle and a mark on the social map? Prepared to smile
at the promise of a table in the Italian sun or a smooth limousine ride along the French
Riviera, consumers found that Benetton had destabilised the usual cosy conspiracy by
interposing pictures of life and death, of conflicts which cry out for but may have no
human resolution. These pictures brought starkly into relief our uneasy relationship with
commercial advertising and pointed to difficult questions concerning the legitimate use
of money to promote consumption or belief: where, for example, does 'free' speech end
and unacceptable propaganda begin, can advertising really be said to convey opinions
or information and when does one person's artistic expression become an invasion of
another's privacy?

Advertising and Constitutional Rights in Europe examines how our concerns over the
power of commercial advertising have been translated into statutory or self-imposed
controls and whether these restraints might not themselves breach certain key
constitutional rights widely recognized in Western Europe. As a collection of separate
national reports, written by experts in the field, the book will prove a valuable resource
not only for those concerned with advertising regulation in particular but also for those
interested in comparative human rights and free speech issues more generally. Coverage
extends to all the ED member states, with the exception of Luxembourg and new
members Austria, Sweden and Finland, and there is an additional chapter on the
European Convention on Human Rights. One rather surprising omission from the book

1. Particular concern was expressed at pictures of a man dying of aids and of a very new born baby.

MJ 2 (1995) 315
 I Book Reviews

is any extended discussion of the role of the European Community in regulating

advertising. Although such a report is promised in a future companion volume, some
consideration in the present work would have been a valuable addition to the national
reports, not least because of Community law's integration into domestic legal systems
and the facility with which advertising now crosses national boundaries. The recent
European Court of Justice decision C-384/93 Alpine Investments BV v. Minister van
Financien 2 clearly illustrates the interaction between Community and national law. In
this case the court held a Dutch prohibition on unsolicited telephone calls ('cold calling')
promoting financial services to be justifiable on public interest grounds and a
proportionate restriction on Alpine Investments' freedom to provide cross-border
services under article 59 of the EC Treaty.

The national reports have been written in response to a questionnaire and consequently
follow a fixed format. The object behind the questionnaire is threefold: first, to establish
the extent to which specific constitutional rights such as freedom of expression,
information, profession and economic activity are recognized in the constitutions of each
country; second, to give a brief overview of the national rules which regulate either the
form or content of advertising together with an assessment of the impact, if any, which
the various constitutional guarantees have had on this regulatory system; and, third, to
describe in some detail the regulation of tobacco advertising. The particular focus on
tobacco advertising may not be unrelated to the fact that the book was initiated and
supported financially by the Confederation of European Community Cigarette
Manufacturers. At a time when Community regulation has already removed tobacco
advertising from our television screens 3 and when health concerns, particularly over
'passive smoking', have led to the containment, if not prohibition, of cigarette smoking
in many workplaces, restaurants and bars, constitutional provisions guaranteeing
freedom of expression or information may appear increasingly attractive tools in the
rearguard action fought by tobacco manufacturers to keep their product on the European
map.

Although the fixed structure established by the questionnaire indoubtedly facilitates

comparative analysis, it also gives the book something of the quality of an audit. The
role and purpose of the key constitutional rights under discussion in this book are
strongly contested yet, perhaps because of the ground the authors were expected to
cover, critical examination of their status and of the place of advertising in society has
been carefully constrained. The production of a handbook which is of considerable use
for those who wish to quickly establish the bare bones of what the law 'is' has
inevitably been bought at the cost of a more wide-ranging artalysis of why it is as it is
and whether this is satisfactory. If such discussion would have expanded the book
beyond an acceptable length an overview of some of the more contentious issues might
have been included in an additional introductory chapter.

2. [1995] All England Law Reports CEC) 563.

3. Directive 89/552, [1989] OJ. L298, article 13.

316 MJ 2 (1995)
 I Book Reviews

What the book does illustrate is the considerable diversity in the way in which
advertising is categorized for constitutional purposes and regulated. Professor Skouris
concludes that although commercial advertising enjoys enhanced constitutional protection
in all the countries under examination with the exception of the UK, the basis for this
protection and its ambit varies from state to state. In Germany, for example, the Federal
Constitutional Court has now accepted that commercial advertising may be covered by
article 5 of the Basic Law guaranteeing freedom of expression where it 'has a valuable
opinion-forming content, or if it contains statements which serve to form opinions', 4
while in Italy the Constitutional Court prefers to apply the provisions relating to
economic freedom rather than those protecting freedom of expression, an approach
which affords the state wider scope for regulation. 5 In the Netherlands, article 7 of the
Dutch Constitution, which establishes the right to freedom of expression, expressly
excludes commercial advertising from its ambit, although this may still derive a degree
of protection from the European Convention on Human Rights which has primacy over
national law in the Dutch legal order. 6

One interesting feature of the questionnaire is that it categorizes under the heading 'the
relevant constitutional rights' only those constitutional provisions capable of offering
protection to advertisers from regulatory control. Those competing interests which could
justify such control, and which may themselves enjoy a distinct constitutional status, are
instead grouped together as 'restrictions' on these rights. Although this may merely
reflect the structure adopted in the constitutional texts it has tended to result in the
rather concise coverage of advertising restrictions and the varying justifications for their
adoption - tobacco advertising excepted. Nor is it often entirely clear where a right ends
and the restriction begins: do, for example, restrictions on political advertising repress
legitimate speech or rather prevent distortion of the balanced flow of information,
considered necessary in a democratic society and to underpin freedom of expression?

The weight which some courts are prepared to give to these competing interests is well
illustrated by the recent English case of R. v Radio Authority, Ex parte Bull and
another. 7 Here judicial review was sought of the Radio Authority's decision to prohibit
radio advertising by the humanitarian pressure group Amnesty International. The Radio
Authority had concluded that Amnesty's advertisements would be in breach of section
92(2)(a)(i) of the 1990 Broadcasting Act which prohibits the insertion of advertisements
by bodies of a 'wholly or mainly political nature'. In dismissing the application for
review Lord Justice Kennedy concluded that 'in addition to freedom of communication
there were other rights to be protected, such as freedom from being virtually forced to
listen to unsolicited information of a contentious kind and the danger of the wealthy

4. Skouris (ed.), Advertising and Constitutional Rights in Europe, 129.

5. Ibid., 231.
6. Ibid., 247.
7. [1995] Times Law Reports, July 20,28.

MJ 2 (1995) 317
 I Book Reviews

distorting the democratic process'. 8 It may well have been similar concerns about
privacy and the invasion of a private space which underpinned much of the unease over
the controversial Benetton advertisements.

If the detailed examination of tobacco advertising has directed attention away from such
topical issues as political advertising, 9 it nevertheless throws into relief a number of
important questions of much wider relevance. Is it acceptable, for example, for a state
to restrict the advertising of products or services which are in lawful circulation? The
answer will clearly depend on whether a recognized justification can be put forward for
the advertising restriction itself and, in the context of tobacco advertising, the protection
of public health is a generally accepted ground for restraint. Yet the simple enunciation
of a legitimate objective will rarely be adequate justification: the principles of
proportionality and equality, which find a degree of recognition in almost all the
countries under consideration, serve to restrict the regulators' margin of discretion. In
the field of tobacco advertising, for example, the doctrine of proportionality could place
on states the onerous burden of establishing that advertising actually increases or
sustains consumption rather than merely altering the market shares of producers.

It appears that in the majority of countries under consideration a total ban on direct
tobacco advertising, along lines proposed by but currently blocked in the ED, would be
constitutionally legitimate. In Germany, Greece and possibly also the Netherlands,
however, a total ban, embracing not only television but all forms of print and electronic
media, might well be held to infringe the principles of equality or proportionality. 10
Nevertheless, a partial ban itself creates inequalities among the various media competing
for advertising revenue and it is difficult to see why, if restrictions may legitimately be
imposed on one medium to protect the public's health, they may not be imposed on all.
Prevention of any extension of the present television ban on tobacco advertising to the
press would presumably require evidence to the effect that newspaper advertisements,
unlike their television counterparts, do not increase tobacco consumption.

In other areas courts have tried to rationalize the selective targeting of particular media.
In the above mentioned Amnesty case, for example, counsel for the Radio Authority
argued that '[w]hen an advertisement was on a hoarding or in a newspaper the reader
could decide at a glance how much of it he wished to read' while if 'it was inserted into
a radio programme which he wanted to hear he had no similar way of curtailing it', this
was, therefore, a particularly intrusive medium. 11 Although the ability to tum the

8. Ibid. It is interesting that Lord Justice Kennedy did not consider Article 10 of the European Convention
on Human Rights to offer any real assistance in construing the scope of section 92 of the 1990
Broadcasting Act.
9. Their relevance in the European context was recently highlighted by the use to which media magnate
Silvio Berlusconi put his television networks in the run up to the Italian referenda on media ownership
and advertising in June 1995.
10. Skouris (ed.), Advertising and Constitutional Rights in Europe, 58.
11. [1995] Times Law Reports, July 20,28.

318 MJ 2 (1995)
 I Book Reviews

page may answer concerns over the privacy of those who choose to continue reading,
in the tobacco case the issue is not one of privacy but the protection of health. The
question here is whether those who choose to linger over a cigarette advertisement are
thereby encouraged to continue, increase or possibly take-up smoking. The Italian
rapporteur, Alessandro Pace, suggests one response to the claim that it is
disproportionate to target the advertising of a product which is itself permitted free
circulation, namely: 'prohibit the production and trade of the merchandise in question,
not ... eliminate the ban on commercial advertising'! 12

The results of this survey therefore indicate that there are only rather limited grounds,
in relatively few of the countries under consideration, on which a total ban on direct
tobacco advertising could be attacked. The success of such an action is likely to depend
on the raw data which regulators and advertisers have at their disposal concerning the
impact of tobacco advertising on the public's health, an issue which is not examined in
this book. Although these results offer the Confederation of European Community
Cigarette Manufacturers little scope for optimism, the book itself provides both the
Confederation and its wider readership with a wealth of comparative information.
Reminded of the familiar exhortation not to shoot the messenger, we can look forward
to the companion volume of this work and further exploration of these important and
topical issues.

R. Craufurd Smith, Levine Memorial Fellow in Law, Trinity College, Oxford.

12. Skouris (ed.), Advertising and Constitutional Rights in Europe, 233.

MJ 2 (1995) 319