HUN-2000-2-003

a) Hungary / b) Constitutional Court / c)  / d) 08-05-2000 / e) 1270/B/1997 / f)  / g) Alkotmánybíróság Határozatai (Official Digest), 5/2000 / h) .

Keywords of the Systematic Thesaurus:

02.01.03.02.01

Sources - Categories - Case-law - International case-law - European Court of Human Rights.

03.16

General Principles - Proportionality.

05.03.01

Fundamental Rights - Civil and political rights - Right to dignity.

05.03.13.03

Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Access to courts.

05.03.21

Fundamental Rights - Civil and political rights - Freedom of expression.

05.03.32.01

Fundamental Rights - Civil and political rights - Right to private life - Protection of personal data.

05.04.06

Fundamental Rights - Economic, social and cultural rights - Commercial and industrial freedom.

05.04.08

Fundamental Rights - Economic, social and cultural rights - Freedom of contract.

Keywords of the alphabetical index:

Advertising, ban / Speech, commercial, freedom.

Headnotes:

Although commercial speech, like non-commercial speech, is protected by the Constitutionís freedom of expression clause, in the interest of individualís right to human dignity, privacy and the protection of personal data commercial speech could be subject of state regulation. In the case of advertisements, the state has a broader power to regulate misleading commercial speech in order to protect consumers from serious harm that may be caused by a false advertisement.

Summary:

The petitioners requested the constitutional review of some articles of Act LVIII of 1997 on commercial advertising. In their opinion, Article 4.a of the Commercial Advertising Act, which prohibits advertisements infringing personal rights and the right to protection of personal data restricted the right to freedom of expression in a disproportionate way.

The Court, on the basis of its previous free speech decisions and the related judgments of the European Court of Human Rights (see Cross-references) held that although commercial advertising is a constitutionally protected form of speech, taking into account the differences that exist between commercial and non-commercial messages, commercial speech can be subject to greater state regulation than non-commercial speech. Since Article 4.a restricted the right to freedom of expression in the interest of rights closely related to the right to human dignity, and, in addition, the restriction was necessary to avoid violation of personal rights and was proportionate to the aim to be achieved, the Court upheld the provision in question.

In the petitionersí view, Article 15.3 of the Commercial Advertising Act, which makes it possible to settle legal disputes arising in relation to commercial advertising outside of the judicial system, violates Article 70/K of the Constitution, under which claims arising from a violation of fundamental rights, as well as objections to the decisions of public authorities regarding the fulfilment of duties, shall be enforceable in a court of law.

The Court, however, held that the state has a duty emerging from Article 70/K of the Constitution to establish institutions whose task it is to impose penalties for the violation of the consumersí rights. It is up to the legislator to establish a separate forum to protect consumersí rights effectively; however, if the decision of such a forum is enforceable, the legislator should ensure that an opportunity exists for review by the courts of the legality of these decisions.

Supplementary information:

Justice Kukorelli, who delivered the opinion of the Court, attached a concurring opinion to the decision. In this opinion he analysed the content of consumersí rights and the duty of the state to protect consumers from serious harm that could be caused by a false and misleading advertisement. The restriction of freedom of expression in this case is inevitable in order to ensure the constitutional rights of consumers, which are based not only on Article 9.2 of the Constitution, under which the Republic of Hungary recognises and supports the right to enterprise and the freedom of economic competition, but also on the constitutional right to contractual freedom.

Cross-references:

European Court of Human Rights:

-     Barthold v. Germany, 8734/79, 31.01.1986, Series A, no. 98;

- Markt Intern v. Germany, 10572/83, 20.11.1989, Series A, no. 165;

-     Jacubowski v. Germany, 15088/89, 23.06.1994, Series A, no. 291-A, Bulletin 1994/2 [ECH-1994-2-009];

-     Casado Coca v. Spain, 15450/89, 24.02.1994, Series A, no. 285-A, Bulletin 1994/1 [ECH-1994-1-005];

-     X and Church of Scientology v. Sweden, 7805/77, 05.05.1979 on admissibility.

Languages:

Hungarian.