HUN-2010-1-002

a) Hungary / b) Constitutional Court / c)  / d) 04-03-2010 / e) 23/2010 / f)  / g) Magyar Közlöny (Official Gazette), 2010/31 / h) .

Keywords of the Systematic Thesaurus:

05.01.01.05.01

Fundamental Rights - General questions - Entitlement to rights - Legal persons - Private law.

05.03.21

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

05.04.06

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

05.04.07

Fundamental Rights - Economic, social and cultural rights - Consumer protection.

Keywords of the alphabetical index:

Advertising, ban.

Headnotes:

The freedom of expression guaranteed by the Constitution does not exclude limitations on business advertising activity. Tobacco corporations are not citizens; they do not have ideas of their own and are not therefore given the fundamental right to free speech in the same way as real people. Consequently, the state can impose limits on tobacco advertising.

Summary:

I. Several petitions were lodged, seeking the constitutional review of Act LVIII of 1997 on Business Advertising Activity (hereinafter, the "Act1") and Act XLVIII of 2008 on Essential Conditions of and Certain Limitations to Business Advertising Activity (hereinafter, the "Act2").

Act1 introduced a comprehensive ban on tobacco advertising, which was to cover print media and outdoor advertising, including posters, billboards and other forms of advertisements. Act1 only allowed exhibitions of tobacco products and their prices at points of sale, advertising in industry publications and, on request, at global motor sport events, such as the Hungarian Formula 1 race.

Act2 introduced a total ban on tobacco advertising. Act2 only allowed exhibitions of tobacco products and their prices at the point of sale and advertising in industry publications.

Various petitioners, including tobacco industry representatives, challenged Act1 and Act2 in the Constitutional Court, alleging a violation of commercial freedom of speech.

II. The Court rejected the petitions requesting the removal of the ban on tobacco advertising in Act1, on the basis that freedom of expression, as enshrined in Article 61.1 of the Constitution, does not exclude statutory limitations on commercial speech. Corporations (in this case the tobacco industry) do not have their own view based upon their private autonomy, and by advertising tobacco products they do not create a political debate. The advertisements in question are exclusively for commercial purposes, for making money, and the ads do not provide further information on tobacco products. The Court also took note of the fact that the advertisements promote tobacco products, which seriously damage the health of the consumer.

Nonetheless, it held Section 27 of the Act2 unconstitutional. This provision enables an authority or court to prohibit the publication of advertising that has yet to be published, if it has been established that the advertising, if published, would infringe provisions relating to business advertising activity. The Court held that a provision containing such a ban was "over-inclusive". The wording of Section 27 was not specific enough. It enabled an authority or a court to ban the publication of an advertisement even in cases of minor violations of Act2. Such a ban could delay the publication of a newspaper and lead to prior restraint. Section 27 of Act2 was therefore declared unconstitutionally vague.

Justice András Bragyova attached a concurring opinion to the decision, emphasising that the provision at issue was unconstitutional, but only because it allowed an authority or court to prohibit publication of the newspaper containing the advertisement in breach of the Act2.

Justice Barnabás Lenkovics attached a dissenting opinion to the decision; Justice Elemér Balogh joined him in doing so. In their view, Section 27 is in line with the Constitution, as it only allows bans on advertising in breach of Act2. Courts and authorities do not have the power to impose fines, only to prohibit publication of the specific advertisement. This statutory limitation of free expression is the most effective way to protect public order, public morals and public health.

Cross-references:

-     Decision no. 1270/B/1997, Bulletin 2000/2 [HUN-2000-2-003];

-     Decision no. 37/2000, Bulletin 2000/3 [HUN-2000-3-006].

Languages:

Hungarian.