ECHR, Sekmadienis - Commercial Freedom of Expression is Freedom of Expression Too

An advertiser's freedom of expression is restricted if the Advertising Code Committee (Reclame Code Commissie, “ACC”) makes a recommendation against advertising in this way in the future. So said the Appeal Board of the ACC back in 2015 in a case about a campaign by Suitsupply. But the advertiser's freedom of expression carries very little weight in the ACC’s findings. So far, the ACC has allowed itself a lot of scope for setting aside the advertiser's freedom of expression, by relying on the ruling by the European Court of Human Rights (ECHR: Raëlien v Switzerland, paras. 61-62). But the very same ECHR gave a little more weight to the advertiser's freedom of expression in its ruling in Sekmadienis v. Lithuania. The Lithuanian clothing company Sekmadienis published various adverts showing Jesus and Mary figures and texts like "Jesus Mary, what are you wearing?". Sekmadienis was fined for this and challenged it all the way to the highest European court, the ECHR. In its ruling, the ECHR repeated the principle that there was more scope available for restricting freedom of expression in commercial publications, but also held that this scope had its limits. The Court held that the adverts had not patently gone too far and went on to find that the Lithuanian authorities had not provided convincing reasons why the posters were in breach of public morality. The ECHR felt the arguments were too vague and general. Sekmadienis's commercial freedom of expression won the day.

The Sekmadienis v. Lithuania decision makes it clear that there have to be logical and comprehensible reasons for restricting commercial freedom of expression. Generalisations are not enough. An extra prompt to our own Dutch ACC to substantiate its rulings with care if an advert goes too far.