The Right to Freedom of Expression in a Commercial Context

Boehringer Ingelheim Limited & Ors v Vetplus Limited [2007] EWCA Civ 583 (20 June 2007) Canada (Attorney General) v JTI-Macdonald Corp 2007 SCC 30 (28 June 2007)

The scope and application of the right to freedom of expression in a commercial context has recently been considered by the UK Court of Appeal and the Supreme Court of Canada.  While neither court recognised a ‘corporate right’ to freedom of expression, both cases held that the right may be engaged by expression about commercial matters and, moreover, that the public have a prima facie right to ‘hear’ the expression (as opposed to a corporation having a right to ‘express’ the information).  It is clear from both cases, however, that freedom of expression about commercial matters will be afforded a lower threshold of protection than expression about socio-political matters (see also the Statement of Compatibility issued under the Victorian Charter of Human Rights and Responsibilities in relation to the Major Events (Aerial Advertising) Bill 2007).

Boehringer Ingelheim Limited & Ors v Vetplus Limited [2007] EWCA Civ 583 (20 June 2007)

In this case, the UK Court of Appeal held that the right to freedom of expression may be a relevant consideration in determining a commercial dispute over trade mark protection and comparative advertising.

The parties to the dispute both make and sell nutritional supplements for dogs.  The appellant, Boehringer Ingelheim, sought an injunction to restrain the respondent, Vetplus, from comparative advertising which was critical of the appellant’s product.

Dismissing the appeal, the Court held that the matter engaged the right to freedom of expression pursuant to s 12 of the Human Rights Act 1998 (UK).  Therefore, in accordance with s 12(3) of the Act, no injunction should be granted unless the court is satisfied that the applicant is ‘likely’ to be granted a final injunction at trial.  Section 12(3) of the Human Rights Act provides that relief, which may affect the exercise of the right to freedom of expression, should not be ‘granted so as to restrain publication…unless the court is satisfied that the applicant is likely to establish that publication should not be allowed’.

Longmore LJ stated that ‘[t]here can be little doubt that the right of freedom of expression [can be] engaged…in a commercial dispute.  Comparative advertising…is a permissible activity and such advertising necessarily entails the expression to others of matters of either fact or opinion or both’.

Jacobs LJ held that ‘[a] man who finds his trade mark disparaged by a rival trader in a comparative advertisement can obtain a prior restraining order only if he can show … that the disparagement is wrong and misleading.  Unless he can do that, then his rival, both for his own commercial interests and in the interests of the public, ought to be free to say that which he honestly believes’.

The case is available at http://www.bailii.org/ew/cases/EWCA/Civ/2007/583.html.

Anthony Capone is a volunteer law student with the Human Rights Law Resource Centre. 

Canada (Attorney General) v JTI-Macdonald Corp 2007 SCC 30 (28 June 2007)

In this case, the Supreme Court of Canada upheld certain prohibitions on advertising and promotion of tobacco products as a legitimate infringement on the right to freedom of expression.

The tobacco manufacturer challenged, among other matters, legislation prohibiting false and erroneous tobacco advertising, promotions designed for young people, lifestyle and sponsorship advertising, and mandatory health warning labels.

Section 1 of the Canadian Charter of Rights and Freedoms guarantees that:

[T]he rights and freedoms set out [in this Charter must be] subject only to such reasonable limits proscribed by law as can be demonstrably justified in a free and democratic society.

Section 2(b) provides that ‘[everyone has] freedom of thought, belief, opinion and expression, including freedom of the press and other forms of communication’.

The court held that prohibitions on tobacco advertising and promotion clearly infringe the guarantee of freedom of expression – as enshrined in s 2(b) – but are a justifiable limitation under s 1, as the effects are ‘proportionate’.  The ‘expression’ (namely, inviting consumers, though advertising, to use a product that would almost certainly harm them) was of low value, whereas the objective (‘nothing less than a matter of life or death for millions of people who could be affected’) was of great importance.  In each instance, the court stated that the objective was ‘rationally connected’ to the limitation and that the limitation was ‘proportionate’ and, therefore, that the limitation on free expression was ‘demonstrably justifiable’.

The case is available at http://scc.lexum.umontreal.ca/en/2007/2007scc30/2007scc30.html.

Anthony Capone is a volunteer law student with the Human Rights Law Resource Centre.