Article 11 - Freedom of expression and information
Key facts of the case:
Mr Damgaard was convicted in the Danish courts of advertising a medical product that had been refused marketing authorisation under national legislation. He appealed against this conviction and argued, in part, that the criminal sanction levied on him was an unjustified restriction on his freedom of expression, given that he claimed that the information concerning the product on his website was not publicised for the manufacturer.
Results (sanctions) and key consequences of the case:
The ECJ held, that “Whilst the principle of freedom of expression is expressly recognised by Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms … and constitutes one of the fundamental pillars of a democratic society, it nevertheless follows from the wording of Article 10(2) that freedom of expression is also subject to certain limitations justified by objectives in the public interest, in so far as those derogations are in accordance with the law, motivated by one or more of the legitimate aims under that provision and necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued” (para 26)
Interpretation of article(s) and implications for the resolution of the case:
FRC - Article 11: The Court confirmed that “the discretion enjoyed by the national authorities in determining the balance to be struck between freedom of expression and [public interest] objectives varies for each of the goals justifying restrictions on that freedom and depends on the nature of the activities in question. When the exercise of the freedom does not contribute to a discussion of public interest and, in addition, arises in a context in which the Member States have a certain amount of discretion, review is limited to an examination of the reasonableness and proportionality of the interference. This holds true for the commercial use of freedom of expression, particularly in a field as complex and fluctuating as advertising” (para 27)