The IPKat has recently come across an interesting and provocative book, Freedom of Commercial Expression, published by Oxford University Press (355pp, hardback, £45). It has been written by Roger A. Shiner. Professor Shiner, who spent almost all his career as a philosopher at the University of Alberta, also deployed his talents as a lecturer in jurisprudence in that university’s Faculty of Law. This book is part of the fruit of his legal labours.
Professor Shiner notes that the courts in the United States, Canada and Europe currently grant constitutional protection to commercial advertising: but what is the legal and the philosophical basis for protecting the for freedom of commercial expression? Subjecting this topic to critical analysis, Shiner argues that the institutional history of such protection is one of ad hoc, not logical, development. He goes further and concludes that, even in terms of liberal democratic theory, freedom of commercial expression cannot be justified as a constitutional right. This conclusion will no doubt give rise to substantial anxiety on the part of those who rely upon it (comparative advertising and the use of sex in advertising are just two areas in which IPKat readers will recognise significant and difficult problems in need of solution). It is fair to suggest, however, that Professor Shiner is more interested in public clogs upon commercial expression (such as tobacco advertising) rather than private restrictions such as those based on trade mark rights or copyright.
More on freedom of commercial expression here, here and here
Friday, 28 May 2004
Posted by Jeremy at 13:13:00