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    • Kolofon
    • Preface
  • PART I. Concerning the subject
    • Chapter 1. Advertising Law and commercial freedom of expression. The subject
      • 1. The problem
      • 2. The plan of presentation and systematisation
      • 3. Terminology – the concepts used
      • 4. Sources of law and methods
        • 4.1. The sources of law
        • 4.2. Methodological considerations
    • Chapter 2. The General Principles of Advertising Law
      • 1. The definition of advertising
        • 1.1. Law or other disciplines
        • 1.2. The legal definition of advertising – the definition in this book
        • 1.3. The requirement for identification – surreptitious advertising and sponsorship
      • 2. Advertising and media research
        • 2.1. The definition of advertising in advertising research
          • 2.1.1. Different forms of sales promotion methods – the definition of advertising in advertising and media research
          • 2.1.2. A more detailed look at the individual elements of the advertising and media research definition of advertising
        • 2.2. The message of the advertisement – different kinds of advertising and some history
      • 3. Advertising law – development trends
        • 3.1. Introduction
        • 3.2. The original paradigm – before there was freedom of commerce
        • 3.3. The paradigm of freedom of commerce – up to World War II
          • 3.3.1. Introduction and first experiences
          • 3.3.2. The main developments of the law in different countries/schools of thought
            • 3.3.2.1. The French school
            • 3.3.2.2. The German school
            • 3.3.2.3. The Nordic school
            • 3.3.2.4. The Anglo-American school
          • 3.3.3. Regulation by international conventions – the rules of the Paris Convention on unfair competition
          • 3.3.4. Summary
        • 3.4. The modern period – from the end of World War II to the new millennium
          • 3.4.1. EU harmonisation and modern national regulation
          • 3.4.2. EU harmonisation
            • 3.4.2.1. General harmonisation – history and development
            • 3.4.2.2. Harmonisation of special areas
            • 3.4.2.3. Summary of EU harmonisation
          • 3.4.3. Modern national regulation
            • 3.4.3.1. Modern German law
            • 3.4.3.2. Modern Nordic Law
            • 3.4.3.4. The modern Anglo-American system
        • 3.5. The start of the twenty-first century – a new paradigm?
        • 3.6. Modern advertising law – a part of marketing law
      • 4. Considerations behind the regulation of advertising
        • 4.1. Considerations behind the regulation of advertising – the interests of competitors, consumers and society
        • 4.2. Developments and the legal and institutional arrangements
      • 5. Enforcement of the Danish rules on advertising
    • Chapter 3. Commercial freedom of expression
      • 1. Commercial freedom of expression – introduction
      • 2. History – the outlines of the development of freedom of expression
        • 2.1. The Age of Enlightenment and the bourgeois revolutions
        • 2.2. From the Enlightenment period to modern times
      • 3. The modern basis for fundamental rights and the ideological differences between the modern constitutional protection of freedom of expression in Europe and the USA
        • 3.1. The modern basis for fundamental rights
        • 3.2. Similarities and differences in the modern protection of freedom of expression in the USA and Europe
      • 4. Commercial freedom of expression in the Nordic tradition
        • 4.1. Protection of commercial freedom of expression in Danish law
          • 4.1.1. The basic rule – Article 77 of the Constitution
          • 4.1.2. The Danish theory of freedom of expression
          • 4.1.3. Danish case law on the protection of commercial freedom of expression
          • 4.1.4. Summary
        • 4.2. Protection of commercial freedom of expression in Norway and Sweden
          • 4.2.1. Introduction – no Nordic school of commercial freedom of expression
          • 4.2.2. Norwegian law
            • 4.2.2.1. Prior to the amendment of the Norwegian provision of freedom of expression in 2004
            • 4.2.2.2. Article 100 of the Norwegian Constitution of 29 October 2004
          • 4.2.3. Swedish law
            • 4.2.3.1. The legal basis – the Swedish tradition
            • 4.2.3.2. Case law – setting the limits
          • 4.2.4. Summary of Norwegian and Swedish law
      • 5. Commercial freedom of expression under the European Convention on Human Rights and in EU law
        • 5.1. Commercial freedom of expression under the European Convention on Human Rights
          • 5.1.1. Introduction
          • 5.1.2. The legal basis of Article 10 of the European Convention on Human Rights and questions of interpretation
          • 5.1.3. Commercial expression
          • 5.1.4. Protection of commercial freedom of expression in the European Convention on Human Rights
            • 5.1.4.1. The principal rule under Article 10(1) – commercial expression is protected
            • 5.1.4.2. Restrictions on commercial freedom of expression – Article 10(2)
        • 5.2. Protection of commercial freedom of expression in EU law
          • 5.2.1. Introduction, and remarks on interpretative style
          • 5.2.2. General on the development of the protection of fundamental rights in the EU up to the adoption of the Charter
          • 5.2.3. Protection of freedom of expression under the EU fundamental rights according to the JEU case law
          • 5.2.4. The significance of the Charter for freedom of expression
          • 5.2.5. Hate speech and the EU’s fundamental rights
        • 5.3. Summary of the protection of commercial freedom of expression under the European Convention on Human Rights and EU law
      • 6. The protection of commercial freedom of expression in Germany and the USA
        • 6.1. The influence of German and of US law – the strong tradition for protection of fundamental rights and the differences between the systems
        • 6.2. Protection of commercial freedom of expression in Germany
          • 6.2.1. Introduction
          • 6.2.2. The legislative basis – GG Articles 5 and 12
          • 6.2.3. The interpretation of fundamental rights in German constitutional law in general
          • 6.2.4. Restrictions on advertising and GG Article 12
          • 6.2.5. GG Article 5 and commercial freedom of expression
            • 6.2.5.1. GG Article 5 – general considerations
            • 6.2.5.2. The concept of »opinion« in GG Article 5(1)
            • 6.2.5.3. Restriction on freedom of expression – GG Article 5(2)
            • 6.2.5.4. Freedom of the press in GG Article 5(1)
          • 6.2.6. The relationship between GG Article 5 and GG Article 12
          • 6.2.7. Summary of the protection of commercial freedom of expression in German law
        • 6.3. Protection of commercial freedom of expression in the USA
          • 6.3.1. Introduction
          • 6.3.2. The legal basis in the First Amendment and questions of interpretation
          • 6.3.3. On commercial freedom of expression. From rejection to recognition of commercial freedom of expression – from Valentine v Chrestensen to Virginia State Board
          • 6.3.4. The modern doctrine of commercial speech
            • 6.3.4.1. Overview – the distinction between content-neutral and content-based regulation
            • 6.3.4.2. Commercial expression – defining the concept
            • 6.3.4.3. Content-neutral regulation of advertising
            • 6.3.4.4. Content-based regulation – the Central Hudson test
          • 6.3.5. Summary of the protection of freedom of expression in US law, including commercial freedom of expression
      • 7. Summary of the protection of commercial freedom of expression
    • Chapter 4. The challenge to the regulation of advertising from commercial freedom of expression – General principles
      • 1. The first principle – recognition of commercial freedom of expression and an integrated form of analysis
      • 2. The second principle – a lower level of protection for commercial expression than for political expression
      • 3. The third principle – respect for the margin of appreciation in the European Convention on Human Rights
      • 4. The fourth »principle« – abolition of the second principle – stronger protection of commercial expression and equality with other forms of expression?
      • 5. The plan for what follows
  • PART II. Advertising Law and Commercial Speech
    • Chapter 5. Misleading advertising – Commercial freedom of expression and Consumers
      • 1. Misleading advertising. The concept and the marketing law considerations that lie behind the regulation
        • 1.1. The prohibition of misleading advertising – an advertising law archetype
        • 1.2. The considerations that lie behind the prohibition of misleading advertising
      • 2. The constitutional law challenge to the regulation of misleading advertising
      • 3. The legal regulation of misleading advertising
        • 3.1. Developments – from the introduction of freedom of commerce up to World War II
          • 3.1.1. International trends
          • 3.1.2. The development of the law in Denmark
            • 3.1.2.1. Up to 1937
            • 3.1.2.2. The 1937 Law on competition
        • 3.2. The modern law
          • 3.2.1. The Danish Laws on marketing of 1974, 1994 and 2005
          • 3.2.2. Directive 84/450/EEC on misleading advertising (codified in Directive 2006/114/EC), Directive 2005/29/EC on unfair business-to-consumer commercial practices, and the 2006 Danish Law on marketing
          • 3.2.3. Taking account of foreign law
        • 3.3. The principles for assessing whether conduct is misleading
          • 3.3.1. § 3 of the Danish Law on marketing. When are advertisements misleading?
          • 3.3.2. Defining the scope in relation to other legal rules
          • 3.3.3. Misleading statements in other jurisdictions
      • 4. The case law on misleading advertising
        • 4.1. Introductory comments
        • 4.2. Misleading statements about price
          • 4.2.1. Misleading statements concerning the price itself
          • 4.2.2. Misleading statements about the presentation of the price, the payment terms etc.
        • 4.3. Misleading statements about quality
          • 4.3.1. Misleading statements about the manufacture, materials or characteristics of a product
          • 4.3.2. Misleading statements about »green« and ethical marketing
        • 4.4. Misleading statements about the origin of goods
          • 4.4.1. Misleading statements about geographical origins
          • 4.4.2. Misleading statements on commercial origins
        • 4.5. Other misleading statements – official authorisation or approval, professional titles etc.
      • 5. The requirement for identification – surreptitious advertising and sponsorship
        • 5.1. Introduction
        • 5.2. The requirement for identification and surreptitious advertising
          • 5.2.1. The requirements for identification and the rules
          • 5.2.2. Different kinds of surreptitious advertising and their regulation in Danish law
        • 5.3. Sponsorship
          • 5.3.1. Sponsorship in general
          • 5.3.2. Sponsorship in the area of radio and television broadcasting
          • 5.3.3. Sponsorship in areas other than radio and television – in particular sponsorship of schools and day-care institutions
      • 6. Conclusions
    • Chapter 6. Comparative, unfair and disparaging advertising – Commercial freedom of expression and competitors
      • 1. Comparative, unfair and disparaging advertising. The intentions behind the rules
        • 1.1. The concepts of comparative, unfair and disparaging advertising
        • 1.2. The considerations behind the rules on comparative, unfair and disparaging advertising
      • 2. The constitutional challenge to the regulation of disparaging advertising and advertising that exploits the goodwill of others
      • 3. The regulations
        • 3.1. Development trends – the view of comparative advertising, disparaging advertising and advertising that exploits the goodwill of others
          • 3.1.1. Comparative advertising
          • 3.1.2. Disparaging advertising and advertising that exploits the goodwill of another
        • 3.2. Directive 97/55/EC (now 2006/114) and Section 5 of the Danish Law on Marketing
          • 3.2.1. Background
          • 3.2.2. Directive 97/55/EC (now 2006/114) and Section 5 of the Danish Law on Marketing – main principles
          • 3.2.3. Further on the conditions for comparative advertising – problems of interpretation
            • 3.2.3.1. The concept of comparative advertising – competitive relations, goods of the same kinds and implied references
            • 3.2.3.2. Misleading statements
            • 3.2.3.3. Requirement for truthfulness – comparative advertising must be correct, relevant and fair
            • 3.2.3.4. Confusion and the use of another’s trade mark
            • 3.2.3.5. Disparaging advertising
            • 3.2.3.6. Designations of origin
            • 3.2.3.7. Advertising that exploits the reputation of another
      • 4. The case law on comparative advertising, disparaging advertising and advertising that exploits the reputation of another
        • 4.1. Introductory remarks
        • 4.2. Comparative advertising
          • 4.2.1. Different forms of comparative advertising
          • 4.2.2. Confusion and the use of another’s trade mark
          • 4.2.3. System comparisons
          • 4.2.4. Use of test results
          • 4.2.5. Statements about and comparisons with direct competitors, without naming names
          • 4.2.6. Direct comparisons between competing products
        • 4.3. Disparaging advertising
        • 4.4. Advertising that exploits the reputation of another
      • 5. Conclusions
    • Chapter 7. Commercial freedom of expression and the public interest
      • 1. The public interest as the consideration behind regulation under marketing law. Regulatory methods
        • 1.1. The concept of the public interest – the enfant terrible of the regulation of advertising.
        • 1.2. Regulation of the public interest
          • 1.2.1. Danish law
          • 1.2.2. The regulation of the public interest in European and foreign law – no international or EU consensus. The situation with foreign law
      • 2. The fundamental rights challenge to the marketing law regulation of the public interest
      • 3. Restrictions on commercial freedom of expression in special (sectoral) regulation
        • 3.1. On the concept of »competition law« and restrictions on competition. Restrictions on the right to advertise (commercial freedom of expression) and restrictions on competition
        • 3.2. Restrictions of a private law nature – restrictions on advertising in the statutes of trade or professional organisations
        • 3.3. Restrictions of a public law nature – legislative restrictions on the right to advertise
          • 3.3.1. Restrictions relating to products, services/professions, and particular target groups (children)
          • 3.3.2. Restrictions concerning the choice of media
      • 4. Protection of the public interest by the general clause in Section 1 of the Law on marketing and special rules of the Advertising Executive Order (No 105/2010)
        • 4.1. Protection of the public interest – broadly understood as society’s prevailing values
          • 4.1.1. On the introduction, inspiration and varying content of the general clause
          • 4.1.2. The rules on television in the Advertising Executive Order (No 338/2011)
        • 4.2. The public interest in practice
          • 4.2.1. Discriminatory advertising
          • 4.2.2. Marketing to children and young people
          • 4.2.3. Intrusive and aggressive marketing – general decency and social responsibility
          • 4.2.4. Information campaigns and advertising with links to the press
      • 5. Conclusions
    • Chapter 8. Cross-border aspects – the internet and the free movement of advertising
      • 1. The problem
      • 2. The constitutional challenge
      • 3. The significance of the medium – the internet
        • 3.1. IT law as a legal discipline
        • 3.2. Choice of law and the cross-border element
        • 3.3. The normal legal principles apply to marketing via the internet in defined national territories
      • 4. Freedom of movement and cross-border advertising within the EU
        • 4.1. The problem of advertising and free movement
        • 4.2. Free movement of goods
          • 4.2.1. Pre Keck – the case law up to the judgment in the Keck case in 1993
          • 4.2.2. The Keck doctrine
          • 4.2.3. Post Keck – a modern doctrine in tune with freedom of expression?
        • 4.3. Freedom to provide services
      • 5. Confrontation and conclusion
    • Chapter 9. Should commercial expression be covered by protection of freedom of expression?
      • 1. The problem
      • 2. Background to the protection of freedom of expression
      • 3. Phases in the protection of commercial freedom of expression – from rejection to equality
      • 4. The possible third phase – the scope of protection is a matter of interpretation strategy
      • 5. Protection of freedom of expression – a guiding principle for assessing restrictions on advertising
  • Bibliography
  • Index

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Advertising Law (1st Ed.)

Af Caroline Heide-Jørgensen

Cover til: Advertising Law (1st Ed.)

1. udgave

1. januar 2013

  • e-ISBN: 9788757495744
  • p-ISBN: 9788757423013
  • Antal sider: 574
  • Bogtype: Håndbog

Emner

  • Erhvervsregulering,
  • Markedsføringsret

This book addresses two aspects of Advertising Law. One the one hand it is a traditional judicial analysis of Marketing Law rules governing advertis-ing. One the other hand is brings in the demands of the protection of free-dom of (commercial) speech into the analysis of Advertising Law, trying to integrate free speech into Advertising Law. The book advocates the view that the protection of commercial speech by the fundamental rights should be taken into account when interpreting Ad-vertising Law. The protection of commercial freedom of expression chal-lenges the rules of the modern law on advertising, so that they must be framed and interpreted with due regard for commercial freedom of expression. The book is a revised version of my doctoral thesis on Advertising Law. The thesis was assessed at the Law Faculty at Copenhagen University. It therefore takes its outset in Danish Advertising Law, but since this is to a very large extent a matter of EU regulation now a days the book also con-tains a thorough analysis of EU harmonisation in the area, starting out with the Directives on Misleading and Comparative Advertising and ending up with the Unfair Commercial Practices Directive. It also contains analysis of Nordic, German and – to some extend – American Advertising Law. On the Freedom of Speech side the thesis offers an examination of Danish and Nordic Constitutional Law in the area of commercial speech, but the main focus is on the practice from the European Court of Human Rights, the Court of Justice of the European Union and on German and American con-stitutional law, since both Germany and USA have very strong traditions for protection of commercial speech.

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    Cover af Advertising Law
    Advertising Law
  • / 1. udg. 2013

Advertising Law (1st Ed.)

1. udgave - 1. januar 2013

Af Caroline Heide-Jørgensen

Cover af Advertising Law (1st Ed.)

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