Europeans Struggling With Advertising Framework To Enhance Speech, Commerce

By Carla R. Michelotti

Any observer of the European Union's (EU) regulatory framework for advertising would quickly question the inherent conflict between the urge to restrict marketing freedoms and the wish to create a true single market. Proponents of more regulation claim it's "in the public interest," while industry opposes regulation as it restricts freedom of expression. Meanwhile, there is a strong push to dismantle many of the restrictive rules and regulations affecting advertising in the EU. So, who will win the day?

In the wake of the recent decision to ban all tobacco advertising in print and outdoor by 2002, and phase out sponsorship by 2006, one might think that the battle to preserve commercial speech has been lost in Europe. That may not be the case, however.

The EU civil servants in charge of ensuring there is a free market in Europe have already developed a number of initiatives to challenge restrictions on marketing freedoms. If they succeed, the tobacco ad ban will be an isolated incident. The advertising and media industries in Europe have long argued that a true free market doesn't yet exist, and that it's only detrimental to the consumers who constitute the actual EU market. When the European Commission started work on a consultative document on "commercial communication" over five years ago, advertisers had to cope with a piecemeal approach to advertising with no understanding of the role and benefits of advertising. The Commission is determined to change this.

The Commission introduced a new system of assessment to eliminate barriers to the Single Market. The system extends to every national law and regulation one can find, and embraces both statutory and self-regulatory frameworks. The eventual outcome would be a move away from "harmonization" of national laws to the lowest (or highest!) common denominator, toward a regulatory model based on the principles of mutual recognition and country-of-origin control. That means that advertising published legally in one country must be accepted in another, regardless of the rules in the receiving country.

The Commission also set up a Web site dedicated to "commercial communication" at comcom@dg15.cec.be. The Commission publishes a monthly newsletter that includes information on the newly formed "Expert Group" of national civil servants responsible for reviewing restrictions on advertising. Interested parties are encouraged to provide information to the Expert Group and the Commission on any issue under discussion.

The globalization of mass communication via the Internet has presented new challenges to Europe's regulators. They realize they can't isolate the European market and regulate as before, so the Commission has singled out the field of electronic commerce for review under the new system. The nature of the Internet challenges the very core of existing regulation, both in terms of detailed content regulation and boundaries. It's important that the EU also promote the principles of country of origin and mutual recognition beyond EU borders in order to facilitate cross border commercial communication at a global level.

The bad news of the tobacco ad ban may have set off some alarms, but the good news is the European Commission understands that the promotion of goods and services is a key element of the European Single Market.