Within the framework of business freedom, legal operators promote their products and/or services through advertising, aiming to gain recognition in the market to maximize their profits.
However, contrary to what Adam Smith advocated in his economic theory of the invisible hand, both the Supreme Court and the legislature have deemed it necessary to regulate this activity to limit or condition its use, thus ensuring the protection of rights and interests of different groups.
In this regard, Law 34/1988, of November 11, General Advertising Law, is the basic regulatory framework. It defines illicit advertising as that which attacks human dignity or violates values and rights recognized in the Constitution, including misleading, unfair, subliminal advertising, and advertising that violates regulations concerning certain products.
An example of these limitations due to regulatory frameworks affecting other activities is the case of the famous Osborne Bull, a figure so controversial during challenging times for bullfighting enthusiasts, which initiated the current line of jurisprudence.
The first Osborne Bull was installed in 1957 by the renowned brandy company Osborne y Cia, S.A. in Cabanillas de la Sierra. It featured the well-known silhouette with the inscription "OSBORNE" on the bull's body. This inscription had to be removed following the entry into force of the now repealed Road Law 25/1988, which prohibited advertising outside urban sections of national roads.
Despite removing the brand name, on February 4, 1994, the Council of Ministers imposed a fine of 1,000,001 pesetas on the company for "having installed an advertising sign in the form of a bull." Osborne challenged this decision, appealing to the Supreme Court, which ruled in its favor in its judgment of December 30, 1997. The Court interpreted the Osborne Bull not merely as a brand image but as a decorative element integrated into the landscape, almost spiritually.
The Supreme Court stated, particularly in a different social context from today's, that the initial visual impact of the bull's image for most people is that of an attractive silhouette, superimposed on the environment, which more than inducing consumption, recreates the view, recalls "the fiesta," and highlights the beauty of the strong animal.
Beyond this curious argument and the perception of this image abroad as an integral part of Brand Spain, the perennial question arises: Where is the thin red line that separates the rights of affected groups? Or rather, where does the right to freedom of enterprise—and thus advertising—end, and where do other protected interests begin?
Continuing with the advertising of alcoholic beverages, in judgment STS 891/2011 of February 3, the Supreme Court upheld the prohibition on promoting alcoholic beverages in public spaces, considering this activity as conflicting with the right to health.
Thus, the Association of Communication Users filed an injunction requiring Bacardi España, S.A. to remove advertising for White Label whisky on billboards located on Paseo de la Castellana and Paseo de la Habana. In its ruling, the Supreme Court supported the ban on this advertising in public spaces due to societal awareness that alcohol is a drug and its consumption is a health problem. Therefore, restricting its promotion and advertising is a way to discourage widespread consumption, affecting citizens of all ages and conditions, including minors.
As seen, the right to freedom of enterprise is limited by the abstract and general right to public health.
However, once again, we must ask ourselves: where can this moral limit be placed? The legislator has established a quantitative criterion by prohibiting the advertising of alcoholic beverages with more than 20 degrees on television and in places where their sale or consumption is prohibited.
There is a certain contradiction in the attitude of the legislator and the Supreme Court when we encounter, among other emblematic examples, the classic black bottle with its red jacket, wide-brimmed hat, and guitar under the brand of Jerez wine Tío Pepe in the bustling Plaza del Sol in Madrid; or the Freixenet advertisement so closely associated with the start of the Christmas period, promoting the consumption of this well-known sparkling wine.
Setting aside interpretations with double-edged swords, the European Court of Human Rights (ECHR) has included advertising as a form of communication protected not only by the freedom of enterprise but also by the fundamental right to freedom of expression.
Obviously, not everything is permissible in this world where extremes rarely follow the path of logic. However, as the ECHR points out, freedom of expression constitutes one of the essential foundations of a democratic society, extending to ideas that may offend, disturb, or shock.
Supported by European case law, the recommendation for advertisers or communicators dealing with socially complex issues is clear: respect the principle of pluralism and, above all, use common sense.
Borja García Rato | Lawyer
