Author
Berber Brouwer & Benjamin van Werven
In an article in Mediaforum (written in Dutch from 2023), advertising law attorneys Berber Brouwer and Benjamin van Werven of the Waldengrene firm conclude that there are no legal barriers to a ban on fossil advertising.
Through European law (Article 10 European Convention on Human Rights), although freedom of expression also accrues to companies, it can be curtailed as soon as it affects other fundamental rights. Both municipalities and national legislators can ban fossil advertising on the basis of paragraph 2 of Article 10 ECHR in order to protect the health of their residents.
Comparison with tobacco
In their article, the lawyers draw a comparison with the tobacco industry and the ban on tobacco advertising. This too involves a product that is very harmful to health and is normalized through advertisements. And it involves an industry that misleads:
“The same mechanism takes place in advertising for fossil products. On the one hand, this occurs through misleading climate claims (greenwashing) or campaigns pointing out relative benefits of fossil products (such as NAM's claim that gas is “the cleanest fossil fuel,” for which it was taken to task by the RCC in 2017). On the other hand, it occurs by giving the impression that fossil companies are part of the solution rather than the problem."
According to the lawyers, it is difficult to argue why an advertising ban on fossil products would not be effective, especially given the much greater impact of fossil fuel consumption - relative to smoking - on society as a whole. Moreover, national authorities have wide discretion when it comes to assessing the need for measures against commercial displays. Only in exceptional cases could the Court rule that such a measure is unacceptable under Article 10 ECHR.
Initiative at the local level
The lawyers see that - because there is currently not enough willingness at the national level to introduce a legal ban on fossil advertising - the initiative lies at the local and regional level. Two approaches are possible here:
The second option is preferred by the lawyers because it provides for the restriction of freedom of expression by law. Although the private law option is also open, it is better if it is based on policy.
Duty to ban nationwide?
Brouwer and Van Werven say it could even be argued that the government has a duty of care to ban fossil fuel advertisements. Indeed, the European Audiovisual Media Services Directive obliges member states to ensure that audiovisual commercial communications do not incite behavior that is highly harmful to the environment.
“Meanwhile, Minister Jetten remains hesitant about a national ban, while at the same time it is uncertain whether the Netherlands will meet the Urgenda targets with the new climate package.In doing so, the state may not fulfill its active duty of care under, among others, Article 2 ECHR (right to life) to provide effective national remedies to intervene in potentially dangerous situations. Allowing and even facilitating (for a fee) fossil advertising by local governments in their own bus shelters etc. is also strongly counterproductive in light of the very measures being taken to reduce greenhouse gas emissions.”
Orchestra on the Titanic
For now, the lawyers mainly see a national government that does not dare to take the necessary steps. They speak of an attitude of the cabinet that is “mopping up with the tap,” because investments to reduce emissions are outweighed by allowing fossil advertising.
Walden Grene
https://waldengrene.law/wp-content/uploads/2023/09/Regulering-van-fossiele-reclame-door-de-centrale-overheden-Mr-Brouwer-en-Van-Werven.pdf