Dissertation

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To What Extent Does the Law Regulate Commercial Free
Speech in Relation to Outdoor Advertising?
Student Number: 14204946
Word Count: 14977

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Table of Contents
1. Introduction
2 Outdoor Advertising
2.1 Why does Outdoor Advertising Warrant Regulation?
2.2 Outdoor Advertising in Dublin
2.3 Other Studies of Outdoor Advertising “Regimes”
3 Planning Law
3.1 Outdoor Advertising as a Planning Law Issue
3.2 Ireland
3.3 United Kingdom
3.4 Effectiveness of Planning Law
4 Commercial Free Speech
4.1 How Does Commercial Free Speech Pose a Problem?
4.2 Protection of Commercial Free Speech in Europe
4.3 Protection of Commercial Free Speech in the US
4.4 EU and US Comparison
5 Other Regimes of Advertising Regulation
5.1 Introduction
5.2 Advertising to Children
5.3 Alcohol Advertising
5.4 Tobacco Advertising
6 Conceptualising Regulation
6.1 Introduction
6.2 Regulation by Contract
6.3 Dublin Bikes
7 Conclusion

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To What Extent Does the Law Regulate Commercial Free Speech in
Relation to Outdoor Advertising?
1. Introduction
This dissertation investigates the relationship between law and business
through the regulation of commercial free speech in outdoor advertising. I will
look at the restrictions that law applies to this industry to assess the influence
that corporations exercise in civic and social spheres. The ideal behind this
research is that law should protect the public interest from corporate greed. The
topic is the perfect means to assess the dynamics of the power struggle between
state and corporate actors in a globalised, commercialised world.
I hold concerns about the materialistic and commercialized society of today
where social values are dictated by the culture of acquisition that corporations
promote through advertising. I argue that the law can be improved to provide
better equity between social and commercial interests through the regulation of
outdoor advertising. This would require the law to take more social
considerations into account, a shift in regulatory culture and stronger defence
of national ideals in judicial activism.
This paper begins with a discussion of Outdoor advertising, problematizing it
and looking at examples of regulation and strategy concerning it. I compare
Irish and British planning legislation to get a flavour of the relevant statutory
framework. I then move onto the broader commercial free speech debate,
contrasting European with US jurisprudence on this issue. I will analyse
examples of commercial speech restrictions in advertising that set precedents
for legitimate regulation. I paint a picture of outdoor advertisings place in the
wider issues of public v private control of space and use it as a means of
investigating the influence of the market on regulation. This will lead me to a
conclusion on the state of regulation that exists, the forces which shape this
regulatory framework and legitimate improvements that could be made.
2 Outdoor Advertising
2.1 Why Does Outdoor Advertising Warrant Regulation?
In keeping with the trend of privatisation under capitalism, outdoor advertising
represents the privatisation of public space. Rather than merely providing
corporations with an advantage in promoting themselves, this space allows
them to dictate public discourse. This discourse is inspired by images and
values of consumer culture where success and happiness are determined by
acquisition. Values that satisfy the interests of corporations aren’t in the
interest of social cohesion, fairness and morality.
Supporters of economic liberalism may argue that advertising merely allows
for the free flow of information and a more efficient market but advertising
does more than inform the audience of the opportunity to make a transaction, it
promotes a lifestyle of re-occurring consumption. This privatisation of public

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space turns citizens of states into consumers of the market with little place for
traditional social or community values.
Klein discusses the erosion of street culture by privatisation commenting, “It is
one of the ironies of our age that now, when the street has become the hottest
commodity in advertising culture, street culture itself is under siege.”1
The price for optimum market efficiency is the erosion of national values that
unify people within states. It is laws role to protect these values and the
autonomy of states. National identity, fundamental to social organisation and
human interaction is slowly being eroded by consumerism. While this can be
viewed in light of globalisation, that process should manifest itself in a global
convergence of social values rather than the worldwide commercialisation of
values. This is where the EU’s response will be particularly interesting.
Consumerism isn’t as damaging as the messages that are conveyed in
upholding the culture. Much criticism of outdoor advertising is based on the
exclusion of certain groups in society and the negative stereotypes it portrays
of them in order to reach their market most effectively. These images become
part of social constructs as corporations shape our values to maximise their
profits.
Morris views outdoor advertising as the “national landscape”, “a record of
everyday objects, ideas, actions and social interest” which “socialises” the
masses into a “uniform consumer”.2
She investigated public gender imaging by outdoor advertising in Manhattan
and found images of women to be idealised, functioning as mere props while
men were portrayed as action figures, searching for advancement and
opportunity and involved in hobbies, pursuits and white collar professions.3
Commercial messages define genders in order to create a relationship between
their product and society. While products are tailored to a particular market,
advertising tailors the market to the product being sold.
Corporations shaping of society goes as deep as the education system. Klein
profiles the branding of schools in the US and Canada pointing to corporations
utilization of the technological revolution as the means of establishing
themselves in schools. “If the price of staying modern is opening the schools to
ads, the thinking goes, then parents and teachers will have to grin and bear it.”4
Restrictions on advertising to children through all mediums will be examined
later on, highlighting their vulnerability to commercial messages. The idea of
opening up schools to ads is similar to the Dublin Bikes scheme sponsored by
1 Naomi Klein,No Logo (Flamingo 2000) 311.
2Pamela K. Morris,‘Overexposed: Issues of Public Gender Imaging’ (2005) Faculty
Publications,Collegeof Journalism& Mass Communications Paper 1,1.
3 Ibid.
4 Naomi Klein (n.1) 104.

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Coca-Cola and co-ordinated by outdoor advertising company JCDecaux which
will also be discussed later.
These are examples of the importance of advertising in the provision of public
services, showing that it’s not just public space and discourse that are being
commercialised as capitalist society evolves. This process will be analysed in
relation to the concept of contractual regulation -where market forces shape
regulation- after I have profiled the legal and regulatory environment which
surrounds commercial free speech and outdoor advertising.
Outside of social values, many other criticisms are made of the industry. Some
of these are already adequately dealt with by the law. A study on outdoor
advertising by Mandelker mentions traffic safety as a justification sometimes
used for billboard restrictions and that negative effects on property values are
usually produced by the visual offensiveness of outdoor advertising.5
These two criticisms are addressed by the considerations of public safety and
amenity in outdoor advertising regulation. The negative effect on property
values is an interesting counter argument to the economic arguments against
restrictions.
The overarching counterargument to mine is tough to dispute. We live in the
free world of the free market and free expression. Gassy-Wright cites the
importance of commercial speech and freedom of information to the free
market as justification for its protection.
“It is obvious that commercial speech benefits not only individuals, but also
society. Furthermore, commercial speech benefits not only producers, but also
consumers because advertising provides them not only with freedom of
information, but also with freedom of choice.”6
Freedom of expression is the sticking point that regulation struggles with.
Proving that outdoor advertising creates a commercially lead discourse is not
enough to prove a harm to society. That this right extends to corporate interests
is evidence of the march that corporations have already stolen in their pursuit
of public discourse dominance. I argue that it’s time for the law to get tougher
on them before it’s too late.
An interesting concept of advertising is put forward by Schudson who sees it as
capitalist realism, just like state-sanctioned art was put forward as socialist
realism in the former Soviet Union.7
Anyone who agrees with this comparison should agree that advertising
shouldn’t be forced upon people in their daily lives. They should be able to
5 Daniel R. Mandelker, ‘The Free Speech Revolution in Land Use Control’ (1984) 60(1) Zoning
and Land Use Symposium 55.
6 Oxana Valayervna Gassy-Wright‘Commercial Speech in the United States and Europe’
(2005) University of Georgia Law LLM Theses and Essays Paper 13,17.
7 Michael Schudson, Advertising as Capitalist Realism in Roxanne Hovland & Gary B. Wilcox,
Advertising in Society (NTC Business Books 1989) 73.

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avoid this particular construction of life when they step outside their houses,
walk through their town or use public transport.
Schudson argues that whatever advertising sells, it “surrounds us and enters
into us, so that when we speak we may speak in or with reference to the
language of advertising and when we see we may see through schemata that
advertising has made salient for us, shaping our sense of values even under
conditions where it does not greatly corrupt our buying habits.”8
Advertising as capitalist realism promotes a much skewed version of reality.
Free speech should only be free if it is truthful. While it would be unfair to
construe capitalist realism as mistruth it’s fair to acknowledge that it is a
heavily biased version of the truth, shaped to maximise profit for the speaker.
The law must ensure that certain speakers aren’t given an unfair advantage. A
particular group of people with a particular interest shouldn’t be allowed to
further this interest by making their form of realism inescapable. Outdoor
advertising is so prevalent now that it is inescapable in normal urban life.
Public transport vehicles can be construed as vehicles for capitalist realism due
to the amount of advertising they carry.
Schudson claims to take the position of the McBride Commission that
advertising “tends to promote attitudes and life-styles which extol acquisition
and consumption at the expense of other values.”9
Osilnik revealed that a special problem of communication and democratisation
that the commission dealt with were the harmful consequences of the
concentration of transnational corporations ownership of media, particularly
their increasingly global reach and monopoly in cultural and entertainment
programs in film and television. The issue was seen as one of the key questions
of the new information-communication order and the commission proceeded to
limit the process of concentration and monopolisation with legislative and
other measures.10
The rest of this essay will focus on the response of the law to the issues
discussed above. The responsibility of the law in addressing the problem is
expressed well by Piccioto,
“Lawyering entails interpretive practices which mediate between the public
standards and values expressed in the wide variety of norms, and the particular
activities and operations of economic actors, offering the hope that economic
power might be exercised ultimately for the general good. However, this
aspiration is illusory unless law operates within a broader democratic
8 Ibid.74.
9 Ibid.
10 Bogdan Osilnik ‘The MacbrideReport – 25 Years Later’ (2005) 12(3) The Public Journal of
the European Institute for Communication and Culture, 10.

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framework, in which legal practices themselves are also subject to high
standards of transparency, accountability and responsibility.”11
2.2 Outdoor Advertising in Dublin
Outdoor advertising in Dublin city is the subject of soft-law norms set by the
city council which takes into account the competing interests of concerned
parties and formulates guidelines and strategies concerning outdoor advertising
and the wider policy field which it is part of. Its powers are derived from
planning legislation and its ownership of public space in the city sometimes
referred to as the “public realm”.
Dublin City Councils (DCC) development strategy seeks to, “create a compact,
quality, green, well-connected city with a mix of uses that generates real long-
term economic recovery with sustainable neighbourhoods and socially
inclusive communities.”12 It’s worth considering the concepts of “socially
inclusive communities”, “well-connected city” and “real long-term economic
recovery” in relation to outdoor advertising and the role that an appropriate
outdoor advertising strategy can play in facilitating these goals.
If we analyse the idea of “socially inclusive communities” with regard to
outdoor advertising the concept of capitalist realism becomes very relevant as I
feel that advertising promotes a culture which divides and alienates groups in
society through the use of this technique.
“Well-connected city” principally refers to achieving transport goals rather
than eliminating social and economic divisions caused by the consumer culture
that outdoor advertising creates. However, outdoor advertising is more heavily
related to public transport than may be instantly obvious if we consider the
amount of advertising displayed on public transport vehicles and in stations.
On the other hand, “real long term economic recovery” in the market society
we live in demands an unrestricted role for outdoor advertising to allow for
efficient buying and selling of products and services.
The concept of the public realm, referred to in the above development strategy
is dealt with in detail in another DCC report which attaches significant
importance to outdoor advertising. Under the heading of “Public Advertising”
it’s reported that,
“Advertising has a major impact on the character of the public realm. A Draft
Outdoor
Advertising Strategy has been developed to integrate advertising while
protecting the public realm.”13
11 Piccioto,S. ‘MediatingContestations of Private,Public and Property Rights in Corporate
Capitalism’(2013) 3(4) Oñati Socio-Legal Series,642.
12 Dublin City Council, Dublin City Development Plan 2016-22 Issues Paper (Dublin City Council
2014) 6.
13 Dublin City Council, Your City Your Space: Draft Dublin City Public Realm Strategy (Dublin
City Council 2011) 35.

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This outdoor advertising strategy briefly sets out controls and policies tailored
to six geographical zones with different characteristics and predominant land
uses.
Zone 2 comprises mainly commercial and retail space, zone 3 contains radial
routes leading in and out of the city and zone 5 is a zone of significant urban
development and key developing areas “where advertising may form part of
new streetscapes, having regard to the need to protect residential amenities.”
Zone 2 is described as a zone where “outdoor advertisement may be permitted
subject to special development management measures” while in zones 3 and 5
“Subject to compliance with development management standards the
development of outdoor advertising in this zone will be open for
consideration.”14
The council takes responsibility for enforcement taking its powers from the
Planning and Development Act 2000. Addressing the issue from the planning
perspective which I’ll take up in the next section the report states that,
“Dublin City Council will evaluate all planning applications for signs in
relation to the surroundings and features of the buildings on which they are to
be displayed, to the number and size of signs (both existing and proposed) and
the potential for the creation of undesirable visual clutter." Provision is also
made for review by Dublin City Council in the light of changing circumstances
at the end of that period.”15
The other main focus of the strategy is taking a co-ordinated approach to the
public realm through the provision and rationing of public advertising panels
stating that.
“Any new applications for outdoor advertising structures will generally require
the removal of existing advertising panels, to rationalise the location and
concentration of existing advertising structures.”16
A preference is expressed towards smaller ads which are to be in greater
proportion to the buildings which they are displayed on. In the interest of
architectural integrity it’s considered that ads should not be displayed on Luas
bridges. Significant attention is given to illuminated signs, particularly in bus
shelters.17
It’s interesting to set this vision against that of the Dublin Chamber of
Commerce representing the business community who issued a response to the
public realm strategy making the following arguments:
 Sustainable and appropriate advertising can play an important positive
role in the architecture and character of cities.
14 Dublin City Council, Draft Outdoor Advertising Strategy (Dublin City Council 2011) 1-2.
15 Ibid.4.
16 Ibid.2.
17 Ibid.

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 A balanced approach must be taken in relation to outdoor advertising in
the city, with full consultation and collaboration with industry.
 There should not be an outright ban on all advertising in certain
geographical zones within the city.
 No actions should be taken which impose a financial cost on businesses
by either losing a historic advertising tool/ outlet, or imposing
conditions that tie businesses up in wasteful bureaucratic practices.18
They conclude that the city council should,
“Take a balanced approach to managing and developing the public realm and
to consult and collaborate with business community, so that people can read
and move around the city with ease, economic activities can continue to thrive,
and the history and distinct character of the city is protected.”19
Finding a balance between these public and private interests is central to
legitimate and effective outdoor advertising regulation. It’s interesting that both
perspectives are more focused on amenity although social inclusion and other
social and moral considerations are mentioned. These outlooks will be given
further context by the next section on planning law where the concept of
amenity is to the forefront of statutory instruments.
2.3 Other Studies of Outdoor Advertising “Regimes”
I use the term regime to address the complex web of regulation, legislation,
constitutional issues, issues around property, control and ownership and social,
spatial and economic strategy that produces the systems and rules governing
the industry. The subject can be analysed from a variety of perspectives too
diverse to cover in one paper so I will now refer to the findings of some similar
studies as a starting point for the main part of this analysis.
Taylor and Chang looked at the history of outdoor advertising regulation in the
US, a highly significant jurisdiction due to its Supreme Court litigation on
commercial free speech and strong ideology on economic liberalism. They
found that there were four main arguments against outdoor advertising: they
are aesthetically harmful, a safety hazard, carry deceptive messages and can be
for objectionable products with all bar the one around aesthetics adequately
addressed by self-regulation.20
Wagner analysed the visual techniques involved in effective advertising
highlighting its unavoidableness and discussed this in relation to the usual
issues of amenity and public safety but also the battle for power in the French
urban landscape between advertisers and authorities. There is an interesting
18 Dublin Chamber of Commerce, Dublin Chamber submission on ‘Dublin City Development
Plan 2011 – 2017: Outdoor Advertising Strategy’ (Dublin Chamber of Commerce 2012) 1.
19 Ibid.5
20 Charles R. Taylor & Weih Chang ‘The History of Outdoor Advertising Regulation in the
United States’ (1995) Journal of Macromarketing15(1) 47-59.

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social dimension to the paper as it discusses the wider problem with outdoor
advertising which the author captures.21
“Advertising is an invisible dictatorship of our society. Regulations have to be
implemented to control its construction and decrease roadside distractions.
There is no longer freedom of choice for consumers, as with this ‘‘invasive’’
advertising, citizens no longer exercise their choice. Vision is imposed on
people.”22
Molina found two predominant ways in which outdoor advertising in
Christchurch is regulated: The City Council governing public space through the
creation and implementation of policies and plans regarding the built
environment -as in the Dublin example above- and industry self-regulation
including a complaints process organised by the New Zealand Advertising
Standards Authority and a set of rules and guidelines for business practice by
the Outdoor Advertising Association of New Zealand.
She found that these regulators use rhetoric appealing to “the public good” and
“social responsibility” as justification for their existence but argued that while
regulation constructs itself as meaningful and “for the common good” while in
actuality its presence is a “smokescreen” for the continual triumph of private
over public interests by continually reinforcing and supporting commercial
discourses and values.23
This idea can be related to Taylor and Chang’s study which interpreted the
revenue made by the industry as proof of the success of self-regulation.24 If
revenue is to be the barometer of good regulation then regulation is clearly not
designed for the common good. Perhaps the goal of self-regulation is to
regulate to the point which maximises profit.
The ideas discussed to this point will form the basis of the analysis to follow.
3 Planning Law
3.1 Outdoor Advertising as a Planning Law Issue
Outdoor advertising is part of the built environment making it a planning issue.
However an examination of Irish and British statutory instruments shows that
planning law only deals with the issue from a limited perspective.
British legislation deals with outdoor advertising in more depth. Irish statutes
merely touch on the topic and avoid imposing stringent controls. In relation to
my research question neither code directly offers anything of huge substance
21 Anne Wagner ‘Game of Power Within the French Urban Landscape:A Socio-legal Semiotic
Analysis of Communication,Vision and Space’ (2014) 27 IJSL 161–182
22 Ibid.169
23 Jennifer Rose Molina ‘Public Spaces or PrivatePlaces? Outdoor Advertisingand the
Commercialisation of Public Spacein Christchurch,New Zealand’ (2006) Thesis:University of
Canterbury, 82.
24 Taylor & Chang (n. 19) 59.

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but nonetheless it is worth looking at what can be gleamed to get a sense for
the mind-sets of planners and legislators in relation to the issue.
The law of both countries focuses on public safety and amenity but don’t
consider the effects of commercialisation. The corresponding regulations set
out the details which must be adhered to. They regulate outdoor advertising in
a more tangible way but only address the same considerations, a limited
approach in my opinion.
3.2 Ireland
In Ireland the relevant statutory instruments dealing with the issue of outdoor
advertising are the Planning and Development Act 200025and the Planning and
Development Regulations 201226 which stem from them. Outdoor advertising
is dealt with fleetingly by these instruments. Considerations of amenity and
public safety are dealt with in relation to outdoor ads and billboards, almost as
a side note to the main issues of the statutes.
The legislation states that in relation to the repair and tidying of outdoor
advertisements,
“(1) If it appears to a planning authority that, having regard to the interests of
public safety or amenity, an advertisement structure or advertisement in its area
should be repaired or tidied, the planning authority may serve on the person
having control of the structure or advertisement a notice requiring that person
to repair or tidy the advertisement structure or advertisement within a specified
period.”
“(2) If it appears to a planning authority that any advertisement structure or
advertisement is derelict, the planning authority may serve on the person
having control of the structure or advertisement a notice requiring that person
to remove the advertisement structure or advertisement within a specified
period.”
“(3) If within the period specified in a notice under this section, the
advertisement structure or advertisement is not repaired or tidied, or removed,
as the case may be, the planning authority may enter on the land on which the
structure is situate or the advertisement is exhibited and repair, tidy or remove
the structure or advertisement and may recover as a simple contract debt in any
court of competent jurisdiction from the person having control of the structure
or advertisement any expenses reasonably incurred by it in that behalf.”27
25 Planningand Development Act, 2000 No. 30 of 2000 (PDA 2000)
26 Planningand Development Regulations,2001 S.I. No. 600 of 2001 (PDR 2001)
27 PDA 2000 s 209.

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O’Sullivan notes that, “The Planning Acts appear to envisage a somewhat more
active role for planning authorities as developers in their own right than has
happened in practice.”28
Through the legislation a local authority may by resolution make an order to
declare an area of special amenity and the order may state the objective of the
planning authority in relation to the preservation or enhancement of the
character or special features of the area, including objectives for the prevention
or limitation of development in the area.29This is an example of the powers that
I feel local planning authorities have failed to utilise effectively.
Irelands Planning Regulations30 take an interesting approach. Planning
permission is required for the following advertisement structures, a case, rack,
shelf or other appliance, apparatus or structure for displaying articles for the
purposes of advertisement or of sale in, or in connection with, any adjacent
business premises and an advertisement consisting of any text, symbol,
emblem, model, device or logo.31
However, many different advertisement types don’t require planning
permission. Under exempted development, they separate advertisements into
different classes based on their content and the subject they address. Differing
constraints related to the size of the whole advertisement and the logos and
words displayed are then applied. Interestingly there is even a particular class
for indoor advertisements in shops and premises that aren’t visible from the
outside. Some of some of the eighteen different classes are, religious
advertisements, adverts on flags, adverts related to political office and adverts
at transport stations not visible from outsides.32
An Bord Pleanala’s “Planning for Business” guidelines explain the regulations
that outdoor advertisements must comply with to businesses. This guide puts
the planning perspective on this matter into context. It is far removed from
addressing the ideological considerations of commercial free speech, capitalist
realism and regulation by contract rather taking consideration of visual impact
and amenity but there are traces of a purpose to regulate the increasing power
of commercial interest. Its explains that certain advertisements and signs
displayed on the business premises are exempted development but limitations
apply to the size of the sign or advert in relation to the type of premises it is
and where exactly they are displayed. A restriction on the number of signs
displayed is also in force with only one advertisement per entrance allowed if
there are entrances on different roads.33
While the provisions in relation to size of the display are interesting and
worthwhile I find the provision relating to the number of displays allowed per
28 P O’Sullivan, A Sourcebook on Planning Law in Ireland (Professional Books Limited 1984) 3.
29 John Gore-Grimes, Planning and Environmental Law (Bloomsbury Professional 2011) 80.
30 PDR 2001
31 PDR 2001, s 201 (a) & (d).
32 PDR 2001, Schedule 2 Art. 6 Part2
33 An Bord Pleanala, Planning forthe Business Person (An Bord Pleanala PL7 2002)

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road most interesting as it sets a numerical limit concerned with volume of
advertising in line with the type of regime which I wish to see applied more
widely.
Overall Ireland’s statutory instruments and related guidelines do little to restrict
commercial free speech in relation to outdoor advertising, taking an approach
which is totally different to the one I would like to see. Social issues are
ignored in legislation and don’t come in for any clear recognition in the
regulations. Modern developments in the industry such as the significance of
public transport vehicles have totally evaded the clutches of the law.
3.3 United Kingdom
From the planning perspective, outdoor advertising is regulated in the UK by
the outdoor advertising regulations of 2007.34
Firstly, article 1 states that the secretary of state’s powers to make the
regulations are derived from sections 220-4 of the Town and Country planning
Act of 1990.35
The wide definition given to the term advertisement is an interesting aspect of
the UK law. It doesn’t only apply to adverts which advertise a particular
product or point of view but also road traffic signs and effectively any structure
which displays a notice in public space.
The regulations state that,
“For the purpose of the 1990 Act and these Regulations, the term
“advertisement” has a wider than normally understood or dictionary meaning.
Section 336(1) of the 1990 Act, as amended by section 24 of the Planning and
Compensation Act 1991, defines “advertisement” as:
“any word, letter, model, sign, placard, board, notice, awning, blind, device or
representation, whether illuminated or not, in the nature of, and employed
wholly or partly for the purposes of, advertisement, announcement or direction,
and (without prejudice to the previous provisions of this definition) includes
any hoarding or similar structure used, or designed or adapted for use, and
anything else principally used, or designed or adapted principally for use, for
the display of advertisements.”36
This is further evidence of the narrow approach that planning law takes
towards outdoor advertising. While the term advertisement is given a wide
definition, the regulatory approach only addresses the harm of advertising in
the physical sense. The UK’s outdoor advertising regulations are only
34
The Town and Country Planning(Control of Advertisements) (England) Regulations 2007
(TCPR 2007)
35 Town and Country PlanningAct1990 c. 8 (TCPA 1990)
36 TCPA s 2.

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concerned with the concepts of amenity and public safety, familiar from Irish
law.
Another interesting aspect of the UK regulations are that there are two types of
consent for outdoor advertising structures, express and deemed.
All advertisements, other than certain excepted classes require consent before
they can be lawfully displayed. Any person who displays an advertisement in
contravention of the Regulations is guilty of an offence under section 224(3) of
the 1990 Act and liable to a fine on conviction.37
Unless an advertisement is one of the “deemed consent” classes in Part 1 of
Schedule 3 to the Regulations, an application must be made to the local
planning authority for express consent.38
Public Safety and amenity are also the focus of the UK regulations. These
considerations are given the following definition:
“The definition of “amenity” in regulation 2(1) includes both visual and aural
amenity.
Therefore as well as visual amenity, the noise generated by advertisements
should be considered. “Public safety” is not confined to road safety. Crime
prevention and detection are relevant; the obstruction of highway surveillance
cameras, speed cameras and security cameras by advertisements is now
included.”39
While this represents an expansive definition for public safety it’s still a
narrower definition than I feel is appropriate. Public safety is considered
merely in a physical rather than mental sense. I feel that the definition of
amenity is considerably wide but it still falls well short of addressing issues
that I feel the regulations should. The division of power between the planning
and advertising authorities is explained, proving that the root of my concerns
aren’t addressed by planning law.
“Under regulation 3, advertisements are subject to control only in the interests
of “amenity” and “public safety”. The content, subject or design of an
advertisement cannot be controlled under the Regulations unless it appears to
the local planning authority to be required in the interests of “amenity” or
“public safety”. Express consent cannot be refused because the local planning
authority considers the advertisement to be misleading (in so far as it makes
misleading claims for products), unnecessary, or offensive to public morals.
The Advertising Standards Authority is responsible for dealing with such
issues. Local planning authorities may legitimately take action on public safety
grounds against signs containing misleading directional information. The
colour, size of lettering or symbols, amount of text and type of materials used
may also be controlled but only in the interest of amenity and public safety.”40
37 TCPA s 10.
38 TCPA s 12.
39 (TCPR 2007) s 6.
40 TCPR 2007 s 5.

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This gives some more context to the application of public safety
considerations. It is clear that there is no power for planning authorities to
apply the regulations with regard to their content and any messages explicit,
implicit or contingent to the ads or their prevalence. It is rather a matter for the
advertising standards authority to deal with issues of content or message.
As I’ve mentioned, an increasingly significant element of outdoor advertising
is public transport vehicles. While the issue is neglected in Irish planning law it
is addressed in Britain with its regulations explaining that as Class B
advertisements, they are exempt from requiring deemed or express consent
from planning authorities. This does not include vehicles used principally for
the display of advertisements such as stationary vehicles parked in fields.41
3.4 Effectiveness of Planning Law
In a paper which conceptualises planning and discusses its paradoxical nature,
Savini et al say that spatial planning entails the practice of organizing
locational, legal, and economic resources across space and time and note that
urban development “still shows a close instrumentalism on goal-specific tasks,
means, and outcomes despite awareness that planning should enlarge
possibilities for social change rather than constrain them.”42
I feel this is how planning law fails to address the issue of outdoor advertising
effectively. It is overly goal focused and sets strict limits on the aspects that it
can control while leaving too much room for manoeuvre in aspects it can’t
control so easily. A more conceptually based approach which leaves room for
the involved parties to manoeuvre would fare better.
Current regulations almost totally fail to set reasonable parameters within
which the advertiser and city planner can have creative freedom. Rather than
being broad and visionary these regulations set out goals, targets and limits.
That the parameters are set in terms of physical space rather than societal effect
shows that planning law is a relatively blunt instrument for regulating
commercial free speech. However, there still seems to be an appreciation that
planning must take cognisance of the content and message of an advert.
While the concept of damage by over-saturated commercialism may be
intangible, amenity is subjective. The preference for the amenity consideration
in planning law can be attributed to the fact that we are dealing with
regulations and legislation rather than constitutional ideals. Unfortunately
when the constitutions of modern day states were drafted over-
commercialisation wasn’t an issue that needed to be dealt with but the next part
of this paper will address the constitutional right of commercial free speech
that has developed to be highly significant to the issue in both Europe and the
US.
41 TCPR 2007 s 9.
42 F Savini,S Majoor,& W Salet, ‘Dilemmas of PlanningIntervention Regulation and
Investment’ (2014) 1PlanningTheory, 6.

16
I think that the biggest development in outdoor advertising is how it blends into
everyday city life through a variety of means particularly transport. Legislation
has failed to keep up with these changes and within its narrow confines, the
resulting regulations fail to address the issue of commercialization.
For planners this doesn’t represent a huge problem as they are mainly
concerned with amenity and safety in the physical sense. Social values or the
ideology of the state are beyond their concern. As planning law is too narrow
to fully address my concerns I will now look at the constitutional issue of
commercial free speech.
While it has been interesting to observe the incidental effects that planning law
has on commercial free speech I will now look more broadly at how states can
and do regulate the presence of corporations and commercial messages in
public space.
4 CommercialFree Speech
4.1 How Does Commercial Free Speech Pose a Problem?
Free speech is universally recognized as being a fundamental right of people in
free societies. This also makes it synonymous with the free market. The right to
free speech has been extended to corporations as if they were people, best
exemplified by controversial US Supreme Court litigation which is now being
repeated in Europe. I argue that the expansion of commercial rights should be
halted to allow governments legislate in the interests of people.
Freedom of speech comes with responsibilities. The priorities of government,
particularly their need to provide security for their citizens can place limits on
their ability to tolerate freedom of speech.43
4.2 Protection of Commercial Free Speech in Europe
Summarising scenario that needs to be addressed in Europe Randall says,
“In an era of enhanced commercialisation, the traditional perception that
freedom of expression does not apply to the economic sphere has come under
challenge. Free speech has increasingly been invoked to challenge economic
regulations, such as restrictions on advertising.”44
The European Court of Human Rights (ECtHR) has an evolving jurisprudence
on commercial freedom of expression in relation to Article 10.45 While none of
43 AA Adams & RJ McCrindle, Pandora’s Box: Social and Professional Issues of the Information
Age (Wiley 2008) 125.
44 Maya Hertig Randall ‘Commercial Speech under the European Convention on Human
Rights: Subordinateor Equal?’(2006) 6 HRLR 54.
45Convention for the Protection of Human Rights and Fundamental Freedoms Rome,
4.XI.1950,Article10.

17
the following cases directly concern outdoor advertising its worth analysing the
courts treatment of commercial free speech. Particularly significant are the
balancing acts the court performs between freedom of expression and the
competing considerations as well as the margins of appreciation afforded to
national laws.
Article 10 protection was only extended to commercial issues by the court in
1989 in Markt Intern where the court found that “information of a commercial
nature cannot be excluded from the scope of Article 10 S1 which does not
apply solely to certain types of information or ideas or forms of expression.”46
In Casado Coca47 the Court reaffirmed the applicability of Article 10 to
advertising. A disciplinary penalty imposed on a lawyer for advertising his
services was found not to have violated Article 10. The Court held that the Bar
authorities and courts of the country were best placed to determine the right
balance between the various considerations related to the issue.
Moving onto the medical profession, Stambuk48 concerned a fine imposed on
an ophthalmologist for disregarding an advertising ban by co-authoring a
newspaper article presenting his new operation technique. His duty of care
obligation towards his patients was balanced against the public’s legitimate
interest in obtaining information and the duty of the press to impart such
information. The article was deemed balanced and objective so the domestic
courts strict interpretation of the ban infringed the applicant’s right to freedom
of expression.49
Due to the youth of the European project the courts don’t apply the same
rigorous doctrines that the US Supreme Court does to commercial free speech
issues. In the complex world of European law and politics the European
commission has also had a significant say on this matter.
The Commission has stated that it did not consider commercial speech to be
outside the scope of Art. 10.1 protection. However, “the level of protection
must be less than that accorded to the expression of ‘political’ ideas, in the
broadest sense, with which the values underpinning the concept of freedom of
expression in the Convention were chiefly concerned.”50
This statement suggests that commercial speech is merely taking advantage of
the protection afforded to political speech and personal expression. Its current
level of protection can be viewed as a symptom of our times as the market
economy grants political significance to commercial affairs. If the European
courts recognise commercial speech as being inferior to political speech then
46 Markt Intern Verlang GMBH and Klaus Beermann v the Federal Republic of Germany (1989)
Series A No. 165, 26.
47 Casado Coca v. Spain (1994) Series A No. 285
48 Stambuk v. Germany, No. 37928/97,Judgment of 17 October 2002
49 Council of Europe, ‘Freedom of expression in Europe Case-lawconcerningArticle10 of the
European Convention on Human Rights’ (2007) Human Rights Files No. 18, 82.
50 Application No. 7805/77, X and Church of Scientology v. Sweden, decision of 5 May 1979,
68.

18
stricter national restrictions on outdoor commercial advertising can be validly
applied when the margin of appreciation is taken into account.
Member states should be allowed to construct their own social orders as a
means of national actualisation. If article 10 protection was only originally
intended to apply to political speech, then the status of commercial speech –
not particularly strong - can be contained if member states treat it as less
important in their society and Europe continues to grant the margin of
appreciation.
In the early 90’s there were a number of cases where the ECHR deemed
restrictions on advertising inadmissible as they took the more liberal approach
that reflected the sweeping political and social change of the time.
In K v Federal Republic of Germany the Commission declared a reprimand
which a lawyer received for prohibited advertising of his services,
inadmissible.51
In Nederlandse Omroepprogramma Stichting v. the Netherlands52 it declared
inadmissible an application concerning fines imposed on a broadcasting
company for broadcasting indirect commercial utterances in television
programmes. In holding that the interference with the right protected by Article
10 did not go beyond the state’s margin of appreciation the Commission took
into account the target audience of the programmes which were children, the
applicant’s position in the national broadcasting system and the amounts of the
fines.53
The considerations taken into account and the resultant underlying philosophy
of the judgement intrigues me, particularly the evaluation of the target audience
and the fact that the commercial utterances were indirect. This kind of thinking
can be the foundation of more sensible regulation of outdoor advertising.
Lindner v. Germany54involved the advertising of legal services with the Court
siding with the state restriction as the margin of appreciation doctrine proved
decisive.
“In keeping with its earlier case-law, the Court added that a country’s bar
authorities and domestic courts were in a better position than an international
court to determine how, at a given time, the right balance could be struck
between the various interests involved. In this case the Court ruled that the
measures taken against the applicant had not been disproportionate and
declared the application admissible.”55
51 Application No. 17006/90,decision of 2 July 1991
52 Application No. 16844/90,decision of 13 October 1993
53 Council of Europe (n. 48) 69.
54 Lindner v. Germany Application No. 32813/96, decision of 9 March 1999

19
When examining national restrictions in relation to freedom of expression the
court can invoke the general interest to come to a decision. Advertising is
something that should be evaluated in light of this principle.
Open Door Counselling56 offers an example of the court ruling for the general
interest. Here the Court found that restrictions placed on the applicant
companies regarding the provision of practical information to pregnant women
on the possibility of having an abortion in the UK breached Article 10.
The restrictions pursued the legitimate protection of morals aim which
protection of the right to life of the unborn was an aspect of in Ireland.
However, the Court concluded that they were disproportionate.57
According to paragraph 2, domestic authorities in any of the Contracting States
may interfere with the exercise of freedom of expression in certain conditions.
The paragraph reads,
“The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions or
penalties as are prescribed by law and are necessary in a democratic society, in
the interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for the
protection of the reputation or rights of others, for preventing the disclosure of
information received in confidence, or for maintaining the authority and
impartiality of the judiciary.”58
This provision has seen the court establish strict rules of interpretation for the
possible restrictions provided by the paragraph creating a legal standard that in
any borderline case has seen freedom of the individual weighed favourably
against the State’s claim of overriding interest. The burden of proof of the three
interests falls with the state but before that stage the national courts must
determine the legitimacy of the restrictions considering the same three
requirements.59
Along with the “margin of appreciation” doctrine it’s worth bearing in mind
that all pieces of national law must be applied and interpreted in accordance
with the Court’s jurisprudence and principles and, where clear contradictions
exist, European law should prevail due to its supremacy in states under its
supervision.60
56 Open Door CounsellingLtd and Dublin Well Woman Centre Ltd v. Ireland (1992) Series A
No. 246
58 Convention for the Protection of Human Rights and Fundamental Freedoms Rome,
4.XI.1950,Art 10.2
59 Monica Macovei,‘Freedom of Expression:A guide to the implementation of Article10 of
the European Convention on Human Rights: Human Rights Handbook No. 2’ (2nd edn, Council
of Europe, 2004) 30-1.
60 Ibid.34-6

20
Commercial free speech law in Europe is weak, exemplified by its deference to
national law. This can be attributed to the lack of a European national identity
with a body of morals that the courts can interpret the charter in relation to. I
mentioned earlier that commercialisation causes an erosion of national values
but the European courts still hold a lot of respect for the unique character of
member states. Nations are free to restrict commercial free speech with
regulations which reflect their national interests, morals and philosophies.
States can restrict commercial free speech if they are pursuing a legitimate aim
best devised and interpreted by regulators in that state. Purely commercial free
speech ranks behind speech with a political dimension in the hierarchy of
protection offered by the European courts. It is worth comparing this protection
with that offered by the US Supreme Court to see what other philosophies can
be applied to the issue in the world of the free market.
4.3 Commercial Free Speech in the US
The US Supreme Court’s decisions offer an interesting insight into its views on
commercial free speech in society and how they have changed over time. Much
older than the European Convention, the US Constitutions principles long
predate the emergence of the market economy. Preference for the public
interest over market efficiency is part of the inspiration behind my research so
it is interesting to see how constitutional principles and their interpretation by
the courts align with outdoor advertising regulations.
First amendment protection causes conflict across the spectrum of regulation.
An issue related this topic and part of planning law are land use regulations
which Mandelker found to have lost their presumption of constitutionality due
to their collision with the free speech clause.61
In the same study he found an even greater conflict with outdoor advertising.
“If the Supreme Court has revised the judicial role in reviewing commercial
zoning that affects free speech interests, it has totally destroyed the usual basis
for judicially appraising local ordinances that regulate outdoor advertising. In
Metromedia, Inc. v. City of San Diego, a badly divided and sometimes
incomprehensible Court demolished the doctrine state courts developed over a
substantial period of time to determine the constitutionality of outdoor
advertising controls.”62
The majority of this section will be concerned with the wider debate around the
first amendment and the various philosophies that have been expressed about
its relationship to commercial free speech. According to Deeter et al,
“To understand the regulation of advertising, one must begin with an
understanding of its status under the first amendment. In many respects, it is
this status that provides the key to the nature and degree of control over
advertising. It is because advertising has never had absolute First Amendment
61 Mandelker (n. 5) 51
62 Ibid.55.

21
protection that it is regulated. And because its status has continued to evolve,
so too has its regulation.”63
The case of Christensen64in 1942 was the first time the issue arose, with
commercial advertising being given no constitutional protection. In his
unanimous judgement Justice Roberts stated that,
“This court has unequivocally held that the streets are proper places for the
exercises of the freedom of communicating information and disseminating
opinion and that, though the states and municipalities may appropriately
regulate the privilege in the public interest, they may not unduly burden or
proscribe its employment in these public thoroughfares.”65
I find his assertion around “the streets” an interesting one. Outdoor advertising
is a type of commercial expression which is also the domain of the streets. In
keeping with the respect I hold for public space I agree that they are proper
places for public communication but I wouldn’t reserve this opinion for
corporations. The analysis of case law to follow shows that the court has often
held the same reservations.
Protection of commercial expression really kicked off in Sullivan66which
involved strong public interest considerations related to a paid advertisement.
These public interest considerations were in fact grounded in the civil rights
movements of the 1960’s which the case is better known for, making the case
famous aside from its commercial speech dimension. The case granted first
amendment protection to advertisements for the first time, albeit only editorial
ones. Nonetheless it meant that constitutional protection was applicable to
messages, paid to be circulated.
Deeter et al note that Sullivan, “Distinguished between the expression of
societal or political views and commercial advertisers.”67 In this case,
commercial free speech received constitutional protection in the interests of the
social good rather than non-commercial reasons, while I argue that absolute
commercial speech protection is dangerous to society. The following cases
reveal how commercial speech protection has been widened without becoming
absolute and the complex regulatory environment this has created for outdoor
advertising regulation.
The protection was widened in Bigelow68 where it was judged that an abortion
ad should be protected as it “contained factual material of clear public
interest.” The judge acknowledged that courts have the responsibility of
balancing first amendment against ad regulations saying that, “The relationship
63 Roxanne Hovland,Dwight L. Teeter & Gary B. Wilcox, Commercial Speech and the First
Amendment: The Constitutional Stepchild in Roxanne Hovland & Gary B. Wilcox Advertising in
Society (NTC Business Books 1990) 200.
64 Valentine v. Christensen (1942) 216 U.S. 52 (Valentine)
65 Valentine 54
66 New York Times v. Sullivan (1964) 376 U.S. 254
67 Roxanne Hovland,Dwight L. Teeter & Gary B. Wilcox (n.61) 204.
68 Bigelow v. Virginia (1975) 421 U.S. 809 (Bigelow)

22
of speech to the marketplace of products does not make it valueless in the
marketplace of ideas.”69
The marketplace of ideas concept was used by the judge as a means of
attaching societal interest to commercial speech in question at a time when
purely commercial speech wasn’t protected. However, it also opens up the
debate about the value of commercial speech to society and the impact it has on
people. The idea that advertisements contribute to the marketplace of ideas
backs up my argument that large volumes of advertising can shape a societies
values. What is in question is the level to which this occurs by volume alone.
The main development over the course of this era was the definition that the
court added to the term, “Public Interest” which received some case by case
definition, at least as the words were applied in the context of advertising
regulation.70
In Virginia State Board of Pharmacy v. Virgininia Citizens Consumers Council
the Supreme Court held that purely commercial speech in the form of truthful
information about an entirely lawful activity can’t be completely suppressed as
both the source and recipients are protected by the First amendment.71
This allowed for “time manner and place restrictions” which were invoked in
following commercial free speech cases. The increased regulation of outdoor
advertising which I am promoting calls for restrictions that are to an extent, of
the “time, place and manner” type. I argue for restrictions of place but rather
than time and manner I argue for appropriate limits on volume.
In Bates v. State Bar of Arizona72the Supreme Court heard a case regarding the
advertising of legal services where the Arizona Bar made numerous arguments
against the price advertising of legal services. Among these arguments were
that advertising would jeopardize standards, produce undue commercialism
and other undesirable effects. These arguments were rejected by the majority,
in favour of recognising the benefits that the advertising would bring.
In spite of their defeat I find their arguments about standards and undue
commercialism most interesting and wonder whether they could be applied to a
wider range of services that are advertised to people outdoors in public space
with some more success. The judgement raised some interesting points that are
worth taking cognisance of in relation to the regulation of outdoor advertising.
“In the lawyer advertising case, the majority reaffirmed one of the principles
justifying First Amendment protection for advertising. Advertising is valuable
in a capitalist economy, serving both society and the individual. Advertising
promotes efficient allocation of resources and brings buyers and sellers
together in the marketplace. In this case, the consumer’s need for information
about the availability and cost of legal representation and advice was held to be
69 (Bigelow) 822.
70 (Bigelow) 826
71 Virginia StateBoard of Pharmacy v. Virginia Citizens Consumer Council (1976) 425 U.S. 748
72 (1977) 433 U.S. 350

23
more important than bar association’s strictures against advertising by lawyers.
Again the court said that the time, place and manner of advertising may be
regulated.”73
Reflecting on this era of expanded protection they comment,
“Basically, if an ad promoted a political or social cause or advertised goods or
services affecting the health or general well-being of individuals, then the first
amendment shield was in place, protecting against state or state sanctioned
efforts to suppress. Advertising was not completely free; it could be regulated
in terms of time, place and manner, and could be forbidden or punished if false,
misleading or deceptive.”74
This expansion was to continue at a rapid pace through the 70’s and this
direction from the Supreme Court reached its nadir with the case of Central
Hudson75which developed a four-pronged test for assessing commercial speech
restrictions. During the petroleum and natural gas shortage of the late 70s,
Central Hudson were ordered by New York’s Public Service Commission to
halt its ads promoting purchase of electrical appliances which was causing the
use of more petroleum. It was deemed that although the government had an
undeniable interest in energy conservation, the state agency’s regulation was
too sweeping and extensive for the court who overturned the order. Justice
Powell outlined the four part test.
“In commercial speech cases, then, a four part analysis has developed. At the
outset, we must determine whether the expression is protected by the first
amendment. For commercial speech to come within that provision, it at least
must concern lawful activity and not be misleading. Next, we ask whether the
asserted governmental interest is substantial. If both inquiries yield positive
answers, we must determine whether the regulation directly advances the
governmental interest asserted, and whether it is more extensive than necessary
to serve that interest.”76
Mandelkers analysis of the regulation of on premise signs found the Central
Hudson test to be very significant along with the “time, manner, and place”
test.77This shows the significance of developing a test with clear rationale for
commercial free speech cases, something Europe lacks.
He found that in keeping with the requirements of these tests sign ordinances
tend to regulate physical characteristics in the interest of -the familiar
considerations of- amenity and safety along with characteristics such as design,
73 Hovland,Teeter & Wilcox (n.61) 209-10.
74 ibid
75 Central Hudson Gas & Electric Corp. v. Public ServiceCommision of New York (1980) 447
U.S. 557 (Central Hudson)
76 (Central Hudson) 566
77 Daniel R. Mandelker, 'Free Speech Law for On-PremiseSigns’(2012)
<http://law.wustl.edu/landuselaw/BookFSL/MandelkerFreeSpeechLawforonPremiseSignsAug
92012.pdf> Accessed 20 May 2015.

24
illumination, animation and colour. Courts will ask if the regulations in
question are tailored narrowly enough or whether alternatives are available.78
It’s clear that the legitimacy of advertising in the public sphere, whether its
technically on premise or outdoor depends on balancing free speech protection
against the competing claims of the case. Regulations must veer away from
being a blanket or overly extensive ban on speech and instead regulate the
speech element as little as possible while fulfilling requirements related to the
time, manner and place of the advertisement.
The Central Hudson test determines whether the regulation is appropriate or
overboard in conjunction with the “time, manner and place test” which
evaluates these characteristics of the regulation. If the time, manner and place
aspects of the regulation are appropriate and necessary then the regulation is
good. Mandelker demonstrates this with an account of his findings across a
range of sign-ordinances.
“Sign ordinances may limit the number of signs on a property, assign
numerical limits for signs on walls or facades, or provide a numerical ratio for
signs based on street frontage or facade. Courts usually uphold these numerical
limits by applying either the Central Hudson or the “time, place and manner
regulation” tests. They especially ask whether they are narrowly tailored, and
whether adequate alternate methods of communication are available. They
usually uphold these regulations, though case authority is limited for some of
them.”79
After all of this expanded protection for commercial free speech came a case
that specifically dealt with outdoor advertising regulation.
Heard by the Californian Supreme Court, Metromedia80concerned restrictions
on outdoor advertising where San Diego banned off-site billboards, instead
allowing on premise commercial advertising, as well as a number of other
traditionally exempted signs such as government and temporary political signs.
Mandelker expressed this opinion on the verdict.
“A divided Supreme Court struck down the San Diego ordinance. Although no
single point of view commanded a majority, the Justices clearly indicated that
free speech concerns substantially changed the rules under which
municipalities regulate outdoor advertising.”81
Johnson praised the court the court for recognising that under modern law and
in response to the governments interest in aesthetics, the sign ordinance didn’t
interfere with first amendment protection of commercial free speech.82
78 Ibid 89
79 Ibid 100
80 Metromedia, Inc. v. City of San Diego (1981) 453 U.S. 490
82 Terry T. Johnson, ‘Metromedia, Inc.v. City of San Diego: Constitutionality of Billboard
Regulation’ (1981) 69(4) CaliforniaLawReview, 1051.

25
Posadas83 offered the first example of the court viewing advertising of a
product as contrary to the public good. The case concerned a ban by the
government of Puerto Rico on the advertising of casinos. Casinos were legal in
Puerto Rico so it was attempted to overturn the ban under the first amendment.
However the court ruled by 5-4 that the ban on advertising was legitimate.
In Liquormart84 Rhode Island outlawed price advertising of alcohol but had
this restriction outlawed in turn by the Supreme Court on the grounds that the
restriction didn’t further an asserted interest of the state and was more
extensive than necessary to achieve their interest, failing two prongs of the
Central Hudson test.
In the next section I will look at the regulation of tobacco and alcohol
advertising as a means of determining how strongly protected commercial
speech is in cases of advertising harmful products.
4.4 US & EU Comparison
Recent case law has seen the ECtHR challenge the US Supreme Court as the
prominent setter of human rights particularly in the area of freedom of
expression and most particularly in certain elements of free speech such as
commercial free speech.85
“As in other areas of free speech jurisprudence, commercial speech in U.S. law
is more protected now than ever before. This is hardly surprising; commercial
speech has become part of the free flow of information under the First
Amendment, not only for the speaker but also for the consumer.”86
The European court is usually more willing to accept the regulation of
advertising than it is to accept the regulation of non-commercial speech. In that
respect, its doctrinal approach to advertising law is largely similar to that of the
U.S. Supreme Court. The different degree of the “margin of appreciation”
under Article 10(2) illustrates a judicial discrimination against commercial
speech.87
Vgt Verein Gegen Tierfabriken v. Switzerland demonstrated that “Cause
advertising” is given more protection than purely commercial advertising under
Article 10 reiterating a wider margin of appreciation for commercial speech.88
An interesting area of commercial speech regulation is tobacco advertising. I
will discuss this issue in greater detail in the next section among other harmful
products but for now it’s worth noting that Gassy Wright found similar
philosophies between the two jurisdictions on this topic as neither the U.S. nor
the European courts upheld governmental bans on tobacco advertisement on
83 Posadas dePuerto Rico v. TourismCompany (1986) 106 S Ct. 2968
84 Liquormart, Inc.v. Rhode Island (1996) 517 U.S. 484
85 Bruce E.H. Johnson & Kyu Ho Youm, ‘Commercial speech and Free Expression:The United
States and Europe Compared’ (2009) 2 JIMEL 161.
86 Ibid.
87 Ibid.170
88 Vgt Verein Gegen Tierfabriken v. Switzerland (2002) 34 EHRR 4 (Vgt Verein)

26
the grounds of freedom of speech violations.89That the ban in question was
imposed by the EU was significant in the European case90as it rendered the
“margin of appreciation” doctrine meaningless.
Its acknowledged that it’s possible to presume that such bans would be upheld
by the European Court of Justice based on the “margin of appreciation” if the
initiator of the tobacco restrictions was a Member State and not the European
Parliament.91
Citing the judgements of a number of abortion and contraception related cases
Gassy Wright found that,
“Even when contraceptive and abortion advertisement was protected by both
courts, the motivations for protection were different. For the European Court of
Human Rights the most important reasons were the “moral implications” while
The U.S. Supreme Court protected such advertisement because of “substantial
individual and societal interest in the free flow of commercial information.”92
Reflection on this body of law reveals that commercial free speech protection
is weaker and less developed in Europe than the US owing to the comparative
recentness of the issue in Europe. While the US constitution and the European
convention both protect commercial speech, only the US protect purely
commercial speech while in Europe the protection only applies against
restrictions that don’t directly and legitimately benefit society. The right is
enforced as an individual right in the US while it is subject to a margin of
appreciation in favour of national law in Europe. The Central Hudson test
provides a rationale for decisions in the US which does not exist in Europe.
Thus commercial speech is protected more strongly in the US than Europe.
Randall explains the lack of such an effective test in Europe and the problem it
causes.
“Categorisation and differential treatment of speech are in need of justification.
Unfortunately, the ECtHR has, so far, not offered a comprehensive theory
explaining the lesser level of protection afforded to commercial speech. The
case-law, however, contains several reasons justifying the discretion conceded
to member states in commercial matters.”93
It seems that the European Courts are happy to defer to the margin of
appreciation for member states rather than formulate their own clear test. This
can be attributed to the wider differences that exist socially and economically
between European states compared to American ones.
Ultimately in both jurisdictions, the right to free commercial speech is balanced
against whatever competing considerations exist in the particular case.
89 Vgt Verein 51
90 Germany v. Parliamentand Council (1998) CaseC-376/98,1998 E.C.R. I-8419
91 Gassy-Wright(n.6) 51
92 Ibid 45-6
93 Randall (n.43) 60

27
As Johnson and Youm put it, “Neither the First Amendment nor the ECtHR
recognizes absolutism in freedom of speech. Rights balancing is an unending
process for the U.S. Supreme Court and the ECtHR.”94
For a more complete picture on how outdoor advertising can be regulated I will
look at other regimes of advertising regulation for certain types of product or
target audience to get a better insight into the world of regulation before I make
my assessment of outdoor advertising regulation and the underlying power
struggle that inflences it. I will also be looking for philosophies on advertising
that can be applied to regulation of outdoor advertising.
Other “Regimes”ofAdvertising Regulation
5.1 Introduction
This section will investigate regulations that have been applied to advertising
that is deemed harmful to society. I will look at advertising to children, and the
advertising of harmful products such as tobacco and alcohol to discover the
underlying philosophies that are accepted as legitimate rationale for restricting
commercial free speech.
Most of this advertising has been restricted due to the product being advertised.
However, the restrictions on advertising to children are of a more general
nature, raising questions over the effects of advertising on society.
In the intervening period since Posadas tobacco advertising has been heavily
restricted or virtually wiped out across the world. Similar restrictions have been
applied to gambling -which Posadas was directly concerned with- as well as
alcohol, but to a lesser extent.
These restrictions suggest that advertising is influential on people and society.
They also suggest that certain kinds of advertising can be dangerous, so as a
practice, advertising doesn’t receive full speech protection. This section reveals
some more scenarios where it’s not fully protected, helping to fill in the picture
that I have been painting of the need to effectively regulate outdoor advertising
through analysis of planning law and commercial free speech case law.
5.2 Advertising to Children
In Ireland the regulation of advertising to children is a myriad of restrictions
devised by various interested regulatory and self-regulatory bodies.
Regulations are set from the side of those broadcasting the adverts and those
who they are on behalf of. It’s an imperfect system with little statutory basis.
While commercial free speech cases allowed me to view the issue through
constitutional eyes and planning law dealt with the relevant statutory
instruments, this section will explore the regulatory part of the law which is a
dynamic and interesting tapestry revealing the interests of those involved and
94 Johnson & Youm (n. 82) 178

28
their relationship with the government level. It will lead appropriately to the
analysis and conceptualisation of regulation which follows.
The advertising standards authority of Ireland (ASAI) have a part in their code
– covering advertising through all mediums - dedicated to children.95 The
general tone of the ASAI’s code suggests that it is designed to compensate for
vulnerabilities specific to children. I feel that in isolation, this approach is
slightly misguided as there is nothing to suggest that the same vulnerabilities
aren’t experienced by adults. With their greater spending power, I argue that a
significant part of the adult population do in fact suffer from similar
vulnerability. There is nothing specific to this code about outdoor advertising
but importantly, I see it as an admission from the advertising community that
exposure to advertising isn’t simply exposure to information and expression, it
can also influence vulnerable people in ways against their interests.
There is also regulation at European level, relevant to Ireland. The EU Pledge
is a voluntary commitment by corporations to change food and beverage
advertising to children under the age of twelve in the EU. It consists of two
main commitments: no advertising for food and beverage products to children
under the age of twelve on TV, print and internet, except for products which
fulfil common nutritional criteria and no communication related to products in
primary schools, except where specifically requested by, or agreed with, the
school administration for educational purposes.96
This is interesting as it is an example of both self-regulation and transnational
regulation and highly relevant to the concept of contractual regulation which is
a highly significant part of the argument I put forward for increased outdoor
advertising regulation.
In Ireland, the Broadcasting Authority of Ireland (BAI) also has a set of
regulations for advertising to children but more interestingly it also has a
general commercial communications guidelines for advertising through the
broadcast media, both published in 2013.
Under “Social Values” the guidelines state that: “Children’s commercial
communications shall not cause moral, mental or physical detriment to
children” and “Children’s commercial communications shall not reflect a range
of values which are inconsistent with the moral or ethical standards or diversity
of contemporary Irish society.”97
I view this as an admission that advertising can do such harm to people and
create an inaccurate picture of society. If these regulations are applied in the
interests of children, then surely similar regulations should also apply to
95 Advertising Standards Authority of Ireland ‘ASAI Code-Children’ <http://www.asai.ie/asai-
code/children/>Accessed 22 July 2015
96 EU Pledge “About the EU Pledge” <http://eu-pledge.eu/content/about-eu-pledge>
Accessed 22 July 2015
97 Broadcasting Authority of Ireland ‘Children’s Commercial Communications Code’ (BAI,
2013) 6.

29
adverts aimed at the general public. This is relevant to my argument because
nothing is as inescapable for the general public as outdoor advertising in public
spaces.
The general version contains two definitions of advertising practices that are
highly significant to my argument: “Subliminal Commercial Communications”
and “Television Product Placements”.
“Subliminal Commercial Communications” are described as, “Commercial
communications that include any technical device, which, by using images of
very brief duration or by any other means, exploits the possibility of conveying
a message to, or otherwise influencing the minds of, members of an audience
without their being aware or fully aware of what has been done.”98
“Television Product Placements” are defined as,
“Any form of commercial communication on television consisting of the
inclusion of or reference to a product, a service or the trademark thereof so that
it is featured within a programme, in return for payment or for similar
consideration.”99
Unfortunately there isn’t too much to be gleamed from these codes and
guidelines that is directly related to outdoor advertising. This is because they
are aimed at individual ads and their content rather than systems of advertising
such as the provision of outdoor advertising space by Dublin City Council.
Olsen argues that it may not be fair to 3-7 year-old children to expose them to
advertising, when they don’t have an economic interest of their own. It could
rather be regarded as an intrusion of their privacy to force advertisements on
them for goods they could not afford and do not have the possibility to buy.100 I
find that this argument echoes much of the sentiments which I’m expressing in
mine around exposing the general population to such volumes of outdoor
advertising which they can’t avoid when using public space.
The idea that it’s an “intrusion of their privacy to force advertisements on them
for goods they could not afford and do not have the possibility to buy” can be
applied to low and middle income people who can’t avoid advertisements and
the overly strong consumer culture they promote when using public transport
or making use of essential public space during their daily lives in the cities
where they live.
This idea has taken hold in many states around the world where suitable
regulations are being drafted in this area so I believe that it’s time for
regulators to apply the same idea to outdoor advertising matters.
98 Ibid.5.
99 Ibid.
100 Lena Olsen,‘Children and Advertising - Some Perspectives on the Relevant Legal
Arguments’ (2007) 50 Scandinavian Studies in Law458

30
5.3 Alcohol Advertising
An area of particular focus in regulating advertising to children is alcohol
which is also one of few products subject to strict advertising regulation for the
general good as well.
In Ireland alcohol advertising regulation is a multiparty example of the self-
regulatory culture that tends to deal with advertising in general. Various parties
from the alcohol and advertising industries have collaborated with the
department of health to develop media codes with the objective of limiting
exposure of young people to alcohol advertising. These codes, unique for each
industry, restricted the placement and weight of exposure of alcohol
advertising in the four key media, nominated by the Department, i.e. TV,
Radio, Cinema and Outdoor and came into force in 2004.101
The same parties created the Alcohol Marketing Communications Monitoring
Body (AMCMB) in 2005. They drafted a report in 2006 which lead to a code
which took effect in 2008. The code sets standards for advertising of alcohol in
the four key forms of media. In relation to outdoor advertising the AMCMB
code have set regulations which interestingly incorporates the provisions of the
CCCI system.102
The Alcohol Beverage Federation of Ireland, Drinks Industry Group of Ireland,
the Association of Advertisers in Ireland, the Institute of Advertising
Practitioners in Ireland and the Outdoor Media Association based in the
Republic of Ireland accepting advertising aimed at the Irish marketplace,
undertake to operate a policy that is quite detailed and specific. The code has
interesting rules such as prohibiting wrap around ads for alcohol on public
transport vehicles or any outdoor advertising within 100m of schools or on
designated school buses. The idea of weighting is also in evidence as only 25%
of advertising space or a total of one display is allowed in a particular location,
including shelters, stations and on vehicles themselves. Outdoor advertising
companies can only use 25% of their inventory for a particular format to
advertise alcohol.103
What I find particularly interesting about this code is the use of a weighting
system. I argue that the simplest, most legitimate and effective system of
outdoor advertising regulation could employ a weight system determining the
amount of advertising space that is allowed in particular districts or a simple
ratio of advertising space to public space.
For a city council to apply such a system across its urban space would require a
lot of expertise and careful consideration. Outdoor adverts are displayed in
private space but are projected onto public space. Strict and thorough
101 Department of Health and Children ‘Alcohol Marketing,Communications and Sponsorship
codes of practice’<http://asai.ie/wp-content/uploads/Alcohol-Codes-of-Practice-2008.pdf
Accessed: 19 July 2015, 3-4.
102 Ibid.
103 Ibid.5

31
definitions would have to formulate for “public space” with lots of grey areas
such as shopping centres and tram platforms.
This might explain why such systems aren’t already in place especially as
strategies such as Dublin’s public realm strategy already allows for different
concentrations of advertising in different regions. The application of outdoor
advertising regulations based on strict numbers may not be feasible but there
could certainly be more done in the regulatory sphere to fill the void between
the strict and precise regulations that apply to protect amenity and public safety
and the lucid strategies developed by local government around protecting the
public realm from commercialisation.
5.4 Tobacco Advertising
Despite tobaccos legality, its marketing has been regulated to the point where a
sort of negative marketing has become mandatory in many countries with all
packets of cigarettes required to carry messages and pictures explaining the
harm it causes. The requirement for these health warnings in Ireland was
brought in by regulation in 1991.104
I interpret these restrictions as an admission that marketing can coerce people
into consuming things that harm themselves for the benefit of the producer who
markets their products to them due to the commercial culture we live in.
Therefore, just like the children discussed above, the general population must
be deemed to be vulnerable to marketing if it’s deemed necessary to protect
adults from tobacco advertising.
A study in the US demonstrated that in-store tobacco advertising alone, in the
absence of advertising outdoors or through other media channels promoted pro-
smoking attitudes among youths.105 A Similar study in Australia proved that
mere point of sale displays contribute to smoking uptake among young-
people.106
While these studies only reinforce the vulnerability of young people its further
evidence of the power of advertising and consumer environments which
normalise the acquisition and use of products.
Irish legislation leaves no opportunity for confusion that outdoor advertising
along with any other form of advertising of tobacco is illegal and a criminal
offence stating that,
“Subject to sections 34 and 35, a person who advertises, or causes the
advertisement of, a tobacco product shall be guilty of an offence.”107 Those
104 Tobacco Products (Control of Advertising,Sponsorship and Sales Promotion) Regulations,
1991.S.I. No. 326/1991 S. 10(2)
105 L Henriksen et al ‘Effects on youth of exposure to retail advertising’(2002) 32(9) Journal of
Applied Social Psychology 1771-89.
106 M Wakefield D Germain S Durkin and L Henriksen “An experimental study of effects on
schoolchildren of exposure to point-of-salecigaretteadvertisingand pack displays”(2006) 21
Health Education Research 338-47
107 Public Health (Tobacco) Act, 2002, Number 6 of 2002,S. 33(1).

32
sections only provide for certain limited exemptions such as publications which
are distributed outside the state, only have a very small circulation and must
contain such advertisements for economic necessity108. In effect the rule is one
of zero-tolerance with no advertising allowed that can materially impact the
Irish public. The 2004 amendment provided for no effective relaxing of the
restrictions either.109
In Britain the regulations are broadly similar to Irelands. Most conspicuous
forms of tobacco advertising and promotion in the UK were banned following
the implementation of the Tobacco Advertising and Promotion Act 2002.110
The law was introduced incrementally with a ban on print media and billboard
advertising in February 2003, followed by direct marketing in May 2003 and
sponsorship within the UK in July 2003. Restrictions were placed on tobacco
advertising at the point of sale in December 2004. This limited the amount of
advertising allowed to a maximum space equivalent to the size of an A5
(21x15cm) piece of paper at the point of sale.111
European action is also in effect alongside these national regulations.
Convergence is occurring as all member states step up their regulations to the
standard that has been set by leaders such as Ireland, allowing the union to set
more effective requirements. Since European rules are set by convergence
rather than decree the latest European directive is an interesting barometer of
the consensus that is now in place and the severity of restrictions that are
deemed reasonable regarding the issue across its territory which now accounts
for the majority of Europe.
Section 24 of its latest directive calls for the implementation of pictorial health
warnings to bring regulation by the union in line with international
standards.112 The section also calls for action on misleading information to
complement the “unfair commercial practices directive”.113In fact, the
philosophy of this directive is interesting as it deals with all forms of unfair
business to consumer practices including advertising. It tackles two types of
behaviour which it sees as problematic: misleading and aggressive. Misleading
advertising is not what I’m seeking to address here but aggressive is a term that
I would apply to instances of high concentration of outdoor advertising.114
I think that this level of restriction, to the point that it can’t be advertised on the
vending machine that dispenses it behind the counter in a shop, offers an
interesting example of a philosophy that can help us better regulate the outdoor
advertising of all products.
108 Public Health (Tobacco) Act, 2002, Number 6 of 2002 S. 34 & 35
109 Public Health (Tobacco) (Amendment) Act 2004,Number 6 of 2004
110 Tobacco Advertisingand Promotion Act 2002 c. 36
111 Action for Smoking and Health “UK Tobacco Advertisingand Promotion” (Ash, 2012)
Factsheet 19,1.
112 Dir 2014/40/EU s. 24
113 Dir 2005/29/EC
114 Jeanne Kelly ‘All Changes to Sales Law’ (Mason Hayes and Curran 2007)

33
A causal relationship has been found between advertising and smoking uptake
among young people. This is due to identities promoted which certain
adolescents latch onto but not the actual fact that they can’t avoid seeing
tobacco advertisements.115This appears to contradict my argument that pure
volume of inescapable advertising cause’s problems as it seems that even
adolescents can filter out information in the free flow demanded by the free
market that they don’t want to be influenced by. However the study backs up
my idea that the identities images and culture promoted by advertising is
effective in the subconscious mind and thus problematic to society.
Referring back to the theory of capitalist realism, advertising creates images
and identities for consumers to buy in to in order to make advertising effective
whether they are targeting young or old. Bearing this in mind I think it’s time
for advertising regulation to take into account the susceptibility of the general
population to these techniques. While the link between advertising and young
married couples buying or wanting cars and houses that are beyond their means
might not be as strong as it is between advertising and youth smoking, I believe
it’s time for government regulation of advertising to take this concept into
account when they look at the volume of outdoor advertising forced upon their
citizens and the society this trend promotes.
Conceptualising Regulation
6.1 Introduction
So far this paper has profiled the problem surrounding outdoor advertising, the
regime of control that exists in Dublin, similar studies undertaken in other parts
of the world, the legislative background affecting the issue, the wider free
speech issue and examples of related regulatory regimes that have dealt with
the same constitutional issue. The comparative approach has played a key role
in fleshing out the issue to the point where I am now well placed to explain the
forces and processes at work in this domain of regulation.
The conflict between commercial free speech and regulation plays itself out in
a variety of spheres. We can look at the problem more generally as one of land
use. Mandelker found that the most important change brought about by the free
speech revolution in land use control was how it altered the distribution of
power.116Looking more specifically at outdoor advertising, the same
distribution of power can be seen if we analyse it the same way.
My analysis so far has found a range of instances where commercial free
speech is restricted while isolating the void in the law where it isn’t. This paper
has found that commercial free speech may be restricted in respect to
competition, libel, time manner or place, vulnerability of the target audience,
115 Lios Biener & Michael B. Siegel ‘Tobacco marketing and adolescentsmoking: more support
for a causal Inference’(2000) 90(3) Am J Public Health,40.

34
the product advertised, public physical safety and amenity. This doesn’t
recognise the social harm of commercialised public discourse.
Failure by regulators to recognise that large volumes or concentration of
outdoor advertising does the harm to society that social science literature has
proved leading me to believe that governments are reluctant to regulate the
issue.
6.2 Regulation by Contract
The concept of the market has been continuously discussed throughout this
paper. A regulatory concept strongly related to this economic and social
concept is known as “contractual regulation” or “regulation by contract”.
Scott notes that in some spheres businesses have become the de-facto
regulators of the public sector, an “inversion of traditional relationships” with
even central government exposed to private regulation through credit rating
agencies. He explains the use of contracts by businesses to dictate norms to
people in a variety of ways such as insurance companies regulating the
behaviour of people, businesses and government through the premiums they
set.117
This is a product of the markets role in modern-day regulation. Another
example offered is the controlling of parking through market forces where
parking space is usually close to full but there is still space for new arrivals due
to the application of charges.118 This brings the market element of contractual
regulation into sharp focus.
The market can’t control outdoor advertising to the point where suitable space
is almost totally used but there is still space for new advertisers. Rather it
demands unlimited space for advertising in the free flow of information that
allows it to function most efficiently. Theoretically governments could apply
market forces in a similar manner to parking charges by renting space at a price
which maintains a reasonable concentration of advertising but governments
don’t control the market when big corporations are involved. This can be
viewed as a philosophical decision in keeping with capitalism but the example
of Dublin Bikes shows that such regulation isn’t necessarily in their interests
due to their diminished bargaining power.
Debande & Drumaux analyse the mechanics of the concept in relation to the
internal dynamics of private and public enterprises but still introduce their
argument with a discussion of property endowment in the public and private
sector.
“Fundamentally, the debate on the relative shares of public and private
property is not closed in most European countries. Nevertheless the early 80s
saw the “pilot” development of privatization programmes, and the decade of
117 Colin Scott ‘Regulating Everything’ (2008) UCD Geary Institute Discussion Paper Series;
WP/24/2008,17-8.
118 Ibid.20

35
the 90s has been marked by property transfers from the public to the private
sector.”119
Contractual regulation is not only a means of improving internal processes in
enterprise but also accounts for a transfer of power from the traditionally less
efficient or market driven public to private sector. The strength of private
interests which can be attributed to endowment of capital, are wielding control
over the public and acquiring property. This can be conceptualized as
privatisation and viewed through the medium of the outdoor advertising
landscape.
Radin applies the theory to replacing state law with the law of the firm through
“money now terms later” forms of regulation exemplified by modern day
“click wrap” or older “shrink wrap” contracts where the consumer effectively
agrees to the terms upon using the product or service.120
This is how corporations set norms through the exchange of money in the
market. They hold the same power over governments. In this discussion of a
hypothetical wold where such contracts are the norm and drafted by machines
superseding regulation of conduct by government instruments, Radin mentions
that, “The darker, non-ideal view of democratic politics views legislation as
purchased by firms and interest groups -through lobbying, campaign
contributions and sometimes bribes. Legislation represents regulation desired
by one firm for its own benefit, and purchased by that firm, or else instantiates
deals struck by interest groups among themselves for their own benefit, whose
enactment is purchased by the group.”121
What I have found in this paper in relation to outdoor advertising does little to
discredit this view. Protagonists of the view can point to Ireland’s corporate tax
law as highly suspect.
Corporations are so endowed in comparison to states that they are better
equipped to address certain collective action problems. The privatisation of
public space and commercialisation of discourse is a necessary evil if the
government wants to provide adequate services in this public space. This all
ties in nicely to the case of “Dublin Bikes”.
6.3 “Dublin Bikes”
Public space is now caught up in the free market to the extent that the provision
of services is increasingly dependent on commercial funding. That public space
would be auctioned off on the market so governments can provide services to
people might seem ludicrous but in Dublin a clear example exists in “Dublin
Bikes”.
119 Oliver Debande & Anne Drumaux ‘Critical Analysisof Contractual Regulation Mechanisms:
An Organizational Approach’(1996) 25(4) Journal of Socio-Economics 454.
120 Margaret Jane Radin ‘Regulation by Contract, Regulation by Machine’(2004) 160 JITE, 2.
121 Ibid.13

36
“Dublin Bikes” sets a precedent that is so heavily tied up in outdoor advertising
that it is operated by industry giant JCDecaux in return for advertising space.
The company also provide wayfinding signage as part of an appointment by
Dublin City Council to provide amenity in the city. The company already had a
stake in the cities public transport infrastructure having been awarded the first
Luas advertising contract in 2004.122
In essence Dublin City Council have sold space to an advertising corporation in
return for the provision of infrastructure which isn’t their primary area of
expertise. The “Dublin Bikes” scheme shows us how governments can trade
space for capitalist realism in the crowded urban landscape in order to realise
the provision of important public service.
What’s interesting in the case of Dublin is that the contract tendered was for
the provision of amenities in general123and didn’t necessitate a bike sharing
scheme. That the winning tender included this service was a norm set by the
advertising company illuminating an interesting relationship of bargaining
power between public and private.
The equivalent publically funded scheme in London124shows us a more
traditional alternative to this collective action problem and highlights the
importance of the service to the public.
These are the two funding models that are generally used throughout Europe to
provide bike sharing schemes and Dublin isn’t alone in using the advertising
model.125 This shows how integral outdoor advertising is in city life as
acknowledged in the civic sphere.
Recent expansion has been completely funded by revenue with Coca-Cola
coming on board as title sponsor of “Coca-Cola Zero dublinbikes” in
2014.126JCDecaux Ireland’s Managing Director cited the unfeasibility of
acquiring the necessary amount of advertising space to adequately fund the
expansion as reason for this.127
This suggests a modicum of restraint from the parties involved towards
commercialising the public realm any further. However a report on ways of
funding the expansion pointed out the lack of money available in the market to
spend on outdoor advertising and suggested that attempting to fund the scheme
122 JCDecaux ‘JCDecaux Ireland’(2015) <http://www.jcdecaux.ie/about-jcdecaux/jcdecaux-
ireland/>Accessed: 26 July 2015
123KPMG “Proposals for IntroducingPublic BikeSchemes in Regional Cities”(2011)
http://www.nationaltransport.ie/downloads/Summary-Bike-Scheme-Commercial-Report.pdf
Accessed 15 July 2015, 7.
124 Ibid.
125 Ibid.
126 JCDecaux “Coca-Cola Zero partners with dublinbikes”(2014)
<http://www.dublinbikes.ie/Magazine/News/Coca-Cola-Zero-partners-with-dublinbikes>
Accesed: 15 July 2015
127 Siobhan Brett ‘INTERVIEW: Joanne Grant of JCDecaux Ireland’
<http://www.businesspost.ie/#!story/Home/News/INTERVIEW%3A+Joanne+Grant+of+JCDec
aux+Ireland/id/87198161-2385-2a70-00a0-db6626122423>Accessed 2 August 2015

37
through providing more outdoor advertising space would be unlikely to be
successful or may take advertising revenue away from other sources such as
bus shelters128.
7. Conclusion
My analysis of the regulation of commercial free speech in relation to outdoor
advertising has found that the law fails to acknowledge the social harm of
commercialising public space although it adequately addresses the effect of the
physical structures on amenity and safety. Although it isn’t quite as protected
as political speech, freedom of expression protects absolutely commercial
speech to a very significant extent. Aside from restrictions applied to
advertising harmful products, freedom of expression is content neutral so
regulation can only restrict the time, manner and place of the expression to the
minimum extent necessary to satisfy legitimate government interests. If the
trend of privatisation continues then there is little in the law to restrict the
commercialisation of discourse and societal values.
There are two conclusions that can be drawn from my findings. One is that
commercially driven public discourse is currently a blind spot for the law
which has failed to catch up with global trends of privatisation and
commercialisation under capitalism. This topic has touched on a variety of
different legal areas such as planning, property, advertising, consumer, contract
and constitutional. While commercial and corporate law has developed rapidly
over this time it seems that there isn’t a niche in the law that mediates between
the interests of corporations and the public.
The other conclusion that can be drawn is that under the current social order,
corporation’s grip on society now extends into the regulatory sphere where
they are able to supersede governments in setting norms and shaping society
due to their endowment of wealth. Money is power and the theory of
contractual regulation conceptualises how this wealth allows corporations to
pursue their interests on terms that are more to their liking. Trends of self-
regulation show how control of outdoor advertising and related corporate
interests are moving away from the law of the state towards the law of the
market which is becoming increasingly influential in regulating behaviour.
128 KPMG (n. 118)

38
Bibliography
Adams A.A & McCrindle R.J, Pandora’s Box: Social and Professional Issues
of the Information Age (Wiley 2008)
Action for Smoking and Health “UK Tobacco Advertising and Promotion”
(Ash, 2012) Factsheet 19.
Advertising Standards Authority of Ireland ‘ASAI Code-Children’
<http://www.asai.ie/asai-code/children/> Accessed 22 July 2015
Biener L. & Siegel M.B, ‘Tobacco marketing and adolescent smoking: more
support for a causal Inference’ (2000) 90(3) Am J Public Health, 40.
Brett S, ‘Interview: Joanne Grant of JCDecaux Ireland’ (2015)
<http://www.businesspost.ie/#!story/Home/News/INTERVIEW%3A+Joanne+
Grant+of+JCDecaux+Ireland/id/87198161-2385-2a70-00a0-db6626122423>
Accessed 2 August 2015

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