Free economic initiative is restricted with prohibition of acts of unfair competition. Shock advertising represents the latter since in the terms of competition law, it opposes best commercial practices as the most important element of general clause. It has plenty of characteristics that do not represent an act of unfair competition on its own. The qualification of shocking advertising as an act of unfair competition, by which it opposes best commercial practices is characterized by two crucial features: the use of consumer’s feelings, where the shock quality is relevant, and lack of relation with the product being advertised. When assessing the advertisements, it is important not only to consider the interests of the competitors, but also the interest of the consumer and the wider public.
Shock advertising cannot be approached solely from the perspective of competition law. Constitutional rights in the field of communication, especially freedom of expression, must be also taken into an account as well. Slovenian Constitutional court, as well as European Court of Human Rights, supreme courts of Canada and of the United States of America, grant this right also to legal entities in regards to advertising. By analyzing the constitutional law and jurisprudence we can conclude that freedom of expression is broader than free economic initiative and its restrictions. Constitutional rights are projected in competition law by influencing the rights of third parties. That is why with shock advertising, a possible clash with rights of the third parties or public order must be deliberated in each separate case and if one exists, how does it affect recognition of the right to freedom of expression.
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