When advertising is no longer public

I'm a shopkeeper and my local authority has just adopted a bylaw banning private advertising in the public domain. My posters featuring vegetables and my slogan «unbeatable since 1998» are now part of local folklore, but I've discovered that they're no longer welcome. I'm dismayed by this regulation - can it be challenged?

V.

Swiss law, the public domain belongs to the community, which can regulate its use. Commercial advertising is not a right, but simply a possibility granted under certain conditions. However, if a local authority decides to put an end to it, it must respect the Constitution, in particular economic freedom. To be admissible, the measure must have a legal basis, pursue a public interest and remain proportionate.

Swiss Federal Supreme Court

In a recent ruling concerning a Geneva municipality, the Federal Court examined a general ban on commercial signage in the form of an abstract review, i.e. a verification of the standard as such, without any concrete case of application. It ruled that the ban was based on legitimate objectives, such as protecting the urban landscape, reducing advertising pressure and environmental considerations. Above all, it pointed out that local authorities have a wide margin for manoeuvre when it comes to organising their public domain.

The by-law you mention is probably in line with this logic if it extends the ban to all advertising on behalf of third parties on the public domain and reserves the remaining media for non-commercial uses, in particular cultural, educational or associative uses. In other words, commercial advertising may disappear, but communication of general interest remains permitted, as if the Commune were transforming advertising hoardings into informative billboards.

In your situation, these regulations can obviously have a direct impact on your visibility. However, from a legal point of view, it has a good chance of holding up if it has a clear legal basis, pursues a recognised public interest and leaves open other means of promotion, such as shop windows, private signs, the internet and social networks. This is precisely what convinced the Federal Court in an almost identical case.

In conclusion, although this ban may seem harsh for retailers, it is generally in line with Swiss law: on public property, advertising is not at home, it is only invited... and sometimes asked to leave.

Read Pascal Rytz's columns on the Tribune de Genève