Private Law Theory

ABSTRACT
Despite this plethora of accounts, certain aspects of the liaison between fundamental rights and private law are still a riddle. One such area is the relationship between consumer protection and freedom of expression. In an interesting turn of events, three high courts on either side of the Atlantic grappled with this problem almost in parallel. First came the Supreme Court of the United States judgment in Masterpiece Cakeshop v Colorado Civil Rights Commission of 4 June 2018 , which was followed closely by the Supreme Court of Poland judgment in National Public Prosecutor’s Office v AJ (known commonly as the “printer from Łódź case”) of 14 June 2018 and by the Supreme Court of the United Kingdom decision in Lee v Ashers Baking Company Ltd and others of 10 October 2018. All these decisions addressed the same pivotal question: To what extent may the freedom to express one’s moral or religious attitudes interfere with the obligation to enter into or perform on an agreement? But despite these parallels, each judgment developed a different argument about the juxtaposition of freedom of expression, consumer protection and market liberty. The following remarks delve into the nature of both the parallels and the dissimilarities to explore some overarching ramifications of these decisions for fundamental rights and consumer law. In so doing, the paper builds a ‘missing link’ between freedom of speech and consumer law in order to proceed towards a few key questions: How does freedom of speech – as a consumer value – intertwine with freedom of contract? What impact may a balance struck between the consumer’s and the professional’s free expression have on freedom of contract? In particular, is free expression a permissible justification for selecting only particular consumers as contracting partners while rejecting others? In conclusion, the text introduces and develops the concept of a ‘public duty’ on the part of the professional to enter contracts with consumers without speech-based discriminatory patterns.

Grochowski, Mateusz, Freedom of Speech, Consumer Protection and the Duty to Contract (July 13, 2023) in Ch Mak and B Kas (eds), Civil Courts and the European Polity. The Constitutional Role of Private Law Adjudication in Europe, Oxford: Hart Publishing 2023, 123–138.