Information Note on the Court’s case-law 38
January 2002
Hertel v. Switzerland (dec.) - 53440/99
Decision 17.1.2002 [Section III]
Article 10
Article 10-1
Freedom of expression
Prohibition on making statements to general public on dangers to health of microwave ovens, allegedly scientifically proved, without referring to current differences of opinion: inadmissible
The applicant carried out research into the effects on human beings of the consumption of food cooked in microwave ovens and published a study where he concluded that following consumption of microwaved food a change in the blood was perceptible which seemed comparable to the initial stage of cancer. Subsequently, an article based on the study and including it was published in a periodical. The article was entitled “Microwave ovens: a health hazard. Irrefutable scientific evidence” and the illustration on the cover page of the issue represented the grim reaper with a microwave oven. In March 1993, following an application lodged by the Swiss Association of Manufacturers and Suppliers of Household Electrical Appliances (MHEA), the Commercial Court issued an injunction under the Unfair Competition Act, prohibiting the applicant from making public statements that food cooked in microwave ovens was a danger to health in that it was carcinogenic. The injunction was confirmed by the Federal Court in February 1994. On 25 August 1998, in relation to a first application lodged with the Convention organs by the applicant, the Court found that the injunction in issue constituted a breach of Article 10. In October 1998 the applicant applied to the Federal Court notably for the reopening and annulment of its judgment of February 1994. In a judgment of March 1999 the Federal Court held that the applicant was prohibited only from making statements to the general public whereby dangerous effects of microwaved food were presented as scientifically proved without mention of current differences of opinion. It also prohibited the applicant from using in publications or public lectures any symbols of death. It added that he was not prevented from taking part in the debate on the effects on health of the consumption of food cooked in microwave ovens and that he was free to express his views, provided that he did not do so in statements addressed to the general public in such a way as to convey the false impression that they reflected scientifically proved findings.
Inadmissible under Article 10: The impugned injunction prohibited the applicant from making statements to the general public that the dangers of microwave ovens were scientifically proved without referring to current differences of opinion and also from using symbols of death in relation to the issue. It constituted an interference with the applicant’s freedom of expression. In its previous judgment, the Court found that the injunction was prescribed by law, namely by the Unfair Competition Act, and that it pursued the legitimate aim of protection of the rights of others. It remained to be determined whether the interference was necessary in a democratic society. The applicant’s freedom of expression had to be balanced against the need to protect the rights of the members of the MHEA. First had to be considered the seriousness of the interference with the applicant’s rights. The injunction resulting from the Federal Court’s judgment of March 1999 no longer prevented him from generally disseminating his views, but required him to make reference to “current differences of opinion” when referring to scientifically proved results in statements to the general public. This limitation of his right was a minor one, as it no longer affected substantially his ability to put forward his views to the general public. The injunction prohibited the applicant from using the grim reaper as a symbol associated to his views against microwave ovens. However, considering that the applicant submitted that he was not responsible for the use of this symbol in the journal, the restriction it constituted was of a limited nature. As regards the interests of the MHEA, the association had a legitimate interest in having fair competition ensured. It did not appear unreasonable to hold, as the Federal Court did in its judgment of March 1999, that the obligation to refer to current differences of opinion served to prevent inaccurate, misleading or unnecessarily damaging and unfair statements with regard to the competitive position of the MHEA. Having regard to the care with which the Federal Court balanced the various interests in its judgment of March 1999, the interference with the applicant’s rights appeared to be proportionate to the aims pursued and could reasonably be considered necessary in a democratic society: manifestly ill-founded.
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